[129] v. 213.
Decline of jurists after Accursius. 73. This great compilation of Accursius made an epoch in the annals of jurisprudence. It put an end in great measure to the oral explanations of lecturers which had prevailed before. It restrained at the same time the ingenuity of interpretation. The glossers became the sole authorities so that it grew into a maxim,—No one can go wrong who follows a gloss: and some said, a gloss was worth a hundred texts.[130] In fact, the original was continually unintelligible to a student. But this was accompanied, according to the distinguished historian of mediæval jurisprudence, by a decline of the science. The jurists in the latter part of the thirteenth century are far inferior to the school of Irnerius. It might be possible to seek a general cause, as men are now always prone to do, in the loss of self-government in many of the Italian republics. But Savigny, superior to this affectation of philosophy, admits that this is neither a cause adequate in itself, nor chronologically parallel to the decline of jurisprudence. We must therefore look upon it as one of those revolutions, so ordinary and so unaccountable, in the history of literature, where, after a period fertile in men of great talents, there ensues, perhaps with no unfavourable change in the diffusion of knowledge, a pause in that natural fecundity, without which all our endeavours to check a retrograde movement of the human mind will be of no avail. The successors of Accursius in the thirteenth century contented themselves with an implicit deference to the glosses; but this is rather a proof of their inferiority than its cause.[131]
[130] Bayle, ubi suprà. Eichhorn, Gesch. der Litteratur, ii. 461. Savigny, v. 268.
[131] Savigny, v. 320.
Respect paid to him at Bologna. 74. It has been the peculiar fortune of Accursius, that his name has always stood in a representative capacity, to engross the praise, or sustain the blame, of the great body of glossers from whom he compiled. One of those proofs of national gratitude and veneration was paid to his memory, which it is the more pleasing to recount, that, from the fickleness and insensibility of mankind, they do not very frequently occur. The city of Bologna was divided into the factions of Lambertazzi and Gieremei. The former, who were Ghibelins, having been wholly overthrown, and excluded, according to the practice of Italian republics, from all civil power, a law was made in 1306, that the family of Accursius, who had been on the vanquished side, should enjoy all the privileges of the victorious Guelf party, in regard to the memory of one “by whose means the city had been frequented by students, and its fame had been spread through the whole world.”[132]
[132] Ib. v. 268.
Scholastic jurists. Bartolus. 75. In the next century a new race of lawyers arose, who, by a different species of talent, almost eclipsed the greatest of their predecessors. These have been called the scholastic jurists, the glory of the schoolmen having excited an emulous desire to apply their dialectic methods in jurisprudence.[133] Of these the most conspicuous were Bartolus and Baldus, especially the former, whose authority became still higher than that of the Accursian glossers. Yet Bartolus, if we may believe Eichhorn, content with the glosses, did not trouble himself about the text, which he was too ignorant of Roman antiquity, and even of the Latin language, unless he is much belied, to expound.[134] “He is so fond of distinctions,” says Gravina, “that he does not divide his subject, but breaks it to pieces, so that the fragments are, as it were, dispersed by the wind. But, whatever harm he might do to the just interpretation of the Roman law as a positive code, he was highly useful to the practical lawyer by the number of cases his fertile mind anticipated; for though many of these were unlikely to occur, yet his copiousness and subtlety of distinction is such that he seldom leaves those who consult him quite at a loss.”[135] Savigny, who rates Bartolus much below the older lawyers, gives him credit for original thoughts, to which his acquaintance with the practical exercise of justice gave rise. The older jurists were chiefly professors of legal science, rather than conversant with forensic causes; and this has produced an opposition between theory and practice in the Roman law, to which we have not much analogous in our own, but the remains of which are said to be still discernible in the continental jurisprudence.[136]
[133] The employment of logical forms in law is not new; instances of it may be found in the earlier jurists. Savigny, v. 330; vi. 6.
[134] Gesch. der Litteratur, ii. 449. Bartolus even said, de verbibus non curat jurisconsultus. Eichhorn gives no authority for this, but Meiners, from whom perhaps he took it, quotes Comnenus, Historia Archigymnasii Patavini. Vergleichung der Sitten, ii. 646. It seems, however, incredible.
[135] Origines Juris, p. 191.