Ratio decidendi: Guiding Principles of Judicial Decisions. Vol. 2: 'Foreign' Law [1 ed.] 9783428534333, 9783428134335

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Comparative Studies in Continental and Anglo-American Legal History Vergleichende Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen Rechtsgeschichte

Band 25 / 2

Ratio decidendi Guiding Principles of Judicial Decisions Volume 2: ‘Foreign’ Law Edited by

Serge Dauchy W. Hamilton Bryson Matthew C. Mirow

a Duncker & Humblot · Berlin

Ratio decidendi

Comparative Studies in Continental and Anglo-American Legal History Vergleichende Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen Rechtsgeschichte

Herausgegeben von Helmut Coing (y), Richard Helmholz, Knut Wolfgang Nörr und Reinhard Zimmermann

Band 25 / 2

Ratio decidendi Guiding Principles of Judicial Decisions

Volume 2: ‘Foreign’ Law

Edited by Serge Dauchy W. Hamilton Bryson Matthew C. Mirow

a Duncker & Humblot · Berlin

Printed with support of the Gerda Henkel Stiftung, Düsseldorf

Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutschen Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

All rights reserved # 2010 Duncker & Humblot GmbH, Berlin Typesetting and printing: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0935-1167 ISBN 978-3-428-13433-5 (Print) ISBN 978-3-428-53433-3 (E-Book) ISBN 978-3-428-83433-4 (Print & E-Book) Gedruckt auf alterungsbeständigem (säurefreiem) Papier ∞ entsprechend ISO 9706 *

Internet: http://www.duncker-humblot.de

Table of Contents W. Hamilton Bryson Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Knut Wolfgang Nörr Iura novit curia: aber auch fremdes Recht? Eine rechtsgeschichtliche Skizze . . . . . . . . .

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Albrecht Cordes Acceptance and Rejection of ‘Foreign’ Legal Doctrine by the Council of Lubeck Around 1500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Alain Wijffels Orbis exiguus. Foreign Legal Authorities in Paulus Christinaeus’s Law Reports . . . . . .

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Serge Dauchy and Véronique Demars-Sion Foreign Law as ratio decidendi. The ‘French’ Parlement of Flanders in the Late 17th and Early 18th Centuries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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A. Mark Godfrey Ratio Decidendi and Foreign Law in the History of Scots Law . . . . . . . . . . . . . . . . . . . . . . .

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Juan Javier del Granado and Alejandro Mayagoitia Roman Law and ratio decidendi in Spanish Colonial Law 16th through the 19th Centuries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 James Oldham Foreign Law in the English Common Law of the Late Eighteenth Century . . . . . . . . . . . 113 W. Hamilton Bryson The Use of Roman Law in Virginia Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Jean-Louis Halpérin Foreign Law in French Courts from 1804 to 1945, with the Example of the Law of Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Georges Martyn In Search of Foreign Influences, other than French, in Nineteenth-Century Belgian Court Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Heikki Pihlajamäki “Stick to the Swedish law”: The Use of Foreign Law in Early Modern Sweden and Nineteenth-Century Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

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Table of Contents

Bernard Durand Reconnaissance et Refus d’un droit étranger? Magistrats français et Droit musulman dans la colonie du Sénégal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Carolyn Craycraft Clark and Michael H. Hoeflich Roman Law as Ratio Decidendi in Early American Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Matthew C. Mirow Military Orders as Foreign Law in the Cuban Supreme Court 1899 – 1900 . . . . . . . . . . . 217 Matthew C. Mirow Conclusion: Foreign Law and the Birth of Comparative Law . . . . . . . . . . . . . . . . . . . . . . . . . 229 Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237

W. HAMILTON BRYSON

Introduction This collection of essays is concerned with the subject of ratio decidendi, which is a technical legal term of art in Anglo-American jurisprudence. This legal concept is opposed to the idea of obiter dictum. Ratio decidendi is the reason of the judge in coming to a judicial decision in a lawsuit presented to the court by the litigants for an official decision. Obiter dictum is whatever else a judge might say in passing. In Anglo-American legal cultures, the ratio decidendi of the courts accumulated over time is the law. If the community does not like what their courts have stated the law to be, then the law can be changed by their legislature. These essays consider the concept of ratio decidendi in different nations of western Europe and their former colonies at different periods of early-modern history. The concept of ratio decidendi operated very differently in different places at different times as is demonstrated by the first part of this title, which was published in 2006. This group of essays focuses on one narrow aspect of ratio decidendi, the use by the courts of foreign law as the basis of their decisions when appropriate to the issues to be decided in a particular case brought to them by the litigants. The term foreign law is a technical legal term of art of Anglo-American jurisprudence. It refers to law that is not part of the law binding upon the court; in other words law outside the court’s system of jurisprudence. Thus, one must consider what is the local, domestic, municipal law in order to discern what is foreign to, or outside of, it. This distinction and definition varies greatly from place to place and from time to time, as these essays demonstrate. These essays are not concerned with the concept of choice of law, also called conflict of laws, which is a matter of private international law. This is a matter of a court’s applying foreign law, rather than local law, to the particular parties in a particular lawsuit because it applies specifically to them. But these essays here are concerned with the incorporation of foreign legal principles into the local law for general uses and future applications. If the courts take a comparative approach to the law and find a legal principle or procedure that is believed to be preferable to the local one or where there is no local one at all, they may adopt the foreign law and incorporate it into the local law. Although the technical legal term foreign law is well understood in current Anglo-American thinking, it may not translate easily into the jurisprudence of the continent. It was not so obvious in the past. Was it conceivable before the rise of

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the nation state in the early-modern period? What is its relationship to the concepts of comparative law and conflict of laws? The study of the process of the assimilation of foreign law is the scope of this book. The observation of this process in the past in different legal cultures of western Europe is enlightening. It gives a better understanding of the current law by showing how we got to where we are today.

KNUT WOLFGANG NÖRR

Iura novit curia: aber auch fremdes Recht? Eine rechtsgeschichtliche Skizze I. Zur Einführung In der deutschen Zivilprozessordnung von 1877 ist unter § 293 folgende bis heute unverändert gebliebene Vorschrift zu finden: Das in einem anderen Staat geltende Recht, die Gewohnheitsrechte und Statuten bedürfen des Beweises nur insofern, als sie dem Gericht unbekannt sind. Bei Ermittlung dieser Rechtsnormen ist das Gericht auf die von den Parteien beigebrachten Nachweise nicht beschränkt; es ist befugt, auch andere Erkenntnisquellen zu benutzen und zum Zwecke einer solchen Benutzung das Erforderliche anzuordnen.

Der Text enthält mit „Gewohnheitsrechten“ und „Statuten“ ungewöhnliche Begriffe, wenn wir die Gesetze der großen Kodifikationswelle im letzten Drittel des 19. Jahrhunderts – vom Allgemeinen Deutschen Handelsgesetzbuch 1861 bis zum Bürgerlichen Gesetzbuch 1896 – als Ganzes überblicken; nicht zuletzt ist die Verknüpfung „Gewohnheitsrechte und Statuten“ in keiner anderen Norm festzustellen. In einer solchen Lage denkt man natürlich sogleich an Besonderheiten der historischen Entwicklung, die zu der Norm und ihren Ungewöhnlichkeiten geführt haben könnten, und in der Tat gibt es kaum eine Vorschrift zumindest in der Zivilprozessordnung, die in Wortlaut und Ausdrucksweise so intensiv geschichtlich gebunden wäre wie die unsere, wobei diese Geschichtlichkeit nicht jüngeren Datums war, sondern weit in das Mittelalter zurückgereicht hat: die „Gewohnheitsrechte“ stellen eine Übersetzung der consuetudines dar, und die „Statuten“ leiten sich von den statuta der italienischen Stadtstaaten ab. Alle Teile des § 293 verstanden und verstehen sich unausgesprochen als Abweichung von dem allgemeinen „uralten“ Grundsatz, dass es Sache des Richters und nicht der Parteien ist, das Recht anzuwenden und hierfür die Voraussetzungen zu schaffen, also sich um die Kenntnis der einschlägigen Normen selbst zu kümmern. Wenn dem Richter im römischen oder im mittelalterlichen Recht der Eid auferlegt wurde, den Gesetzen und Rechten gemäß zu urteilen, dann war in dieser Verpflichtung auch die Erwartung impliziert, sich die Kenntnis hiervon mit allen zur Verfügung stehenden Mitteln selbst zu beschaffen. Diese Vorgaben sind in die Parömie iura novit curia gekleidet worden. Im Lichte der Parömie stellte sich dann aber die Frage, was genau unter den iura zu verstehen sei, um die sich der Richter zu sorgen

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hat, und ob es als Ausnahme hiervon möglicherweise iura gäbe, die aufzuspüren den Parteien obliegt. Wenn wir vom Mittelalter gesprochen haben als dem Zeitraum, in den die Wurzeln des § 293 zurückreichen, dann ist diese Auskunft noch zu präzisieren. Wir befinden uns dem Gegenstand nach im Recht des Zivilprozesses, und wie in allen Teilen des europäischen Kontinents so hatte auch das deutsche Zivilprozessrecht seinen Ursprung in der wissenschaftlichen Bearbeitung der prozessualen Regeln und Institute, einer Bearbeitung, deren Grund im gelehrten romanisch-kanonischen Prozessrecht des Mittelalters gelegt worden war. Entstanden seit der Mitte des 12. Jahrhunderts, hatte dieses Prozessrecht in kurzer Zeit eine Jahrhunderte währende Blüte und Geltungskraft erreicht; es bildete seinerseits eine – mehr oder weniger geglückte – Zusammensetzung aus justinianischen Vorlagen in ihrer Interpretation durch die Legisten, aus päpstlichen Dekretalen im Kontext der Kanonistik, und nicht zuletzt aus in die Texte eingeflossenen Gewohnheiten und Gerichtsbräuchen des italienischen Raums (diese knappe Charakterisierung möge für unsere Zwecke genügen).

II. Positio iuris, positio facti Im romanisch-kanonischen Prozessrecht ist nun unser Thema an zwei unterschiedlichen Orten im Sinne von Stadien oder Stufen des Prozessgeschehens diskutiert worden. Unter dem Aspekt des (modernen) Leitbegriffs der Prozesshandlung geht es zum einen um ein Stück aus dem Bereich der Parteihandlungen, zum anderen dem Bereich richterlichen Handelns. Im zeitlichen Ablauf geht die Partei- der richterlichen Handlung voraus. Die Parteihandlung ihrerseits ist in eine bestimmte Ordnung der Parteihandlungen überhaupt eingebettet. Wir spielen hier auf das sogenannte Reihenfolgeprinzip an, wonach Prozesshandlungen (acta iudicii) in einem bestimmten logisch-zeitlichen Verhältnis zueinander stehen und jeder von ihnen grundsätzlich ein präziser Ort im schritt- und stufenweisen Ablauf eines Rechtsstreits zugewiesen wird. In unserem Zusammenhang handelt es sich um das Prozessstadium der positiones und responsiones, dem der Kalumnieneid der Parteien vorausgegangen ist, der seinerseits (im ordentlichen im Gegensatz zum summarischen Prozess) den Abschluss der Litiskontestation zur Voraussetzung hatte. Positiones dienen dem Zweck, die Last der Beweisführung zu mildern. Sie gehören also dem Beweisverfahren an. Der Kläger schlüsselt sein Begehren in einzelne Tatsachenbehauptungen in einer Weise auf, dass der Beklagte sie entweder zugibt (confessio) und dadurch den Beweis erspart oder sie bestreitet und so die Beweisthemen mitbestimmt. Entsprechend wird für vom Beklagten vorgebrachte exceptiones verfahren. Es muss sich nun jeweils um Tatsachen- und darf sich grundsätzlich nicht um Rechtsbehauptungen handeln; der Gegensatz von factum und ius macht sich bemerkbar1. Das Recht steht fest2 und bedarf in aller Regel keines Beweises;

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es unterliegt, wird ein Rechtsstreit begonnen und zu Ende geführt, auch nicht der Disposition der Parteien. Die confessio einer unrichtigen Rechtsbehauptung wäre wirkungslos wie umgekehrt das Leugnen einer richtigen. Das alles gilt grundsätzlich und für die Regel, das heißt ohne weiteres in Hinblick auf das ius commune, auf die Sätze des in den Büchern nachzuschlagenden justinianischen und kanonischen Rechts. Man kann für dieses Recht auch von notorium im Sinne von gerichtskundig sprechen3. Folgerichtig gilt Anderes für Extravaganten, sie sind grundsätzlich ponierens- und beweisbedürftig4. Vor allem aber kann Partikularrecht (ius speciale in diesem Sinn5) des Beweises bedürfen, ob es sich um consuetudines oder um statuta handelt. Hier werden bestimmte Distinktionen getroffen. Eine consuetudo war zu beweisen, wenn sie nicht notorisch war; einen Sonder- oder Parallelfall notorischer Gewohnheit stellte der Brauch des angerufenen Gerichts, der stilus curiae dar in seiner doppelten Bedeutung der „ständigen Rechtsprechung“ und des vor dem Gericht angewandten Verfahrens6. Um der Lehre von den positiones gerecht zu werden wurde alles getan, consuetudo als factum aufzufassen. Für die nicht-notorische consuetudo war voller Beweis zu erbringen7.

III. Statuta: die Distinktion des Bartolus Von größerem Gewicht für unser Thema ist die Frage nach der Beweisbedürftigkeit von statuta. Die entscheidenden Weichen wurden hier von Bartolus (1313 / 14 – 1357) gestellt. Zum Problem der positio iuris führte er aus (C. 2.58 / 59.2 § Quod observari, n.29 und 30, ed. Basil. 1588, p. 298b)8: Quaero utrum ei sit respondendum? ( . . . ) Tu dicas: quoddam est ius dispositivum, quoddam est ius disponens. Ius disponens est lex seu statutum, et isto casu dic: Aut positio est 1 Zum folgenden grundlegend W. Wiegand, Studien zur Rechtsanwendungslehre der Rezeptionszeit, 1977. Vgl. auch G. Garancini, Consuetudo et statutum ambulant pari passu: la consuetudine nei diritti italiani del basso medio evo, in: Rivista di Storia del Diritto Italiano 58 (1985) S. 19. 2 Die Juristen stützen sich mit Vorliebe auf D 22.6 de iuris et facti ignorantia l. 2: ( . . . ) cum ius finitum et possit esse et debeat, facti interpretatio plerumque etiam prudentissimos fallit. 3 Baldus (1327 – 1400), Kommentar zu C. 9.2.7., n.15 (ed. Venet. 1586, fol. 208 va). 4 Näheres bei Wiegand a. a. O., 2. Kap. und S. 150. 5 Abgeleitet aus D. 22.3.5. 6 Vgl. zu letzterem Johannes Faber (um 1270 – 1340), Kommentar zu Inst. 1.2 § 9, n.20 (ed. Lugd. 1557, fol. 10 ra); Bartolus, Kommentar zu D. 1. 3. 32., repetit. n.22 (ed. Basil. 1588, p. 68b); Baldus C. 2.10 / 11 un., n.12 (fol. 134 ra). Vgl. auch die bei K. Neumeyer, Die gemeinrechtliche Entwickelung des internationalen Privat- und Strafrechts bis Bartolus, Zweites Stück, 1916, S. 85 – 88 wiedergegebenen Texte. 7 Bartolus C. 8.52 / 53.2, n.31 (p. 330b) gegen Petrus de Bellapertica. 8 Bei der Wiedergabe der Texte werden Interpunktionen und Quellenzitate modernisiert.

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Knut Wolfgang Nörr iuris communis, et non debet ei responderi; et si responderetur aliter quam ius diceret, non valeret ( . . . ) Ad idem: quia ius certum est ut D. 22.6.2 ( . . . ) Si vero positio est iuris municipalis, tunc si quidem est alterius civitatis quam eius in qua lis est – exemplum: Florentiae est statutum, quod minor 18 annis non possit facere testamentum – certe huic debet responderi quia debet probari ut habuistis notatum in C. 1.22.2 et VI 1.2.1. Si vero est iuris municipalis eiusdem civitatis, tunc si quidem est ius non scriptum ut consuetudo, deberet huic responderi quia ista sunt probabilia ergo ponibilia, quia ad hoc fit positio ut pars a probatione relevetur ( . . . ) Sed si esset ius scriptum, tunc huic positioni non debet responderi eadem ratione qua nec positioni iuris ( . . . ) Quoddam est ius dispositivum ut obligatio et actio ( . . . )

An anderer Stelle findet sich eine noch genauere Distinktion (D. 1.1.9, n.67, p. 46b seq.): ( . . . ) Utrum statuta debeant produci sicut alia instrumenta, dic: Aut litigo in una civitate et volo fundare intentionem meam ex statuto alterius civitatis aut ex statuto eiusdem. Primo casu debeo illud producere et allegare iudici. Ratio: quia illud potest probabiliter ignorare ut VI 1.2.1; pro hoc C. 1.22.2 ubi quis allegabat principi ius consuetudinarium sue civitatis ( . . . ) Secundo casu: Aut sunt statuta publice nota in volumine statutorum inserta, et illa non opportet produci, arg. D. 48.16.1 § nam si quidem ita pronuntiaverit, et per glossam D. 42.2.2 quae dicit quod positioni iuris non est respondendum; nec enim potest iudex eam probabiliter ignorare. Aut sunt statuta non sic publice nota quia sunt reformationes factae a prioribus vel antiquis non insertae in volumine statutorum, et illae debent produci cum quis possit ipsas probabiliter ignorare, sicut diximus in consuetudine quae debet probari iudici ut C. 8.52 / 53.1.

Beidemal wird zwischen den Statuten des Stadtstaats, dem das Gericht angehört, und solchen anderer Städte unterschieden, also ausländisches Recht als eigene Kategorie in den Blick genommen. Fremdes Recht haben die Parteien in das Verfahren einzubringen, das heißt zu ponieren und zu beweisen; für einheimische Statuten ist gemäß der zusätzlich getroffenen Unterscheidung zu verfahren. Bei Bartolus ist also die Wurzel des § 293 Zivilprozessordnung in Hinblick auf das „in einem anderen Staat geltende Recht“ zu finden.

IV. Richterliche Suppletion Unser Thema wurde aber noch an einem zweiten Ort, nämlich im Rahmen der richterlichen Aufgaben und Befugnisse (officium iudicis) diskutiert. Ausgangspunkt war ein Text im Codex Justinians, der von der richterlichen Ergänzung des Parteivorbringens handelt9. Wiederum wurde das Gegensatzpaar factum und ius ins Spiel gebracht und die richterliche Suppletion grundsätzlich nur für das anzuwendende Recht bestätigt10. Aber auch insoweit war zu unterscheiden: Rechtssätze 9 C. 2. 10 / 11 un.: Non dubitandum est iudici, si quid a litigatoribus vel ab his qui negotiis adsistunt minus fuerit dictum, id supplere et proferre, quod sciat legibus et iuri publico convenire.

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des ius commune waren ohne weiteres zu supplieren, Gewohnheitsrecht nur, wenn notorisch; in Hinblick auf statuta wurde der Richter an seinen Eid, sie einzuhalten, erinnert11, sodass implizit die Unterscheidung zwischen einheimischen und fremden Statuten auch hier getroffen und nur für erstere die richterliche Suppletion bejaht worden ist. Auch aus dem Blickwinkel der richterlichen Suppletion war es demnach Sache der Parteien, dem Richter ausländisches Recht zu unterbreiten. War dies geschehen, so ist aber die weitere Frage (die im modernen Recht diskutiert wird), nach welchen Maßstäben, denen des eigenen oder des fremden Rechts, dann die Auslegung des ausländischen Rechtssatzes vorzunehmen sei, von unseren Juristen offenbar nicht gestellt worden; vielleicht drängte sich ihnen die Frage nicht auf, weil mit den Regeln des ius commune ein gemeinsam-ubiquitärer Maßstab auch zur Auslegung partikularen Rechts zur Verfügung stand.

V. Ein Erlass Bonifaz’ VIII. Als die Kommentatoren die Statuten der italienischen Stadtstaaten in unsere Thematik einbezogen, sahen sie sich einer Vielzahl von partikularen Gerichten gegenüber, nicht aber einer Gerichtsorganisation, an deren Spitze ein zentraler Gerichtshof gestanden hätte. In dieser Lage befand sich aber die Kirche, und von Rom aus gesehen war es nicht erforderlich, die Distinktionen zu treffen, die wir bei Bartolus kennen gelernt haben. Einschlägig ist hier ein (auch von Bartolus allegierter) Erlass Papst Bonifaz’ VIII. gewesen (VI 1.2.1)12: Licet Romanus Pontifex, qui iura omnia in scrinio pectoris sui censetur habere, constitutionem condendo posteriorem, priorem, quamvis de ipsa mentionem non faciat, revocare noscatur: quia tamen locorum specialium et personarum singularium consuetudines et statuta, cum sint facti et in facto consistant, potest probabiliter ignorare: ipsis, dum tamen sint rationabilia, per constitutionem a se noviter editam, nisi expresse caveatur in ipsa, non intelligitur in aliquo derogare.

Hier war in den unser Thema angehenden Wendungen manches versammelt, was die Wissenschaft an Gesichtspunkten erarbeitet hatte: die Parallelität von consuetudines und statuta, deren Natur als factum, ihre wahrscheinliche Unkenntnis auf Seiten des Richters. Eine Unterscheidung partikularer Rechtsquellen nach inländischer und ausländischer Herkunft war vom Standpunkt eines „Weltgerichtshofs“ aus nicht denkbar. Übrigens hatte die in unserem Text vorgenommene Ver10 Näheres bei Nörr, Zur Stellung des Richters im gelehrten Prozeß der Frühzeit: Iudex secundum allegata non secundum conscientiam iudicat, 1967; Wiegand a. a. O., 4. Kap. 11 Baldus C. 2.10 / 11 un., n.2 (fol. 133 va). 12 Siehe hierzu auch O. Condorelli, Quum sint facti et in facto consistant: Note su consuetudini e statuti in margine a una constituzione di Bonifacio VIII (Licet Romanus Pontifex, VI 1.2.1), in: Rivista Internazionale di Diritto Comune 10 (1999) S. 205, 233.

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knüpfung consuetudines et statuta einen langen Schatten, der bis zum zu Beginn zitierten § 293 –„Gewohnheitsrechte und Statuten“– reichte: wer wäre da nicht versucht, von mehr als einem bloßen Zufall zu sprechen?

VI. Stillstand des Themas am Reichskammergericht Einen zentralen Gerichtshof stellte auch das Reichskammergericht dar (die privilegia de non appellando einmal beiseite gelassen). Wir stehen am Übergang vom Mittelalter zur Neuzeit, am Übergang auch von einer allgemein-europäischen zur speziell-deutschen Historiographie. Der in der Reichskammergerichtsordnung von 1495 vorgeschriebene Eid verpflichtete (sinngemäß) die „Urteiler“, neben den Regeln des ius commune nach den Ordnungen, Statuten und Gewohnheiten der Territorien und Städte zu entscheiden, die im Prozess vorgetragen werden13. Die Bestimmung hatte mit letzterer Klausel die Beibringung partikularer Rechtssätze in Form der positiones oder articuli im Auge (Prozesshandlungen, die dann 1654 abgeschafft wurden), übernahm also insoweit die mittelalterliche Lehre. Dasselbe Bild ergibt sich, wenn wir uns der die Rezeption und Transformation des mittelalterlichen gelehrten Rechts durch das Reichskammergericht verkörpernden kammergerichtlichen Literatur zuwenden, besonders den Observationes practicae imperialis camerae von Andreas Gail (1526 – 1587)14; denn hier werden consuetudines und statuta wiederum als factum und daher ponierends- und beweisbedürftig aufgefasst. Ob sich freilich die kammergerichtliche Praxis immer an diese Lehre gehalten hat, steht auf einem anderen Blatt15; es finden sich Beispiele genug für die Überwindung der Dichotomie von factum und – nicht beweisbedürftigem – ius, Beispiele auch für die Ermittlung von Amts wegen, die Suppletion des partikularen Rechts. Was nun unser Thema angeht, hat Gail die Distinktionen des Bartolus, obwohl er dessen Ausführungen durchaus kannte, nicht übernommen, und sie sind auch nicht bei anderen kammergerichtlichen Schriftstellern zu finden. Offenbar hatte für den Gerichtshof wenig Anlass bestanden, ausländisches Recht seinen Entscheidungen zugrunde zu legen. In seiner Praxis finden sich zwar hie und da Hinweise auf fremdes Recht, doch dienten sie eher der rechtsvergleichenden Ausschmückung oder als Beleg für ein allgemein-übergeordnetes Rechtsprinzip; keinesfalls kann man hieraus auf die Befolgung oder Ausbildung einer irgendwie gearteten 13 Wormser Reichsabschied von 1495, 2. Abschnitt, § 3, in: Neue und vollständigere Sammlung der Reichs-Abschiede (hg. von Senkenberg), 2. Teil, S. 7. 14 Lib. I, Obs. 36 Quod iudex secundum consuetudinen et statuta iudicare debeat, n.12 – 16; Obs. 82 De responsionibus (nämlich ad positiones vel articulos), n.13 und 14 (ed. Venet. 1613, p. 34b seq. bzw. p. 72a). 15 Hierzu grundlegend P. Oestmann, Rechtsvielfalt vor Gericht: Rechtsanwendung und Partikularrecht im Alten Reich, 2002.

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Lehre von der Ermittlung fremden Rechts im Prozess schließen. Vor den territorialen Gerichten mögen sich die Dinge anders gestaltet haben, doch wissen wir hiervon zu wenig Bescheid.

VII. Neues und Altes aus der Historischen Rechtsschule Im 19. Jahrhundert war die Lehre von den Rechtsquellen in eine gewisse Krise geraten; erinnert sei an die berühmte Streitschrift Savignys „Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft“ (1814), aber auch an Georg Friedrich Puchtas große Monographie über das Gewohnheitsrecht (1828 / 37). An letztere ist für unser Thema anzuknüpfen; denn die dort entwickelte Lehre zur prozessualen Behandlung des Gewohnheitsrechts, der Savigny im ersten Band des „System des heutigen Römischen Rechts“ (1840) zusammenfassend gefolgt ist, wurde – in mehr oder weniger beiläufigen Sätzen – auch auf die prozessuale Behandlung des ausländischen Rechts übertragen16: Das Gewohnheitsrecht ist also hierin völlig ähnlich den ausländischen Gesetzen, von welchen die Entscheidung manches Rechtsstreits abhängig seyn kann. Ihre Kenntniß wird von dem Richter nicht gefordert, und die Partey muß sie angeben und beweisen, ganz wie es hier von dem Gewohnheitsrecht bemerkt worden ist, also auch ohne daß sie dadurch mit eigentlichen Thatsachen völlig auf gleiche Linie treten.

Savigny hatte mit Puchta die mittelalterliche Lehre vom Gewohnheitsrecht als factum „von Grund aus“ verworfen. Dennoch sei in ihr ein „wahres Element“ enthalten. Denn die Parteien sind gut beraten, wenn sie dem Richter die Regeln des Gewohnheitsrechts anzeigen und „zu seiner Überzeugung bringen“. Letzteres bedeutet jedoch kein förmliches Beweisverfahren, sondern lässt den Parteien alle Möglichkeiten der Überzeugungsbildung offen. Ferner schließt das Tätigwerden der Parteien ein solches des Richters nicht aus; da Gewohnheitsrecht – wie auch ausländisches Recht – kein Faktum, sondern Recht darstellt, kann es der Richter ohne weiteres supplieren, wobei er sich seinerseits aller denkbaren Erkenntnismittel bedient. Der Richter hat „nach freier Erwägung der Umstände“ zu verfahren, um sich über Gewohnheits- und ausländisches Recht Gewissheit zu verschaffen. In ihrem Kern haben diese Gedankengänge den § 293 Zivilprozessordnung gestaltet, freilich nicht unmittelbar, sondern auf verschiedenen Wegen der Vermittlung. Auf Savigny beriefen sich ausdrücklich die Motive zum entsprechenden Art. 416 des Entwurfs17 – Art. 405 der Endfassung – der Württembergischen Zivil16 F.C. v. Savigny, System des heutigen Römischen Rechts, Erster Band, 1840, S. 186 – 194, hier 191. 17 Er lautete: (1) Fremde Gesetze, partikulare Gewohnheitsrechte und Statuten können Gegenstand der Beweisführung einer Partei sein. (2) Der Richter ist jedoch an deren Ergebniß

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prozessordnung von 186818; diesen Artikel zitierten sowohl die „Protokolle der Kommission zur Ausarbeitung des Entwurfs einer Civilprozeßordnung für die Staaten des Norddeutschen Bundes“19 als auch die „Begründung des Entwurfs einer Deutschen Civilprozeßordnung“20. Letztere berief sich (unter anderem) ferner auf Stobbes Handbuch des deutschen Privatrechts21, der seinerseits zu unserem Thema den Lehren Puchtas und Savignys gefolgt war. Wenn wir § 293 Zivilprozessordnung zusammenfassend aus historischem Blickwinkel analysieren, dann ist die Fragestellung überhaupt nach der verfahrensrechtlichen Behandlung des ausländischen im Unterschied zum einheimischen Recht ein Ergebnis der mittelalterlichen Rechtswissenschaft, desgleichen die Parallelisierung von Gewohnheitsrecht und Statut; das Zusammenspiel hingegen von Richter und Parteien bei der Ermittlung des ausländischen Rechts folgt den Lehren der Historischen Schule des 19. Jahrhunderts.

nicht gebunden, sondern berechtig und verpflichtet, sich, soweit die ihm zu Gebot stehenden Mittel reichen, eigene Kenntniß hiervon zu verschaffen. 18 Die neue Justizgesetzgebung des Königreichs Württemberg, Amtliche Handausgabe, II. Band: Civilprozeß-Ordnung, 3. Abt.: Die Motive, S. 118. 19 1868 – 70 erschienen, S. 709 zu § 464 des Entwurfs. 20 Von 1872, S. 271 zu § 250 in der Zählung des zweiten Entwurfs. 21 O. Stobbe, Handbuch des deutschen Privatrechts, Erster Band, 1871, S. 139 ff., 179.

