The earliest of these first codifications was the Lex Salica, codified under Clovis near the year 500. Unquestionably, contact with Roman institutions suggested the idea, even as the Latin language was the vehicle, of this code. Otherwise the Lex Salica is un-Christian and un-Roman, although probably it was put together after Clovis’s baptism. It was not a comprehensive codification, and omitted much that was common knowledge at the time; which now makes it somewhat enigmatical. One finds in it lists of thefts of every sort of object that might be stolen, and of the various injuries to the person that might be done, and the sum of money to be paid in each case as atonement or compensation. Such schedules did not set light store on life and property. On the contrary, they were earnestly intended as the most available protection of elemental human rights, and as the best method of peaceful redress. The sums awarded as Wergeld were large, and were reckoned according to the slain man’s rank. By committing a homicide, a man might ruin himself and even his blood relatives (Sippe) and of course on failure to atone might incur servitude or death or outlawry.
The Salic law is scarcely touched by the law of Rome. From this piece of intact Teutonism the codes of other Teuton peoples shade off into bodies of law partially Romanized, that is, affected by the provincialized Roman law current in the locality where the Teutonic tribe found a home. The codes of the Burgundians and the Visigoths in southern France are examples of this Teutonic-Romanesque commingling. On the other hand, the Lombard codes, though later in time, held themselves even harshly Teutonic, as opposed to any influence from the law of the conquered Italian population, for whom the Lombards had less regard than Burgundians and Visigoths had for their subject provincials. Moreover, as the Frankish realm extended its power over other Gallo-Teuton states, the various Teuton laws modified each other and tended toward uniformity. Naturally the law of the Franks, first the Salic and then the partly derivative Ribuarian code, exerted a dominating influence.[368]
These Teuton peoples regarded law as pertaining to the tribe. There was little conscious intention on their part of forcing their laws on the conquered. When the Visigoths established their kingdom in southern France they had no idea of changing the law of the Gallo-Roman provincials living within the Visigothic rule; and shortly afterwards, when the Franks extended their power over the still Roman parts of Gaul, and then over Alemanni, Burgundians, and Visigoths, they likewise had no thought of forcing their laws either upon Gallo-Romans or upon the Teuton people previously dominant within a given territory. This remained true even of the later Frankish period, when the Carolingians conquered the Lombard kingdom in upper Italy.
Indeed, to all these Teutons and to the Roman provincials as well, it seemed as a matter of course that tribal or local laws should be permitted to endure among the peoples they belonged to. These assumptions and the conditions of the growing Frankish Empire evoked, as it were, a more acute mobilization of the principle that to each people belonged its law. For provincials and Teuton peoples were mingling throughout the Frankish realm, and the first obvious solution of the legal problems arising was to hold that provincials and Teutons everywhere should remain amenable and entitled to their own law, which was assumed to attend them as a personal appurtenance. Of course this solution became intolerable as tribal blood and delimitations were obscured, and men moved about through the territories of one great realm. Archbishop Agobard of Lyons remarks that one might see five men sitting together, each amenable to a different law.[369] The escape from this legal confusion was to revert to the idea of law and custom as applying to every one within a given territory. The personal principle gradually gave way to this conception in the course of the ninth, tenth, and eleventh centuries.[370] In the meanwhile during the Merovingian, and more potently in the Carolingian period, king’s law, as distinguished from people’s law, had been an influence making for legal uniformity throughout that wide conglomerate empire which acknowledged the authority of the Frankish king or emperor. The king’s law might emanate from the delegated authority, and arise from the practices, of royal functionaries; it was most formally promulgated in Capitularies, which with Charlemagne reach such volume and importance. Some of these royal ordinances related to a town or district only. Others were for the realm, and the latter not only were instances of law applying universally, but also tended to promote, or suggest, the harmonizing of laws which they did not modify directly.
III
The Roman law always existed in the Middle Ages. Provincialized and changed, it was interwoven in the law and custom of the land of the langue d’oc and even in the customary law of the lands where the langue d’oil was spoken. Through the same territory it existed also in the Breviarium and its epitomes. There was very little of it in England, and scarcely a trace in the Germany east of the Rhine. In Italy it was applied when not superseded by the Lombard codes, and was drawn from works based on the Codex and Novels of Justinian. But the jurisprudential law contained in Justinian’s Digest was as well forgotten in Italy as in any land north of the Alps, where the Codification of Justinian had never been promulgated. The extent to which the classic forms of Roman law were known or unknown, unforgotten or forgotten, was no accident as of codices or other writings lost accidentally. It hung upon larger conditions—whether society had reached that stage of civilized exigency demanding the application of an advanced commercial law, and whether there were men capable of understanding and applying it. This need and the capacity to understand would be closely joined.[371]
The history of the knowledge and understanding of Roman law in the Middle Ages might be resolved into a consideration of the sources drawn upon, and the extent and manner of their use, from century to century. In the fifth century, when the Theodosian Code was promulgated, law was thought of chiefly as the mandate of a ruler. The Theodosian Code was composed of constitutiones principum. Likewise the Breviarium, based upon it, and other barbarian codes of Roman law, were ordained by kings; and so were the codes of Teutonic law. For law, men looked directly to the visible ruler. The jus, reasoned out by the wisdom of trained jurists, had lost authority and interest. To be sure, a hundred years later Justinian’s Commission put together in the Digest the body of jurisprudential law; but even in Italy where his codification was promulgated, the Digest fell still-born. Never was an official compilation of less effect upon its own time, or of such mighty import for times to come.
The Breviarium became par excellence the code of Roman law for the countries included in the present France. With its accompanying Interpretatio it was a work indicating intelligence on the part of its compilers, whose chief care was as to arrangement and explanation. But the time was not progressive, and a gathering mental decadence was shown by the manner in which the Breviarium was treated and used, to wit, epitomized in many epitomes, and practically superseded by them. Here was double evidence of decay; for the supersession of such a work by such epitomes indicates a diminishing legal knowledge in the epitomizers, and also a narrowing of social and commercial needs in the community, for which the original work contained much that was no longer useful.
There were, of course, epitomes and epitomes. Such a work as the Epitome Juliani, in which a good Byzantine lawyer of Justinian’s time presented the substance of the Novellae, was an excellent compendium, and deserved the fame it won. Of a lower order were the later manipulations of Justinian’s Codex, by which apparently the Codex was superseded in Italy. One of these was the Summa Perusina of the ninth or tenth century, a wretched work, and one of the blindest.[372]
Justinian’s Codex and Julian’s Epitome were equipped with glosses, some of which are as early as Justinian’s time; but the greater part are later. The glosses to Justinian’s legislation resemble those of the Breviarium before referred to. That is to say, as the centuries pass downward toward the tenth, the glosses answer to cruder needs: they become largely translations of words, often taken from Isidore’s Etymologiae.[373] Indeed many of them appear to have had merely a grammatical interest, as if the text was used as an aid in the study of the Latin language.