Argument from Roman Law in Political Thought, 1200-1600

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Argument from Roman La,v in ];>olitical Thought

1200-1600 BY

J\,IYRON PIPER GILMORE

/

NEW YORK/ RUSSELL & RUSSELL

.......,

··COPYRIGHT, 1941

BT THE PRESIDENT AND FELLOWS OF HARVARD COLLEGE

REISSUED, 1967, BY RUSSELL & RUSSELL A DIVISION OF ATHENEUM HOUSE, INC. BY ARRANGEMENT WITH H,ARVARD UNIVERSITY PRESS L. C. CATALOG CARD NO.: 66-27081

PRINTED IN THE UNITED STATES OF AMERICA

To

LAURENCE BRADFORD PACKARD

NOTE I SHOULD like to express here my deep gratitude to Pro­ fessor Charles Howard :\Icllwain, who first suggested that I should study French political thought in the six­ teenth century and who has constantly inspired and encouraged whatever I have since done. I am indebted to the officials of the Harvard Law Library for their courtesy and cooperation in assisting me to make use of their magnificent collection. lVIy brother� Allen Austin Gilmore, gave valuable assist­ ance in the preparation of the manuscript, and my friend, Edwin Leo Popper, kindly cooperated in the reading of the proof. M.P.G.

CONTENTS Introduction .

3

The Glossators and Postglossators

15

The Humanists . . . . . . . . .

45

The Theory of Office in Bodin and Loyseau

93

Conclusion .

1�7

Bibliography

133

Index . . .

143

ARGUMENT FROM ROMAN LAW IN POLITICAL THOUGHT 1�00-1600

INTRODUCTION THE interest of this essay is that it analyzes certain ex­ amples of the way in which political theorists adapt and modify to their own uses distinctions taken from an authoritative and traditional source. The examples are chosen from the period roughly 1200 to 1600, that is, when the national state was emerging as the central fact of the political organization of Western Europe. The authoritative text is the Roman law as it appeared in the Justinian compilation which, during the whole period, enjoyed an unquestioned reputation as ratio scripta. Thus the essay is concerned with particular illustrations of two general problems, the existence of an authoritative tradition and the relation of individuals to that tradition. e may register the fact of the authority of Roman law without being required to give a complete explana­ tion of it. At other times and with other thinkers the Bible and the writings of Aristotle have enjoyed a sim­ ilar authority. The appeal to an unchanging text cre­ ates the illusion of continuity. During the period from the twelfth to the end of the sixteenth century came first the revival of the study of Roman law, and then its penetration in varying degrees of the laws and customs of the different groups which made up the social and political organization of Europe, including groups as small as a province or pays, represented by its own coutumier, or as large as England or the Church. Finally there was the complete reception of the Roman law in

,v

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ROMAN LAW IN POLITICAL THOUGHT

Germany, a development which was the logical extreme of the process which was elsewhere a matter of degree, with the minimum represented by England. During this time there are instances in which courts applied law which was neither immemorial custom nor the de­ cree of a sovereign power but which rested on the de­ cision of an Italian jurisconsult, commenting a text of Justinian. In this general situation the extent to which Roman law supplied argument for political theory has been insufficiently recognized. ,ve are familiar with famous authors who appealed to Scriptural authority in their discussions of political power, but we are not so familiar with many authors who, although equally in­ fluential, found in the Roman law their most important arguments and analogies. The approach of these au­ thors to theoretical questions was historical rather than religious, and legal rather than philosophic. Therefore much of their positive political theory is advanced in works which appear to us to be of a technical erudition. They believed in general that an argument from history was not only a good argument but also a representation of truth, a justification for a present political program. What would today appear as a new theory of the state then appeared as a new history of France, and what we should call a new philosophy of law was then entitled a commentary and contained an exposition of the Digest or the Liber Feudorurn or the Couturne de Paris. In studying these authors we must accustom ourselves to a habit of mind which found a good argument in the proof that a given institution had existed since Pharamond, or which settled a point of law by analogies out of the law of Rome. Among several historical criteria almost

INTRODUCTION

5

universally accepted the Roman law was of course only one, but, given this persistent habit of argument from authority, the extent to which there was a general appeal to Roman law is a testimony of its importance. One has only to pick up any of the works of Dumoulin, Charondas, Bodin or Loyseau, to mention some of the most important French theorists of the sixteenth cen­ tury, to see how much they depended, not only on the citation of the Roman texts, but also on the long line of authors from the Glossators to their own time who had commented the Roman texts. The natnes of Azo, Ac­ cursius, Petrus de Bella Pertica, Bartolus and Baldus, Joannes Faber, Philip Decius, Jason J\Iaynus and a host of others occur with a frequency discouraging to those who are trying to follow a coherent argument. This vast mass of legal literature, however depressing in style and bulk it appears to us, was recognized by many theorists as an important source of their concepts. The great French historian Pasquier rightly claimed that "Te have naturalized in our France the civil law of the Romans and built upon its ruins many forms of government, known neither under the first line of our kings, nor under the second, nor for long under the third. 1

He added, I do not think, therefore, that I will be doing a work unre­ lated to my purpose if I discourse on the fashion in which, been lust, the Roman law was refound and came in havina t:, the fullness of time to be received in this kingdom. 2

The attitude of Charles Loyseau is also typical. He had written a book on a subject of the French private law, 1 2

E. Pasquier, Recherches de la France, Paris, 1723, book IX, ch. 33. Loe. cit.

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ROMAN LAW IN POLITICAL THOUGHT

deguerpissement, chosen because it seemed most irrecon­ cilable with the Roman law, and nevertheless he boasted of having explained it entirely by Roman au­ thorities, rules and maxims. He concluded, "We must, then, marry law with practice, usage with reason; in a word we must conjoin the Roman law with our own." 3 These words perfectly express the spirit of the great tradition of the revival of Roman law in the ,vest. Bartolus of Sassoferrato and his disciples are generally considered to have been the most complete representa­ tives of this tradition, whose characteristics were a regard for Roman law as ratio scripta, and an interpre­ tative effort to :fit it to contemporary conditions. The development of historical perspective and accurate scholarship on the Roman law are rightly said to have begun with the humanistic school whose achievement is one of the glories of sixteenth-century France. There is not, however, sufficient recognition of the fact that a great part of the Bartolist tradition persisted through the sixteenth century and beyond. In France I know of only two considerable opinions which were raised against the opinion expressed by Loyseau. One was that of an individual and the other was that of a school. Francis Rotman was a brilliant and original mind, and in the Antitribonian, even if' it be true that it was written on the advice of De !'Hospital, his was a voice crying in the wilderness; his own life and works belied what he said. The attitude of the school of which Cujas was the chief representative sprang from the same source, a developed critical interpretation of Roman law and history. But, Loyseau, Traictc du deguerpissement et delaissement par hypotheque, Paris, 1597, preface. 3

INTRODUCTION

7

whereas Rotman and the scholarly interpreters were agreed upon the independence of the French and Roman law, Rotman was led to profess himself an advocate of the study of French law in and of itself as a system o r education, while the pure Romanists exacted a devotion to classical antiquities at the expense of their native customs. The humanist school professedly abdicated the chair of contemporary political theory, but its in­ fluence on that theory was none the less of decisive im­ portance. \Vholly apart from the great number of magistrates who were trained under masters like Cujas, and who influenced practice, the theorists who contin­ ued to use Roman law as institutional argument now used the more accurate Roman law supplied them by those masters. The fact that Roman law existed as an authoritative tradition is therefore obvious. But merely to say that it was an important source for many political theorists is not enough. \Vhat do we mean when we speak of the Roman law as a source of theory? How is the individual related to the general tradition? The answers to these questions involve the analysis of the implications of such a phrase as "the influence of Roman law." \Ve must try to explore a little more fully the process by which individual theorists adapted distinctions and arguments from a body of writings which in itself had very little relation to the institutions which they were trying to describe and explain. Now the understanding of such a process is not a subject upon which modern historians are in agreement. Since the writings of l\1arx and Freud there has been an important distinction made between influences and motives of which an individual

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ROMAN LAW IN POLITICAL THOUGHT

is conscious and those of which he is not. 11uch atten­ tion has been given to the exposition of unconscious motivation, and this method has given us valuable re­ sult.s. It has been possible to increase our understanding of the in_tellcctual phenomena of many periods by view­ ing them as a reflection of general economic, social or psychological phenomena of which individual thinkers were often not expressly aware. Thus it is undoubtedly true that, taken as a body, the theorists with whom this essay is concerned can be described and in a sense under­ stood in terms of the immediate e,nvironment in which they lived. That is, the new theories of the state which they developed may be said to have been chiefly influ­ enced not by an intellectual tradition but by the large practical needs of the society. The description of the needs belongs to social, economic and institutional his­ tory and particularly to that portion of it which de­ scribes the rise of new groups to social and economic power. Individually, it may be said, the men who worked out theories to fit the new needs and to help in realizing them were not very aware of the sort of real­ ities in their environment which we can no-w analyze as decisive. So it is said that the learned men in anv society may be apparently unconscious of the social needs to which their own activity is nevertheless a collective response. This sort of analysis gives us Yaluable generalization. But it surely cannot be taken by itself as completing our understanding of the position of the theorist in so­ ciety. If it does give us an adequate account of those influences of which he is not conscious, it altogether leaves out of the account those of which he is conscious. The former may give us an analysis of the purposes of

INTRODUCTION

9

the individual, but the latter gives us the description of the ways in which those purposes are realized. An account of unconscious motivation is in the last analysis based on a present psychology and a present sociology, but the data of conscious motivation are ex­ plicit in the records of the past. If the one gives us the generalizations which are necessary for our appreciation of the picture as a whole, the other gives us what has been well called "the climate of opinion"; it tells us that this is the way in which men once accounted for their thought and for their action. So the writing of history wavers between the search for uniformities, the achieve­ ment of sociological generalization on the one hand, and, on the other, the attempt to appreciate another way of life, to describe a unique emotional reality remote from our own. Now in the period with which this essay is concerned, when the national state was becoming the central fact of the political organization of Europe, political theorists were learned men, and the stimuli of which they were themselves chiefly conscious were as often associated with books and lectures as with contemporary condi­ tions. Their reactions to the chaos and movement of life around them are to be seen and studied through the media of learned discussions of problems which belonged to an intellectual inheritance which far transcended their immediate environment. In the latter part of this period especially, great changes in religion, in economic relationships, in the uses of politics and perhaps above all in the enlargement of the European horizon were very upsetting to traditional modes of thought. New ways of life were being introduced with a rapidity which is paralleled in vVestern history perhaps only at the be-

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ROMAN LAW IN POLITICAL THOUGHT

ginning of the Hellenistic period, at the end of the Roman Empire, at the end of the eighteenth century and again today. People who were concerned with systems of thought were confronted with chaos and sought to introduce new concepts of order. This essay is concerned with one example of the way in which this was done by theorists of the state. vVhatever the analy­ sis of the motives which operated on any theorist in terms of his total situation, the appeal to the Roman law is a fact. The conscious and avowed motive was very often a desire to find an "accurate" solution of a traditional problem of interpretation of a Roman text. This does not mean that an impartial intellectual curi­ osity constantly s�ught truth about law and politics in the Roman texts, and that when such truth was dis­ covered it passed into political theory. There was of course no "accurate" solution other than the historical one of determining to what the text had applied in the Roman constitution. But what such an attitude does mean is at least this: that over a period of more than four centuries many political theorists, who had mo­ tives, conscious and unconscious, presumably not un­ related to their environments or their situations as individuals, did in fact find in the Roman law distinc­ tions, concepts, types of analysis which made possible the construction of their own systems. This is not in­ tended to imply that in the absence of the Roman law no systems would have been constructed. The purposes generated by the needs of a particular society, or group, or individual are generally stronger than any particular mode of formal expression. Political theories which were an expression of the same purposes might have

INTRODUCTION

11

been and were constructed by drawing upon other sources. But between the twelfth and the end of the sixteenth century there were many authors, chiefly lawyers and political theorists, who found provided in the elaborate structure of Justinian's codification the mate­ rials for a solution of their own problems. This essay presents particular examples of interpretation by these authors, whose systems were thus determined in form if not in purpose by the tradition of Roman law. This is the understanding of the phrase "influence of Roman law " which is presupposed in the following pages. In a study the main interest of which is in the applica­ tion by individual thinkers of certain formal concepts, we must retrace the stages in the history of the heritage which was so universally recognized. But we must also obviously limit ourselves to specific examples. The terms of the discussion of some of the weightiest prob­ lems of the sixteenth century, though not the problems themselves, were set as early as the twelfth and thir­ teenth centuries by the commentators of the revived Roman law, but it is impossible to discuss without limi­ tation the connection of Roman law with all these problems. The problem here chosen for the sake of its importance as well as for its representative character is that presented by the structural analysis of public power and in particular the theory of office. Esmein in one brilliant essay 4 and l\1eynial in another 5 have A. Esmein, " La maxime Princeps legibus solutus est dans l'ancien droit public fran