ALBRECHT CORDES

Acceptance and Rejection of ‘Foreign’ Legal Doctrine by the Council of Lubeck Around 1500 I. Lubeck, today a town with slightly over 200.000 inhabitants 60 km northeast of Hamburg, owes its rise to the top of the Hanseatic cities (among other favourable factors) to its geographic situation at the south-western corner of the Baltic Sea. This made it the most advantageous point for trade between the countries on the Baltic shores and central, western and southern Europe which did not wish to take the strenuous detour against prevailing western winds around the northern tip of Denmark. Until the rise of the railroad, overseas transport was the quickest and cheapest way of transportation. Each mile covered over water was one land mile spared, and this played in Lubeck’s favor. The city became rich and powerful as the leading member of the Hanseatic League, an association of merchants and cities with the main purpose of obtaining and defending privileges from overseas trade partners, namely England, the Netherlands and Flanders, Scandinavia, Poland and Russia, a strategy which reached its greatest success in the 13th and 14th c. Lubeck was founded in the middle of the 12th c., became an Imperial City in 1226, and then served as prototype for numerous new cities on the Baltic shores, most of them founded in the course of the 13th c. In particular, the law of Lubeck became a model adapted by many of these new cities. This included not only the transfer of the written town law and of Lubeck’s Council-based constitution, but also a permanent relation of jurisdiction, in which the Lubeck Council acted as a court of appeal1 for the cities which had adopted Lubeck’s law, although all of these new cities were situated in the provinces of other German princes or even beyond the borders of the Empire. This jurisdiction of the Lubeck Council left 1 In the 1980’s a sophisticated debate arose whether or not the Lubeck Council acted as a court of appeal in the technical sense of the word – this was the classical point of view by Wilhelm Ebel (see next footnote) – or if it passed its decision on to the lower court as binding but internal advice, giving the lower court the opportunity to pronounce the sentence as its own – as Jürgen Weitzel would have it. See the latter’s short book “Über Oberhöfe, Recht und Rechtszug. Eine Skizze” (1981) and his recent article “Appellation” in Handwörterbuch zur deutschen Rechtsgeschichte, 2nd ed., vol. 1 (2008), p. 268 – 271. My sincere gratitude to Mark Godfrey and Theresa Rambo for their most valuable remarks and their help.

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relatively rich sources: some thousand decisions mainly from between 1450 and 1550 have been passed down to us2. In 1495 a centralized imperial court, the Reichskammergericht (Imperial Chamber Court), was founded, and the Council of Lubeck quickly accepted its superior jurisdiction. In return, the Imperial court accepted the priority of local and regional rules and applied Imperial and Roman law only as a subsidiary if the local law did not offer a solution3. Nevertheless, the possible control by a higher court may gradually have influenced style, content and language of the findings of the Council of Lubeck. Most cases discussed here stem from this period of transition. This article is scheduled to appear in a volume of the series “Comparative Studies in Continental and Anglo-American Legal History”. The dichotomy of this title lets the Channel look broader and deeper than the Atlantic Ocean, and at the same time closes the ranks between the numerous Continental legal cultures with their great variety over time and space. This division is owed to the concept of ‘Rechtskreisen’ (i.e. ‘circles’, families, of countries sharing a similar legal tradition and / or common roots) which the comparatists use for their work on contemporaneous legal orders4. How much sense it makes to project this concept into the past is an open debate5. If the observer is sufficiently distant or his focus is sufficiently blurred, ‘the’ Civil law tradition of continental Europe may indeed look monolithic. If taken literally, however, this ‘Continent’ would include among other regions Northern and Eastern Europe, Greece and the South East, with long Otto2 Wilhelm Ebel edited the bulk of them in 4 volumes (1955 – 1967). He was also the most important expert on the law of Lubeck; see his “Lübisches Recht I” (1971 – vol. II never appeared) and his convenient survey in the article by the same name in Handwörterbuch zur deutschen Rechtsgeschichte, 1st ed., vol. 3 (1984), p. 77 – 84. 3 This ‘Statutentheorie’, theory of statutes, as it is called in Germany derives from the high medieval Northern Italian cities which regarding the law were more like independent republics, and was adopted widely north of the Alps. The degree to which it was actually applied by the early modern courts in Germany is the subject of the important book by Peter Oestmann, Rechtsvielfalt vor Gericht. Rechtsanwendung und Partikularrecht im Alten Reich (2002). 4 That is the division made popular under others by the classic work of Konrad Zweigert / Hein Kötz, Einführung in die Rechtsvergleichung (3rd ed. 1996, engl.: An Introduction to Comparative Law, 1998). 5 On the debate of the reciprocal influence between Comparative Law and Legal History see the ten articles (three of them in English) in Zeitschrift für Europäisches Privatrecht (ZEuP) 1999 which are based on lectures given on the Deutsche Rechtshistorikertag 1998 in Regensburg. For titles and tables of content see http:// rsw.beck.de/rsw/shop/default.asp? sessionid=F510CAA4FF744398B5CF175810337051&docid=22148&highlight=cordes+ZEuP (25 Jan. 2009). On that occasion, I got the opportunity to utter some doubts regarding the transfer of comparative methods into medieval Legal History. Mainly the “Praesumptio Similitudinis”, the presumption of similarity proposed by some scholars of Comparative Law, seems like wishful thinking and does not respect the distance and possible strangeness of other legal cultures sufficiently: Albrecht Cordes, Was erwartet die (mittelalterliche) Rechtsgeschichte von der Rechtsvergleichung und anderen vergleichend arbeitenden Disziplinen?; ibid.

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man and (in the Iberian Peninsula) Moorish stretches of history. Of course, no one is attempting in earnest to write such a broad ‘Continental Legal History’6. That term describes a somehow coherent topic only under the condition that it is limited in both time and space to a certain sector of Europe’s legal history: the history of the Ius Commune, the learned Roman and Canon law since the beginnings of the Law school of Bologna around 1100, and later the strong role of the absolutistic and then the constitutional state with its belief in codifications as universal remedy to legal problems7. The focus on these subjects of undoubtedly universal importance implicitly tends to disregard the many other interesting and colourful legal traditions which in their specific way contributed to the many facets of ‘Continental Legal History’. One of these traditions, the legislation and jurisdiction of the Lubeck Council, relevant over centuries in great parts of North-Eastern Europe, shall be treated here. It lay in the hands of an experienced, but un-learned elite of Merchants, who little by little made their legal order compatible with the larger context of the early modern Usus modernus pandectarum in the Holy Roman Empire they were part of. The process of adaption led to many concessions, especially in regard to the language, possibly because the traditional Low German language was not suited well for this new type of content, or simply because High German and especially Latin were more fashionable. The result was a hybrid mix of traditional domestic and of Ius Commune-elements, and is not easily evaluated as a whole. The volume this article is written for devotes itself, as the second of two related volumes, to the ‘reasons courts give for their judgements’, as ‘Rationes decidendi’ should probably be translated. But in a technical sense, the term has a much narrower meaning. Originally, the term meant the opposite of rationes dubitandi, the reasons for doubt, with which learned jurists began both consilia and judgements, before they overcame these reasons for doubt in the rationes decidendi, their reasons to decide. This seems to be the main understanding of the term in the Civil Law tradition. Later, and mainly in England, rationes decidendi meant the opposite 6 What would such a history focus on? Would it be a “European legal history with the exception of the British isles”? Irish, Scottish and Welsh scholars are not likely to agree with that. As far as I see, the term is exclusively used to divide England from “the” Continent. Should there be a vicinity of thinking to the traditional division of legal history in U.S. law schools into three branches, i.e., American (more or less U.S.-American) legal history, Common (i.e. in this context English) legal history as the former’s main ancestor, and Civil legal history, which consequently has to cover the non-angloamerican rest of the world? 7 This is a view of Europe which – by coincidence or not – happens to limit itself more or less to Charlemagne’s empire or – if you prefer a more modern connotation – to the part of Europe in which the EEC was founded in 1957, excluding Great Britain and most certainly any part of Europe beyond the Iron curtain. From a German perspective, this was part of the program to integrate the western German scientific community into Western Europe. It was the same line of thinking in which Helmut Coing founded the “Max Planck Institut für Europäische Rechtsgeschichte” at Frankfurt in 1964. Coing, together with Knut Wolfgang Nörr, also established the series “Comparative studies in Continental and Anglo-American Legal History”.

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of obiter dicta, musings ‘by the way’, which unlike the former did not necessarily have to be supporting parts of the justification of a judgement, but supplements of lesser importance (and therefore not binding in a system of precedent). Neither of these two elaborate technical meanings of rationes decidendi can be stipulated for the judgements of the Lubeck Council. Their application would have required elaborate legal training, which, as said before, the Councilmen did not possess. Therefore, the judgements from Lubeck cannot contribute anything to the question of rationes decidendi in the technical sense of the term. Instead, we must be grateful for the cases in which the generally rather taciturn Councilmen revealed any of their reasoning at all. But this makes their short and sometimes laconic remarks all the more valuable. They do permit some insight, if not into their rationes decidendi, then at least into their reasons to decide. Thus, if this article does not contribute to a comparison between Anglo-American Common and Continental Civil law or to rationes decidendi in a strict sense, does it at least have something to contribute to the concrete subject of the volume, i.e. the role of foreign law within court decisions? Not in the narrow sense of ‘foreign’ as ‘something coming from beyond a border’, as the article will focus on questions of Roman Law which, according to late medieval and early modern legal theory, was German law because it drew its authority from the Roman emperor – who at the same time was German king and in this role highest judge in the realm8. Strictly speaking, Imperial law could not be foreign to an imperial city like Lubeck. But in a broader sense, rules and words may be ‘foreign’ because the traditional domestic law is not familiar with them, they do not fit into the existing language and legal system. In this manner, ‘foreign’ is used in the sense of ‘unknown, strange’. To this sense of ‘foreign law’ the jurisdiction from Lubeck does indeed have something to contribute. They present an interesting case which might be sug8 That Roman Law was ipso iure also valid law of the Holy Roman Empire was considered self-evident since the days of the Hohenstaufen Emperors of the 12th / 13th c. Frederic I. Barbarossa even felt so much the continuity with Iustinian that in 1158 he added his Constitutio Habita, a privilege in favour of scholars and universities, to Iustinian’s Codex. This tradition needed support when it became doubtful around 1500, at about the same time when the ‘Holy Roman Empire’ started to be named with the addition ‘of German Nation’ as its universal ambition was fading for good. That support came from the ‘Lotharian Legend’, which apparently originated in the surroundings of Melanchthon. According to this legend, Emperor Lothar III of Süpplinenburg found a copy of the Corpus Iuris Civilis when he conquered Amalfi in 1135, and enacted it as a formal law in the whole Empire. This must have been the level of awareness of the matter the Lubeck Councilmen had around 1500, the time considered here. One century later, in 1643, Herman Conring refuted this legend and established the modern conviction that Roman law came into vigour in Germany by the slow osmotic process of ‘reception’. This insight granted the courts great amount freedom because it entrusted them with the task of investigating for each single Roman rule whether or not it had been adopted in Germany. The purpose of this paper is to show that the Council of Lubeck, even without this elaborate reasoning at hand, anticipated much of that freedom in dealing with the Roman law one century earlier.

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gestive for other comparative fields besides the Anglo-American v. Continental juxtaposition. The case of Lubeck shows how the representatives of an old, but mainly un-learned legal system reacted to the challenge of a fully developed legal order foreign to their indigenous tradition: Which parts did they sacrifice in order to retain others? How did they change their legal language? Did they react differently on a more public – if you like, propagandistic – level on one hand compared to the level of down-to-earth daily legal routine on the other? Many peoples all over the world have been confronted with these questions, and all of them have undergone a process of change, from the clashes of the Late Roman Empire with the Germanic tribes to the beginning of European expansion in 1492, the Imperialistic era with its peak in the late 19th c., until the choices the countries under former Soviet influence faced when they reshaped their legal cultures after 1990. The Council of Lubeck mainly applied its own rules, the Lubeck town law (Stadtrecht), which had become the legal framework for over a hundred cities on all shores of the Baltic Sea, either by privilege of the founding princes or by free choice of the first settlers. For about 400 years, from the 13th – 17th c., these cities turned to the ‘founding fathers’ of their law at Lubeck as a higher jurisdiction in settling legal disputes. Thus the Lubeck Council acted in the double role of both legislator and high court. In the 17th c., the emerging modern states cut off Lubeck’s jurisdiction over their cities, because such ties across the state borders were now considered as an insult and a threat to the new claims of sovereignty of the kings and princes. But although the ‘daughter-cities’ were thus left on their own, the substantial law remained that of Lubeck, at some places, e.g. Reval (today Tallinn, capital of Estonia), well into the 20th c. The Lubeck town law was not identical with the Hanseatic law9. Among other cities, Cologne, Magdeburg and Hamburg developed successful legal systems, and on a superior level the Hanseatic League itself pursued certain legislative activities. But the law of Lubeck was by far the most important within the Hanseatic area, and in all of Central and Eastern Europe it was second only to Magdeburg. Whereas the law of Magdeburg spread widely eastwards over land, reaching as far the Ukrainian capital of Kiev, and to a large part reflected the primarily agricultural way of life in these regions, the Lubeck law was shaped by the needs of the sea and overseas trade. The Lubeck Council was manned by members of the patriciate, mainly rich and experienced merchants, who handled all political, administrative and legal business of the city. They co-opted their members and future successors for life, as was typical for a small, oligarchic medieval group. They were powerful, selfconfident and experienced, but they were not lawyers10. Max Weber referred to them as 9 On the difference between the Hanseatic level of law issued by the union of the cities on their yearly gatherings, the Hansetage, and the level of the cities which belonged to the Hanseatic League but had many other loyalties and sources of law besides the decisions of the Hansetage see Albrecht Cordes (ed.), Hansisches und hansestädtisches Recht (2008). 10 This does not imply that they had no access to learned advice – quite in the contrary! As far back as the middle of the 13th c., cities like Hamburg and Lubeck started to employ

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‘Rechtshonoratioren’, ‘legal dignitaries’, and this denomination seems quite close to the ‘legal experts’ of the modern discussion11. The many roles this small group of powerful councilmen had to play – merchants and diplomats, politicians and administrators, legislators and judges – are the reason why this paper is based not only on judgements in the strict sense, which the Council issued when acting as court, but also on other results of their government activities. Strictly speaking, this syncretism of sources oversteps the focus of the present volume. But this seems acceptable because we assume that the councilmen stayed true to their legal convictions when changing from one function in the government of the city to another. These non-learned dignitaries had to cope with the challenge of ‘foreign’ legal doctrine within their jurisdiction mainly in one regard: They had to decide to what extent they were willing to accept and apply Kaiserrecht, Imperial Law, within their jurisdiction. That this question should arise at all may come as a surprise for example to English legal historians who would have no doubt that royal law issued in London would be observed in Boston, Bristol or Exeter. So how can Imperial law at all be ‘foreign’ to a city like Lubeck, proud of its status as Imperial city since the days of Emperor Frederic II? The answer lies in the fact that around the middle of the 15th c. ‘Imperial Law’ became more and more synonymous with ‘Roman law’.12 In many regards Lubeck was more like an independent republic than a city subject to any prince. The pride of this independence is well reflected in the four letters ‘SPQL’ on Lubeck’s Holstentor13, arguably Germany’s most famous city gate: “Senatus Populusque Lubecensis” – Senate and “People of Lubeck”! As the German king and Roman Emperor was, at least north of the Alps, more of a judge than a legislator, Imperial cities were more or less free in their legislation14 and especially in the question whether or not to accept and integrate Imperial – i.e. Roman – Law into its indigenous legal order. This new (and very old) jurists who had studied at the contemporaneous universities in Northern Italy and Southern France, namely Bologna, Padova and Montpellier. 11 Susan Reynolds, The Emergence of Professional Law in the Long Twelfth Century, Law and History Review 21, Bd. 2, 2003, http: // www.historycooperative.org/journals/lhr/21.2/ forum_reynolds.html (25 Jan. 2009) and the reply from Charles M. Radding, Legal Theory and Practice in 11th c. Italy, ibid., http: // www.historycooperative.org/journals/lhr/21.2/com ment_radding.html (25 Jan. 2009). 12 Hermann Krause, Kaiserrecht und Rezeption (1952), p. 118 – 126. 13 If you happen to have a Two-Euro-coin in your pocket, you may be carrying this symbol of medieval burgher’s pride and power with you. The famous motto on the Holstentor (which also figured on the pre-Euro 50-Marks-bills) “Concordia domi foris pax” – “concord at home, abroad peace” – lets one ponder if German history would not have profited from more mercantile and less belligerent activities. The name of the German airline is another example of the role the Hanseatic League plays for the image which today’s Germany likes to paint of itself and its past. 14 Eberhard Isenmann, Gesetzgebung und Gesetzgebungsrecht spätmittelalterlicher deutscher Städte, Zeitschrift für Historische Forschung 28 (2001), p. 1 – 94, 161 – 261, especially p. 52 – 57.

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legal doctrine was the challenge to which the Lubeck legislators and judges had to find an answer. They did not succeed in developing a consistent attitude in this regard.

II. In the following chapter this paper will examine the variety of answers to be found in various legal sources from Lubeck. Very distinct reservations against any influence of Imperial law – i.e., where the Council claims that it was too hard to understand, that it was inappropriate and even vexing to the traditional civil liberties – stand right next to cases where ‘Imperial’ statutes are accepted without any apparent hesitation – or in one case even with the remark that “we are applying Imperial Law as we duly may”15. This comment is noteworthy as it seems to suggest an underlying controversy if Lubeck was allowed to implement Imperial Law. Between these two poles, other reactions were possible. At least in one case, the introduction of the Roman societas omnium bonorum, learned legal doctrine was accepted theoretically and even incorporated into the code of law, but nevertheless did not become effective in court because its prerequisites were so hard to prove.16 In this way the Council was able to present itself as a state-of-the-art legislator without forcing new legal provisions upon the merchants who preferred to stick to their traditional ways of doing business. (1) The judges of Lubeck give only short and scarce ‘rationes decidendi’ in their written rulings. In the judgements, they present the main arguments of both sides very shortly and then award the victory to one side. As the only reason for their decision they repeat one of the winning side’s arguments. The structural logic of these judgements is explained best with the help of a case study, which also represents an early case of confrontation with learned law – in this case with the doctrine of “iustum pretium”. De Ersame Radt tho Lubeck hebben tuschen Hinrick Jonsen eins und Andreas Vickinckhusen anders deles, van wegen einer bode in der olden Kisouw bolegen, so Hinrick Jonsen ome lude einer certen, de gelesen, vor 37 marck vormende vorkofft tho hebben, dar van ock Andreas 13 marck botalinge gedaen, stellende tho rechte, Andreas schuldich were, ome sodane bode tho vorlaten etc. dar kegen durch Nicolaum Wolters gesecht, dath idt ein umborlich und unredlick kop sundergen soven marck jarlickes boringe vor 37 marck und were ultra dimidium iusti pretii ock van rechts wegen by keiner werde etc., de certe were ock noch an beiden stucken by Hinrick und nicht, wo geborlick, overgelevert, na widerem vorgevende und vorhoringe etlicker tuge, de nicht eindrechtigen tugeden, clage . . . affseggen laten: Dath de gedane kop is by keinen werden, dann Andreas moth Hinrick sodane 37 marck weddergeven. Actum ut supra [Mercurij quinta Aprilis].17 15 16

See below, case (2). See below, case (7).

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In 1525 Hinrick Jonsen sued Andreas Vickinckhusen to make Andreas transfer to him a market booth (Bude), which Andreas had sold him for 37 Marks of Lubeck silver18. The validity of the sales contract was in question because this price was very low. One Nicolaus Wolters, possibly a neutral third party or some sort of expert witness, but more likely a counsellor, intervened in the defendant’s favour. He stated that the booth produced yearly revenue of 7 Mark, nearly 19% of the agreed vending price: indeed an attractive investment! Nicolaus is cited as having offered four arguments. He (1) called the contract unjust and unfair, continued in Latin that (2) the price was ultra dimidum iusti pretii19, stated, switching to Low German again, that (3) the contract therefore was not rightly valuable, and adding that (4) the contract had not become effective as the seller never received his copy of the contract charter. The text relates these points without comment. The court continues by reporting that it had heard contradictory witnesses, and then gives its judgement. It repeats a shortened version of Nicolaus’ point (3), saying that the contract was not valuable, and sentences the defendant Andreas to pay the purchase price back. This is a somewhat surprising outcome for two reasons: Firstly, the plaintiff is not reported to have asked for this alternative verdict; and secondly, we learn only now that apparently the whole price had been paid in the meantime, although only a partial payment of 13 Marks is mentioned at the beginning. Perhaps this was a first instalment at the moment when the charter was drafted. Be that as it may, the tricky question in our context is whether the verdict was based on the learned Iustum pretium-doctrine20 or not. One may argue that the court came to the same conclusions as Andreas’ partisan Nicolaus and therefore must have agreed with him. But it does not say so. It might have arrived at the same conclusion on another way, e.g., because of the missing handover of the contract charter. The act of handing over the charter may very well have been the decisive act by which the contract was constituted; this is a concept wide-spread in medieval legal realms beyond the learned law. But as the reasoning about the price of the booth and its annual profit uses a larger part of the short text – the Hanseatic rulers were no friends of many words and lengthy reasoning – it is a 17 From the Niederstadtbuch, Lubeck famous city book of debts and contracts, entry dated 1525 Iudicia, cited according to Wilhelm Ebel (ed.), Lübecker Ratsurteile vol. 2, 1501 – 1525, Göttingen 1956, Nr. 1055, p. 583 f. The judgement is set in bold letters. The following interpretation is not beyond doubt in regard to the functions of the parties. The 3rd and 4th lines seem to suggest that, contrary to my view, Hinrick was the seller and not the buyer. But then the main part of the judgement does not make any sense at all. Why on earth would a buyer have an interest in reversing such a favourable deal? 18 Very roughly $ 37.000 (U.S.) of today’s value – a number which can only be given under the caveat which economic history rightfully raises against such equations because of the huge difference between the baskets of goods of 1525 and 2009. 19 This means that to the fair price of the booth would have been at least 37 x 2 = 74 m, producing an income of 9.5% per year at the most. 20 C. 4, 46, 2; see Max Kaser, Das römische Privatrecht II, 2nd ed. 1975, p 388 – 390.

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fair assumption that the laesio enormis-argument was at least part of their rationes decidendi. In the 14th and 15th c. Latin words were very rare in the legal language of Lubeck. One century earlier, since 1218, the first Lubeck law codes were written in Latin, but the language of the laws shifted to Low German in the course of the 13th c., and the administration followed a few decades later. The era of Low German as predominant legal language lasted about 250 years. In the late 16th c. ‘the old Saxon Language’, as its coevals called it, was waning again. The revised Code of 1586 was penned in High German, and the jurists returned to Latin. First Latin termini technici were integrated into the Low German, and later into the High German codes and legal manuscripts. When David Mevius published his authoritative commentary on ‘Ius Lubecense’ in 1641, the Law of Lubeck was once again being treated in Latin. All this is not simply a superfluous detour into the history of philology; the legal language in use is obviously an important indicator of the influence of foreign law. Around 1500, the mere use of a Latin word may suggest that not only the words but also the ideas they expressed were foreign to Northern Germany. But there is no certainty here, either. In some cases from this period, a new expression was introduced simply because the domestic legal tradition did not already provide an adequate term. In one case from around 1560 the word ‘administration’ is newly introduced to describe the management of a trading company.21 This was a function which of course was not foreign to a merchants’ town like Lubeck, but the Low German language had not yet coined a word for it. This example shows that sometimes the legal experts imported just words, and sometimes entire legal concepts with the matching terminology as a bonus. In any case, the number of passages of Latin within the Low German sources is increasing in the course of the 16th c. The edition of the Council’s Judgements starts around 1450 (vol. 1), continues from 1500 – 1525 (vol. 2), and ends in 1550 (vol. 3). Wilhelm Ebel’s index lists no Latin words in vol. 1, five in vol. 2, and over 30 in vol. 3! (2) And now for a review of some other cases which have been discussed among Hanse-historians. There is more evidence for references to Imperial law22, but in many cases our information does not go beyond the mere fact of its mentioning. So it seems preferable to discuss a few examples thoroughly than look at many of them superficially. The total number of eight examples seems enough to prove my point, namely the seemingly inconsistent and erratic handling of learned law at Lubeck. 21 Albrecht Cordes, Kapital, Arbeit, Risiko, Gewinn. Aufgabenteilung in einer Lübecker Handelsgesellschaft des 16. Jahrhunderts, in Das Gedächtnis der Hansestadt Lübeck. Festschrift für Antjekatrin Graßmann (2005), p. 517 – 534. 22 One finds them quite easily through the convenient registers of the edition of the Lubeck charters (Lübecker Urkundenbuch) and the aforementioned edition of the Council’s judgements by Wilhelm Ebel.

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Among the oldest evidence for learned law is the manuscript of the Lubeck town law of 1294. It belongs to the early stage of Hanseatic legal history, a time of very active legislation. The makers of the code imported the various rules from a large variety of sources23; the biggest chunks deriving from the resources of befriended neighbouring cities24 and from the Saxon land law which had been collected a few decades earlier by Eike von Repgow in his Sachsenspiegel (1220 – 35). It is rather impressive how especially Hamburg forged this heterogeneous bulk of rules into a coherent new legal codex. The language of the law is the local Low German – with the one exception from Lubeck which is of interest here. The law of tutelage was a subject of eminent practical importance in a time where merchants were not at all unlikely to die young on perilous journeys and leave possibly large fortunes to their minor children. The passage dealing with the deposition of inept guardians is a direct quotation from Inst. 23, 3 and 4! One copy of the code inserts the Latin words into the Low German context; a parallel copy translates them into Low German, thus camouflaging their foreign origin25 – and presenting Latin-Low German translation equations like furiosus=dauendich; prodigus=ein thobringer and so on. One part of the phrasing strikes the eye: the legislator felt obliged to insert a justification for the reception of Imperial law. A few words (alse wi van rechte scholen – as we rightfully may) seem oddly out of place, as legislators normally do not give reasons for their provisions within their codes of law. But they are of spe23 Recently Frank Eichler analysed and edited the Hamburg City code of 1270, masterpiece of the Magister iuris and experienced ambassador Jordan von Boizenburg: Das Hamburger Ordeelbook von 1270 samt Schiffrecht (2005). 24 In 1841 Jacob Grimm compared this process of diffusing new legal rules from one town to the next with borrowing fire and light from a neighbour – a metaphor which became quite famous: “Man entlieh das recht, wie feuer und licht bei dem nachbar”; Kroeschell / Cordes / Nehlsen-von Stryk, Deutsche Rechtsgeschichte Band 2: 1250 – 1650 (9th ed. 2008), p. 117. 25 Johann Friedrich Hach, Das Alte Lübische Recht, Lübeck 1839, Cod. II. The provisions on guardianship are art. 97 – 102, p. 293 – 297: Art. 97 De vormunden settet; Art. 98 Van vormuntschap der gheste; Art. 99 De sinen kinderen set vormunden; Art. 100 De nene vormunder set; Art. 101 Van unnutten vormunden . This last article begins with the account about bad experience with incompetent guardians, and continues: “Therefore we receive, as we rightfully may, in these points the Emperor’s law. . .” – “dar umme so unt fa wi alse wi van rechte scholen indessen stukken des keiseres recht also dar unse borghere hebbet unnutte vormunden dat schal man vor den rat bringhen”, and the Council may depose incompetent guardians and appoint others in their place; Art. 102 Van vordorvenen iunghelinghen de mundich sint: “Furthermore we have the Emperor’s law like this . . .” – “Vord mer hebe wi des keiser recht also, . . .” that also an adult can receive a warden if he is “furiosus {dauendich} ofte prodigus {ein thobringer}, he schal also lange wesen under den bisorgheren bet deme rade anders umme ene bedunke vord mer omnes mente capti surdi et qui in perpetuo morbo laborant sine intervallo {alle unsinnighen lude, und dove lude, unde de sunder underlath in suken arbeyden} den schal men bisorghere gheven ane de se nicht don moghen dat stede moghe bliven wo olt se oc warden”. The additions in {brackets} refer to a parallel codex in which the Latin words are translated into Low German. The source is Inst 23 (De curatoribus), 3 and 4.

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cial value as the Council’s only scarce comment why Imperial law could come into application at Lubeck at all. Van rechte may refer to the status of Lubeck as Imperial city, but this is just an educated guess. Scholen, although related to the English word shall, does not indicate a duty but a permission and therefore has to be translated with may. The fact itself, the insertion of the justification, seems to hint at an underlying controversy whether or not the Lubeck legislator was free to serve himself on the rich buffet of classical Roman law. It would have been interesting to witness the pros and cons exchanged in the Council on that matter. As to the motives of this reception of Roman law, the code itself reports the difficulties which concern the deposition of incompetent guardians. Apparently the domestic law did not offer satisfying solutions, and on this occasion the Council, in this case acting as legislator, also adopted other rules, e.g. regarding tutelage over handicapped or sick adults. With the help of the Roman law, the Council was able to make a distinction between Vormündern (guardians over minors) and Besorgern (wardens over handicapped or sick adults). (3) In 1384, a rebellious group of craft guilds with the butchers at the top (hence the name of “Knochenhaueraufstand”, “bone-smasher rebellion”) tried to overthrow the patrician Council of Lubeck – one of many disturbances and revolutionary upheavals in German cities in the late 14th c. In this case the rebels were betrayed before they could start to act, and apparently were given the opportunity to flee unhindered. Those, however, who preferred to stay and bring their cause before the court were badly mistaken. As the procedure in criminal cases before non-learned courts was oral, we know next to nothing about the practice of criminal law from direct sources. In this case, a chronicle tells us everything we know about the revolutionary events and their juridical aftermath – victor’s justice for sure. Although the chronicler had no genuine interest in legal history and in exact juridical description of the process, we are entitled to use this source here as it claims explicitly that the rebels were treated na kaiserrechte, according to Imperial law. They were sentenced to death penalties cruel even by medieval standards for having committed a crimines laesae maiestatis.26 In claiming maiestas for itself, the Council did not exactly act in the republican tradition it emphasized on frequent other occasions. This must have been part of the policy to restore its authority, but it is also typical of the growing self-esteem and the claim for absolute supremacy the city councils developed in the late medieval and early modern times. But the immediate financial consequence of the verdict was that, unlike other crimes punished by death, high treason led to the con26 Bernd Kannowski, Bürgerrechte und Friedebriefe. Rechtliche Streitbeilegung in spätmittelalterlichen Städten (2001), p. 84 – 87, and id., “is sint nicht vil wort die eynen man schuldig machen”. Der Wille als Verpflichtungsgrund nach land- und stadtrechtlichen Quellen im späten Mittelalter, in Stadt – Gemeinde – Genossenschaft. Festschrift für Gerhard Dilcher zum 70. Geburtstag (2003), p. 45 ff. (p. 52 f.). His account is based on the report of the Detmar-Chronik (Chroniken der deutschen Städte vol. 19, 1884), p. 581 – 2.

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fiscation of the criminals’ goods27. In this way not only the ‘traitor’ was punished, but his family as well. The traditional Hanseatic law knew of no such sanction, but the Roman law did – in the cases of crimines laesae maiestatis! In this case, it seems quite obvious that the Council, in the double role of injured party and judge, adopted the Imperial law to claim its constitutional superiority and for fiscal reasons. (4) In the most blatant example of the opportunistic approach to the question Imperial law or not? The Council of Lubeck was acting in yet another role: as plaintiff. In 1418 the city sued Duke Erich von Sachsen-Lauenburg because he had led a violent feud without formal announcement against the town of Mölln near Lubeck.28 This supposedly affected belongings of the city; and the question whether the goods of the city had suffered damage was in dispute. The verdict depended on the burden of proof – in this case rather a privilege as proof was produced by “making one’s assumptions true” by a simple oath. According to traditional Saxon law, the right to swear would have been the defendant’s. He would have been allowed to take it upon his oath that he had not caused the damage in dispute. But “gestliken unde keyserrechte”, Canon and Imperial Law, granted this oath to the plaintiff. Quite obviously the plaintiff ’s enthusiasm for Learned Law in this case did not derive from theoretical convictions. (5) Not in a court ruling but in a letter of advice that the council of another Hanseatic city, Braunschweig, had asked for, the Council recommended that two women, who were found guilty of heresy, should be treated according to Imperial law. The letter continues by stating that at Lubeck they would have been sentenced to the stake for such crimes29. This juxtaposition suggests that Imperial law imposed the death penalty for heresy. This may indeed have been the case, but some doubt remains: The request letter from Braunschweig was accompanied by the case files but they have not come down to us. The correspondence dates from 1450. In 1532 the Imperial penal code “Constitutio Criminalis Carolina (CCC)” was decreed, and it did indeed punish heresy with burning30. This was the single most Ibid. p. 88 n. 473 refers to Cod. 9.8, Dig. 48.4. Hermann Krause, Kaiserrecht und Rezeption (1952), p. 89 n. 443, cites the Lübecker Urkundenbuch (LUB) vol. 6 Nr. 38 p. 39 – 49 [46]: “dat denne na gestliken unde keyserrechte de beschedigeden ere schade betugen edder mit eren eden war maken unde beholden mogen, unde dat de hertogs de nicht mynren en moge umme der pyne wegen, dar he umme der vorsate unde gewald willen in vorvallen is na keyser Karols gesette vorscreven”. Emperor Charles’ law refers to the Bulla aurea (1356); its c. CXVII (De diffidationibus) is cited six pages further up. 29 Hermann Krause, Kaiserrecht und Rezeption (1952), p. 89. Krause cites LUB 8 Nr. 681; Nr. 677 is the inquiry of the Council of Braunschweig to which Lubeck is replying: “[So we let you know] dat gy na Keyserrechte klarliken vinden, wo men sodanne mysdaet schole unde moge richten, unde weret dat se en sodanne hir mit uns began hadden, so hadde wy se in ere hogeste gerichtet unde bernen laten”. 27 28

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important legislative achievement of the Empire which for the most part of its history was not a very active legislator. After 1532 an allusion to Imperial law in criminal matters would without doubt have referred to this code. But before this date? As the CCC was not a codification of new norms but a systematic collection of the common rules already in use (in the case or sorcery for example in the Sachsenspiegel), it is likely that the Council referred to that same rule although it was only laid down and promulgated in the CCC 80 years later. In this case it is not obvious that Imperial law can be equated with Roman law, as has been done in most parts of this paper. As to the motives of the ready embrace of Imperial law, at this occasion the Council did not act out of obvious selfishness. The 15th c. in general was a time when the cities, and especially the northern German cities, increased their activities in the fight against crime. As the central powers of the Empire were rather weak, the cities started to play a more active role and took the matter into their own hands. A suggestion of harsh punishment in accordance with Imperial law would fit well into this picture. (6) Probably the most famous statement against Imperial law, enthusiastically cited by generations of scholars who wanted Lubeck to be a palladium of national resistance against foreign intrusion, was a remark of Mayor Hinrich van Warendorp in 1456. But the evidence is thin. The remark consists of nothing but an incomplete subordinate phrase torn out of context, and our confidence is not restored by the fact that the only written proof is more than 300 years younger31. It is incorporated into a collection of ancient Lubeck laws where it is out of place because the remark is most likely a political statement but certainly no rule of law. Its wording is: “Wente nemant möt der Stades Rechte krenken mit kaiserliche Rechte, dat sulvest na des Kaisers worde ewig stede unde vast bliven schal, wen de Latienische Rechte unse Stades Wesen unnütte und gantz unteemlick sin [ . . . ]” – “Because nobody may vex the city’s laws with Imperial law, that even according to the words of the Emperor shall stay firm and solid eternally, because the Latin laws are useless and completely unseemly for our city’s nature [ . . . ]”. The “that-even”CCC Art. 109. First communicated by Johann Carl Heinrich Dreyer, Einleitung zur Kenntniß der von der Reichsstadt Lübeck ergangenen allgemeinen Verordnungen (1769), p. 310 f. who commented on it with the gloss “Lübeckscher Eifer wider die Einführung der fremden Rechte” – “Lubeckish zeal against the introduction of foreign laws” but immediately afterwards devalues the statement by presenting early examples of Learned law in northern Germany. The mistrust against Dreyer, at his time town syndic of Lubeck, rises when one learns about a number of historical documents which he forged in order to fit them better into his line of thinking; Ahasver v. Brandt, Das angebliche Privileg Heinrichs III. von England für Lübeck. Ein ergänzender Hinweis auf die Fälschungsmethoden des Lübecker Syndikus Dreyer, HGBll. 71 (1952), p. 84 – 88. Antjekathrin Graßmann, Eine weitere Dreyersche Fäschung an den Tag gekommen, ZVLGA 51 (1971), p. 90 – 93 On Dreyer in general see Antjekathrin Graßmann, Johann Carl Heinrich Dreyer und das Lübecker Archiv, in Mecklenburgische Jahrbücher. Festschrift für Christa Cordshagen. (Beiheft zum 114. Jahrgang 1999), p. 264 – 299. 30 31

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sentence must refer to the city’s laws (and not to the Imperial law although the position in the sentence would suggest that connection) in order to bear any meaning. The Mayor defends the law of his city in a slightly offended tone against someone who wants to impose a rule of Imperial law on Lubeck, and he introduces two arguments. First, he refers to the series of Imperial privileges since 1226 which typically contain the promise to respect the local law of the city. Second, he refers to the “Wesen”, the inner core or true nature, of the city. It is interesting enough that this vague concept is powerful enough to serve as an argument against reception, but apart from that, so torn out of context, the weight of the Mayor’s statement is hard to evaluate. No precise context is visible. Was this protest a service for the cities along the Baltic shores which lived according to the law of Lubeck? Most of them were country towns (and not Imperial cities like Lubeck) subject to regional princes like the Dukes of Mecklenburg. Since the middle of the 15th c., these princes attempted to take away, little by little, the traditional rights and freedoms of their cities, as they tried to intensify the governance and establish modern sovereignty in their countries32. Perhaps it is more than a coincidence that just a few years earlier the Swedish King Christopher decreed a new Land Law, which contained as part of the king’s oath of office the pledge that the king would not bring foreign laws into the realm as a burden to the people.33 The resemblance is quite striking. Apparently, in the middle of the 15th c. Nordic kings and Mayors alike fulfilled an expectation of their subjects and citizens by turning openly against Roman law. (7) Shortly before 1500, for the first time in 148634, a new type of commercial society appears in the court records of Lubeck. It was called “vulle selschop”, “full society”, and is adapted from the “Societas omnium bonorum” of the classic Roman law35. Unlike the traditional types of Hanseatic trade societies which were 32 The idea is supported by a cry for help from Rostock, harbour town in the realm of the Dukes of Mecklenburg, but living according to Lubeck law, a few decades later. In 1529 the town wrote to Lubeck and expressed its fear that the Duke would apply Imperial law in disputes which hitherto were governed by Lubeck law, using exactly the same word “unziemlich” – “unteeming” as the Mayor Hinrich van Warendorp in 1456. See Peter Oestmann, Rechtsvielfalt vor Gericht. Rechtsanwendung und Partikularrecht im Alten Reich (2002), p. 653 and Ulf Peter Krause, Die Geschichte der Lübecker Gerichtsverfassung. Stadtrechtsverfassung und Justizwesen der Hansestadt Lübeck von den Anfängen im Mittelalter bis zur Reichsjustizgebung 1879 (1968), p. 159. 33 “serlica ath engen wtlendzsker rœtter draghis jn i riket almoganom til twnga” http: // www.nordlund.lu.se/Fornsvenska/Fsv%20Folder/01_Bitar/B.L1.A-KrL.html (25 Jan. 2009). For details see Heikki Pihlajamäki’s contribution in this volume, who was friendly enough to help me with the citation. 34 Wilhelm Ebel, Ratsurteile (n. 2), vol. 1 (1955), Nr. 369. The case is thoroughly discussed in my contribution “Kupfer aus Schweden. Haftung für Gesellschaftsschulden im 15. Jh.”, to the new collection of case studies Ulrich Falk et al. (eds.), Fälle aus der Rechtsgeschichte, 2007, p. 164 – 177. In order not to repeat myself too extensively, I shall be very brief here and present merely my findings.

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undisclosed partnerships, the “full society” was visible to the public. The Roman legal roots of this “full society” are already suggested by the structural similarity and by the period of its first appearance: Around 1500 many patterns of learned Law show up in the practised German law for the first time. The learned origin becomes completely evident when a few decades later the Low German terminology is replaced by High German. In that process the name “vulle selschop” is changed into “Gesellschaft aller Güter”, “society of all goods”, which is a more obvious translation of “societas omnium bonorum”. It was, not surprisingly, the new pattern of shared liability which caused disputes and litigation. In the court records the new society is always mentioned in this context. In all these cases a creditor sued the presumed partner of his debtor, a remedy which could not have been sought until then. “What one partner buys, the other has to pay”, was the wording in which this principle arrived in the revised town law of Lubeck in 158636 – exactly 100 years after it was first mentioned. But the new remedy was feeble. Apparently, the Council was reluctant to allow the consequences which should have derived from the new type of society. To actually have someone pay a debt out of a contract he did not stipulate himself would have meant to abandon the traditional and cherished standpoint that everybody “had to look for the trust where he left it” and had to deal with the person alone with whom he had concluded the contract. Be this speculation right or wrong (as usual, the Council reveals little about its motives), the result is clear. The Council accepted the new type of society theoretically, but dismissed the claims because it also granted the defendant the single-handed oath whether or not the company in question really existed. It was the widespread procedural rule in medieval domestic law to grant the defendant the single-handed purgatory oath which was applied here. The one case where the claim was admitted is no exception: in that case the defendant had conceded that the company had indeed existed. Why did the Council accept a new type of company but not endow it with a sufficient degree of legal protection? Why open the door when apparently the new institution was not supposed to come in? In which way the societas omnium bonorum arrived in the north is not clear; other innovative trading techniques of the 15th c. arrived at Lubeck from the west, mainly from Bruges, where the hanseatic merchants were in intense contact with Flemish, Italian and other traders. Parallel incidents of acceptance and rejection of foreign commercial law and other trading Kaser (n. 20), p. 409 – 413. Art. 3, 9, 5: “Wollen etliche mit einander eine gemeine Gesellschaft aller Güter anrichten, die mögen wol zusehen, mit wem sie dieselbige anstellen, dann was der eine kauft, muß der ander bezahlen“– “If several people want to start a common society of all goods with one another, they should look well, with whom they conclude it, for what one partner buys, the other has to pay”. The text sounds more like a recommendation than a hard legal rule. This triggers the speculation that the sentence was adopted from a manual or a piece of legal literature, but its roots remain obscure; see Albrecht Cordes, Spätmittelalterlicher Gesellschaftshandel im Hanseraum (1997), p. 94. 35 36

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techniques (accounting, banking, insurance, stock exchange, etc.) suggest that acts of reception were not likely to occur by accident but rather were the results of deliberate choice. Was this an exception, a foreign concept that slipped in and now had to be contained as much as possible? Lubeck’s great efforts to keep up its fame and reputation suggest another possibility: just like every single merchant the city must have had an interest to appear modern and open to innovations, and that may have included a state-of-the-art choice of types of commercial societies. While in its legislation the Council embraced the prestige of the modern institution, in the daily court routine the traditional principles prevailed. (8) The last and latest example is a letter from the Council to the Reichskammergericht (Imperial Chamber Court) from 155537. Peter Oestmann38 recently discussed the letter thoroughly, so here we may be brief. The letter accompanied an unprinted draft of Lubeck’s revised code which was still in the making, and it demanded from the Imperial Chamber to respect the local law and not to burden the city with Imperial laws “die wir nicht ertragen mögen” – “which we do not wish to bear”. The claim that a code should be respected although it was not yet promulgated is consistent with the state of the legislative theory of the time. As the town laws themselves only claimed to be revisions and therefore often went by the name of “Reformations”, the theory was that they only assembled and organized rules which were already in force. But another thing about the letter is puzzling. Why did the Council react so sharply at all? The Imperial Chamber had already proven in the 60 years since its foundation that it stood firm to its oath to decide primarily according to local law and to apply learned Imperial law (Ius Commune, i.e. Common Law in the Continental sense of the word) only if the local law provided no solution – an adaption of the theory of statutes developed in the Northern Italian cities in the late middle ages. On the other hand, the Council had, after receiving a limited privilegium de non appellando in 1504, obediently accepted the authority of the higher jurisdiction. Given the fact that these principles of handling conflicting statutes were already well established, it sounds as if the harsh letter was mainly theatrical thunder accompanying the draft. This propaganda may again have been meant to support the Lubeck-law-cities. They, first of all Rostock, were constantly urging the Council in these days to come forward with a renewed version of the codification which would help them against the growing pressure from their dukes who wanted to abolish the privileged zones of Lubeck law in their realms. But it took the Council another 30 years until they finally implemented the Erneuerte Stadtrecht in 158639. 37 Dreyer (n. 31), p. 310 Nr. XXXI: The Council asked the Imperial Chamber Court, “in Fällen und Sachen, darin wir nach unser Stadt Lubsch Recht und alte löbliche Gewohnheit geurteilt und erkandt haben, by solcher unser Erkendniß und Stadt Lubsch Recht und Gewonheit lassen, dieselbe Urteile confirmieren und approbieren, und uns darüber mit Kayserliche Rechte, die wir nicht ertragen mögen, nicht beschweren lassen”. 38 Peter Oestmann, Rechtsvielfalt vor Gericht. Rechtsanwendung und Partikularrecht im Alten Reich (2002), p. 654 / 5.

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III. These eight cases stem from different types of sources, spread over a great span of time and cover largely divergent subjects. In order to decide if they nevertheless permit coherent conclusions, they are presented here in a chart in chronological order, with the proposed motives for the attitude towards learned law in the last column. (No.), Year

Type of source

Subject in question

Attitude towards Imperial law

Motive

(2) 1294

Statute

Tutelage over disabled and ill persons

Positive: using Imperial law “as we duly may”

Weakness of local law

(3) 1384

Court ruling

Crimen laesae Utterly positive maiestatis: Confiscation of convicted traitors’ goods

(4) 1418

Positive Argument within a law Right of proof by the suit, the city acting as plaintiff about the sum of damage suffered plaintiff

(5) 1450

Letter of advice to the befriended city of Braunschweig

Prosecution of heretic women

Positive

Unclear, possibly religious

(6) 1456

Musing of the Mayor

Unclear (Introduction of Roman Law in Lubeck?)

Negative

Patriotism?

(7) 1486 /

Court ruling

Liability for a partner in a commercial society: societas omnium bonorum

1586

Statute

Theoretical acceptance, Window but practical rejection dressing on grounds of law of proof: the sued can simply deny the existence of the partnership

(1) 1525

Court ruling

Purchase price too low, Probably positive as the Normal no iustum pretium side with this argument court (among others) wins ruling (?)

(8) 1555

Letter to the Imperial court (RKG)

Lubeck and Imperial law in general

Negative

Financial

Financial

Protection of the traditional ways?

The explanations which legal historians have offered for this wide variety of reactions and motives are scarce and unsatisfactory. Before 1945, the German tradition wanted the rejection to be an act of resistance against foreign influences, a proud defence of domestic values – and therefore tended to overlook the partly conflicting evidence. This nationalistic position is not taken up openly any more, 39

See case (7).

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but it still seems to play a certain role in the heads of the public. Wilhelm Ebel (1908 – 1980), the most important researcher of the Lubeck law in the 20th c., was not always immune against nationalistic temptations but was at least after 1945 wise enough to tread these difficult grounds carefully. He never took a clear stand on the question in what degree foreign law had infiltrated the Hanseatic legal world, but his sympathies clearly were on the side of the indigenous law. The erudite study of Hermann Krause, Kaiserrecht und Rezeption (1952), tackled the problem from the other side. He did not ask himself how ‘pure’ the northern German law was preserved, but instead offered a somewhat syncretistic overview (he made no distinction between the regions he picked his examples from) over the changing meaning and content of Imperial law across the centuries. He summarized his results in a development curve: a early phase of silent, unconsidered acceptance of Imperial Law since the 12th c., the times of Emperor Frederic I Barbarossa, a middle phase of open rejection which starts in the middle of the 15th c. and lasts about a hundred years, and a late phase in which the opposition dies down little by little in the decades after 1550. Most of the cases examined in this paper would belong to the middle phase, the period of rejection. Krause’s view has stayed more or less uncontested, and it does indeed match nicely with the changes of legal language described above. But a short glance at the chart is enough to raise doubts about the pattern of supposed hostility towards learned law. It shows at the very least that the phases did not proceed as smoothly as stipulated. But the curve is certainly too general to explain the sudden, seemingly erratic changes sufficiently. Krause’s theory thus remains too vague to serve as a convincing explanation of the reasons for when Imperial law was accepted and when not. Perhaps the discussion was not fully convincing until now because it was only led by jurists. It was based on the unspoken assumption that there had to be some fundamental legal doctrine or at least a prevailing conviction within the Council whether or not Imperial law was valid law at Lubeck. But on closer inspection this assumption becomes questionable. The legal experts in the Council had lawyers working for them and thus had access to legal knowledge. They themselves however were not learned lawyers. Why would they have been genuinely interested in the consistent application of a sophisticated rule when and when not to accept Imperial Law? In other cases, not the least of these being the fundamental question what the legal nature of the Hanseatic League was and who its members were, they stubbornly and successfully avoided any commitment40. As experienced mer40 The Hanseatic League never produced an exhaustive list of its members! Its London competitors, the Merchant adventurers, therefore dubbed them “crocodile creature merchant”: Like a crocodile lurking in muddy waters the Hanseatic League would never show its entire body. In the period of our cases (1450 – 1550), England and the Hanseatic League were in a constant debate whether the Hanseatic League was a corporate body liable for the actions of its members and entitled to act for them in case of damage suffered. When claims against it were made, the representatives of the Hanseatic League denied that it was a corporate body;

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chants, as members of the patriciate, of the families who had governed the city since its foundation in the middle of the 12th c., they acted within another grid of coordinates than one would find in a community simply under the rule of law and jurists. Regarding the question of whether to apply Imperial law in its court, the Council of Lubeck acted purely pragmatically. Imperial legal doctrine was applied whenever it was in favour of the city. As long as the Council’s authority was not questioned, it was a question of mere pragmatism and possibly of the quality of the rules whether or not they were applied. In their daily legal practice the Council was not generally opposed to Imperial law, but political statements to third parties were a different matter. Seen in this light, the two most spectacular statements against Imperial law suggest that the councilmen were not opposed to learned law but were against interventions from third parties or institutions. The councilmen did not fight for their indigenous law, but for their liberty and independence.

as plaintiff they insisted that they were indeed bearers of rights and claims; Albrecht Cordes, Die Rechtsnatur der Hanse, Politische, juristische und historische Diskurse, Hansische Geschichtsblätter 119 (2001), p 49 – 62. See also Alain Wijffels, (Roscoff conference paper, forthcoming).

ALAIN WIJFFELS

Orbis exiguus. Foreign Legal Authorities in Paulus Christinaeus’s Law Reports The purpose of the present contribution is to give an account of how Paulus Christinaeus (1553 – 1631) referred to foreign legal authorities in his Belgian Law Reports. The collection of Decisiones by Christinaeus stands on the crossroads of several legal traditions at the end of the 16th and beginning of the 17th century. It is anchored in the civil law or ius commune tradition, but its perspective is that of the Belgian provinces, in particular Mechlin and Brabant. As a work written primarily by the standards of the ius commune literature1, it reflects in many ways the “law of the books”, but because its proclaimed emphasis is on the practice of the Belgian superior courts, it also reflects to some degree legal practice, or, as it is sometimes called, the “law in action”. Since legal practice in the Low Countries in Christinaeus’s life-time was quickly undergoing the changes which, in general terms, may be characterised as the shift from the late-medieval legal methods to the early-modern combination of legal systematisation and positivism, his Decisiones also bear witness to that transition from the so-called “Italian method” to (the early forms of) usus modernus as the mainstream approach by university-educated legal practitioners. This contribution deals therefore with the question of the issue of foreign law as a legal authority in the ius commune tradition. However, as the phrase and concept of ius commune tend to be blurred in current references to European legal history, it should be emphasised that “ius commune”, as an historical category, is anything but a monolithic concept: its use always needs to be specified (and thus, qualified) ratione loci (although there is, almost by definition, a “common” element in the general European ius commune tradition, that common legal tradition and culture differed nevertheless from one region to another, mainly because of several exter1 Christinaeus’s reports are singled out in the (unfortunately, much underrated) standardwork on early-modern ius commune by H. Coing, Europäisches Privatrecht, I, Älteres Gemeines Recht (1500 bis 1800) (München, C.H. Beck’sche Verlagsbuchhandlung, 1985), p. 3. Chapter 4 of that book, on legal authorities in early-modern European law, is, as much else in Coing’s work, much more than a mere synthesis, but it expresses a depth of understanding of ius commune legal thought which is often absent from the vast literature dedicated to the subject.

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nal factors), ratione personae (already in the Middle Ages, for example, ius commune did not have entirely the same significance among legists and canonists; during the early-modern period, it played arguably a different role in the works of academic scholars and in its professional applications by legal practitioners), ratione materiae (as a component of various legal systems, its impact would differ – with further differentiations from one region to another – from one branch of the law to another: ius commune did not have the same impact, and therefore meaning, in, say, the law of contracts and in feudal property law), and these specifications could be carried even further. Moreover, they also need to be combined with each other.

I. The paradoxes of foreign law from a ius commune perspective In its most generic meaning, the historical European ius commune was potentially an all-encompassing legal system. The phrase “common law”, in the case of ius commune as in other instances of “common laws” in European history, necessarily implies a complex of particular legal systems (called, in the ius commune tradition, iura propria), and arguably, the interactive coexistence of particular laws2 is the very raison d’être of any “common” law system3. There is simply no point in speaking of a “common” law, unless one assumes the existence of a diversity of particular laws4. Any interaction of different legal systems requires or generates a 2 No study worth its salt dealing with the learned law’s late-medieval and early-modern theory of legal authorities (Rechtsquellenlehre) can afford to ignore W. Wiegand, Studien zur Rechtsanwendungslehre der Rezeptionszeit (Ebelsbach, Verlag Rolf Gremer, 1977); see also, by the same author: Zur Herkunft und Ausbreitung der Formel ‘Habere fundatam intentionem’, Eine Vorstudie zur Rechtsquellen- und Rechtsanwendungslehre der Rezeptionszeit und des usus modernus, in S. Gagnér, H. Schlosser and W. Wiegand (eds.), Festschrift für Hermann Krause (Köln, Wien, Böhlau Verlag, 1975), p. 126 – 170. Unfortunately, a great deal of the historiographical confusion and misrepresentations in ius commune studies is precisely due to the fact that authors have dealt with such topics without duly taking into account the complex system of authorities worked out by ius commune scholarship, for which Weigand provides one of the best outlines produced in recent times. The fundamental concepts and values which underpinned the complex relationship between ius commune and iura propria are set out in the great tradition of the 20th century Italian legal historians F. Calasso and E. Cortese by M. Bellomo in his summa aurea: The Common Legal Past of Europe 1000 – 1800 (Engl. trans. by L.G. Cochrane, Washington D.C., The Catholic University of America Press, 1995), in particular Ch. 7. 3 A theme I have generally referred to in my article: Aux confins de l’histoire et du droit: la finalité dans le débat sur la formation d’un nouveau ius commune, Revue d’Ethique et de théologie morale, «Le Supplément», n° 207 (1998), p. 33 – 66. See now, for a more elaborate analysis, M. Cavale, Alle origini del diritto europeo. Ius commune, droit commun, common law nella dottrina giuridica della prima età moderna (Bologna, Monduzzi Editore, 2005). 4 A theme I have further developed in my article: Qu’est ce que le ius commune?, in A. Wijffels (ed.), Le Code civil entre ius commune et droit privé européen (Bruxelles, Bruy-

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minimum of rules which will define the relationship between the different systems, and if that minimum is further stretched and developed, it becomes a system in its own right which will have to define the relationship between itself and the other, “particular” legal systems. In that sense, it already becomes, borrowing a famous phrase used as the title of a work by an English civil lawyer, “the law of laws”5. One of the defining features of ius commune is precisely that it determines the relationship between the particular laws, and in addition between itself and those particular laws6. In theory, the European ius commune was all-encompassing, because any particular legal system it encountered would come in its ambit. This was true for territorial laws, however small or extensive, central or peripheral, prominent or isolated, a territorial law might be; it was true for personal laws, and in general for any particular legal status. Since one of the defining features of ius commune was to govern the relationship between particular laws, any newly discovered or developing particular law would potentially fit within the overall system of ius commune. In practice, the potential universal application of ius commune as a “world law” was restricted to the Christian orbis terrarum, and, in even more practical terms, to Western Latin Christianity7. Even within that narrow view of the world, there were entire areas where its impact on the particular laws of those territories was severely restricted: these could be peripheral geographical areas (from a Western, continental-European vantage point), such as the Scandinavian countries, Ireland, or even England, but also very central areas in Western Europe (such as the original confederation of Swiss cantons). Thus, the effective catchment area of ius commune lant, 2005), p. 643 – 661; also published in A. Supiot (ed.), Tisser le lien social (Paris, Editions de la Maison des Sciences de l’Homme, 2004), p. 131 – 147. 5 A reference, of course, to R. Wiseman, The Law of Laws: or, the excellency of the civil law, above all other humane laws whatsoever; showing of how great use and necessity the civil law is to this nation (London, 1686, and later editions). 6 M. Bellomo, The Common Legal Past of Europe 1000 – 1800 (Engl. trans. by L.G. Cochrane, Washington D.C., The Catholic University of America Press, 1995), p. 156. 7 This seems true, at least, from the North-Western European vantage point of my contribution. In the ius commune scholarship, literature and legal practice which prevailed in the Low Countries from the late 15th century until the early 17th century, I have only rarely encountered any reference, be it as a conflict of laws, between a European and non-European legal system, in spite of the increasingly developed contacts with non-Western societies. One such oblique example, but quite exceptional in my research, is a consultation by Christinaeus’s older contemporary Johannes Wamesius, professor at the law faculty in Louvain, who in his consultation II.56, challenged the proceedings which had taken place in Barbary before an Islamic judge, and which, he claimed, had violated principles of natural justice: cf. my reference to that case in Business Relations Between Merchants in Sixteenth-Century Belgian Practice-Orientated Civil Law Literature, in V. Piergiovanni (ed.), From lex mercatoria to commercial law (Berlin, Duncker & Humblot, 2005), p. 255 – 290, at p. 276, note 71. It is quite possible, of course, that in European (or European-dominated) territories bordering to non-Western societies (particularly in the Mediterranean), such cases were more frequent. However, if so, it seems that little of it percolated into the ius commune literature which provided the main references and authorities in legal works circulating elsewhere in Europe.

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remained historically much more limited than today’s extension of the European Union: in fact, it only stretched to a few countries beyond the area of the six founding member-states of the European Communities, including, in addition, Spain and Portugal, Austria, and perhaps Scotland. The world of ius commune was, in more than one sense, a small world. These general reminders about the nature and the (limited) extension of ius commune may serve to introduce a double paradox when one attempts to introduce the notion of foreign law in this context. On the one hand, the complex system of particular laws within the ambit of ius commune ceases to contain any foreign element, as, by definition, all these particular laws are integrated within the ius commune – such integration being, at any rate, the major purpose justifying the existence of that ius commune. On the other hand, what appears to be foreign would then become any legal system which, in spite of the ius commune’s universal ambitions, would not be integrated by the “law of laws”. But even when one puts to rest those unrealistic ambitions, accepting that de facto, European ius commune only succeeded in encompassing the particular laws of a limited segment of Europe, one hits upon a second paradox, namely that, at least from the perspective of ius commune, the legal systems beyond its own horizon hardly appear to exist. In other words, whereas ius commune asserted itself by developing an interface between the particular legal systems, it neither worked out an interface with legal systems beyond the scope of particular legal systems it actually governed itself, nor did it submit to another interface which would have governed its relations with legal systems beyond its own turf. By and large, non-Western legal systems were not incorporated in the vast body of mainstream ius commune literature; and, by and large, no major body of legal literature was developed integrating both the ius commune tradition and rival or foreign legal systems8. A typical illustration which makes the point is the incapacity of the early-modern law of nations, which as a more or less autonomous ius gentium developed a legal literature largely derived from the broader ius commune literature, to work out foundations of international law which reflected a wider culture than Western European legal culture9. As a result, the ius commune approach in Christinaeus’s time does not provide a clear-cut notion of ‘foreign’ law. The developing literature on iura propria, however, offers a better perspective, as it could regard as different or foreign those 8 See (e.g.), N. Zacour, Jews and Saracens in the consilia of Oldradus de Ponte (Toronto, Pontifical Institute of Mediaeval Studies, 1990), where the author’s selection of consultations includes mostly ‘mixed cases’, but little evidence regarding the application of Jewish or Muslim law, only mentioned as obiters, for example in Cons. 264, at p. 63 (English trans.). 9 Cf. (e.g.) C.H. Bezemer, Chapter 2 (Van de twaalfde eeuw tot circa 1450), in A.C.G.M. Eyffinger (ed.), Compendium volkenrechtsgeschiedenis (Deventer, Kluwer, 19912), esp. p. 41 – 44; K.-H. Ziegler, Völkerrechtsgeschichte (München, Verlag C.H. Beck, 1994), Chapters 6 and 7; C. Focarelli, Lezioni di Storia del diritto internazionale (Perugia, Morlacchi Editore, 2002), p. 33; D. Gaurier, Histoire du droit international. Auteurs, doctrines et développements de l’Antiquité à l’aube de la période contemporaine (Rennes, Presses Universitaires de Rennes, 2005), Ch. 2, § 3, and Ch. 3.

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particular laws which were not its own proper object. Moreover, the emergence of the early-modern territorial state – even in the case, as the Southern Netherlands, of a constitutionally comparatively loose personal union – strengthened the differentiation between legal systems which could be more or less identified with a given territorial polity10. To some degree, the perspective of the particular law was flexible, as, even beyond the boundaries of the emerging territorial states, it could view what was to be considered as foreign with a greater or lesser inclusive emphasis, depending on the context and the focus. Thus, from a local or regional law vantage point, the foreign law could be either a neighbouring local or a regional law, but if those neighbouring laws were part of a wider territory which was deemed to present some degree of political unity, the vantage-point could shift and only the particular laws from other political entities were seen as foreign. As in early-modern cartography, one can even recognise a tendency to view conventional “nations” which did not necessarily express any political unity (as, for example, Italy), but which, for the purpose of referring to their laws, were routinely mentioned as a distinct whole11.

10 That development would come into its own in the early-modern era, cf. H. Mohnhaupt, Europäische Rechtsgeschichte und europäische Integration. Kulturelle Bedingungen europäischer Rechtseinheit und vergleichender Beobachtungen, in K.A. Modéer (ed.), Europäische Rechtsgeschichte und europäische Integration [Institutet för Rattshistorisk Forskniy, Serien III, Rättshistoriska Skrifter Fjärde Bandet] (Stockholm, Institutet för Rattshistorisk Forskniy, 2002), p. 15 – 57, at p. 37, particularly on the differentiae-literature, about which the same author has also written: Die Differentienliteratur als Ausdruck eines methodischen Prinzips für Rechtsvergleichung, in B. Durand and L. Mayali (eds.), Excerptiones iuris: Studies in Honor of André Gouron (Berkeley, CA, The Robbins Collection, 2000), p. 439 – 458; and also by H. Mohnhaupt, Zum Verhältnis von Region und “ius particulare” in Europa während des 16. bis 18. Jahrhunderts. Historische Notizen zu einem aktuellen Thema, in E. Sciacca (ed.), L’Europa e la sue regioni (Palermo, A. Lombardi, 1993), p. 226 – 238 – from the perspective of early-modern comparative law, which is yet a different vantage-point from that of the present contribution. 11 The point on cartography was made by H. de Schepper, ‘Belgium Nostrum’ 1500 – 1650. Over integratie en desintegratie van het Nederland (Antwerpen, De Orde van den Prince, 1987), p. 22, particularly for the Netherlands after the separation of the Northern provinces: until the 18th century, several maps of “Belgium” still covered both the North and the South (and, similarly, the long-term political division of territories such as the county of Flanders or the duchy of Brabant did not prevent mapmakers to continue representing those territories as a whole). Although my remarks apply more or less to several Western European territories, I have here in mind more particularly the situation in the Low Countries: definitely in legal literature, by Christinaeus’s time, it had become possible to refer to “Belgian law” as such: see for example the full title of Christinaeus’s reports, but also the almost contemporary work by Franciscus Zypaeus, Notitia iuris belgici (ed. pr. Antverpiae, Verdussius, 1635). In Christinaeus’s life-time, it was still possible to refer to “Belgian” law by including both North and South in spite of the permanent political division, though diverging legal developments already paved the way to a greater differentiation, witness, barely a generation later, the work by Antonius Anselmo, such as his “Codex Belgicus” (ed. pr. 1649) or his “Tribonianus Belgicus” (ed. pr. 1662).

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II. Christinaeus’s Decisiones12 Paul van Christijnen (Latinised version: Paulus Christinaeus)13 was a legal practitioner and counsel. He was an advocate at Mechlin, where he appears to have been involved in his clients’ litigation before the local municipal court, the ecclesiastical court, and the Great Council (which acted both as a provincial court for the small territory of Mechlin and a few surrounding villages, and as a supra-regional court in the Low Countries, which saw its territorial jurisdiction shrink dramatically in Christinaeus’s life-time, especially when the Northern provinces broke away from Hapsburg rule)14. He acted as Mechlin’s legal counsel (pensionarius) from 1585 until 1622, when he resigned from that office in favour of his son 12 Practicarum quaestionum rerumque in supremis Belgarum curiis actarum et observatarum decisiones (Antverpiae, Ex officina Hieronymi Verdussii, 6 vols., 1626 – 1633), which is known as the editio princeps: it already mentions Christinaeus’s son Sebastian as (co-)editor. The following edition (“emendatum et auctum, studio et opera S. Sebastiani de Christynen”), under the same title and in six volumes, was also printed at Antwerp by H. Verdussen, in 1633 – 1636. The third edition (according to the title-page) was published (in 6 vols.) at Brussels by t’Serstevens in 1661. The following edition seems to be that of 1671, again in Antwerp, printed by Hieronymus III and Johannes Baptista I Verdussen. The following century, the collection was published in 1734 at Erfurt by Iungnicolius, “summo cum studio recoignitum et revisum . . . opera et cura Tobiae Jacobi Reinharthi”; in addition, T.J. Reinharth published “selectae observationes ad Pauli Christianaei decisiones” (Erfurt, also by Iungnicolius) in 1743. R. Dekkers, Bibliotheca Belgica Juridica. Een bio-bibliographisch overzicht der rechtsgeleerdheid in de Nederlanden van de vroegste tijden af tot 1800 (Brussel, Paleis des Academiën, 1951), mentions Antwerp as the place of publication for all Belgian editions, and includes a 1641 edition in his survey, but those references have not been ascertained after a preliminary search of catalogues on-line and in-situ. References hereafter are to the set I was able to use during the research for this paper, viz. the 1636 edn. for the vols. 1 – 4, and the 1633 edn. for the vols. 5 – 6; that is not an entirely satisfactory approach, if only because I have not been able to check which references are due to Paulus Christinaeus and which possibly to Sebastian. However, for the purpose of this paper, the distinction is not crucial, as my aim was to describe the state of a learned practitioner’s use of references in Belgium during, approximately, the second quarter of the 17th century, i.e. by the time the available usus modernus literature was becoming the mainstream legal literature for practitioners (in the Southern Netherlands), while references to the earlier prevailing (“Italian”) method had not yet gone out of fashion. My point, which I cannot further develop in this context, is that by the time the usus modernus had practically completely superseded the Italian method, ius commune was beyond its high-water mark and could no longer hope to rule the developments of legal methods. 13 Biographical entry by E.-H.-J. Reusens in Biographie Nationale, IV (Bruxelles, H. Thiry, 1873), col. 111 – 112. 14 J. Gilissen, De Grote Raad va Mechelen, Historisch overzicht, in Miscellanea Consilii Magni (I). Ter gelegenheid van twintig jaar Werkgroep Grote Raad van Mechelen (Amsterdam, Werkgroep Grote Raad, 1980), p. 13 – 43; A. Wijffels, Grote Raad voor de Nederlanden te Mechelen (ca. 1445 – 1797), in E. Aerts et al. (eds.), De centrale overheidsinstellingen van de Habsburgse Nederlanden (1482 – 1795), I (Bruxelles, Algemeen Rijksarchief, 1994), p. 448 – 461 (also published in French); L.Th. Maes, Het Parlement en de Grote Raad van Mechelen 1473 – 1797 [bewerkt en drukrijp gemaakt door Marcel Kocken en Jozef Nalewajski] (Antwerpen and Rotterdam, Uitgeverij C. De Vries-Brouwers, 2009).

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Sebastian. He also appears to have practised in the surrounding Duchy of Brabant, where the main court was the sovereign court sitting in Brussels; Brussels was also the seat of the Privy Council, a government and political institution, which had also developed a substantial quasi-judicial activity. Christinaeus’s reports15 illustrate the general features of the relationship between ius commune and iura propria from the particular vantage-point of the Southern Netherlands. The author refers as a matter of course to the law(s) of the “Belgian” territories as a whole, which he often contrasts to the laws of France, Germany, Italy, Spain, Portugal and other countries – whether they were distinct political systems or not. Typically, as one would expect from a practitioner working in local and higher courts at Mechlin and in Brabant, his horizon of legal systems beyond the Southern Netherlands is basically restricted to the neighbouring areas of continental Europe, viz. France, Germany, and to a lesser extent the Northern Netherlands, but it also included Italy, Spain and, again to a lesser extent, Portugal. The laws of these countries, whether applicable as general laws (e.g. a so-called general French custom, or royal ordinances of the French Kings) or as more particular laws (e.g. the custom of a specific French region or town), are mentioned as if they belonged to distinct, and thus, foreign legal systems. However, that approach remained strongly dependent on the ius commune culture. Few references to a foreign particular law could be made directly through primary authorities, whether customary law, statutory law or – for partly different reasons which will require a further explanation later on – case law. In the vast majority of cases, Christinaeus – as most of his contemporaries – had to rely on secondary sources in order to have access to foreign primary authorities. In addition, and this will be the main thesis of this paper, these secondary sources appear to have been selected almost exclusively within the wide body of available ius commune literature. These qualifica15 Ph. Godding, L’origine et l’autorité des recueils de jurisprudence dans les Pays-Bas méridionaux (XIIème – XVIIIème siècles), in Rapports belges au VIIIème Congrès international de droit comparé, Pescara 29 août-5 septembre 1970 (Bruxelles, Bruylant, 1970), p. 1 – 37; J. Simon, Les recueils d’arrêts du Grand Conseil de Malines, Bulletin de la Commission royale pour la publication des anciennes lois et ordonnances de Belgique 8 (1908), p. 125 – 224; and my articles: Van Paul van Christijnen (1631) tot Jean-Alphonse de Coloma (1739): rechters en advocaten bij de Grote Raad van Mechelen tegen de achtergrond van de zeventiende-eeuwse Europese rechtsontwikkeling, De zeventiende eeuw 9 / 1 (1993), p. 3 – 14; Legal Records and Reports in the Great Council of Malines (15th to 18th Centuries), in J.H. Baker (ed.), Judicial Records, Law Reports, and the Growth of Case Law [Comparative Studies in Continental and Anglo-American Legal History, 5] (Berlin, Duncker & Humblot, 1989), 181 – 206, esp. p. 193 – 196. Christinaeus’s reports are not homogeneous: the articles (“Decisiones”) are based on various sources, ranging from actual cases which Christinaeus knew first-hand to general references based on secondary literature. Some articles are detailed and refer to one or more specific cases, but many simply refer to legal literature, which may or may not include further references to (Belgian and foreign) cases. For an example of how Christinaeus sometimes relied on a consilium submitted during proceedings before the Great Council, but without having any further information on the case, nor any knowledge of its outcome, cf. my case-study: Vicarious Liability for the Carrier by River?, Tijdschrift voor Rechtsgeschiedenis 75 (2007), p. 333 – 353.

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tions explain at once both the breadth and the limits of Christinaeus’s foreign legal horizon: foreign law could in practice only be quoted if it had been dealt with specifically in works which belonged to a sufficient degree to ius commune scholarship. Thus, works which dealt with a foreign particular law and were based on a particular legal learning outside the ius commune tradition – the English common law literature is probably the example most close at hand – are totally ignored. Works from outside the ius commune tradition, whether in Europe or beyond, are not part of Christinaeus’s system of reference, and the laws which those works may deal with are almost never mentioned. Even within the territories which belonged to the ius commune heartlands, a particular law from outside the territorial jurisdiction of the Belgian courts which had not entered the legal literature, fitting to some degree the standards of ius commune scholarship, would not find its way into Christinaeus’s work. Conversely, those particular laws which had been dealt with – whether systematically or incidentally – in works which could qualify as ius commune literature in the broadest sense, could all – and, due to the apparently vast library resources Christinaeus had access to, effectively did – receive a mention in his reports. The more a particular law had been studied by authors of the learned continental European legal tradition, or the greater the authority or success of a specific work of that tradition, the greater the likelihood that that particular law would be more than just occasionally referred to in the course of Christinaeus’s Decisiones. It is therefore predictable that the genres of learned legal literature associated with particular law which had been most developed and which had retained the particular attention of printers would be most strongly represented throughout works such as Christinaeus’s reports. At the same time, even allowing for a degree of cultural bias on the part of the author – Christinaeus would, for instance, claim a privileged position of the French language in the Belgian territories16, and throughout his reports, he often underlines the similarities between Belgian and French laws –, one can expect that some of the countries, or at least some types of works produced in those countries, will figure much more frequently than others in Christinaeus’s references. For example, by the beginning of the 17th century, French literature on customary law, represented already a substantial body of published legal scholarship, whereas at the same time, such scholarship had not yet been fully developed in the Dutch provinces. The Decisiones-literature is another example: for some jurisdictions, several reports were available in print by the early 17th century, or in some cases, a single reporter of a jurisdiction which might otherwise have appeared as a backwater brought the decisions of that court to prominence, while other courts had to wait much longer before their reports were available in print. The importance of a territory, the prestige attached to an institution, the merits attributed to an author, the sheer volume of printed works which a particular law or court had inspired, all these were factors which were decisive for the role a collection of reports would play in ius commune literature as a whole and which would somehow be reflected in a single work such as Christinaeus’s reports. 16

Decisio IV.91.18.

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Although the distinction between customary law, statutory law, case law and legal scholarship reflects a later ideology of legal authorities, the distinction is still anchored in current legal historiography and, as long as it is not regarded as a fundamental summa divisio, it can be used for practical purposes to describe the foreign particular laws as they appear in Christinaeus’s Decisiones.

III. The ambit of ius commune in Christinaeus’s perspective Before considering those conventional legal authorities, one should nevertheless first recall that the legal literature available to Christinaeus had been almost exclusively produced and printed within Western and Southern Europe. However, even as a matter of principle, the world of ius commune in Christinaeus’s highly conventional approach was that of the “small world” already referred to. In some cases, the general or quasi-universal validity of a principle is not merely stated implicitly by a reference to the civil or canon law authorities, but it is highlighted by a phrase indicating explicitly that the principle is observed “throughout Europe”, “by all the peoples”, “by the whole Christian polity” or “throughout the Christian world”17. In several cases, the phrase is used to refer to a practice allegedly generally observed by superior courts. In one Decisio, both the extension and the limits of such a general practice in the Christian world are illustrated through a (rather uncommon) enumeration, where Christinaeus argues that, barring a special provision, it is a “universal rule in all Belgium” (totius Belgii universa regula) that women are capable of inheriting a fief18. In order to emphasise that this rule is not an aberration, Christinaeus (referring to F. van de Sande) states that it applies in the various territories of the Low Countries (whereby, significantly, he mentions together the territories of the South and of the North), but also in a host of other (including some peripheral) European territories: Quam regulam [ . . . ] etiam in principalibus ditionibus procedere asserit et probat, utpote Geldriae, Brabantiae, Luxemburgi, Flandriae, Hannoniae, Hollandiae, Zelandiae, Zutphaniae ac Namurci, in quibus recenset plures feminas fuisse successores: ac insuper docet pleraque Christiani orbis regna eiusdem iuris censeri, utpote Angliam, Schotiam, Siciliam, Neapolim, Hungariam, Cyprum, Lusitaniam, et reliqua Hispaniarum regna, uti videre et probari potest ex diversis dictorum regnorum ac provinciarum historiis.19

17 Cf. (e.g.) Decisiones I.50.25; I.55.6 – 9; I.271.21; I.281.2; I.286.1; I.394.8; II.12.7; II.51.6; II.94.2; II.103.2; III.168.6; IV.80.2 – 4; IV.186.12; IV.212.41; VI.42.9. 18 Cf. Ph. Godding, Le droit privé dans les Pays-Bas méridionaux du 12e au 18e siècle (Bruxelles, Palais des Académies, 1987), p. 354 – 355; J. Gilissen, Le privilège de masculinité dans le droit coutumier de la Belgique et du Nord de la France, Revue du Nord 43 (1961), p. 201 – 216. 19 Decisio VI.42.9.

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Usually, the reference to the “whole Christian world” would appear to have been added in order to buttress the general authority of a principle, but occasionally, it may also serve to oppose the application of a customary rule deemed to be contrary to the ius commune and to natural equity. In one such case, the emphasis on rationality (here apparently assimilated to equity) stretches even further and beyond Christians the notion of universality: “. . . si cum inter Christianos et homines qui ratione utuntur et reguntur, praedicta consuetudo non potest habere vim legis obligativae”20. In practice, however, references to law outside the Christian world are scarce. In one short article which deals with the subsidiary application of Roman law in Belgium when customary law fails, Christinaeus briefly refers to P. Busius to claim that even the Turks applied the “Greek” Code of Justinian21. A discussion of the property rights to a treasure discovered by the buyer in the house he has acquired is an opportunity to quote a decision attributed to a ruler in India22. References to Jewish law seem to be based on ancient texts, and should therefore not be viewed primarily as references to a contemporary foreign legal system23. These are in any case uncommon references, which do not seem to play any substantial part in the whole of the arguments. Finally, it should be noted that the reference to a principle which prevails in the Christian world may also have a moral connotation. Thus, in a cause célèbre from 153124 involving an advice of the Great Council of Mechlin, the issue was whether a Portuguese subject could reclaim his slave who had escaped while he was staying with his household in the Low Countries. The Council advised against the claim, because, it said, slavery was no longer in force in the Netherlands, “propter libertatis personarum usum hic per aliquot saecula continue observatum”25. Christinaeus notes that this had been a general tendency in other “provinces” of the Christian world, but that slavery still subsisted in Portugal and some regions of Spain, and in regions bordering to Turkey, where the continuous warfare between Christians and “infidels”26 still entailed that prisoners could be made slaves: the author insists, however, that such a usage would no longer prevail among Christians27.

Decisio IV.212.41. Decisio I.343.4. 22 Decisio I.399.19. 23 Cf. (e.g.) Decisiones I.302.29; I.339; I.383.5; VI.31.27. 24 The case was still discussed in 17th-century Belgian legal literature: apart from Christinaeus’s reports, cf. P. Gudelinus, Commentariorum de iure novissimo libri sex (I have used the edition: Antverpiae, Ex officina typographica Hieronymi Verdussi, 1644), I, Ch. 4, p. 6 – 7. 25 Ph. Godding, Le droit privé dans les Pays-Bas méridionaux du 12e au 18e siècle (Bruxelles, Palais des Académies, 1987), p. 47 – 51. 26 On the killing of a Christian by an “infidel”, cf. Decisio IV.198.27. 27 Decisio IV.80.2 – 4; see also Decisio IV.186.12. 20 21

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Outside the continental European regions which produced scholarly legal imprints, the means to refer to the particular laws appear to have been practically non-existent for Christinaeus. A reference to Bulgarian customary law is based on J. Mynsinger von Frundeck’s Observationes28, and a reference to P. Royzius Maureus’s Lituanian reports29 represent, both South and North, the furthest inroads into Eastern Europe Christinaeus was able to make. For different reasons, which involve both language and legal methods, English law is almost never referred to. English practices are only mentioned in the context of the law of nations with regard to treaty obligations assessed according to ‘natural law’ principles expressed in ius commune doctrines30, the law of warfare31 and reprisals32. Obiters referring incidentally to English law appear in the context of tax law33 and the application of the lex domicilii to the inheritance of chattels34. In general, cases involving a conflict of laws with a system beyond the Belgian territories may include more or less elaborate discussions on foreign law, but definitely not systematically or necessarilty more so than other cases in which foreign law is not part of the issue under discussion35.

IV. Customary law References to customs and usages outside the Southern Netherlands occur frequently. This holds true even if one does not include the great many references to a “practice”. In many cases, the phrase seems to refer to a more ambivalent notion of “usage”, viz. the practice of a court, or an administrative authority exercising quasi-judicial powers, and it can therefore refer to decided cases, to a style of procedure36, but also to substantive customary law as implemented by the courts. Nor does one necessarily have to include the regular references to the “mores” of another country, and which may not always refer to customary law in the sense of legal rules37. What remains – and would match the conventional notion of “customs” in Belgian historiography – is still a substantial amount of references, many of which, however, tend to be fairly general and unspecified, even when they are Decisio III.131.41. Decisio V.38.2. 30 Decisio IV.216.22 – 25. 31 Decisio V.175.14. 32 Decisiones V.61.19; V.90.29. 33 Decisio V.1.13. 34 Decisio VI.45.46. 35 For a sample of cases involving issues of conflicts of laws, see (e.g.) Decisiones I.51; I.287; II.3; II.4, II.5; II.164; II.167; III.20.1 – 2; IV.10.2; IV.78.2; IV.79.3; IV.238; VI.46; VI.47. 36 Cf. (e.g.) Decisio e.g. IV.114.7ss. 37 Cf. (e.g.) Decisio V.82.21 ss. on bullfights in Spain. 28 29

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documented through some formal authority. Not surprisingly, the majority of references to foreign customs are linked to French customary law: again, these references remain in many cases general and unspecified, or mention the “general” custom applied in France, but now and again, a custom of a specific region or locality is mentioned. More rarely, the reference mentions the categories of the “regions of written law”38 or the “pays de coutumes” (in the latter case, mainly in order to establish a link with Flemish customs39). In most cases, Christinaeus relied on a doctrinal work for his reference. This could be the commentary by a French coutumier author, but he also drew on other types of legal literature which had been developed by his time, such as works which discussed the application of Roman law in France: Ph. Bugnyon’s treatise De legibus abrogatis belongs obviously to this category40, but a closer analysis might well establish that B. Automne was the major authority which enabled the authority of a rule of Roman law in France to be subverted. Far less frequent are references to customary law from other countries. Since here, too, Christinaeus depended on the authority of foreign authors, the customs referred to (almost invariably in very general terms) are practically all drawn from Germany, Italy and Spain. For some subject-matters, such as feudal law, references to customary law outside the Southern Netherlands occur more systematically. In a handful of cases, a more direct reference to a specific section of the written version of a custom is made. Even in such cases, Christinaeus would have had to rely on an author’s edition of the custom, whether annotated or not. Even so, these are the cases where the reader comes closest to being presented with the foreign custom as a primary legal authority. For example, in an article on servitudes, the issue of whether a servitude can be acquired through prescription without a title, and after how long a period, is discussed by referring to a long series of specific articles of different customs: . . . Aliud vero statuunt teste Mornacio, in suis observation. in Cod. [A. Mornac], consuet. Paris. artic. 186, Aurelian. [Orléans] artic. 66, Blesens. [Blois] articul. 230, Bituric. [Berry] articul. 1 & 2, titulo 11, Regiomont. [Montargis] c. 10, artic. 1, et Neustrin. [Normandy] articul. 594. Maximeque ubi de stillicidii, prospectusque iure agitur, titulum desiderant consuetud. Melodun. [Melun] articul. 188, Antisiodor. [Auxerre] artic. 100, Silvanect. [Senlis] artic. 268, Tricans. [Troyes] artic. 61, Carnut. [Chartres] artic. 80, Andegavens. 38 Cf. (e.g.) Decisiones III.38.3; IV.31.5; IV.49.8; IV.135.16 (the latter including a case, reported in some detail by J. Papon, on an appeal from the “patria iuris scripti” to the Parliament of Paris). 39 Cf. (e.g.) Decisio IV.212, including remarks on the customary “policy”, No. 158. 40 Comp. Decisio IV.213.91. It should be recalled that Bugnyon’s successful book was later edited in Brussels by Libert Franciscus Christyn in 1666 (Brussels, 1666, Typis P. de Dobbeleer, followed by later editions) with additions, including an extension of the author’s approach to Belgium and other jurisdictions: “. . . accessere additiones quibus recentiores non modo Galliae, sed et universi Belgii, Hispaniae, Italiae, Germaniae . . . mores et leges, tum abrogatae, tum receptae, demonstrantur . . .”.

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[Anjou] artic. 450, Caenoman. [Le Mans, Maine] artic. 462, Ambian. [Amiens] artic. 165, Remens. [Reims, Champagne] artic. 350, Noviomens. [Noyon] artic. 32. Si vero desit titulus, et a die prohibitionis seu contradictionis (ut loquimur) triginta anni effluxerint, tricennarias illas etiam in stillicidiis, ac prospectibus, praescriptiones admittunt consuet. Borbon. [Bourbonnais] artic. 519, Nivernens. [Nivernais] c. 10, artic. 2, Melodun. articul. 75, Bituric. titulo 11, artic. 2 et 3, Cathalaun. [Châlons] articul. 144 & Laudun. [Laon] articul. 14541.

The purpose of such an enumeration seems in this context to be more informative than argumentative, and none of the articles quoted in the list is further detailed or analysed. In contrast, in a different article, where Christinaeus discusses the liability of a co-heir with regard to a debt secured by a mortgage on real property belonging to the estate, he refers once again to A. Mornac’s Observationes and that author’s interpretation of a specific provision of the Paris custom: . . . uti dicit Mornac. [ . . . ] qua si personalis semel iuncta fuisset cum hypothecaria mox unus heredum tenebatur in solidum ad aeris alieni dissolutionem pro caeteris; et sic intelligendum censet articulum 333 consuetud. Paris. quo statuitur heredem qui fundum a defuncto obligatum possidet, teneri in solidum, servato et regressu adversus coheredes [followed by further references to J. Bacquet and case law]42.

Christinaeus’s obvious interest in French law and legal literature enabled him to make wide use of French monographs commenting or incorporating French customary law. In his article about women’s liability governed by the authentica Sed hodie [ad C. 1.48.1], Christinaeus mentions that in Belgium (“apud nos”), a woman can waive the advantage of that provision, but most of the article deals with the application of the authentica in France. That survey of the authentica’s use in France is based on several works referring to both customs and cases. Again, some of these references are fairly precise and quote the French authors’ comments on specific provisions, e.g. Ch. Dumoulin on art. 109 of the Paris custom (the reference specifies: in its older version), or L. Le Caron on art. 232 of the same custom43. Characteristically, legal pluralism also predominated in Christinaeus’s quasidoctrinal approach to issues, even when his discussion of a topic was steeped in his own forensic experience and also refers, in addition to customary law, to doctrinal works and reports; meanwhile, civil law authorities could still set off any particular law authorities, as exemplified in the following passage, which offers a brief comparative outline on forfeiture: Proinde cum consuetum sit in Francia, ut qui corpus confiscat idem etiam bona confiscet: notandum est tamen id intelligi debere solum de bonis mobilibus quaesitis et differentibus, at non etiam de propriis, affectatis familiae seu lineae, quae praeferri deberent iuxta ae41 Decisio I.177.8. With my grateful acklnowledgements to Patrick Arabeyre (Paris, École des Chartes), who identified some of those customs for me. 42 Decisio III.19.9. 43 Decisio V.178.12 and 18.

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Alain Wijffels quissimam sententiam Bartoli [ad D. 48.22.3], et Molinei in consuetudines Senonenses. Confiscationes vero extra Franciam per totam inferiorem Germaniam et Belgium reguntur per Authenticam Bona [ad C. 9. 49. 10] uti indicat [Ch. Dumoulin] ad consuetudines Insulanas [Lille], licet aliter videatur censuisse supremus Mechliniensis [ . . . ] non obstante oppositione et adiunctione facta ex parte Magistratus Mechliniensis, idque an bene nescio cum Carol. Molinaeus ad praedictas consuetudines Insulanas notet mariti confiscationem uxori praeiudicare non posse, non tantum quoad iura et pacta dotalia, verum etiam quoad dimidiam communionis seu quaesitorum constante matrimonio ex consuetudine Bituricensi [Berry], ubi ait idem Molinaeus id ita iudicatum fuisse anno 153244.

The comparison in that passage tends to express a difference between French and Belgian customary rules on that particular issue. That is quite uncommon, as in most cases, the reference to foreign customs (and this is particularly true for French customs) will on the contrary serve to emphasise a fundamental congruence between the foreign customary principle and Belgian customary law45. Occasionally however, customary diversity in Europe46 is highlighted, such as in the following short passage on the question, which fiefs are deemed to be “noble”: In Hispania omne feudum pro quo iuxta consuetudinem illius regni praestantur servitia militaria nobile censetur, teste [N. Intriglioli’s Centuriae]. Contra quam in Gallia, teste [É. Baron on Benefices], ubi et Saxonum iure nullum nisi regale nobilitandi vim habet47.

