Sometimes the Petrus seems to draw a general rule of law from the apparent instances of its application in Justinian’s Codification. Therein certain formalities were prescribed in making a testament, in adopting a son, or emancipating a slave. The Petrus draws from them the general principle that where the law prescribes formalities, the transaction is not valid if they are omitted.[382] In fine, unsystematized as is the arrangement of topics, the work presents an advance in legal intelligence over mediaeval law-writings earlier than the middle of the eleventh century.
If the Petrus was adapted for use in practice, the Brachylogus, on the other hand, was plainly a book of elementary instruction, formed on the model of Justinian’s Institutes. But it made use of his entire codification, the Novels, however, only as condensed in Julian’s Epitome. The influence of the Breviarium is also noticeable; which might lead one to think that the treatise was written in Orleans or the neighbourhood, since the Breviarium was not in use in Italy, while the Codification of Justinian was known in France by the end of the eleventh century. The beginning of the twelfth is the date usually given to the Brachylogus. It does not belong to the Bologna school of glossators, but rather immediately precedes them, wherever it was composed.[383]
The Brachylogus, as a book of Institutes, compares favourably with its model, from the language of which it departed at will. Both works are divided into four libri; but the libri of the Brachylogus correspond better to the logical divisions of the law. Again, frequently the author of the Brachylogus breaks up the chapters of Justinian’s Institutes and gives the subject-matter under more pertinent headings. Sometimes the statements of the older work are improved by rearrangement. The definitions of the Brachylogus are pithy and concise, even to a fault. Often the exposition is well adapted to the purposes of an elementary text-book,[384] which was meant to be supplemented by oral instruction. On the whole, the work shows that the author is no longer encumbered by the mass or by the advanced character of his sources. He restates their substance intelligently, and thinks for himself. He is no compiler, and his work has reached the rank of a treatise.
The merits of the Brachylogus as an elementary text-book are surpassed by those of the so-called Summa Codicis Irnerii, a book which may mark the beginning of the Bologna school of law, and may even be the composition of its founder. Many arguments are adduced for this authorship.[385] The book has otherwise been deemed a production of the last days of the school of law at Rome just before the school was broken up by some catastrophe as to which there is little information. In that case the work would belong to the closing years of the eleventh century, whereas the authorship of Irnerius would bring it to the beginning of the twelfth. At all events, its lucid jurisprudential reasoning precludes the likelihood of an earlier origin.
This Summa is an exposition of Roman law, following the arrangement and titles of Justinian’s Codex, but making extensive use of the Digest. It thus contains Roman jurisprudential law, and may be regarded as a compendious text-book for law students, forming apparently the basis of a course of lectures which treated the topics more at length.[386] The author’s command of his material is admirable, and his presentation masterly. Whether he was Irnerius or some one else, he was a great teacher. His work may be also called academic, in that his standpoint is always that of the Justinianean law, although he limits his exposition to those topics which had living interest for the twelfth century. Private substantial law forms the chief matter, but procedure is set forth and penal law touched upon. The author appreciates the historical development of the Roman law and the character of its various sources—praetorian law, constitutiones principum, and responsa prudentium. He also shows independence, and a regard for legal reasoning and the demands of justice. While he sets forth the jus civile, his exposition and approval follow the dictates of the jus naturale.
“The established laws are to be understood benignly, so as to preserve their spirit, and prevent their departure from equity; for the Judge recognizes ordainments as legitimate when they conform to the principles of justice (ratio equitatis).... Interpretation is sometimes general and imperative, as when the lawgiver declares it: then it must be applied not only to the matter for which it is announced, but in all like cases. Sometimes an interpretation is imperative, but only for the special case, like the interpretation which is declared by those adjudicating a cause. It is then to be accepted in that cause, but not in like instances; for not by precedents, but by the laws are matters to be adjusted. There is another kind of interpretation which binds no one, that made by teachers explaining an ambiguous law, for although it may be admissible because sound, still it compels no one. For every interpretation should so be made as not to depart from justice, and that all absurdity may be avoided and no door opened to fraud.”[387]
One must suppose that such concise statements were explained and qualified in the author’s lectures. But even as they stand, they afford an exposition of Roman principles of interpretation. Not only under the Roman Empire, but subsequently in mediaeval times, the Roman lawyer or the canonist did not pay the deference to adjudicated precedent which is felt by the English or American judge. The passage in the Codex which “Irnerius” was expounding commands that the judge, in deciding a case, shall follow the laws and the reasoning of the great jurists, rather than the decision of a like controversy.
Since the author of this Summa weighs the justice, the reason, and the convenience of the laws, and compares them with each other, his book is a work of jurisprudence. Its qualities may be observed in its discussion of possession and the rights arising therefrom. The writer has just been expounding the usucapio, an institution of the jus civile strictly speaking, whereby the law of Rome in certain instances protected and, after three years, perfected, the title to property which one had in good faith acquired from a vendor who was not the owner:
“Now we must discuss the ratio possessionis. Usucapio in the jus civile hinges on possession, and ownership by the jus naturale may take its origin in possession. There are many differences in the ways of acquiring possession, which must be considered. And since in the constitutiones and responsa prudentium divers reasons are adduced regarding possession, my associates have begged that I would expound this important and obscure subject in which is mingled the ratio both of the civil and the natural law. So I will do my best. First one must consider what possession is, how it is acquired, maintained, or lost. Possession (here the author follows Paulus and Labeo in the Digest) is as when one’s feet are set upon a thing, when body naturally rests on body. To acquire possession is to begin to possess. Herein one considers both the fact and the right. The fact arises through ourselves or our representative. It is understood differently as to movables and as to land; for the movable we take in our hand, but we take possession of a farm by going upon it with this intent and laying hold of a sod. The intent to possess is crucial. Thus a ring put in the hand of a sleeper is not possessed for lack of intent on his part. You possess naturally when with mind and body (yours or another’s who represents you) you hold or sit upon with intent to possess. Corporeal things you properly possess, and acquire possession of, by your own or your agent’s hand. In the same manner you retain. Incorporeal things cannot be possessed properly speaking, but the civil law accords a quasi possession of them.”
Then follows a discussion of the persons through whom another may have possession, and of the various modes of possessing longa manu without actual touch: