“It is one thing when the possession begins with you, and another when it is transferred to you by a prior possessor: for possession begins in three ways, by occupation, accession, and transfer. You occupy the thing that belongs to no one. By accession you acquire possession in two ways. Thus the increment may be possessed, as the fruit of thy handmaid; or the accession consists in the union with a larger thing which is yours, as when alluvium is deposited on your land. Again possession is transferred to you,”
voluntarily or otherwise. He now discusses the various modes in which possession is acquired by transfer, then the nature of the justa or injusta causa with which possession may begin, and the effect on the rights of the possessor, and then some matters more peculiar to the time of Justinian. After which he passes to the loss of possession, and concludes with saying that he has endeavoured to go over the whole subject, and whatever is omitted or insufficiently treated, he begs that it be laid to the fault of humanae imbecillitatis. The discussion reads like a carefully drawn outline which his lecture should expand.[388]
The knowledge and understanding of the Roman law in the mediaeval centuries should be viewed in conjunction with the general progress of intellectual aptitude during the same periods. The growth of legal knowledge will then show itself as a part of mediaeval development, as one phase of the flowering of the mediaeval intellect. For the treatment of Roman law presents stages essentially analogous to those by which the Middle Ages reached their understanding and appropriation of other portions of their great inheritance from classical antiquity and the Christianity of the Fathers. Let us recapitulate: the Roman law, adapted, or corrupted if one will, epitomized and known chiefly in its later enacted forms, was never unapplied nor the study of it quite abandoned. It constituted a great part of the law of Italy and southern France; in these two regions likewise was its study least neglected. We have observed the superficial and mainly linguistic nature of the glosses which this early mediaeval period interlined or wrote on the margins of the source-books drawn upon, also the rude and barbarous nature of the earlier summaries and compilations. They were helps to a crude practical knowledge of the law. Gradually the treatment seems to become more intelligent, a little nearer the level of the matter excerpted or made use of. Through the eleventh century it is evident that social conditions were demanding and also facilitating an increase in legal knowledge; and at that century’s close a by no means stupid compilation appears, the Petri exceptiones, and perhaps such a fairly intelligent manual for elementary instruction as the Brachylogus. These works indicate that the instruction in the law was improving. We have also the sparse references to schools of law, at Rome, at Ravenna, at Orleans. Then we come upon the Summa Codicis called of Irnerius, of uncertain provenance, like the Petrus and Brachylogus. But there is no need to be informed specifically of its place and date in order to recognize its advance in legal intelligence, in veritable jurisprudence. The writer was a master of the law, an adept in its exposition, and his oral teaching must have been of a high order. With this book we have unquestionably touched the level of the strong beginnings of the greatest of mediaeval schools of Roman law.
Its seat was Bologna, one of the chief centres of the civic and commercial life of Lombardy. The Lombards themselves had shown a persistent legal genius: their own Teutonic codes, enacted in Italy, had maintained themselves in that land of Roman law and custom. Lombard codification had almost reached a jurisprudence of its own, at Pavia, the juridical centre of Lombardy. The provisions of various codes had been compared and put together in a sort of Concordia, as early as the ninth century.[389] Possibly the rivalry of Lombard law might stimulate those learned in the law of Rome to sharper efforts to expound it and prove its superiority. Moreover, all sides of civic life and culture were flourishing in that region where novel commercial relations were calling for a corresponding progress in the law, and especially for a better knowledge of the Roman law which alone afforded provision for their regulation.
As some long course of human development approaches its climax, the advance apparently becomes so rapid as to give the impression of something suddenly happening, a sudden leap upward of the human spirit. The velocity of the movement seems to quicken as the summit is neared. One easily finds examples, for instance the fifth century before Christ in Greek art, or the fourth century in Greek philosophy, or again the excellence so quickly reached apparently by the Middle High German poetry just about the year 1200. But may not the seeming suddenness of the phenomenon be due to lack of information as to antecedents? and the flare of the final achievement even darken what went before? Yet, in fact, as a movement nears its climax, it may become more rapid. For, as the promoting energies and favouring conditions meet in conjunction, their joint action becomes more effective. Forces free themselves from cumbrances and draw aid from one another. Thus when the gradual growth of intellectual faculty effects a conjunction with circumstances which offer a fair field, and the prizes of life as a reward, a rapid increase of power may evince itself in novel and timely productivity.
This may suggest the manner of the apparently sudden rise of the Bologna school of Roman law, which, be it noted, took place but a little before the time of Gratian’s achievement in the Canon law, itself contemporaneous with the appearance of Peter Lombard’s novel Books of Sentences.[390] The preparation, although obscure, existed; and the school after its commencement passed onward through stages of development, to its best accomplishment, and then into a condition of stasis, if not decline. Irnerius apparently was its first master; and of his life little is known. He was a native of Bologna. His name as causidicus is attached to a State paper of the year 1113. Thereafter he appears in the service of the German emperor Henry V. We have no sure trace of him after 1118, though there is no reason to suppose that he did not live and labour for some further years. He had taught the Arts at Ravenna and Bologna before teaching, or perhaps seriously studying, the law. But his career as a teacher of the law doubtless began before the year 1113, when he is first met with as a man of affairs. Accounts agree in ascribing to him the foundation of the school.
Unless the Summa Codicis already mentioned, and a book of Quaestiones, be really his, his glosses upon Justinian’s Digest, Codex, and Novels, are all we have of him;[391] of the rest we know by report. The glosses themselves indicate that this jurist had been a grammarian, and used the learning of his former profession in his exposition of the law. His interlinear glosses are explanations of words, and would seem to represent his earlier, more tentative, work when he was himself learning the meaning of the law. But the marginal glosses are short expositions of the passages to which they are attached, and perhaps belong to the time of his fuller command over the legal material. They indicate, besides, a critical consideration of the text, and even of the original connection which the passage in the Digest held in the work of the jurisconsult from which it had been taken. Some of them show an understanding of the chronological sequence of the sources of the Roman law, e.g. that the law-making power had existed in the people and then passed to the emperors. These glosses of Irnerius represent a clear advance in jurisprudence over any previous legal comment subsequent to the Interpretatio attached to the Breviarium. It was also part of his plan to equip his manuscripts of the Codex with extracts taken from the text of the Novels, and not from the Epitome of Julian. He appears also as a lawyer versed in the practice of the law. For he wrote a book of forms for notaries and a treatise on procedure, neither of which is extant.[392]
The accomplishment of the Bologna school may be judged more fully from the works, still extant, of some of its chief representatives in the generations following Irnerius. A worthy one was Placentinus, a native of Piacenza. The year of his birth is unknown, but he died in 1192, after a presumably full span of life, passed chiefly as a student and teacher of the law. He taught in Mantua and Montpellier, as well as in Bologna. He was an accomplished jurist and a lover of the classic literature. His work entitled De varietate actionum was apparently the first attempt to set forth the Roman law in an arrangement and form that did not follow the sources.[393] He opens his treatise with an allegory of a noble dame, hight Jurisprudentia, within the circle of whose sweet and honied utterances many eager youths were thronging. Placentinus drew near, and received from her the book which he now gives to others.[394] This little allegory savours of the De consolatione of Boëthius, or, if one will, of Capella’s De nuptiis Philologiae.
The most admirable surviving work of Placentinus is his Summa of the Codex of Justinian. His autobiographical proemium shows him not lacking in self-esteem, and tells why he undertook the work. He had thought at first to complete the Summa of Rogerius, an older glossator, but then decided to put that book to sleep, and compose a full Summa of the Codex himself, from the beginning to the end. This by the favour of God he has done; it is the work of his own hands, from head to heel, and all the matter is his own—not borrowed. Next he wrote for beginners a Summa of the Institutes. After which he returned to his own town, and shortly proceeded thence to Bologna, whither he had been called. “There in the citadel (in castello) for two years I expounded the laws to students; I brought the other teachers to the threshold of envy; I emptied their benches of students. The hidden places of the law I laid open, I reconciled the conflicts of enactments, I unlocked the secrets most potently.” His success was great, and he was besought to continue his course of lectures. He complied, and remained two years more, and then returned to Montpellier, in order to compose a Summa of the Digest.[395] If indeed Placentinus speaks bombastically of his work, its excellence excuses him. His well-earned reputation as a jurist and scholar long endured.
Quaestiones, Distinctiones, Libri disputationum, Summae of the Codex or the Institutions, and other legal writings, are extant in goodly bulk and number from the Bologna school. The names of the men are almost legion, and many were of great repute in their day both as jurists and as men of affairs. We may mention Azo and Accursius, of a little later time. Azo’s name appears in public documents from the year 1190 to 1220—and he may have survived the latter date by some years. His works were of such compass and excellence as to supersede those of his predecessors. His glosses still survive, and his Lectura on the Codex, his Summae of the Codex and the Institutes, and his Quaestiones, and Brocarda, the last a sort of work stating general legal propositions and those contradicting them. Azo’s glosses were so complete as to constitute a continuous exposition of the entire legislation of Justinian. His Summae of the Codex and Institutes drove those of Placentinus out of use, which we note with a smile.[396]