V. Statute law Statute law – both domestic and foreign – is occasionally, but not frequently, quoted as an authority in Christinaeus’s reports48. Editions of statutes or commentaries dealing specifically with statute law were still a comparatively minor genre in legal publications49. As for customary law, statute law appears to be in most Decisio V.10.12 – 14. In this context, Christinaeus sometimes highlights the common features between Nothern French custom (from the pays de coutumes) and customs in the Southern Netherlands, especially Flanders (e.g. Decisio IV.212.158). 46 Or within a foreign country, e.g. in France: Decisio III.123.17 – 21. 47 Decisio VI.112.28. 48 Some Belgian statutes, however, appear recurrently, such as Charles V’s ordinance of 1540, or the Perpetual Edict of 1611. 49 Cf. the contributions by G. Immel, F. Ranieri (Italy), B. Dölemeyer (France), A. Peréz Martin (Spain), J.-M. Scholz (Portugal), H. Gehrke (Empire; Bohemia), D. Grimm (Austria), C. Bergfeld (Switzerland), H. Pohlmann (Low Countries), K. Luig (Scotland), W. Wagner (Scandinavian countries), L. Pauli (Poland), A. Csizmadia (Hungary), S. Lammel (commercial law, with separate sections for individual territories), K.W. Nörr (the R.C. and Protestant Churches), in H. Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, II / 2, Neuere Zeit (1500 – 1800), Das Zeitalter des gemeinen Rechts, Gesetzgebung und Rechtsprechung (München, C.H. Beck’sche Verlagsbuchhandlung, 1976); adde: B. Dölemeyer and D. Klippel, Gesetz und Gesetzgebung im Europa der frühen Neuzeit (Berlin, Duncker und Humblot, 1998). 44 45

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cases quoted via a doctrinal work, and the relative paucity of such works may therefore account for the relatively minor importance of statute law throughout the Decisiones. Moreover, references to “statuta” often appear to refer to customary law, as the legal status of customs and statutes as iura propria was in many respects interchangeable. The reliance on doctrinal works produces some results already stated with regard to customary law: French statute law, notably, occurs more often than any other foreign statute law; German legislation is mentioned in a few articles, but references to legislation from other jurisdictions remain exceptional. Although local statutes are sometimes mentioned, the majority of references to statutes deal with legislation of the larger polities, such as French royal ordinances and imperial legislation. Some of the local statutes are not mentioned because of their specific interest as substantive law for the issue under discussion, but because they are part of an author’s more general argument, and these references were sometimes part of well-known passages of the ius commune literature: for example, the case (mentioned by J. Coras) where a barber or surgeon was threatened with an indictment for drawing blood in the city’s town-hall, on the grounds of a literal construction of a statute at Bologna50); or Paulus de Castro’s question regarding the citizenship of a person whose mother, at the time of giving birth, had been temporarily staying away from the city where she usually resided51. Although Christinaeus deals explicitly and specifically with the general issue of the territorial and extra-territorial application of statutes, that issue appears to be considered in abstract terms rather than on the strength of specific case law52. The purpose of most references to statute law, therefore, as already noted in the context of foreign customary law, seems in most cases to establish a certain degree of congruence between the foreign law and the domestic law53, although, here too, the reference sometimes serves to show, on the contrary, a difference between statutory rules. Thus, Christinaeus records that according to a provision enacted by Charles V at Nuremberg in 1521, territorial customs in the Empire notwithstanding, parties could agree that inheritance by the right of representation could take place, but the Reichsstände had protested and had insisted that the regional customs should prevail54. In an article on feudal successions, R. Maranta’s discussion of the laws of Naples and Sicily is mentioned in order to emphasise the diversity of systems governing the issue55. Perhaps the most striking example of such a differentiation is Christinaeus’s analysis of the general forfeiture of property in the case of a criminal conviction, an issue he adresses in several articles and which has already been touched upon in the context of customary law. The discussion starts off with ius 50 51 52 53 54 55

Decisio V.101.5. Decisio I.398.50. Decisio II.2.2, cf. e.g. Decisio 1.278.20. Cf. (e.g.) Decisiones I.351.21; III.4.6; III.41.23; III.66.6; IV.10.2; IV.41.1. Decisio IV.63.2. Decisio IV.212.76 – 77.

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commune authorities, but some of these are challenged by a reference to E. Bossi, who is quoted as saying that the forfeiture only applies when it has been provided by a local law, “which, in the Kingdom of France, has been introduced by municipal statutes, but does not apply according to the general custom, which prevails where no such local statute exists”. Because, however, forfeiture was said to apply in France, by virtue of a general custom, in the case of a capital punishment (an allegation documented through a reference to D. Dupont’s commentary on the custom of Blois), judges in the Belgian Supreme Court (at Mechlin) had argued that the same custom was also to be applied in the Low Countries. As he disagrees with their opinion, Christinaeus embarks on an historical and comparative discussion of the legal regime of the Belgian territories on the fault-line between the Empire and the French Kingdom: In quo mea opinione falluntur, cum Mechlinia, que sua habet particularia emologata statuta et privilegia non admittentia confiscationes quam in casibus expressis ibidem, nam in aliis iuxta epilogum eorundem statutorum sequendum est ius commune, ac pleraeque aliae Provinciae Belgii similia habeant statuta et privilegia, et subfuerint potius Imperio Germanico, quam Franciae, exceptis paucis Provinciis, quae alias subfuerunt coronae Franciae. Ex quibus Insularum Provincia [Lille] et nonnullae aliae immunes fuerunt ab huiusmodi confiscatione, uti tradit Ioan. le Boucq [J. Le Boucq] in suis comment. ad consuet. Insularum art. 25, ubi. num. 4, refert sententiam a Philippo Rege Franciae latam, in April. anno 1340, qua dictum fuit scabinos, cives et inhabitantes Insularum nequaquam posse alicuius criminis ratione aut alterius causa perdere sua cum corpore bona, etiamsi per desperationem seipsos submergerent, vel laqueo sibi vita adimerent, quodque eorumdem bona pro quocumque delicto confiscanda, remanere debent ad usum et commodum eorumdem liberorum et viduarum, quae verba sint generalia, et indefinite prolata, generaliter debent intelligi, secundum Iason. et alios ab eodem le Boucq citatos. Idque etiam obtinet in regno Neapolitano et Bononiae, teste Baiardo [G.B. Baiardo] in addit. ad Iul. Clar. [G. Claro] in pract. crim., § fin., qu. 78, n. 8 et 9, et in Ducatu Britanniae, ubi similis est consuetudo de non confiscando, uti refert et docet Argent. [B. d’Argentré] ad consuet. Britann. art. 613, nu. 5. Et in Aquitania expresso Regis privilegio anno 1337 concesso, similis videtur data immunitas, quo ob quodcumque crimen nihil rerum quidquam confiscatur, prout testatur Boer. [N. Bohier] decis. 264, nu. 15, ubi ait hoc privilegium indultum fuisse Ducatui Aquitaniae a Rege Ioanne, quod quoque refert Benedict. [G. Benoît] qui in Curia Burdegalensi Consiliarius fuit, ad cap. Raynutius in verbo, et in praesenti Regno, et Pet. Greg. Tholos. [P. Grégoire] in syntag. iur. univ. li. 3, C. 17, n. 3. Et sic hoc privilegium est exceptio consuetudinis generalis Franciae; qua dicitur, ‘qui confiscat corpus, confiscat bona’, non tantum Aquitannis peculiare est, verum etiam tributum plerisque aliis Provinciis, utpote Provinciae et Ducatui Bituricensi per veterem et inveteratam eius consuetudinem, in quocumque crimine ab incolis et inhabitantibus praedictae Provinciae perpetrato, quod confiscatio nempe bonorum locum non habet56.

It was therefore a controversial current issue raised in the course of a legal case at Mechlin57 which prompted Christinaeus to elaborate on an argument discussing Decisio V.220. 14 – 18, and see also Decisio I.400. L.Th. Maes, Vijf eeuwen stedelijk strafrecht. Bijdrage tot de rechts- en cultuurgeschiedenis der Nederlanden (Antwerpen, De Sikkel, 1947), p. 459 – 461; J. Monballyu, Zes eeuwen 56 57

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at greater length various French (and incidentally, Italian) legal regimes in order to reject the application of a specific rule attributed to a general French custom. In many respects, the exceptional feature of this case is that, if one accepts Christinaeus’s account, it was the opinion of the Belgian judges in the Supreme Court who wanted to apply a French rule which triggered a critical analysis of how that rule was applied in French territories (in particular Bretagne, Aquitaine, Berry), including Belgian territories which had formerly been ruled by the French King (viz. medieval Lille in Flanders). The passage refers to customs (both general and regional), statute law (both royal and municipal), to a law report and ius commune doctrinal works in utroque iure.

VI. Case law If one looks at technical references to foreign authorities, i.e. excluding general references to the law in a foreign jurisdiction without mentioning a precise (written or published) source, case law appears to be by far the most frequently quoted type of foreign authority throughout Christinaeus’s Decisiones. That observation needs, however, to be qualified. First, “case law” in the modern sense could not and did not play the same role in ancient continental European law as it does today. Very few judgements were published verbatim and in any case, judgements usually did not include any legal reasoning or any legal grounds justifying the decision58. Referring to case law in late-medieval and early-modern European law, particularly in the ius commune tradition, usually means relying on collections of so-called Decisiones or continental-type law reports, which were works written by authors in their private capacity, and therefore works which belonged primarily to legal doctrine59. These collections rarely reproduced the text of the judgements, which strafrecht. De geschiedenis van het Belgische strafrecht (1400 – 2000) (Leuven and Voorburg, Acco, 2006), p. 140. 58 Ph. Godding, Jurisprudence et motivation des sentences, du moyen âge à la fin du 18ème siècle, in Ch. Perelman and F. Foriers (eds.), La motivation des décisions de justice (Bruxelles, Bruylant, 1978), p. 37 – 67 (repr. in Miscellanea Consilii Magni (I). Ter gelegenheid van twintig jaar Werkgroep Grote Raad van Mechelen (Amsterdam, Werkgroep Grote Raad, 1980), p. 121 – 152; idem, La motivation des arrêts du Grand Conseil de Malines au 16ème siècle, A propos d’un article récent, Tijdschrift voor Rechtsgeschiedenis 45 (1977), p. 155 – 157. 59 From the vast literature on the subject, one should at least refer to the volumes in the present collection which have preceded this latest publication: J.H. Baker (ed.), Judicial Records, Law Reports, and the Growth of Case Law (Berlin, Duncker & Humblot, 1989); A. Wijffels (ed.), Case Law in the Making. The Techniques and Methods of Judicial Records and Law Reports (Berlin, Duncker & Humblot, 1997, 2 vols.: I, Essays; II: Documents); W.H. Bryson and S. Dauchy (eds.), Ratio decidendi. Guiding Principles of Judicial Decisions (Berlin, Duncker and Humblot, 2006, vol. 1: Case Law). For France, see also S. Dauchy and V. Demars-Sion, Les recueils d’arrêts et dictionnaires de jurisprudence (XVIe – XVIIIe siècles) (Paris, Editions La Mémoire du Droit, 2005). The major work of reference for both a critical

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would anyway, as they did not express the legal principles upon which the judge or the court had relied, not have fulfilled the purpose of reporting decided cases. As Christinaeus’s own reports, most collections of Decisiones contain a legal analysis or commentary of one or more decisions from one or more courts. Because many of these printed collections would nonetheless purport to present the legal grounds and reasoning behind the decisions, they were instrumental, as a successful genre in early-modern legal literature, in establishing the notion that cases did contribute to legal developments, and could therefore qualify as an authority or a “source” of law, and therefore as “case law”. Since most of these collections were formally linked to the decisions of a particular court or of a group of courts which belonged to a wider, but defined, polity, very often courts where the author of the reports had himself been active as a member of the legal profession, all these works present at least a formal link with a particular jurisdiction. In most of the countries which have been acknowledged as the heartlands of the ius commune tradition, this was a genre of legal literature which could count either on a fairly large number of publications, or, sometimes, on a single report which proved to be a popular authority, even well beyond the jurisdiction where it had originated. These factors explain why, in comparison to the minor genres of legal literature on customary law and statute law in Western continental Europe until the beginning of the 17th century, the Decisiones-literature could provide most of the “foreign” authorities in Christinaeus’s time. Most of these works, at any rate, were written in a format which fitted within the standards and style of ius commune literature in general, while often blending around the same issue aspects of both civil law and ius proprium. Many reports, even in France during the 16th century, were written in Latin, and legal-historical bibliographical research has established that some circulated and were widely available throughout ius commune Europe60. typology and bibliographical material remains the section on law reports and consultations (“Rechtssprechungs- und Konsiliensammlungen”), Part 4, of H. Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsrechtsgeschichte, Vol. II / 1 (München, C.H. Beck’sche Verlagsbuchhandlung, 1976), including the contributions by M. Ascheri on Italy, G. Walter on France, J.-M. Scholz on Spain and Portugal, H. Gehrke on the Empire, U. Wagner on the Low Countries, and K. Luig on Scotland. 60 For the Low Countries, one can only get an inkling of that circulation in the surveys, published almost half a century ago (and which would now require a fresh and updated version), of law books in 16th-century catalogues, cf. R.C. van Caenegem, Ouvrages de droit romain dans les catalogues des anciens Pays-Bas méridionaux (XIIIe – XVIe siècle), Tijdschrift voor Rechtsgeschiedenis 28 (1960), p. 297 – 347 and p. 403 – 438; and R. Feenstra, Ouvrages de droit romain dans les catalogues des anciens Pays-Bas septentrionaux (XIIIe – XVIe siècle), Tijdschrift voor Rechtsgeschiedenis 28 (1960), p. 439 – 513; and R.C. van Caenegem, Notes on Canon Law Books in Medieval Belgian Books-Lists, Studia Gratiana 12 (1967), p. 267 – 292. The title of the articles published in the Tijdschrift notwithstanding, the authors also mention works on customary law, statute law and reports. The available lists remain nevertheless too scarce and need to be supplemented with other source-material. Even so, the references to non-Belgian particular laws are mostly to French sources.

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The conventional modus citandi of law reports included per se a foreign element, viz. the reference to the court, usually identified by the town where it had its permanent seat or by the region which made up its territorial jurisdiction. In most cases, that is the only reference which occurs in Christinaeus’s reports, particularly when the reference is part of a string of authorities. However, in many cases, the immediate context of the technical reference also includes a mention of the foreign country, and the reference to the court’s report serves to show that the principle or rule under discussion had been applied or rejected in that foreign jurisdiction. The context may even go further, borrowing from its source details of the reasoning attributed to the foreign court’s judges, or even factual details of the case, including sometimes the names of the parties, the date of the decision, and other particulars mentioned in the original report. In such cases, the foreign iura propria within the ambit of the court inevitably tend to be part of the discussion. Christinaeus himself took pains, especially in the first few articles of the first volume of his reports, to provide a theoretical foundation of the authority of (supreme) courts. Occasionally, the theory is also stated in the course of a particular argument61. The authority attributed to reported case law was essentially based on the authority attributed to the court. However, it is clear from the habits of Christinaeus’s references that some reports are quoted far more often than others. This may only partly be explained by his personal biases or, more contingently, by way of the books which were permanently available to him (or, for later editions, to his son)62. In fact, the most recurrent law reports in his references seem to reflect to a large extent a more generally shared approach among legal authors as to which authorities were more prominent or conventional. On the other hand, references were certainly not always or systematically inspired by a particular author’s merits. Apparently, the opinions held in some courts (such as, predictably, the Paris Parliament or the Reichskammergericht) were far more often sought than those of other courts, and in the case of the Parliament of Paris, the volume of literature was of course already so abundant by the time of Christinaeus that it could provide materials on a much wider range of issues than most other courts. Another feature of Christinaeus’s habits in referring to foreign courts’ reports is a tendency, already alluded to, to refer to a more or less extensive string of judicial authorities, as if the author sought safety (or rather: legal security) in numbers. A less pusillanimous explanation could also be that, whether considering the European ius commune world or a particular polity, the amalgamated references of concurring case law were deemed to establish the judicial equivalent of the communis opinio doctorum, and that, since the authority of (supreme) courts was said to stand higher than that of legal authors, such a judicial communis opinio could offer a strong argument for Cf. (e.g.) Decisio VI.69.36. In a few rare instances, the author refers to a foreign case which he attended (presumably during or upon his return from studies abroad when he was young), cf. (e.g.) Decisiones I.252.3 (Dôle); III.108.3 (Rome); IV.15.6 (Dôle); IV.III.1 (Dôle). 61 62

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establishing a particular principle63. If that is so, it also reminds us that the foreign character of these authorities was not incompatible with their incorporation in the ius commune system of legal authorities and reasoning. However, as it has already been observed with regard to other sources, here, too, the string of references may occasionally serve to bring forward a controversy rather than a commonly accepted view. An example of a reference to a principle generally applied by supreme courts, according to Christinaeus, is the supreme courts’ prerogative and duty to set aside procedural nullities in order to achieve equity and substantive justice. In the sovereigns’ councils and supreme courts, he argues, it is a wonted practice to decide according to equity rather than according to the strict law, and to take only into account what is true: Ideoque iudicem appellationis debere absolvere absolvendum, et condemnare condemnandum, non attenta nullitate processus, tradit post alios ab eo citatos Borgnin. Cavalcan., Fiviza. decis. 25, num. 16, p. 1 [B. Cavalcano, from Fivizzano]. Eamque opinionem sanctam, aequam et valde honestam, ut quae parcat sumptibus, abbreviet lites, et unicuique ius suum tribuat, censet idem num. 48, vers. Et certe, et dicit se ita alias iudicasse, decis. 19, num. 32, eadem p. 1. Et illam iustissimam fore docent Mynsing. observ. 93, in princ., cent. 5 [J. Mynsinger], Franc. Viv. Neapol. decis. 31 [F. Vivio], dicens ita saepe iudicasse Regiam audientiam Appuliae, easque sententias postea confirmatas fuisse in magna Curia Vicariae, et in Consilio Neapolitano, nec non in Rota Romana, id probat Franc. Monald., consil. 143, num. 25 et seqq. [F. Monaldo]. Neque processus nullitas ratione sententiae inficit totum processum, sed solum latam sententiam, quae cum reformari possit, per reformationem eiusdem tollitur dicta nullitas, uti post Alexand. consil. 67, vol. 6 [Alexander Tartagnus], tradit Barnab. Cornaz., Luc. decis. 14, num. 3 [B. Cornazzani]. Ideoque ubi de meritis constat in causis appellationum, Camera Imperialis non attendit nullitates iuris positivi, uti docent Dom. Gayl. observ., lib. 1, observ. 42, num. 1 [A. Gail], Mynsing. observ. 27, cent. 1, et observ. 62, cent. 4, et idem Mynsing. resp. 2. num. 18. Et idem in aliis summis Tribunalibus observatur secundum Afflict., dec. 273, num. 7 [M. d’Afflitto], Grammat. decis. 19, num. 15 [T. Grammatico], qui testantur sic observare Consilium Neapolitanum, idem etiam observari in Curia Gratianopolitana affirmat Guido Papae q. 50, nu. 2 [G. Pape], et de aliis Curiis Galliarum idem scripsit Rebuff. in comment. ad reg. constit. Galliar., tom. 1, tit. de supplicat., art. 9, Gloss. 1, num. 2 et 3 [P. Rebuffi]. Ita etiam observatur in supremis Hispaniarum Tribunalibus, teste Covar. [D. Cobarruvias a Leyva], lib. pract. q., c. 25, num. 1, uti etiam saepe observari memini tam in Curia suprema Mechli63 For a telling example, on the controversial issue of a widow’s claim on the full amount of the price of her dowry jointly sold with her husband, when it is conceded that husband and wife received jointly the full price (Decisio VI.52), the opinion that the widow can claim the full amount is argued through various doctrinal authorities, some referring to decisions in Bologna, the reports by N. Bohier, and A. Cravetta quoted as saying that such is the common opinion “et nefas esse temerariumque ab opinione tantorum patrum, et pro qua in Curiis tam illustribus iudicatum est, discedere”, with further references to various doctrinal authorities, some of which based on court decisions (e.g. Rolandus a Valle on the court of Montferrat, A. Capece on Napels, O. Cacherano on Piemont, C. de Ursillis’s additions to M. d’Afflitto on Napels).

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niensi, quam Brabantiae, ac aliis etiam Curiis, prout docet Menoch. consil. 478, num. 53, et consil. 416, num. 10 et 11 [G. Menochio]64.

An example of references to case law on a controversial issue is that of Christinaeus’s treatment of a redemption clause in a contract of sale. The “grav[is] inter Doctores controversia”, says Christinaeus, touches upon the question whether the seller may nevertheless be barred from exercising the faculty of repurchase after a period of thirty years. Christinaeus quotes first several doctrinal works, mainly from the civil law tradition (but including early usus modernus works which would include some ius proprium), in favour of the period of limitation. In the following passage, he switches to legal practice: Papon is quoted as having mentioned judicial decisions to the contrary, and from there onwards, Christinaeus switches to authorities meant to show that in France, Germany Portugal and Italy, the higher courts are divided. Having established that a majority of authorities appears nonetheless to opt for a period of limitation, Christinaeus then concludes that he believes that such is also the position of the Council at Mechlin: . . . Pap. lib. 12. arrest., tit. 3, arr. 11 [J. Papon], qui tamen in sequentibus contraria arresta refert, per quae retrahentes post lapsum etiam triginta annorum admissi fuere. Pro contraria tamen opinione, quae multis probabilior videtur, sunt Fulgos., consil. 123 [Raphael Fulgosius], Andr. Sicul. consil. 51, lib. 1, et consil. 22, lib. 4 [Andreas Siculus], Fabia. de Monte [F. da Monti], de empt. et vendit., in 3 quaest., 7. quaest. princip., aliique relati a Fachin., controv. iur., lib. 2, C. 13 [A. Facchinei], quam ibidem probat respondendo contrariis argumentis, eamque quaestionem tamquam inter pragmaticos controversam tractat quoque Dom. Andr. Gayl, pract. observat., lib. 2, obs. 18 [A. Gail], statque pro negativa, uti etiam stant Fichard. consil. 42, num. 2, lib. 2 [J. Fichard], Sichard. consil. feud., 6, nu. 49 [J. Sichard], et Mynsing. eandem sententiam comprobat, obs. 16, cent. 1, et obs. 70, cent. 6, nec non resp. 2, nu. 128, vers. Quia etiam pacto retrovendendi [J. Mynsinger], referens ita eam decidi in summo Imperiali Iudicio, et in Parlamento Burgundiae iudicatum fuisse. Econtra tamen cum referente Tiraq. in d. gl. 1, § 2, num. 31 [A. Tiraqueau], etiam comprobata fuerit affirmativa opinio arresto Supremae Curiae Parisiensis, et pro ea parte stent inter moderniores Tiber. Decian., resp. 10, nu. 51 et seq., vol. 1 [T. Deciano], qui subdit hanc opinionem esse veriorem et communiorem, recensendo ad hoc infinitos paene eamdem partem tenentes, et eamdem etiam opinionen tenet Anton. de Gamma Lusitan. decis. 247, nu. 3 [A. da Gama], ubi non obscure ostendit sic tenuisse Senatum Regium Lusitanium, eamque sententiam quoque defendit Wesemb. in paratit. ff. De rescind. vendit., num. 6 [M. Wesenbeck], et dicit communius eamdem placere, uti etiam innunt Cephal. consil. 496, nu. 24 et seq. [G. Cefali], Surd., Mantuae dec. 1 [G.P. Sordi], ubi dicit quod Senatus sic resolverit etiam adversus Principem, ac Tiraq. d. § 1, gl. 2, nu. 31 [A. Tiraqueau] dicit illam communiorem esse, et Doctoribus maiori doctrine et auctoritatis probari, referens semel atque iterum secundum eamdem affirmantem opinionem Senatum Regium iudicasse, prout etiam intellexi supremum Senatum Mechliensem eamdem in iudicando amplexum fuisse.

If the purpose of the references to law reports was partly to establish a communis opinio of judicial authorities, it makes sense – and it also better reflects the theore64

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tical foundations expounded by Christinaeus – that reports of supreme courts are being quoted on a regular basis. In that respect, some distinction must be made between the various territories. The three countries which provide the bulk of all references to law reports are France, Germany and Italy. Spain, Portugal and the Northern Netherlands65 form a second group, though with far fewer references66. For other countries, as for example the case of Lituanian reports mentioned earlier, references only occur sporadically or not at all. Because of the political context and its effects on the courts’ system, the pattern of references to reports in the first three countries is not the same. For France, most references deal with cases decided by the Parlements, among which the Paris Parliament obviously takes precedence, if only numerically. References to decisions of lower courts do not appear frequently, except for a few courts which had their seat in Paris67. In a handful of articles, the decisions or the practice of an administrative or political body are mentioned, and – always through the intermediary of doctrinal authorities – in a few instances, the system of the “Grands Jours” is reported68. For Germany, Christinaeus relies mainly on a few authors who wrote specifically on the practice and case law of the Imperial Chamber of Justice (Reichskammergericht), which provide 65 For example through the first printed law reports in the Low Countries, by C. Neostadius (e.g. Decisiones VI.37.17 and VI.86.23). Incidentally, one may recall that Christinaeus’s conventional modus citandi did not include any references to the particular imprint, publisher or year of publication of the works he quoted, except in some very rare cases, for no apparent reason, e.g., for the Northern Netherlands in Decisio V.75.38: “. . . quaecum dilucide et docte resolvat et decidat Do. Quintinus Weytsen in suo peculiari tract. de avariis, me ad eumdem remitto; isque est impressus post Decisiones Curiae Holland., Zeland. et Westfris. anno 1617. Lugd. Batav. Apud Elzeviros”. 66 A first impression based on the preliminary research for this paper suggests that to some extent, the coverage of foreign jurisdictions by law reports is not entirely reflected in Christinaeus’s references, i.e. that while for some jurisdictions (e.g. France), the range of authorities quoted represents a substantial proportion of the literature generally available in print, for other jurisdictions (e.g. Spain and Portugal), only a comparatively small number of printed reports were apparently available or known to Christinaeus. This raises the issue of the European-wide circulation of early-modern legal imprints, which may have been affected by religious fault-lines, but probably also by other factors, such as costs, distance and the degree to which a work was particularly focused on a foreign ius proprium deemed to be more distinctly different to the author’s own particular legal-cultural background. It is also likely that within the ius commune geographical area, just as in today in Europe, a great deal of foreign legal literature was simply ignored for practical reasons. 67 Cf. (e.g.) the Châtelet, Decisio V.89.30; the Paris prévôt, II.181.3; the merchants’v court in Lyons, III.100; Lyons, III.106.3; the “small seal tribunal” at Montpellier (referring to P. Rebuffi), IV.88.19. 68 Cf. (e.g.) Decisiones V.36.21 – 22, Moulins (“[J. Papon] . . . sic iudicatum fuisse refert arresto maiorum dierum Molini habitorum 2. Octobris anno 1540. & 6. Octobris anno 1550”); V.175.8 ss., Lyons (“[quoting J. Papon and N. Bohier] . . . et proinde tradit additionator adversus eamdem consequentiam iudicatum fuisse arresto maiorum dierum habitorum Lugduni Anno 1596. 22. Octob. Pro Ioanne Rupano Barone Sabazacensi . . .”); V.227.5 – 9 Moulins (“[J. Papon] . . . refert, quod datum fuit in maioribus diebus Molinensibus 22. Octob. Ann. 1534 . . .”).

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a frequency of quotes almost as important as for the Paris Parliament69. However, beyond that Imperial court, very few territorial German courts are mentioned. Only a few references bear witness to the characteristic German practice of municipal courts staffed by laymen70. Still different is the picture for the Italian peninsula. Here, no single court takes precedence, as it was the case with the Paris Parliament and the Reichskammergericht for France and the Empire, but several “grandi tribunali” vie with each other71. Some, partly because of the qualities or the authority attributed to their reporters, or because of a certain degree of specialisation in certain areas, are referred to more often than their counterparts: notably, the Roman Rota (of which Christinaeus apparently had had first-hand experience72), the Genoese Rota, the supreme court of Piedmont73, and the Regal Council in Naples74. Nevertheless, the Rotae or higher courts of other territories, many of which could count on reports which were embedded in the traditional ius commune tradition and which could provide further references to the major and minor doctrinal authorities of the Italian method, also appear more or less frequently in Christinaeus’s reports, to such an extent that in the end, Italian case law is expressed through a wider range of higher courts than French or German case law75. The Savoie, represented by the reports of, above all, A. Favre (whose work was a major and apparently lasting authority throughout early-modern Europe76), but also by G. d’Oncieaux, illustrates how an influential work could put a relatively secondary jurisdiction on the map of legal Europe. 69 A. Gail and J. Mynsinger are, unsurprisingly, the main authorities for referring to the practice of the Imperial Chamber of Justice: those two authors seem to appear most often in libraries and quotes throughout Europe during the latter part of the 16th century and during the first half of the 17th century. Other authors, however, also provide references, such as H. von Rosenthal on feudal law, or J. Thilmann de Benignis. 70 Cf. (e.g.) Decisiones I.277.15 (Leipzig); III.141.7 (Leipzig); V.214.11 – 12 (Thuringia); V.214.40 (Wittenberg); VI.37.11 (Leipzig). VI.38.17 (Wittenberg); VI.40.6 (Leipzig); VI.45.22 (Leipzig and Wittenberg). The authors relied upon for those references are M. Colerus, D. Moller, H. or M. Pistoris, A. von Rauchbar, L. Schrader, J. Thoming. 71 M. Ascheri, Tribunali, giuristi e istituzioni dal medioevo all’età moderna (Bologna, Il Mulino, 1989). 72 Cf. Decisio III.108.3. 73 For Piemont, the reporters most frequently quoted are O. Cacherano, A. and G.A. Tesauro. 74 For Napels, the reporters most frequently quoted are M. d’Afflitto, T. Grammatico, F. Vivio (the latter also on the courts of Puglia, Bari, Molise). 75 Apart from the special case of the Roman Rota, several other Italian “Rotae” and Italian courts are referred to, including those of Bologna, Fivizzano, Florence, Genoa, Lucca, Mantova, the Marches, Milan, Perugia, Venice etc. In some cases (Genoa, and often Rome), the references do not include the name of the reporters, but usually, the case law is cited through a particular reporter (e.g. M.A. Amati, S. Graziano and S. Medici for the Marches; B. Cavalcaneo for Fivizzano; G. Magoni for Florence and Lucca; G. Sordi for Mantova; F. Vivio for Bari, Molise and the Audience of Puglia etc.), though the authority seems mostly to be linked to the court. 76 L. Chevailler, Le Président Faure et la jurisprudence du Sénat de Savoie de 1585 à 1605, Tijdschrift voor Rechtsgeschiedenis 20 (1952), p. 263 – 289, p. 456 – 478.

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In most articles where references to case law reports occur, the references tend to be incidental and, although they document decisions of a foreign court in a foreign jurisdiction, they do not necessarily mean to refer to foreign law as such. Even more so than in the case of doctrinal works on customary law and statutory law, references to doctrinal works on case law are integrated in the wider ius commune literature. In practice, this means that from one article to another in Christinaeus’s Decisiones, or even within the same article, incidental references are often made in order to argue different, not directly related issues, and each reference may well refer independently to the court of a different jurisdiction. Although references to Decisiones literature entail an association with a particular jurisdiction, at any rate more so than doctrinal works which are not focused on a particular law or institution, their use by Christinaeus is in many cases not fundamentally different from that of civil law literature in general.

VII. Foreign law in ius commune literature before the relative nationalisation of legal scholarship Foreign law was a relative notion in late-medieval and 16th-century ius commune scholarship. Legal systems outside the ambit of ius commune were truly foreign, but not taken into account. Within the ambit of ius commune, iura propria remained foreign one to another, but at the same time, they were incorporated into the wider system of ius commune. Only with the emergence of the usus modernus, especially from the latter part of the 16th century onwards, did the incorporation of the iura propria of one or more specific territories cause a relative territorialisation or nationalisation of civil law scholarship. Especially from the sixteenth and early seventeenth century onwards, legal works by authors who dealt with legal issues blending civil law scholarship with the law drawn from their own polity or territories could be identified as foreign from the vantage point of another polity or territory. Before the sixteenth and early seventeenth century, works by authors who did not (systematically) incorporate iura propria in their approach should not as such be identified with a particular polity or territory. It would not make much sense, for example, to describe within the ius commune the commentaries or even the consilia by Bartolus, Baldus, Paulus de Castro, Alexander Tartagnus, Jason Maynus and the like as “foreign” outside Italy, even though these authors may have been perceived and recognised as Italians. When dealing with 16th century authors, historiography tends to highlight even more strongly their national origins, but in many cases, that was not necessarily how their works were perceived and recognised, unless, precisely, a work dealt with a ius proprium or was specifically connected with a territorial institution. Mynsinger’s reports on the Reichskammergericht associated that work inevitably to some extent with law applied in Germany, but his scholia on the Institutes did not. Pape’s reports of the cases from Grenoble in the Dauphiné made him as an author appear far more as a

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French author than his consilia, though both were based on the author’s practice in the same jurisdiction. Similarly, D’Afflitto’s commentaries on feudal law, though definitely marked by their Southern Italian origins, could be more easily adduced in the context of a European scholarly feudal law tradition which had been adopted within the ius commune tradition than his commentaries on Sicilian and Neapolitan statute law. However, it was not only the subject-matter of a legal work, but the amount of particular law it incorporated or its vantage-point from a particular territorial institution or jurisdiction, which determined whether, in a different territory, that work would be to some extent regarded as foreign; if such a work were written according to the conventional standards of the ius commune literature, it could very well circulate throughout Western Europe and could itself be used and referred to as a ius commune authority. That was certainly the case until the 17th century, and Christinaeus’s own Decisiones, for example, although they openly advertised their Belgian origins and character on the title-page of each volume, still made it to the ius commune canon – albeit arguably, less so than comparable collections of Decisiones which had been published during the previous century. Characteristically for the era in which he was writing, Chistinaeus differentiated between the laws of “Belgium” (however variegated those were) and the laws of other territories and polities, but even when the differentiation resulted in presenting the legal systems as distinct systems of particular laws, both the Belgian and the foreign laws remained strongly established within the ius commune tradition. In any case, foreign laws, whether expressed in customs, statutes or cases, were practically always referred to through the intermediary of a doctrinal work, which itself belonged to that ius commune tradition. The range and availability of such works in Christinaeus’s time may largely explain why collections referring to the decisions or case law of higher courts were more frequently and prominently quoted than works on customary law or statute law. More fundamentally, the practice of referring to foreign (particular) laws reflected both the extension, the limits and the growing heterogeneity of legal pluralism within the early-modern ius commune tradition. The law beyond that tradition, on the other hand, remained beyond the scope of Western legal science77. 77 The present paper benefited from a workshop organised by S. Dauchy at Lille on 4 – 5 December 2008 on the theme of cross-border legal influences in early-modern Europe (a meeting sponsored by the European Science Foundation). At that meeting, I presented a comparison between my findings on Christinaeus and some exploratory investigations into C. van Bijnkershoek’s “off the cuff ” annotations (Observationes Tumultuariae) on decided cases at the Supreme Court of Holland and Zeeland during the first half of the 18th century (cf. in a different context my article: Legal Books and Legal Practice, in J.G.B. Pikkemaat (ed.), The Old Library of the Supreme Court of the Netherlands (Hilversum, Verloren Publishers, 2008), 21 – 38). The comparison may show how, at least in Holland, the usus modernus’s protopositivism had progressed within less than a century: Van Bijnkershoek, as other contemporary judges at the Hoge Raad in The Hague, were now using to a much greater extent home-grown legal literature published in Dutch and dating mainly from the 17th century; while only comparatively few foreign authors (apart from those who wrote more specifically on Roman law)

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were regularly cited. The approach to foreign law was also affected, particularly when dealing with conflicts of law. Thus, in some cases, one notes a much greater interest in establishing exactly the potentially applicable rules of a foreign legal system: this is true for Western legal systems outside the ius commune tradition (e.g. the case of the English Crown Jewels, which required testimonies and affidavits from several English common law practitioners) or even, as in some cases involving Jewish residents in Holland or Dutch overseas territories, for nonWestern law.

SERGE DAUCHY and VÉRONIQUE DEMARS-SION

Foreign Law as ratio decidendi. The ‘French’ Parlement of Flanders in the Late 17th and Early 18th Centuries Before studying the place of foreign law in judicial decisions’ ratio decidendi and, more largely, its influence on the practice of a judicial system, one has to define the notion of ‘foreign law’. Foreign law is generally defined in opposition to national law, which is considered to be the whole of legal rules governing the relationship inside a sovereign state. The distinction between ‘national’ and ‘foreign’ law thus proceeds from a territorial and centralized conception of the production of legal sources, a conception that has been progressively established in Ancien Régime France, definitively imposed by the Revolution and given concrete expression by the Napoleonic Codes1. The traditional dichotomy opposing an internal legal order particular to each country and an international, private and later public, legal order can be considered to be a common heritage of most countries in continental Europe. Today, we can still recognize the trace of such an opposition in the speech of those who are taking issue over the primacy of European law, arguing that law imposed by a foreign lawmaker (in Brussels) and applied by courts external to the national judicial order (in Luxemburg) could not prevail on national law and should therefore be called ‘foreign law’ rather than ‘supranational law’. The topic of this paper is to study whether Ancien Régime France presents a different approach and practice towards the notion of foreign law as the history of French Flanders gives a particularly interesting case study. When Louis XIV conquered, as a result of the Devolution war, the southern part of the Spanish Low Countries, he formally promised to respect the local character and specific legal identity of the territories brought under French sovereignty. The ‘capitulations’ – which are to be considered as a kind of constitutional acts defining the political, administrative and judicial organization of conquered territories2 – contain very explicit dispositions as concerns the respect for local particularities. The capitulation of Lille dated August 27th 1667, for example, declares that the J.-L. Halpérin, L’impossible Code civil, Paris 1992. Fr. Zanatta, Une technique d’encadrement juridique des occupations militaires sous l’Ancien Régime: les capitulations des villes et états dans le Nord de la France au XVIIe et XVIIIe siècles, in France occupée, France occupante: le gouvernement du territoire en temps de crise (de la Guerre de Cent ans au régime de Vichy), Orléans 2008. 1 2

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inhabitants of the town and country of Lille will truly and peacefully continue to enjoy the privileges, customs, habits, immunities, rights, liberties, jurisdiction, justice, police and administration granted by the former kings of France but also by the sovereign lords of these countries3. It is thus in execution of those commitments that a court is instituted in 16684. First established in Tournai with the title of Sovereign Court, its mission is to dispense justice in the newly conquered territories in name of the king. Among the reasons given to justify the creation of a new court (for from a historical point of view most of those territories had been part of the Parlement of Paris’ jurisdiction until the beginning of the 16th century), we can find the following significant passage in the establishment Act: “we have decided to institute a court of justice composed by people of the country (i.e. local judges) having knowledge of the local laws . . . and for these judges are more competent to judge according to the country’s customs and common uses, their judgements will be better accepted by its inhabitants”5. The judicial privileges thus sound like a guarantee of all other privileges. To respect the laws and customs of Flanders it indeed appeared essential to the inhabitants of the conquered territories to fall within the competence and jurisdiction of a court that had its seat in the province and was composed only of local judges knowing the country’s legal particularities6. A Sovereign Court, set up in Parlement in 1686, was thus seen as the 3 Art. XLIX: “Que lesdites villes de Lille et châtellenie jouiront pleinement et paisiblement de tous privilèges, coutumes, usages, immunitez, droits, libertez, franchises, jurisdiction, justice, police et administration à eux accordéz tant par les rois de France par ci-devant, que par les princes souverains de ce pays . . .”; the capitulations of Tournai (June 24th) and Cambrai (April 5th) contain similar dispositions: Archives départementales du Nord, Placards 8172, p. 26 sq. et 46 sq.; Placards 8180, p. 270 sq. 4 Edit du roy portant établissement du conseil souverain de Tournay, conformément aux capitulations (April 1668): in Recueil des édits, déclarations, arrests et reglemens qui sont propres et particuliers aux Provinces du Ressort du parlement de Flandres, imprimé par l’ordre de Monseigneur le Chancelier, Douai 1730, p. 9 – 11. 5 “Nous avons résolu de créer pour cet effet un Tribunal dans notre ville de Tournay et de le composer de gens du pays, suivant ce que Nous avons promis par les capitulations accordées aux habitans des villes qui se sont soumises à notre obéissance, afin que par la connoissance qu’ils ont des loix et coutumes du pays, la justice qu’ils rendront aux peuples soit mieux reçûë et plus selon leurs mœurs”. For more information on the court’s history, see G.-M.-L. Pillot, Histoire du parlement de Flandres, 2 vol., Douai 1849 and the contributions published in J. Poumarède et J. Thomas (ed.), Les parlements de province. Pouvoirs, justice et société du XVe au XVIIIe siècle, Toulouse 1996: J. Lorgnier, Cour souveraine et parlement de Tournai, pièce maîtresse de l’ordre judiciaire français dans les anciens Pays-Bas (p. 141 – 164) and R. Martinage, Pouvoir royal et justice au parlement de Tournai, 1686 – 1709 (p. 165 – 190). For a complete bibliography on the Sovereign Council of Tournai and ‘Parlement of Flanders’, see S. Castelain and A. Cliqueteux-Lebel, Petit guide à l’usage des personnes intéressées par les archives du parlement de Flandre (http: //chj-cnrs.univ-lille2.fr/ IMG/pdf/parlementdeflandre.pdf). 6 The edict of 1668 organizing the new court foresees one Premier Président (Jean-Baptiste de Blye), one Président (Jean de Bargibant), seven conseillers or councilors (Jean Lemaire, Jacques Durant, François Odemaer, Charles Muyssart, Gaspard-Melchior Delesaux, Pierre Hattu and Adrien Mondet), one procureur général or public prosecutor (Robert de

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symbol of the province’s legal identity and stood as security for the respect of its institutions and legal traditions. During the first years of its existence, the court had to deal with a lot of difficulties: a moving jurisdiction as a result of the international treaties7, appeals still brought before the former superior courts of the southern Netherlands which were not competent any more8, but above all a feeling of legal insecurity. That insecurity was a result of the variety of customs of which only the most important had been officially recorded. As, before the conquest, most of the territories fell under the jurisdiction of the superior courts of the Spanish Low Countries (the Council of Flanders, the Council of Hainault and the Great Council of Malines), local customs were interpreted, and even after 1667 continued to be, according to these courts’ precedents. But the problems were even more important as concerned royal legislation. The kings’ statutes previous to the conquest of the northern province (except those that had been promulgated before 1526 when the treaty of Madrid put an end to the feudal rights of the king of France over Flanders9) were to be considered as foreign law, whereas the statutes promulgated after the conquest were to be executed as internal law. As a result of this, the famous Civil Ordinance of 1667, for example, was never in use in the conquered territories; the court adopted its own style – composed by First President de Bly and approved by a royal decree of September 167110 – inspired by the procedure of the Council of Hainault and also influenced by the statutes of the Hapsburgs and the practice of the Great Council of Malines11. On the contrary, the criminal ordinance of 1670 replaced – but only Flines) and also two honorary knights. All of them are native of the province and have been chosen for their knowledge of the local customs and for their judicial experience in local courts (Ath, Tournai, Courtrai, Audenarde, Lille, Douai): they are considered to be “les praticiens les plus habiles et les plus capables et expérimentés en la jurisprudence desdits Pays”. For more biographical information, see P.-A. Plouvain, Notes historiques relatives aux offices et aux officiers de la cour du parlement de Flandres, Douai 1809 (http: //polib.univ-lille3.fr/ data/XIX / III/2/index.html). 7 V. Bufquin, Le parlement de Flandres, la cour d’appel de Douai, le Barreau, Douai 1965, p. 16. 8 A few months after having established his court in Tournai (July 9th 1668), the king decided a general ‘evocation’ of all lawsuits “pendants pardevant les justices de la domination du Roy catholique” and prohibited “de se pourvoir à l’advenir en premiere instance ailleurs que par devant leurs juges domicilaires & ordinaries &, par appel, au Conseil, à peine de mille livres d’amende & de nullité des procedures & jugements qui pourroient intervener”: M. Pinault, Seigneur des Jaunaux, Histoire du parlement de Tournay contenant l’établissement et les progrès de ce tribunal avec un détail des édits, ordonnances et reglemens concernant la justice y envoyéz, Valenciennes 1701, p. 7 – 8. 9 S. Dauchy, Introduction historique aux appels flamands au Parlement de Paris (1320 – 1521), in R.C. Van Caenegem (dir.), Les arrêts et jugés du Parlement de Paris sur appels flamands conservés dans les registres du Parlement, Brussels 2002 (Commission royale pour la publication des Anciennes Lois et Ordonnances de Belgique, Recueil de l’ancienne Jurisprudence de la Belgique, 1re série, t. III). 10 M. Pinault, p. 18.

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after having been addressed to the court in 1679 – all dispositions concerning criminal law and criminal procedure previously in use, dispositions that suddenly became foreign law while the royal ordinance turned into internal law. The records of the Parlement of Flanders (also called Parlement of Tournai until the court left that city for Cambrai in 1709, before finally moving to Douai in 1714) thus seem susceptible to provide very interesting information to study the place of foreign law in a court’s practice. Nevertheless, we have to remind that the records do not reveal judges’ rationes decidendi12 and that the litigants’ arguments, often copied out in the ‘extended decisions’, are not a reliable basis to study the reasons given by the judges for their decisions. Those reasons can only be known by reports, the so-called recueils d’arrêts. Six collections of reports from the Parlement of Flanders have been printed. Two of them have been published in the early years of the 18th century: the Recueil d’arrêts notables du parlement de Tournay by Matthieu Pinault des Jaunaux13 printed at Valenciennes in 1702 and completed by a Suite des arrêts notables du parlement de Flandre published at Douai in 1715 and the Arrêts du parlement de Flandre sur diverses questions de droit, de coutumes et de pratique by Jacques Pollet, published in 171614. The four other collections, those of Dubois d’Hermaville, de Baralle, de Flines and de Blye have been gathered in 1773 by a bookseller and publisher from Lille and printed, in two volumes, under the general title Recueils d’arrêts du parlement de Flandre15. Those reports – all six of them are the work of judges who were members of the court during the first years of its existence16 – express the newly created jurisdiction’s necessity to fix its jurisprudence. We have to remember that, apart from the reports of des Jaunaux published during his life, and of Pollet published two years after his death, the other collections were not intended for publication. They have to be considered as private notes for the personal use of their authors and put at the disposal of the other members of the court; 11 Guyot, Répertoire universel et raisonné de jurisprudence civile, criminelle, canonique et bénéficiale, 17 vol., Paris 1784 – 1785, vol. 6, Douai (p. 271): “[Le stile du Parlement de Flandre] est tiré du style du Grand Conseil de Malines, des coutumes du pays et principalement des chartes du Hainaut”. 12 Cf. S. Dauchy et V. Demars-Sion, La non-motivation des décisions de justice, principe ou usage?, Revue Historique de Droit Français et Etranger, 82 (2), avril-juin 2004, p. 223 – 239 and V. Demars-Sion and S. Dauchy, La non motivation des décisions judiciaires dans l’ancien droit français: un usage controversé, in W. H. Bryson and S. Dauchy, Ratio decidendi. Guiding Principles of Judicial Decisions, vol. 1: Case Law, Berlin 2006 (Comparative Studies in Continental and Anglo-American Legal History, bd. 25 / 1), p. 87 – 116. 13 http: //polib.univ-lille3.fr/data/XVIII/III/4/index.html. 14 A second edition was published in 1772. 15 For a complete study of the (published and manuscript) law reports of ‘the parlement de Flandre’, see G. Cazals, Les recueils d’arrêts du parlement de Flandre (to be published soon). 16 For a short bio-bibliography of the Flemish authors of law-reports, see P. Arabeyre, J.-L. Halpérin and J. Krynen (dir.), Dictionnaire historique des jurists français, XIIe – XXe siècle, Paris 2007.

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lawyers were probably also authorized to consult them. Their purpose was mainly to avoid a large variety of legal solutions or a sudden reversal of jurisprudence17, but their authors did not aim at reaching a large public. This explains why those notes not only reveal the judgements’ rationes decidendi but even – as concerns de Baralle and especially de Flines – the judges’ individual opinion, dissentientibus or consentientibus, and the arguments they exposed to support their opinion18, which was contrary to the obligation not to reveal the secrets of the court’s deliberation19. For legal historians, of course, these documents are an inestimable source to study ratio decidendi and the underlying legal sources and legal reasoning. Also interesting from this point of view are the unpublished reports of a Flemish lawyer, Georges de Ghewiet. Although he intended to publish his Jurisprudence du parlement de Flandre in the years 1725 – 1730, his work remained unpublished at his death in 174520. His reports are based on the work of Pollet (that he used as the starting point of his own work) and are to be considered more as a doctrinal study than as a traditional collection of court reports. De Ghewiet did not only complete the reports published by Pollet by new decisions of the Parlement, he also gave very interesting legal observations based upon customs, legislation, court reports, roman and canonical law and legal literature mainly from the Netherlands and from France, but also from several other European countries21. All those reports and commentaries allow us to characterize the legal identity of the province and to specify what contemporary authors and practitioners understood by ‘foreign’ law in the late 17th and 18th centuries. They also make it possible to measure whether the country’s original internal law resisted or, on the contrary, adapted – or was forced to adapt – itself to the royal efforts to centralize and unify law and justice in the realm.

17 In his introduction, entitled Au lecteur, M. Pinault, seigneur des Jaunaux, Recueil d’arrests notables du Parlement de Tournay, Valenciennes 1702, explains that “ces ouvrages peuvent aussi beaucoup contribuer à empescher la variété et la contrariété des arrests . . .”. 18 S. Dauchy and V. Demars-Sion, Argumentation et motivation dans les recueils d’arrêts des cours souveraines de France. L’exemple du parlement de Flandre (fin XVIIe – début XVIIIe siècle), in A. Cordes (dir.), Juristische Argumentation – Argumente der Juristen, Köln-Weimar-Wien 2006, p. 127 – 152. 19 A royal decree of 1344 states the oldest know interdiction to reveal the secrets of the court’s deliberations, presenting it as a result of the judges’ oath to hold the deliberations secret. Cf. V. Demars-Sion and S. Dauchy (note 11), p. 89 sq. 20 The original manuscript kept in the public Library of Bergues has been edited by S. Dauchy and V. Demars-Sion, La jurisprudence de Flandre de Georges de Ghewiet, Brussels 2009 (Commission royale pour la publication des Anciennes Lois et Ordonnances de Belgique, Recueil de l’ancienne Jurisprudence de la Belgique, 2e série). 21 For more information, see V. Demars-Sion and S. Dauchy, A propos d’un ‘recueil d’arrêts’ inédit: la Jurisprudence du parlement de Flandre de Georges de Ghewiet, Tijdschrift voor Rechtsgeschiedenis – Legal History Review, 77 (2009), p. 157 – 189.

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I. Assert local identity by refusing to apply ‘foreign’ French Law In the table of contents of his Jurisprudence du parlement de Flandre, Georges de Ghewiet mentions under the word Auteur that one should not thoughtlessly follow the French authors: “il ne faut s’attacher légèrement aux auteurs français”. Further explanation is given in the third part of his work when referring to some particular French authors: “we often wrongly use what we find in their works”, he says, “because we do not make the effort to examine whether our habits and customs are based on the same principles as the laws and customs of France”22. And as judges and lawyers had most of those French authors on their bookshelves23, he repeats Pollet’s warning that “it is important to verify systemically if our customary law is based upon the same principles as those French authors are talking about”24. De Ghewiet is clearly warning against a comparative approach that “often leads us, when we are judging, to use legal principles derived from ‘foreign’ law, because they seem familiar to us”25. He not only addresses a warning to local judges who 22 Jurisprudence du parlement de Flandre, part III, arr. XXXVIII (n° 4 in fine): “A la vérité, il ÿ a quelques auteurs francois qui tiennent que les enfans exposéz doivent etre nourris aux frais des hauts justiciers; mais il est bon d’observer, avec M. Pollet, part. 2, arr. 36, qu’on fait souvent une mauvaise aplication de ce qu’on trouve dans ces auteurs, faute de se donner la peine de bien examiner si nos usages et nos coutumes sont fondées sur les memes principes que les coutumes et usages de France”. 23 A lot of printed booklists of Flemish judges and lawyers of the 18th century are available in the municipal Library of Lille (L 8 558), as an inventory of their personal library has often been made in order to sell the books after their death. The list of de Ghewiet’s personal library, with over 700 titles, has been published: S. Dauchy and V. Demars-Sion, “La bibliothèque du juriste flamand Georges de Ghewiet”, Bulletin de la Commission royale pour la publication des anciennes lois et ordonnances de Belgique, vol. XLVIII (2007), p. 277 – 320. See also G. Cazals, and, for a comparison with the libraries of lawyers in Bordeaux in the late 18th century, H. Leuwers, L’invention du barreau français, 1660 – 1830. La construction nationale d’un groupe professionnel, Paris 2006, p. 212 – 213. 24 Jurisprudence du parlement de Flandre, part II, arr. XXXVI (concerning the rights of married people in the custom of Lille), n° 5: “Ce sentiment ne sera peut etre pas du gout de ceux qui s’attachent à l’étude des auteurs françois, mais on doit prendre garde qu’on fait souvent une mauvaise application de ce qu’on ÿ a lu, faute de se donner la peine de bien examiner si nos coutumes sont fondées sur les memes principes que celles de la France”. In his observations (n° 22) he explains that Pollet’s opinion is confirmed by other Dutch authors as Zypæus: “L’avis que donne ici M. Pollet, nomb. 5, de bien examiner si nos coutumes sont fondées sur les memes principes que ceux dont parlent les auteurs françois, est tres important; Zÿpæus in Not. jur. Belg., lib. 1 De legibus, nu. 11 circa med., dit: male studiis suis et reipublic. consulere, qui neglectis moribus nostris, gallicos semper legunt, laudantque auctores; quorum pleræque decisiones regni illius edictis, et axiomatibus innituntur, cum nos moribus nostris vivamus”. 25 Ibid, n° 22: “Et on doit par la méme raison ne point s’atacher aux principes d’une coutume qui nous est familiere quand il s’agit de juger des cas dans une autre coutume, principalement lorsque cette derniere est d’une autre province, par ce que les coutumes étant ordinairement fondées sur des motifs et sur des raisons differentes, on ne peut s’en ecarter sans injustice pour suivre une autre qui nous est plus connüe”.

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would draw legal solutions in French customary doctrine (to be understood as the various commentaries on the customs of the realm) and from French court reports (i.e. the printed reports of judgements of the different royal parlements), he also points out the distinction between ‘local internal law’ and ‘French foreign law’. But how did contemporary practitioners define the province’s legal specificity and how did they refer to foreign law and to what foreign law? First, we can observe that local practitioners explain and interpret local customs by using the legal literature of the Low Countries, not only because commentaries on the customs of the French speaking part of Flanders were scarce26, but mainly because the neighbouring customs of the Flemish speaking part of the old county, although they did not fall into the court’s jurisdiction, were considered to be part of the same legal family. Laurent Vandenhane’s Vlaemsch recht27 is therefore without surprise one of the treaties de Ghewiet most frequently refers to: it is quoted over 90 times. Commentaries on ‘French’ law should on the contrary been banished because the customs of the realm do not share a common heritage with ‘Flemish’ law. Relating a case brought before the court in 1715 about the question who should support the cost of abandoned children, Georges de Ghewiet concludes that “even if a universal rule can be put forward in France, it should not been used against what it observed in Flanders” and he reminds that “the Flemish supreme court precisely was set up to judge in accordance with the country’s uses”, and he lays great stress upon the fact “it has been frequently confirmed by the king himself ”28. In their legal reasoning, judges refer most frequently to collections of case 26 M. Pinault des Jaunaux, Coutumes générales de la ville et duché de Cambray, pays et conté du Cambrésis . . . , Cambrai 1691, and François Patou’s Commentaire sur les coutumes de la ville de Lille et de sa châtellenie . . . , 3 vol., which was not published before 1788 – 1790. Several judges of the sovereign court and also some lawyers have made commentaries on local customs, but almost all of them remained in manuscript: e.g. Les coustumes, stils et usages de la ville et cité de Tournay. . . commentés par G. de Ghewiet (Bergues, Municipal Library, mss 72 – 73). Robert de Flines’ Commentarii in consuetudines Tornacenses, Jean Heindericx’ Commentaire sur la coutume de (la cour féodale de) Furnes and his Notes (ou Annotations) sur la coutume générale du Hainaut are only known from references in de Ghewiet’s work or by quotations from other authors. One published commentary is the Commentaire sur quelques articles des coutumes de la Salle, bailliage et chatellenie de Lille par M. le premier président de Blye, 2 vol., Lille 1773 [t. 2], p. 419 – 427. We should not forget that, according to their authors, some printed court reports also aimed to interpret and fix local customary law: the full title of Pollet’s book is: Arrêts du parlement de Flandre sur diverses questions de droit, de coutume et de pratique, ‘ouvrage utile pour l’intelligence des coutumes et usages du pays’ and in the second part of his work the judgements of the Sovereign Court and Parlement of Tournai often seem to be a pretext to give comments on several local customs. Cf. G. van Dievoet, Coutumes du Tournaisis, Brussels 2006 (Commission royale pour la publication des Anciennes Lois et Ordonnances de Belgique, Recueil des anciennes coutumes de la Belgique, Coutumes de Tournai et du Tournaisis, t. III). 27 L. Vanden Hane, Vlaemsch Recht, dat is costumen ende wetten ghedereteert bij graven ende gravinnen van Vlaenderen . . . met d’interpretatien . . . , Anvers 1676, 4e éd. verrijckt met particuliere tafelen ende oock eene Generale, ghemaect by forme van Concordantie. This table made it easy to compare the dispositions of the different Flemish customs.

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law of the former southern Low Counties, as well the printed collection of decisions of the Great Council of Malines by du Laury29 as the manuscript collections from Cuvelier and de Grysperre30, collections that circulated among the judges of the Sovereign Court of Tournai and the Parlement of Flanders and in this matter assured their authors great influence. Because the Sovereign Court in Tournai was considered to take over the Great Council of Malines’ jurisdiction in the new conquered territories, its decisions should fit in with the former supreme court’s jurisprudence and, when necessary, the court of Malines was therefore still looked to for advice after 1668. When Flemish authors refer to ‘French’ law reports, it can be either to prove that French law is completely foreign and extraneous to local customs or, as concerns some particular provinces as Brittany, to underline that Flemish law is as particular as the laws of the other peripheral territories of the realm. According to most authors (and that opinion is shared by the court), the main difference with France concerns the authority recognized to Roman law in the territories detached from the former Low Counties. De Ghewiet indeed reminds that, according to the edits of the 16th and 17th centuries organizing the homologation procedure in the Hapsburg and later Spanish Low Countries, judges have to use Roman law when customary law remains silent or obscure about the legal question to be settled31. But Roman law is not confined to an additional role, it is also considered to be the most appropriate way to settle dissenting opinions among judges: de Ghewiet reports a court’s resolution from January 28th 1698 confirming that dissention among councillors should be decided according to Roman law32. Ladis28 Jurisprudence du parlement de Flandre, part III, arr. XXXVIII, n° 4: “Mais quand l’usage seroit aussi universelement receu en France que les demandeurs le pretendent, il ne pourroit prejudicier a ce qui s’observe en Flandre. La Cour de parlement a eté etablie pour juger conformement aux usages du paÿs; et toutes les fois que l’occasion s’est presentée, le roÿ a declaré et fait connoitre qu’il ne pretend rien innover en ce regard”. De Ghewiet intended to publish the text of his pleadings in this case, pleadings in which he is referring to various legal sources and also to case law of the former Hapsburg and Spanish Netherlands. 29 R.-A. du Laury, Jurisprudence des Pais-Bas autrichiens établie par les arrêts du Grand conseil de sa majesté impériale et catholique résidant en la ville de Malines auxquels sont ajoutés quelques decrets portés au Conseil privé de sadite Majesté, Brussels 1717. 30 See A. Wijffels, Legal Records and Reports in the Great Council of Malines (15th to 18th Centuries), in J. H. Baker (dir.), Judicial Records, Law Reports, and the Growth of Case Law, Berlin 1989 (Comparative Studies in Continental and Anglo-American Legal History, bd. 5), p. 181 – 206. 31 Jurisprudence du parlement de Flandre, part II, arr. II, n° 10: “. . . on est obligé de suivre le droit romain dans les cas qui ne sont pas décidés par nos coutumes”, but this supposes that the particular customs as well as the general custom of the country remain silence about the legal solution. Cf. Jurisprudence du parlement de Flandre, part III, arr. LXVI, n° 9: “. . . dans le resort de la Cour, les coutumes particulieres se rapportent à l’usage general, et subordinément au droit romain, pour les cas dont elles ne disposent point”. 32 Jurisprudence du parlement de Flandre, part I, arr. V, n° 4: “il a été arrête au parlement de Flandre, par resolution du 28 janvier 1698, qu’en cas de partage de sentiment la decision sera faite suivant les maximes du droit ecrit”.

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las de Baralle, who wrote down not only the legal reasoning he presented to the court as reporting-councillor but also the judges’ final rationes decidendi indeed confirms that the court often judged according to the authority of Roman and secondarily according to canon Law, even when the parties’ legal arguments were based upon local customs33. When doing so, the court (as is reported by the authors of law reports) generally rely on the most renowned authorities of learned law from the Low Counties and France but also from Italy, Germany and Spain. As Roman law is reputed to be a formal source of law – de Ghewiet regularly repeats that Roman law is to be considered as ‘common law’ of the territories separated from the Low Countries – we can understand why judges and lawyers were rather hostile or at least reserved towards French customary doctrine. When reporting a court’s decision of February 23rd 1689 that rejected a petition because it was prescribed according to Roman law – and this although the plaintiff asserted that French authors unanimously allow a longer prescription –, he argues that “the opinion of the latter should not be taken into consideration because these authors do not receive Roman law”34. This is also the reason why he regularly points out that the principles of the custom of Paris reported by de Ferrière35 as well as by most authors commenting upon French customs, are contrary to ‘Law’, which means in his opinion that they are opposed to Roman law. French customary law thus is regarded as ‘foreign law’ on two accounts: first because it goes against local customs and secondly because it is contrary to Roman (and subsidiary Canon) law that always has to be considered as superior because it is based upon reason and equity. In his published treaty about the ‘Institutions of Belgian law’, de Ghewiet even defends the idea that, in the southern Low Countries, Roman law has been adopted as ‘written law’, adding that the place and role acknowledged to learned law distinguishes Flanders from the other pays de coutume36. The attachment of the Flemish councillors and lawyers to their legal identity can also be verified, and perhaps in a more explicit way, as concerns legislation. In his Jurisprudence du parlement de Flandre, de Ghewiet – when formulating observations on the criminal ordinance of 1670 – makes a clear distinction between the time ‘before’ and ‘after’ the conquest and surrender of the French speaking part of Flanders. Legislation prior to the conquest – that can be found in the ‘Placcards’ of Flanders and Brabant – continued to be observed in the jurisdiction of the SoveS. Dauchy and V. Demars-Sion, Argumentation et motivation. . . , n. 13. Jurisprudence du parlement de Flandre, part III, arr. CXII, n° 5: “on ne devoit pas suivre ici les auteurs françois qui ne recoivent pas le droit romain pour loi”. 35 Claude de Ferrière, Corps et compilation de tous les commentateurs anciens et modernes sur la coutume de Paris, Seconde édition revue, corrigée et augmentée par l’auteur, et par M. Claude Joseph de Ferriere, son fils, enrichie des scavantes observations de Monsieur Le Camus, Paris 1714, 4 vol. 36 G. de Ghewiet, Institutions du droit Belgique, Lille 1736, part. 1, tit. 1, § 7, art.2 (p. 13): “quoique ce pays soit un pays coûtumier, le droit romain y est considéré tout autrement que dans les pays coûtumiers de France, où ses principes et ses decisions ne sont pas adoptées que comme raison, au lieu que dans ce pays le droit romain est adopté comme Loi écrite”. 33 34

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reign Council of Tournai whereas royal edicts prior to 1667 were to be considered as foreign and should therefore not be applied by the court nor by the judges within its jurisdiction. The king’s edicts and ordinances posterior to the conquest have of course to be observed, in so far as they had been officially addressed to and registered by the court. This is the reason why the criminal ordinance of 1670 was not observed before 1679 and did not replace King Philip II’s edict of July 9th 1570 before the end of the Seventies. It also explains why the most important text to which practitioners and litigants are systematically referring (and to which authors pay special attention37) is without any possible doubt the edict of July 12th 1611, better known as ‘perpetual Edict of the archdukes Albert and Isabella for a better organisation of the countries’ justice’38. Organizing civil law and procedure in the Southern Low Countries, and continuing to do so after 1667 in the jurisdiction of the Sovereign Court and Parlement of Flanders, its dispositions are systematically confirmed by the court and, when they put forward precedents, judges and lawyers always refer to legal literature 39 and law reports from the Netherlands40 and Liege41. Councillor Dubois d’Hermaville shares that opinion when he writes that French legislation should never be considered to be conclusive in Flanders; that is the reason why he insists that all questions should be contained within the bounds of the Court’s case law42. Although a derogatory judicial mode had been instituted in the Parlement’s jurisdiction as regards appeal procedure, revision, evocation and other questions relative to civil procedure43, it was never considered to be foreign law by contemporary jurists and should not be considered differently by historians. Several royal decrees moreover have formally ratified particular dispositions of statutes previous to the conquest. A declaration of 1712, 35 years after the establishment of a royal Sovereign Court in French Flanders, orders for example strict observation of article XV of the Perpetual Edict (and of the edict of the Spanish King Philip II) concerning the publication and enactment of substitutions “because the king’s concern is to respect the current use of his Flemish province . . . as far as Jurisprudence du parlement de Flandre, part III, arr. XXXV: Edit perpetuel de 1611. G. Martyn, Het eeuwig Edict van 12 juli 1611, facsimile of the original French and Dutch text with an introduction, Antwerp 1997. 39 In particular Antonius Anselmo, Commentaria ad Perpetuum Edictum serenissimorum Belgii principum Alberti et Isabellæ evulgatum 12. iulii MDCXI, Antwerp 1701 and Jean Baptiste van Steenberghe, Ordonnance et édicts perpétuels des archiducs, nos princes souverains, pour meilleure direction des affaires de la justice en leur pays de pardeça, émané le 12 de juillet 1611, avec les interprétations et éclaircissemens depuis y donnéz, Ghent 1672. 40 These law reports do not only concern the Great Council of Malines but also the council of Brabant: Pierre Stockmans, Decisionum Curiæ Brabantiæ sequicenturia, Brussels 1670. 41 Charles de Méan, Observationes et res judicatæ ad jus civile Leodiensium, Romanorum aliarumque gentium canonicum et feudale . . . , 4 vol., Liege 1670. 42 Dubois d’Hermaville, p. 14: «Les ordonnances françaises sur la question ne sont pas décisives en ce pays qui a ses usages et ses maximes . . . c’est pourquoi il faut absolument se renfermer dans les bornes de la jurisprudence du pays». 43 Cf. supra, note 11. 37 38

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it pursues the same objectives as the royal decisions”44. But once again, it would be against the letter and mind of the capitulations’ articles governing the jurisdiction’s legal and institutional organization, and therefore anachronous, to consider as a reception of foreign law neither that declaration of 1712 nor the court’s references to ancient legislation as reason given for its decisions. The same cannot be said about a judgement of 1680 that is expressly referring to an ordinance of king Charles II of Spain dated 1669. Even de Ghewiet is astonished that an ordinance of the king of Spain, passed after Louis XIV established his jurisdiction on the conquered territories, guided the court’s decision. Trying to justify here ‘foreign law’ as ratio decidendi he writes: “the Parlement of Flanders has always been following the same principles as those decreed by Charles II and those principles were already in use before the Great Council of Malines when that court extended its jurisdiction over the territories that became French in 1667”45.

44 [Six and Plouvain], Recueil des édits, déclarations, arrêts du Conseil d’Etat et lettres patentes enregistrées au parlement de Flandres . . . , 9 vol., Douai 1985 – 1788 (vol. 4, p. 95 – 97): “Nous avons été informés par les remontrances qui Nous ont été faites par notredite Cour de Parlement, que cette Déclaration contient quelques dispositions qui ne sont pas entierement conformes aux ordonnances reçues dans les Provinces de son resort, & particulièrement à l’Edit ou Placard du Roi d’Espagne Philippe II, du 16 décembre 1586, & à l’article XV de l’Edit perpetuel des Archiducs du 11 juillet 1611, qui pourvoient suffisamment à la plûpart des abus auxquels Nous avons voulu remédier par notredite Déclaration; & comme notre intention n’a pas été de déroger aux usages desdites Provinces, ni à ce qui est établi sur cette matiere par lesdits Edits, & que Nous voulons au contraire maintenir nos Sujets du resort de notredit Parlement de Flandres dans leurs Loix & Usages [ . . . ] Nous avons par ces présentes signées de notre main, dit, déclaré & ordonné [ . . . ] que l’Edit ou Placard du Roi d’Espagne Philippe II, du 16 Décembre 1586, & l’article XV de L’Edit perpetuel des Archiducs du 11 juillet 1611, en ce qui concerne les substitutions & fideicommis, soient exactement conservés dans le ressort de notredit Parlement de Flandre”. On article XV, see G. Martyn, La ‘purge d’héritages’ dans les Pays-Bas méridionaux: l’apport des archives du Conseil privé (1577 – 1692), Tijdschrift voor Rechtsgeschiedenis – Legal History Review, LXIII (1995), p. 273 – 309. 45 Jurisprudence du parlement de Flandre, part I, arr. XXXI, n° 25: “Les cousins issus de germains ne sont de ce seul chef recusables au parlement de Flandre. Arret de 1680 rendu dans la seconde chambre entre M. de la Hamaÿde et les heritiers du Sr Scorion au sujet de la recusation de M. Visart. Cela est conforme à l’art. 14 de l’edit des recusations de 1669 ci-dessus [ . . . ]. Quoi que cet edit soit de Charles II, roi d’Espagne, posterieurement à l’etablissement du conseil souverain en la ville de Tournai, il a eté resolu dans une assemblée tenuë en 1678 par les prevot et juré, maÿeur et eschevins faisant les consaux de laditte ville, de suivre le reglement marqué par cet edit, et le parlement de Flandre a toujours eté et est encore dans les memes principes. Tel etoit aussi auparavant l’usage du Grand conseil de Malines qui suivoit en fait de recusation du chef de parenté ce qui etoit disposé en fait d’incompatibilité pour les officiers du corps, laquelle va jusques aux cousins germains, soit du chef de consanguinité ou affinité, selon l’ordonnance ou stil dudit Grand conseil, chap. 1, art. 6. [ . . . ]”.

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II. Integration of the jurisdiction’s foreign law: local particularity vs. royal efforts of assimilation and standardization The authors of commented collections of case law – most of them councillors closely connected to the Sovereign Court during the first years after its settlement – have drawn arguments from the works of numerous European jurists, showing a broad circulation of legal literature in Ancien Régime Europe and proving the existence of a true cross-boarder legal culture. This foreign legal literature, learned and customary doctrine as well as collections of foreign court’s case law, is basically used for comparative ends: authors and practitioners search for arguments confirming local law and customs or, on the contrary, expressing the country’s legal particularity. Nevertheless, the comments of local practitioners, in particular Georges de Ghewiet who is the only author reporting decisions posterior to the translation of the court from Tournai to Cambrai in 1709 and finally to Douai in 1714, hide another reality: the attempts of the royal authorities to assimilate the northern province by unifying law, procedure and judicial organization in conformity with French standards and, in response, the efforts of the local lawyers to defend local identity against the undermining process set up by the central authorities. The first royal assaults upon local idiosyncracies concerned legal education and the use of Flemish in justice and administration. In April 1679, the king promulgated the edict of Saint-Germain which made compulsory the teaching of French (customary) law in the law Faculties of the realm, also in the local university of Douai, and created ‘French law professors’46. Although the primary purpose of the royal measure was to promote French ‘national’ law and concomitantly reduce the place and influence of Roman law, it also contributed to the assimilation of peripheral provinces as Flanders. Another royal decree of December 1684 formally forbad litigants to use Flemish in the courts falling within the competence of the royal court set up in Tournai and one year later another decree also imposed that all testimonies should be written in French47. A few years later, the royal edict of March 1693 dealt a first severe blow to local autonomy. It introduced venality whereas the king had previously, in 1667, formally granted to the councillors a ‘perpetual’ right to present candidates48. The 46 Isambert e.a., Recueil des anciennes lois françaises, t. 19, p. 195 sq. The royal decree was enacted by the sovereign Court of Tournai on January 12th 1680. Cf. [Six and Plouvain], Recueil des édits, déclarations . . ., op. cit., vol. 1, p. 290, n° 60. Cf. Chr. Chêne, L’enseignement du droit français en Pays de droit écrit (1679 – 1793), Geneva 1982. 47 A few years after the establishment of a sovereign court, Georges de Ghewiet made a translation of the famous Ordonnance criminelle of 1670 that was printed in Tournai in 1679 (the same year the Criminal ordinance was registered by the court). But, as he explains in his Institutions du droit belgique, it was of no use because the king imposed plaiding in French before his courts. Cf. G. van Dievoet, Leven en werk van de Vlaamse jurist Georges de Ghewiet (1651 – 1745), De Franse Nederlanden – Les Pays-Bas français, Stiching ‘Ons Erfdeel vzw’, 1983, p. 11 – 28.

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reasons of such a sudden and brutal change were mainly financial, but the measure also expressed the king’s will to pursue uniformity of the superior courts49. On April 11th the court received a written order to enact the royal decision and it had no other choice than to comply because the Flemish court did not have the faculty to present any remonstrances50. The royal edict, imposed against the local rights and regardless of the king’s word, severely shook the court and de Ghewiet once again bears witness of the traumatism the royal decision provoked in Flanders. In his introduction to the Jurisprudence du parlement de Flandre he makes a distinction between the decisions pronounced by the court before and after 1693, a distinction that can only be understood in reference to the forced introduction of heredity and venality of judicial charges in the Parlement’s jurisdiction. 1693 indeed marks a turning point in the province’s history, as it put an end to the relative institutional isolation in which the Flemish court lived since it had been installed. From that moment on, a movement of gradual but systematic erosion of the province’s distinctive legal and procedural characteristics, and in the same way a lining up with French legislation, can be observed. Legislation concerning clandestine marriages – i.e. when children get married without consent of their parents – grants an illustration of that process. The statutes of the former Low Countries concerning marriage (chiefly Charles Vth edict of 1540 completed by an ordinance of Philip IV dated 1623) hardly diverged from the royal legislation as resumed in the declaration of Saint-Germain-en Laye dated 1639. The only difference between those texts concerned the faculty given to the judge by the Hapsburg legislation of 1540 to arbitrate conflicts between children and their parents: children could ask the judge’s permission to get married when their parents did not consent. But for both legal regulations were very similar and even seemed to repeat each other51, nothing could really prevent the Parlement of Flanders from continuing implementing the edicts of the former Low Countries. In their comments, all authors indeed confirm that the statutes of 1540 and 1623 are always given as ratio deci48 See G.-M.-L. Pillot, vol. 1, p. 220 sq. The system proposed in 1668 (the king chooses one candidate among three names presented by the court) is copied from the court of Hainault; cf. Ph.-J. Raparlier, Exposition de la lettre et de l’esprit des chartes générales du Haynaut, Douai 1771, cap. 1, art. IX, p. 3. 49 Among the reasons given for the introduction of venality, the king expresses his will “d’observer autant qu’il se peut une conduite ‘uniforme’ au gouvernement de son Etat et en l’administration de la justice” and therefore it seems necessary “de rendre [le parlement de Tournai] conformes aux autres”. 50 On the conflict between the king and the Parlement about the introduction of venality, see R. Martinage, Quelques aspects des relations du pouvoir royal et du parlement de Tournai au début de son existence, in Les juridictions supérieures, Actes des journées de la Société d’histoire du droit et des institutions des pays flamands, picards et wallons tenues à Leeuwarden, Nimeguen 1994, p. 53 – 65 and F. Souillart, L’introduction de la vénalité au parlement de Flandres, Master dissertation, Lille 2007. 51 Dubois d’Hermaville, arr. 38, even speaks about that question of a “commun usage dans l’Europe”; cf. Recueil d’arrêts du parlement de Flandres, vol. 1, p. 163.

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dendi for the court’s judgements52. This status quo changes in March 1697 when Louis XIVth promulgates a new ordinance concerning matrimonial questions53. Article 2 enjoins priests to verify the age of those who want to get married and whether the future bride and groom have got the consent of their parents or legal guardians. Considering that the royal edict abrogated the former regulation, some priests refused to marry under aged persons, even when authorized by justice, which led to a lot of confusion about the abrogation or not of the foreign statutes54. To clarify the situation, a royal declaration “for interpretation of the edict of 1693 as concerns the marriage of minors in Flanders” was send to the Parlement on March 8th 170455. In his preamble, the king repeats he does not intend to go against the laws, customs and traditions of the province, and under this term we can understand why de Ghewiet continues to refer to the old statutes of the 16th and 17th centuries about a lawsuit judged by the Court in 171556. But at the same time the king informs his Flemish subjects that he has asked his private Council to verify whether those ancient laws and customs are not contrary to accepted standards of good behaviour nor in formal contradiction with royal legislation57. This means, if we read between the lines, that the king, although his commitment to respect the particular laws and customs of his Flemish subjects, feels free to check whether that laws and custom, clearly presented here as ‘foreign law’, are not in opposition with royal internal law. A new turning point is passed in September 1742 when King Louis XV sends a new edict about marriage to the Parlement of Flanders. In its introduction presenting the grounds of the royal decision we can read this very instructive passage: “for the French statutes about this matter have not yet been addressed to our Parlement, the local jurisdictions are still using some insufficient and particular ordinances that have been passed when our province belonged to a foreign domination; therefore our Sovereign Court is observing an uncertain jurisprudence and its judiDe Baralle, arr. XLIX, 1690 April 7th. 53 Edit du roi concernant les formalités qui doivent être observées dans les marriages: [Six and Plouvain], Recueil des édits, déclarations. . ., vol. 2, p. 602 – 606. 54 Cf. Guyot, Répertoire universel, vol. 11, Mariage (p. 348). 55 Déclaration du roi pour les mariages des mineurs en Flandres, en interprétation de l’Edit du mois de Mars 1697: [Six and Plouvain], Recueil des édits, déclarations. . ., vol. 3, p. 339 – 342. 56 Jurisprudence du parlement de Flandre, part III, arr. XXXV: Du mariage et du consentement des peres et meres aux mariages de leurs enfans. 57 Ibid., p. 340 – 341: ”. . . après avoir fait examiner ces usages en notre Conseil, Nous avons trouvé qu’ils n’ont rien de contraire au bonnes mœurs, qu’ils sont conformes aux Ordonnances des Princes auxquels ces provinces ont été sujettes; que celles des Rois nos prédécesseurs, ni les nôtres, n’excluent pas nos juges de connoitre de la justice ou de l’injustice des oppositions, ou des refus des peres, meres, tuteurs ou curateurs de consentir aux marriages des mineurs: d’ailleurs par notre Edit du mois de Mars 1697, Nous n’avons pas entendu déroger à ces usages, mais seulement employer notre autorité pour faire observer les Loix Canoniques . . .”. 52

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cial precedents are often very different and sometimes in opposition with the decisions of the others courts of the realm”58. The royal declaration of 1742 showed in fact the way to a new declaration dated June 24th 1749 imposing, as a logical result of the royal policy pursued for nearly 40 years, the royal ordinances and banning the use of the former Hapsburg and Spanish edits of 1540 and 1623 whenever they are not in formal conformity with royal legislation59. The French monarchy finally imposed its national and centralized conception of internal law, a conception that fitted perfectly into its aim and efforts of assimilation of newly conquered territories and of unification of the laws and institutions throughout the realm. Where local practitioners had always considered French law as foreign law – not only because of the capitulations but also with regard to historical continuity – the royal government is using the notion of foreign law for all laws and statutes promulgated in territories subjected to a foreign domination, i.e. other than the king of France’s dominion. This opinion is strengthened by another royal declaration, dated January 18th 1719, restoring the use of the so-called appels comme d’abus in the jurisdiction of the Parlement of Flanders60. That appeal procedure had been developed by the royal parlements at a very early stage to control the decisions of spiritual authorities – in particular the judgements of the Church courts – in order to avoid decisions going against the competence of royal jurisdictions or against the rights and interests of the monarchy. In the Low Countries, the competence of Church courts was controlled by a particular procedure known as recours au prince (i.e. a complaint addressed directly to the overlord), a control system created on the initiative of the central authorities and organized in the second half of the 16th century by Philip II61. The royal declaration of 1719 justifies the restoration of the use of the 58 [Six and Plouvain], Recueil des édits, déclarations . . . , vol. 6, p. 50 – 52: “l’on ne peut avoir recours qu’à quelques ordonnances particulières et insuffisantes, qui ont été faites pendant que ces provinces étaient soumises à une autre domination. Et il ne peut résulter de ce défaut de loix qu’une jurisprudence, non seulement incertaine, mais souvent différente de celle qui est établie dans les autres tribunaux du Royaume”. 59 [Six and Plouvain], Recueil des édits, vol. 6, p. 340 – 344, art. 1: “Avons révoqué et révoquons par ces présentes la Déclaration du 8 mars 1704; en consequence, ordonnons que notre Edit du mois de Septembre 1742, & les ordonnances qui y sont rappelées [à savoir les ordonnances ‘françaises’ de 1556, 1579, 1580, 1606, 1639 et 1730], soient executés selon leur forme & teneur, sans que les Edits [étrangers] de 1540 et 1623 puissent avoir lieu à l’avenir, en ce qui ne seroit pas conforme auxdites Ordonnances . . .”. 60 [Six and Plouvain], Recueil des édits, vol. 4, p. 725 – 726: Déclaration du roi pour rétablir l’usage des appels comme d’abus. . . 61 For a comparative study of both systems, see V. Demars-Sion, Les monarchies européennes aux prises avec la justice d’Eglise: l’exemple des anciens Pays-Bas espagnols, Revue du Nord, tome LXXVII, no 311 (1995), p. 535 – 565 and, from the same author, Le parlement de Flandres, protecteur ou fossoyeur des particularismes locaux?, in J. Poumarède et J. Thomas (ed.), Les parlements de province, p. 191 – 214 and La mise sous tutelle de la justice d’Eglise dans les anciens Pays-Bas et ses limites (XVe – XVIe siècles), Cahiers du Centre de Recherches en Histoire du Droit et des Institutions, no 21 / 22 (De Pise à Trente: la réforme de l’Eglise en gestation. Regards croisés entre Escaut et Meuse), Brussels 2004, p. 213 – 229.

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appels comme d’abus by reminding that the procedure was already in use in Flanders before 1526, when the county was part of the Parlement of Paris’ jurisdiction. For historical grounds, the French procedure had thus to be restored (the royal declaration deliberately uses the word ‘restore’), but also because that procedure was common to all parlements of the realm since the late Middle Ages. Once again, the local tradition is taken away not only because it has been introduced under foreign domination – and incidentally because the French tradition was in use previous to the Spanish one – but mainly because “it is necessary to have uniform procedures in all our provinces”62, which means ‘French’ law has to replace everywhere ‘foreign law’. In ancient France, centralization has always been understood as ‘unity in diversity’. Because the peripheral provinces as Flanders, but also Roussillon or Alsace, came under French dominion at the apogee of royal absolutism, the opposition between local particularities – result of centuries of foreign sovereignty and / or independence – and royal centralization has probably been more acute. This explains the king’s early concessions, particularly in a period of war of which the result was not clear. In a first stage, the French authorities therefore only pursued a “transplantation of judicial institutions familiar to the population of the newly conquered territories”63. But it does not mean they did not aim, once the international treaties had fixed the border lines and conflicts about sovereignty had been settled, to organize the Flemish courts in conformity with the others supreme courts in the realm, thus striving for uniformity as concern their composition, organization, competence and procedure. It was, for example, not conceivable that territories conquered at a late stage would stay on the fringe of the central state’s efforts to promote a unified civil and criminal procedure. After a period of transition, the criminal ordinance 1670 and possibly also the civil ordinance of 1667 were supposed to be applied also by the Parlement of Flanders; at least the Flemish court had to conform itself to what was considered to be a general practice. Such an evolution was in the nature of things and should in any way be interpreted as disrespectful towards the king’s given word to keep and stand surety for the province’s local character and specific legal identity. Because private law had neither been codified nor unified, local customs resisted better. But this does not imply that they could not be improved or adapted by royal decrees abrogating, when necessary, ‘foreign’ statutes nor that case law of French sovereign courts should not be taken into account and even preferred to ‘foreign’ jurisprudence. Flemish judges and practitioners have interpreted ‘foreign’ as contrary to local tradition and history, in other words by looking backwards, while the royal government looked forward and consequently un62 A lot of changes in the organization and procedure of the court pursue uniformity with the other royal courts. 63 G.-M.-L. Pillot, t. 1, p. 214: “. . . [le roi s’efforce] de loyalement transplanter sur le sol conquis les institutions judiciaires auquel le peuple vaincu était accoutumé”.

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derstood it as impossible to assimilate with or dissolve in a common practice. In that sense, royal centralisation paved the way to Revolutionary unification and Napoleonic codification.

A. MARK GODFREY

Ratio Decidendi and Foreign Law in the History of Scots Law Introduction In what ways, historically, has the pleading of “foreign” law in Scotland contributed to “the jurisprudential problem of how and why decisions came to be accompanied by reasons”1? The first volume of this study was concerned with the role of case law in guiding subsequent judicial decisions – in other words, in tracing the course of development out of which such decisions came to be seen as representing the law in the eyes of lawyers and judges, and thus providing a rule or ratio which subsequent courts would feel compelled to take guidance from, or even to follow directly2. This could occur in broadly three ways: reference, reliance or application. Thus, in the course of their reasoning in a given case, the judges might make mere reference to, directly rely upon, or actively apply a legal rule which they found articulated in case law. Over time, understandings of the nature of a ratio decidendi developed which could provide rules to suggest how judges should be guided by or obliged to follow such case law. Those understandings have become more intelligible as judges have come to give reasons expressly for their decisions. As Professor Bryson has observed, “if the judges give their reason for their decisions, then it can be seen whether or not they have followed the rule of law and decided according to the law or not”3. This article is concerned with what “according to law” meant in Scotland in the case of foreign law. What can be added to an account of the guiding principles of judicial decisions through analysing how they have accomodated the role of “foreign law”? The main benefit from such enquiry is that it forces us to step back from the narrower, technical aspects of understanding how a court could come to regard its 1 S. Dauchy, Preface, in W. H. Bryson & S. Dauchy (eds.), Ratio Decidendi, Guiding Principles of Judicial Decisions, Volume 1: Case Law, Comparative Studies in Continental and Anglo-American Legal History Volume 25 / 1 (Berlin, 2006), p. 6. 2 On Scotland, see John Finlay, Ratio Decidendi in Scotland 1650 – 1800, in Bryson & Dauchy (eds.), Ratio Decidendi, Guiding Principles of Judicial Decisions, Volume 1, p. 117 – 135. 3 W. H. Bryson, Summary Conclusion, in Bryson & Dauchy (eds.), Ratio Decidendi, Guiding Principles of Judicial Decisions, Volume 1: Case Law, p. 290.

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own decisions as constituting law, in order to grasp what it understood as constituting a legal source more generally. What was law? Which rules and principles bound a court, and in what sense? In Scotland, for example, the development whereby case law could be considered to provide binding authority, once a series of judicial decisions had established a legal rule, had its parallel in changing perceptions of how the authority of Roman law, canon law, feudal law, the related juristic literature of the ius commune, the laws of other countries such as England, and supra-national law such as the lex mercatoria was comprehended. Consideration of the role of foreign law necessitates the examination of fundamental questions about how sources of law were conceived as such, in what sense such conceptions drew any meaningful distinction between foreign law and native law, and what role was given to foreign law in terms of such a distinction. Thinking about how sources of law were conceived historically leads on to inquiring how they may have been organized in terms of a hierarchy and how this changed over time. This involves understanding the circumstances in which competing versions of such a hierarchy came to be constructed by jurists, how these were received by the courts in their decision-making, and what the intellectual premises were which underlay such conceptions. Above all, though, such enquiry necessitates examination of how wider understandings of the notion of authority informed the ways in which particular types of law could be regarded as legal sources at all, and how they ought thereby to guide the determination of a ratio decidendi. Consideration of foreign law therefore forces us to confront from a particular perspective the question of what connection exists between adjudication and law. More specifically, what is the connection between judicial decision and the ways in which sources of law were recognized as being applicable in such decisions? At its deepest, this connection between adjudication and law is structured around ideas of authority. By the seventeenth century, such ideas were coming to be informed more deeply still by new ideas of sovereignty. All these elements were beginning to come together in the early modern period in Scotland, eventually so as to permit selected sources to be conceptualized together as “Scots law”, so that what was excluded was “foreign law”. Until this point, “foreign law” could hardly have been a meaningful category except as a factual description of provenance, as opposed to the normative designation of a form of legal source. Tracing how courts regarded “foreign” law therefore presupposes some recognition of a category of law which was identified as “foreign”. In a sense this could not formally occur until a clear understanding had first developed of how the courts regarded native legal sources as being constituted, be it through legislation or more problematically through case law and custom, or juristic accounts of law and procedure. In Scotland this type of understanding developed in new ways in the sixteenth and seventeenth centuries, though its roots can be seen partially in fifteenth century attempts at consolidating and rationalizing the medieval law of Scotland, and in particular the statute book4. Such developments are classically

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associated with the “institutional” phase of European legal development, when the combined intellectual influences of Renaissance humanist scholarship and natural law thinking led in the words of Klaus Luig to the “national differentiation” of the ius commune in favour of a “process of formation of national law”, prompting the writing of national institutes of law and paving the way for the movement towards codification5. The medieval paradigm which counterpoised ius commune with ius proprium simply lost intellectual credibility over time as an adequate framework.6 The ius proprium became the main focus. This marks the historical development for individual states of what H.L.A. Hart termed the “rule of recognition” by which formal and historical sources of law could be distinguished within a given legal system. As he put it, “this distinction between the historical cause and the reason for the validity of a given rule of law can be drawn only where the system contains a rule of recognition, under which certain things . . . are accepted as identifying marks of valid law”. However, as Hart pointed out, such a differentiation does not dispose of the role of non-formal sources. It is simply that the legal system does not require their consideration or application. When founded upon in judicial reasoning, historical – or equally in our context “foreign” – sources are in Hart’s view “more than merely historical or causal influences since such writings are recognized as ‘good reasons’ for decisions”7. Historically, therefore, the recognition of foreign law was contingent upon the interaction between the internal jurisdictional development of the legal system, the political development of the state within which the legal system was situated, and juristic and judicial understanding of the implications of that interaction for how legal sources were to be conceptualized, in particular for how even non-formal legal sources could be “recognized as ‘good reasons’ for decisions”. Although the mature resolution of this process in Scotland can be seen as unfolding during the seventeenth and eighteenth centuries, it was the sixteenth century which provided the crucial initiation of these developments in a Scottish context in at least six ways: (i) a central civil court became established following the re-organization of the Court of Session as a college of justice in 1532, with continuous (extant) records of its decisions surviving from 1478 onwards8; (ii) in the course of the 4 For example the statute of 1426 ordaining that a committee ‘sal se and examyn the bukis of law of this realm that is to say Regiam Majestatem and Quoniam Attachiamenta and mend the lawis that nedis mendment . . .’; The Acts of the Parliaments of Scotland, ed. T. Thomson and C. Innes, 12 vols (Edinburgh, 1814 – 1875), vol. ii, p. 10, c. 10. 5 K. Luig, The Institutes of National Law in the Seventeenth and Eighteenth Centuries, Juridical Review (1972), p. 193 – 226 at p. 193; a translation of a revised version of K. Luig, Institutionenlehrbücher des nationalen Rechts im 17. und 18. Jahrhundert, Ius Commune 3 (1970), p. 64 – 97. 6 This paradigm being the subject of Manlio Bellomo, The Common Legal Past of Europe 1000 – 1800 (Washington D.C., 1995). 7 H. L. A. Hart, The Concept of Law (1st edn., Oxford, 1961), p. 246 – 247. I am grateful to my colleague Dr. Akbar Rasulov for referring me to Hart’s analysis of historical and formal sources of law.

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sixteenth century a substantial increase occurred in the volume both of legislation passed in parliament and of litigation transacted in the Court of Session, vastly increasing the native source material from which legal rules could be inferred; (iii) the unification of civil jurisdiction occurred after 1560 with the termination of the authority of papal jurisdiction, following the Scottish Reformation, and the integration of the spiritual into the secular jurisdiction9; (iv) the first official collected editions of legislation were produced in the later sixteenth century;10 (v) from at least the 1530s, collections summarizing important decisions of the Court of Session began to be kept in manuscript form, and by the last decades of the century the first juristic works of Scots law since the medieval procedural treatises of the fourteenth century were produced, the most important example of which was the Practicks of Sir James Balfour, involving diverse legal sources being compiled into a systematic digest of the law11; and finally, (vi) the union of the English and Scottish crowns in 1603, and the mid-seventeenth century conquest and decade-long occupation of Scotland by England under Oliver Cromwell, intensified reflection on the nature and identity of Scots law, through successive though inconclusive seventeenth-century debates on a union of laws between the two countries12. In Scotland, it was the sixteenth, seventeenth and eighteenth centuries which constituted the period in which the notion of legal authority underwent its single most fundamental evolution since the thirteenth century, when the institutions of parliament and the Scottish common law had first coalesced around the institution of Scottish kingship. Gradually, from the sixteenth to the nineteenth centuries, the various sources of law came to be understood and classified into a hierarchy consistent with a modern positivist understanding. In this hierarchy, case-law and legislation had force as a result of being derived from sovereign authority, be it of the courts or of the Scottish parliament, or after 1707 the new British parliament. Other sources such as Roman law or English law came to be understood as not directly applicable, but their applicability was mediated for a significant period of time by the prevailing understanding of natural law, as well as more specifically the lex mercatoria. The wider framework of the ius gentium provided the framework in which these foreign sources could still be “recognized as ‘good reasons’ 8 See A. M. Godfrey, Civil Justice in Renaissance Scotland: the Origins of a Central Court (Leiden, 2009). 9 David B. Smith, The Spiritual Jurisdiction 1560 – 64, Records of the Scottish Church History Society 25 (1995), p. 1 – 18; J. W. Cairns, Historical Introduction, in K. Reid and R. Zimmermann (eds.), A History of Private Law in Scotland (Oxford, 2000), vol. 1, p. 14 – 184 at p. 83 – 84. 10 Cairns, Historical Introduction, p. 95 – 99. 11 See generally J. W. Cairns, T. D. Fergus and H. L. MacQueen, Legal Humanism in Renaissance Scotland, Journal of Legal History 11 (1990), p. 40 – 69. 12 See Brian P. Levack, The Formation of the British State: England, Scotland, and the Union 1603 – 1707 (Oxford, 1987); Alain Wijjfels, A British ius commune? A Debate on the Union of the Laws of Scotland and England during the First Years of James VI / I’s English Reign, 6 Edinburgh Law Review (2002), p. 315 – 355.

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for decisions”. The result of these developments was that it became possible to treat law as “foreign” in a number of ways which nevertheless still permitted its application or at least its influence upon the formulation of the Scottish legal rule on a given topic. We may group these results into four broad categories. First, in Scotland, as in other legal systems, situations were recognized in which Scottish courts should apply foreign legal rules as a matter of positive law. Thus rules of private international law developed to cover situations in which the Scottish courts would apply the law of another state directly in exceptional situations in which it was accepted that this foreign law provided the appropriate legal rules. In the new union state of Great Britain which was formed in 1707, English law continued to be treated as foreign law in Scotland, thus requiring Scottish rules of international private law for “intra-national conflicts” of laws within the United Kingdom, as well as for more conventional situations in which a foreign element from outwith the United Kingdom affected a legal dispute13. As the leading scholar of Scots international private law, Professor A.E. Anton, has noted, “for the purposes of Scots private international law England remains, apart from statute, in the position of a foreign country”14. Secondly, supranational sources of law such as Roman and canon law came to be seen as foreign to the legal system in a way which had previously possessed little significance in the medieval and Renaissance state, their applicability now increasingly circumscribed and governed by the principles of natural law. Thirdly, sources which had hitherto been regarded as foreign, above all English law, were accorded a new importance and relevance, at first in terms of principles of natural law and the law of nations, often specifically the lex mercatoria, but subsequently for sheer utility, and were used in terms of those principles to guide the formulation of rules of Scots law. The late eighteenth and nineteenth centuries increasingly saw an authority ascribed to English law in commercial matters which transcended that which had previously rested upon natural law thinking. That English law came to be the dominant influence on Scottish legal development was of course one natural consequence of the incorporating union of 1707 between the two countries, given the pressures to facilitate commerce between the two, and the precocious nature of English legal development in commercial matters. Although the primary influence was through case law and practice, statutory codification came by the nineteenth century to provide harmonized legal regimes for English and Scots law in particular areas such as the sale of goods, bills of exchange or company law, but these were largely derived from English sources15. Fourthly, once natural law thinking had lost its currency, foreign law still remained an influence in situations in which Scots law had not developed its own solutions. This is seen Kirsty J. Hood, Conflict of Laws within the UK (Oxford, 2007), p. xlv-xlvi. A. E. Anton (with P. R. Beaumont), Private International Law: a treatise from the standpoint of Scots law (2nd edn., Edinburgh, 1990), p. 9. 15 See, for example, W. M. Gordon, “Sale”, in K. Reid and R. Zimmermann (eds.), A History of Private Law in Scotland vol. II (Oxford, 2000), p. 305 – 332 at p. 326 – 331. 13 14

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most prominently in the manner in which English law came to be the dominant foreign influence in the nineteenth century. This came to be rationalized in relation to principles of judicial decision-making which can be expressed in terms of the methods of comparative law. In those terms, the formal source of a legal rule is not to be considered determinative of its potential relevance in formulating a new legal rule.

I. Private International Law Professor Peter Stein has commented that “it is generally agreed that the first systematic attempt to set out a system of conflict of laws was made by Bartolus of Sassoferrato in the first half of the fourteenth century”16. However, Professor S. E. Thorne observed of private international law more generally that “in a very real sense the subject is the product of, and first makes its appearance in, the sixteenth century”. He added that “the appearance of the idea of sovereignty marks not a stage in its development, as is usually believed, but the beginning of it”, pointing to the formulation by the seventeenth century of a theory of comity which could “reconcile justice in individual cases with political theory, with the idea of territorial sovereignty”17. In relation to Scotland, Professor Anton has pointed to “the development as early as the seventeenth century of a body of case law in matters relating to the conflict of laws”18. This body of law clearly followed on from Scottish practice in the fifteenth and sixteenth centuries. Anton noted that although “there are traces of earlier concern with problems involving foreign legal systems; it is towards the end of the fifteenth century that evidence appears of their judicial disposal”19. This is not surprising, since the jurisdiction of the Scottish king’s council had always extended to “strangers” or foreigners, and therefore the council or parliament in its judicial capacity could be expected to determine such cases20. As already noted, such central judicial records only become extant in the last decades of the fifteenth century, prior to which it is much more difficult to form a picture of the conduct of such disputes. Elsewhere, Anton cites a case from 1493 in which a foreign decree for damages was enforced by the Scottish parliament sitting in its judicial capacity. The decree was of one of the superior judges of the French 16 Peter Stein, Bartolus, the Conflict of Laws and the Roman Law, in Peter Stein, The Character and Influence of the Roman Civil Law (London, 1988), p. 83 – 90 at p. 83. 17 S. E. Thorne, Sovereignty and the Conflict of Laws, in S. E. Thorne, Essays in English Legal History (London, 1985), p. 171 – 185 at p. 171, 182. 18 A. E. Anton, The Introduction into English Practice of Continental Theories on the Conflict of Laws, International and Comparative Law Quarterly (1956), p. 534 – 541 at p. 535. 19 Anton, Private International Law, p. 9. 20 For the medieval position see comment in Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993), p. 220.

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admiral’s court, stated in the record to have been given by the “leutennent generale at the table of marbre [i.e. marble] in the palace of Paris” under the great admiral of France21. A process, letters and letters executorial of the French court were produced before the Scottish parliamentary lords auditors, who willingly ordained letters by which the foreign decree could be enforced. No legal objection is recorded as having been raised (though this does not conclusively establish that none was raised, the record being in a condensed and technical form concerned procedurally with the formal outcome). In its straightforward disposal, the example recalls Thorne’s view of fourteenth-century Italy, that “the judicial function had not yet been confined to applying the law of the judge’s state only, but was still essentially that of doing justice under the circumstances” 22. Recognition of foreign judgements does not go quite as far as to resolve substantive questions of law within Scottish jurisdiction by reference to foreign law, but at least reveals an apparently untechnical and open approach to foreign law and decrees given under foreign law by the Scottish central courts in the fifteenth century. Outwith Scottish jurisdiction, the Scottish “staple” port in Zeeland provided a form of extra-territorial jurisdiction which must have relieved the Scottish courts themselves of at least some litigation between merchants which they would otherwise have entertained. This mechanism must also have lessened the need to develop explicit rules of international private law. Scottish trade with the Low Countries was legally granted as a monopoly to a particular port known as the “staple” – from 1508 this being Veere in the province of Zeeland. This must have conditioned Scots merchants to foreign elements affecting jurisdictional aspects of their disputes. As Andrew Dewar Gibb noted, “in return for Scotland compelling her merchants to resort to one favored town, that town gave facilities for trade to those merchants . . . One of the most valuable . . . was a grant of jurisdiction to the person who played the part of the governor of the little colony, and who was called the Lord Conservator of the Scottish Priviledges”23. Scottish merchants who were based in the foreign staple port were thus able to litigate in Zeeland under Scots law before the Conservator. Gibb argued that litigation prior to 1500 would have been conducted in local courts in the Low Countries and was not reserved to a jurisdiction vested in the Conservator, but that in the early sixteenth century a different course was adopted. Thus in 1504 the Scottish parliament legislated that “it 21 The Records of the Parliaments of Scotland to 1707 [herafter RPS], ed. K. M. Brown et al. (St Andrews, 2007), 1493 / 5 / 103; the earlier edition cited by Anton is The Acts of the Lords Auditors of Causes and Complaints, ed. T. Thomson (Edinburgh, 1839), p. 181 (21st June, William Richardson v. William Cale). 22 Thorne, Sovereignty and the Conflict of Laws, p. 179. 23 A. D. Gibb, International Private Law in Scotland in the Sixteenth and Seventeenth Centuries, 39 Juridical Review (1927), p. 369 – 407 at p. 375; D. Ditchburn, Scotland and Europe: The Medieval Kingdom and its Contacts with Christendom, 1214 – 1560 (East Linton, 2001), p. 12 – 13; M. Lynch, Staple Ports, in: M. Lynch (ed.), The Oxford Companion to Scottish History (Oxford, 2001), p. 590 – 591; John Davidson & Alexander Gray, The Scottish Staple at Veere (London, 1909), p. 361 – 389.

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is statute and ordanit for the wele of merchandis and for the gret exorbitant expensis maide be thaim apoune pleis in the partis beyonde sey, that tharefore the conservatour of this realme have jurisdictioune to do justice amangis the saide merchandis, oure soverane lordis liegis, that is to say betuix merchand and merchand in tha partis beyonde se”24. The act went on to state that “na merchand persew ane other befor ony other juge beyonde se, nor do in contrare this act”, and laid down rules requiring the Conservator to sit with experienced merchants who would jointly exercise the power to administer justice. Anton’s broader discussion, following his noting of the later fifteenth century cases, led him to observe that “even in the sixteenth century proof of foreign law was admitted, and reference might be made to the ‘ordinar Jugeis’ of the foreign realm” by the king’s council, as well as how its jurisdiction over strangers resulted in judicial decisions in which rules of the ius commune was directly applied in Scottish litigation rather than native Scots law25. Part of the evidence for this comes from a case of 1550 between an Englishman and a Frenchman cited by Balfour in his late sixteenth-century Practicks. Balfour stated in his commentary that the case was authority for the proposition that “the Lordis of counsall ar Jugeis competent betwix stranger and stranger, in all civil actiounis . . . and sould decern and judge thairanent conform to the commoun law, and not efter the municipal law of this realme”26. Here the reference to “commoun law” is clearly to the ius commune. The nature of the dispute is not mentioned by Balfour. It is unclear whether such a view of the applicability of the ius commune could have been seriously contested in 1550, but plainly Balfour felt the need for the case to be noted. In a case of 1565, jurisdiction was accepted over a claim by an Englishman against an Italian who was present in Scotland, the debt in question having been constituted in England. The only condition was that the Englishman find surety for pursuit of the action, in case he were to lose27. As Kirsty Hood has noted, if either party in this particular case did have a connection with Scotland beyond mere factual presence, it was clearly not felt necessary to explain what this was28. In terms of drawing wider inferences about the role of foreign law, the procedural nature of the sixteenth century record imposes limitations, and Anton’s view was that “the sixteenth-century cases do not disclose the principles upon which the foreign system was selected and its law RPS, 1504 / 3 / 50. Date accessed: 17 February 2008. Anton, Private International Law, p. 10. 26 The Practicks of Sir James Balfour of Pittendreich, ed. P. G. B. McNeill, vol. I, Stair Society vol. 21 (Edinburgh, 1962), p. 269. 27 An Englishman v. Angelo, an Italian (1564) Mor.4825; for a contemporary account upon which Morison’s report appears to be substantially based and to which it refers, see also The Practiques of Sir Richard Maitland of Lethington from December 1550 to October 1577, ed. R. Sutherland, Scottish History Society New Series Vol.30 (Edinburgh, 2007), p. 154 – 155. 28 Hood, Conflict of Laws within the UK, p. 26. 24 25

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applied”, something about which the seventeenth-century body of case law becomes more informative29. We can observe this failure to provide explicit principles in another case of 1533 cited by Balfour. This involved foreign merchants pursuing Scottish parties for a debt which had originally been owed to Peter de Peretis, a merchant of AiguesMortes30. In this case, the lords of council asserted that when a “stranger” pursued a Scotsman for any cause before the lords of council, and an allegation of fact must “be provin in ane uther realme”, the lordis of council should simply direct their commission to the “ordinar Jugeis of that realme within the boundis quhair best knawledge may appeirandlie be had”31. In this case the allegation was of the death of the principals under whose mandate Raphael de Cassanyes had appeared in court in Edinburgh as procurator32. The proof was directed to local judges in Avignon. However, this procedural interaction did not entail the application of any foreign law in the substance of the dispute. It was merely concerned with establishing questions of fact. Nevertheless, this still entailed the transfer of part of a legal action to a foreign jurisdiction. No statement of judicial principle was thought necessary, however, in deciding upon this procedure. More generally, in a study of foreign litigants before the Court of Session in the sixteenth century, Dr. John Finlay concluded that “where a foreign element was present, the lords appear to have almost always assumed jurisdiction”33. He noted that “most cases involving foreigners involved sea-borne trade” and that “cases involving foreign litigants overwhelmingly had as their object the obtaining of compensation for loss of profit or damage to, or loss of, property”34. However, like Anton, he also noted that the principles upon which the Scottish court assumed jurisdiction between foreigners were not generally made explicit. In relation to the direct application of foreign law, Dr. Hood has stated that “seventeenth-century Scottish cases evidence a recognition that there are occasions when the law of another country ought to be applied”35. We also begin to find more Anton, Private International Law, p. 10. Practicks of Sir James Balfour of Pittendreich, ed. P. G. B. McNeill, vol. II, Stair Society vol. 22 (Edinburgh, 1963), p. 292; see the record of the council proceedings on 18th February 1532 / 33 at NAS CS 6 / 2, f. 92. 31 Balfour, Practicks, vol.II, p. 292: ‘Gif ony stranger cumis in the country to persew ony subject thairof, for ony cause, and intentis it aganis him, in the quhilk the said subject defendar makis ony alledgeance quhilk mon be provin in ane uther realme; the Lordis of counsal aucht and sould direct thair commissioun to the ordinar Jugeis of that realme within the boundis quhair best knawledge may appeirandlie be had of the said alledgeance, at the opinioun of the said defendar’. 32 For a fuller account of this case see J. Finlay, Foreign Litigants before the College of Justice in the Sixteenth Century, in H. L. MacQueen (ed.), Miscellany Four, Stair Society vol. 49 (Edinburgh, 2002), p. 37 – 50 at p. 41. 33 Finlay, Foreign Litigants, p. 39. 34 Finlay, Foreign Litigants, p. 47. 35 Hood, Conflict of Laws within the UK, p. 27. 29 30

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explicit evidence, during the course of the seventeenth century, of the citation of continental jurists in cases with a foreign element. In reported Scottish cases before 1707 involving a foreign element, at least Bartolus, Cujas, Dumoulin, Grotius and Vinnius are sometimes cited, amongst others36. Cases on the constitution of a valid assignation and the selection of mode of proof for an obligation constituted outside Scotland provide examples of the application of foreign law37. In 1636, the case of Sinclair v. Murray led the Court of Session to accept that an assignation of debts, the assignation being constituted in England, was to have its validity determined by English law, despite the debts having been constituted in Scotland and jurisdiction to resolve the matter having been taken in Scotland. The report states that “this assignation being made by one Scotsman to another, and of debts in Scotland, it ought to be ruled by the Scots law; the Lords repelled the allegeance”38. Again, no principle is stated, but by the later decades of the seventeenth century, juristic writing was beginning to formulate such principles in terms of the constitution and manner of proof being determined by the “law of the place”39. In a case of 1673, it was successfully argued that a bond granted by Scotsmen whilst in France and which would have been formally invalid if made in Scotland was nevertheless to have its validity tested by the “custom” of Rheims in France. This case was heard by the Court of Session in Edinburgh, but the report states that “commission was granted to the Presidial of Rheims, who returned their report, that by their custom, and the common custom of France, such bonds were valid, though there were no witnesses insert, if by witnesses or by comparison of writ, the hand-writ of the party were proven”40. In the sixteenth and seventeenth centuries, therefore, case law recognised the relevance of foreign law to providing in certain circumstances the legal rules to be applied to a dispute in which Scottish jurisdiction was invoked. The few examples given show that this was not simply a matter of giving effect to lex mercatoria in customary matters of trade. However, it was not until the eighteenth century that “the first general analysis of Scots private international law” was formulated41. This was provided by Lord Kames in his Principles of Equity of 1760, which included a 68-page chapter entitled “jurisdiction of the Court of Session with respect to foreign matters” in which he characterised this form of jurisdiction as ultimately founded upon principles of equity as opposed to positive law. This involved Kames 36 Anton, The Introduction into English Practice of Continental Theories on the Conflict of Laws, p. 536. 37 See also Gibb’s treatment of contract cases in International Private Law in Scotland, p. 390 – 393. 38 (1636) Mor. 4501, discussed in Hood, Conflict of Laws within the UK, p. 27. 39 Hood, Conflict of Laws within the UK, p. 28. See also Gordon v. Worlie (1633) Mor. 4460, cited by Gibb, International Private Law in Scotland, p. 390. 40 Master of Saltoun v. Lord Saltoun (1673) Mor. 4431, cited in Gibb, International Private Law in Scotland, p. 400. 41 Anton, Private International Law, p. 11.

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analysing part of the established forensic practice of the Court of Session stretching back, as we have seen, to the sixteenth century, and to that extent his writings are instructive in making explicit some of the underlying principles which could plausibly be taken to govern matters by the eighteenth century. These essentially reflect ideas of natural law, Kames remarking that “foreign matters ought to be tried jure gentium”42. Kames also explicitly based his analysis on “some few leading cases that have been debated in the Court of Session”43. It is notable that Kames was writing several decades ahead of any clear acknowledgement by the English courts of circumstances in which it would be their “duty” to give effect to foreign laws44. To this extent it would seem that the legal norms which constituted Scots international private law were established significantly earlier in Scotland than England, and were becoming apparent from at least the sixteenth century. Kames refers to case law from the seventeenth century in his discussion, and can perhaps be taken to provide a rationalisation of the principles underlying that case law in terms of natural law and the ius gentium. Though a prolific and influential writer, Kames was of course also an advocate and a judge in the Court of Session. Anton’s assessment of Kames was that his writings “show that by the middle of the eighteenth century Scottish lawyers had a keen appreciation of the problems involved in the application of foreign law, and were aware of the solutions offered by the Continental writers”. By the later eighteenth century, Anton has argued that “a series of appeals from the Court of Session to the House of Lords began to place the law upon firmer foundations”. In effect, we may regard the principles of how foreign law might be directly applied in judicial decision-making to have become established by then45. How then did Kames rationalise the application of foreign law? He regarded foreign matters as falling “not within the bounds of the common law” and therefore as not being within the jurisdiction of the Court of Session as a court of common law or equity (though here “equity” is of course not used in any English technical sense)46. Essentially he saw it as a correction of an “imperfection” inherent in the principle of “territorial jurisdiction”47. The solution was in formal terms jurisdictional, since the king and his council could as a “paramount court” take jurisdiction within the realm over “strangers”. Kames’s view was that the exercise of this jurisdiction could not be explained on a territorial basis, and that foreign matters “could 42 Henry Home, Lord Kames, Principles of Equity (3rd ed., Edinburgh, 1778), Book III, p. 316. 43 Kames, Principles of Equity, p. 319. 44 Anton, The Introduction into English Practice of Continental Theories on the Conflict of Laws, p. 534, citing G. C. Cheshire, Private International Law (4th ed., Oxford, 1952), p. 33. 45 Anton, Private International Law, p. 11. 46 Henry Home, Lord Kames, Principles of Equity (3rd ed., Edinburgh, 1778), Book III, p. 310. 47 Kames, Principles of Equity, p. 312.

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not be governed by the common law of any country”. Instead, Kames argued that “foreign matters must be governed by rules of common justice, to which all men are subjected, or jure gentium, as commonly expressed”48. Although expressed in terms of his own theories, Kames is here simply making explicit what Scottish judicial practice had implied since the end of the fifteenth century. His analysis incorporated a stern rebuke to what he perceived as the inconsistent basis for and injustice inherent in the English approach in which rules of the common law were applied to foreign matters49. Kames’ view is reflected in eighteenth-century case law. In one case of 1744 concerning rights of succession to moveable property in the form of secured debts, one report of the decision stated that the judges of the Court of Session “agreed the case was to be determined by the law of nations, and by it the domicile of the creditor was to be the rule”50. It had been argued that “as therefore the question is new in respect to the custom of Scotland . . . recourse must be had to the laws and practice of other countries, and to the testimonies of foreign lawyers, especially as the question may not improperly be said to concern the law of nations”51.

II. Roman Law The development of rules of international private law permitting the application of foreign law in Scotland thus came to be primarily dependent upon a conception of the ius gentium derived from natural law thinking52. This was of course a general framework which by the seventeenth and eighteenth centuries could provide authority more widely for the adoption as Scots law of legal rules derived from the ius commune or other non-native sources in early modern Scotland. This therefore forms the second category of ways in which foreign laws could be “recognized as ‘good reasons’ for decisions”. Whereas the first category concerned a basic juridical recognition of circumstances in which foreign law should be directly applied, this second category concerns a gradual underlying recognition from about 1600 that supra-national sources of law, such as Roman law and the wider sources of the ius commune, were in essence foreign laws whose authority in Scotland could not be traced to a political sovereign source, and reference to which consequently demanded explanation. Again, the intellectual climate of the seventeenth and eighteenth centuries tended ultimately to root that explanation in natural law thinkKames, Principles of Equity, p. 314. Kames, Principles of Equity, p. 316. 50 Anton, The Introduction into English Practice of Continental Theories on the Conflict of Laws, p. 537 – 538. 51 Brown v. Brown, Mor. 4604. 52 I am grateful to Professor John Cairns for discussing with me some of the points made in this section, though I accept complete responsibility for questions arising from and any errors of interpretation on my part. 48 49

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ing. A shift in that climate by the end of the eighteenth century lies in substantial part behind the decline of the authority of Roman law in Scotland. Following the seminal work by W. M. Gordon, a succession of studies by John Cairns has illuminated this development very greatly, though no final consensus has yet emerged about exactly how it unfolded53. A very important book-length study by John Ford has more recently added a fundamental new perspective involving the reconstruction of the attitudes lawyers and legal writers took towards the law and legal writing, and recognition of the role of “learned authority” within an early-modern intellectual tradition in which it could be quite natural “to envisage the law as a body of forensic custom formed in the minds of the practitioners”54. This view incorporates a fresh awareness that the appropriation by legal writers of the learned authority intrinsic to the civil law might have provided a credible alternative basis for legal development in the seventeenth century, compared to one in which individual legal sources were apprehended on the basis of the extrinsic authority which could be ascribed to them, mediated by the role of natural law. Such a view necessitates a fundamental reconsideration of the premises which early modern Scottish jurists have until now been taken to have adopted in their treatment of the authority of legal sources. It will remain difficult to present an adequate synthesis of such claims and their implications until these have been further explored by Dr. Ford himself, and begun to be addressed by other scholars. However, in attempting to give an overview of developments in Scotland a preliminary attempt will be made here to do so, though it is impossible to do justice in an article such as this to the depth and complexity of Dr. Ford’s thesis. Apart from consideration of Dr. Ford’s work, the following discussion is otherwise most heavily indebted to the significant body of work of Professor Cairns, referred to above. Subject to the need to absorb the implications of Dr. Ford’s analysis, this continues 53 W. M. Gordon, Stair’s Use of Roman Law, in A. Harding (ed.), Law-Making and LawMakers in British History (London, 1980), p. 120 – 26; W. M. Gordon, Stair, Grotius and the Sources of Stair’s Institutions, in J. A. Ankum, J. E. Spruit and F. B. J. Wubbe (eds), Satura Roberto Feenstra . . . oblata (Éditions universitaires, Fribourg, 1985), p. 571 – 83, reprinted in William M. Gordon, Roman Law, Scots Law and Legal History: Selected Essays (Edinburgh Studies in Law, vol 4) (Edinburgh, 2007), p. 255 – 266; J. W. Cairns, The civil law tradition in Scottish legal thought, in D. L. Carey Miller and R. Zimmermann (eds.), The Civilian Tradition and Scots Law (Berlin, 1997), p. 191 – 223; J. W. Cairns, Historical Introduction, in K. Reid and R. Zimmermann (eds), A History of Private Law in Scotland vol. I (Oxford, 2000), p. 14 – 184; J. W. Cairns, Ethics and the Science of Legislation: Legislators, Philosophers and Courts in Eighteenth-Century Scotland, 8 Jahrbuch für Recht und Ethik (2000), p. 159 – 80; J. W. Cairns, Ius Civile in Scotland, ca. 1600, 2 Roman Legal Tradition (2004), p. 136 – 170; J. W. Cairns, Attitudes to Codification and the Scottish Science of Legislation, 1600 – 1830, Tulane European and Civil Law Forum vol. 22 (2007), p. 1 – 78; J. W. Cairns, Natural Law, Natural Laws, Parliaments and Multiple Monarchies: 1707 and Beyond, in Knud Haakonssen & Henrik Horstbøll (eds), Northern Antiquities and National Identities, The Royal Danish Academy of Sciences and Letters Historisk-filosofiske Meddelelser 101 (Copenhagen, 2008), p. 88 – 112. 54 J. D. Ford, Law and Opinion in Scotland during the Seventeenth Century (Oxford, 2007), p. 371.

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to provide the principal basis for constructing an interpretation of the understanding of authority and legal sources in Scotland for this period. Professor Cairns first pioneered an approach which moved beyond a focus on individual juristic works to consider the conceptualization of legal sources more systematically in the early modern period in Scotland. He has exploited a wide range of evidence, much previously unexamined, in order to reconstruct notions of authority and the shifting intellectual framework within which Scottish lawyers conceptualized law between the sixteenth and nineteenth centuries. At the risk of putting the matter too simplistically, one outcome of this has been to trace the process by which not only legislation but legislation and case law came to be characterized together by the seventeenth century as a more broadly conceived ius proprium which could be taken to constitute “Scots law”. Amongst other consequences, this has helped clarify the basis upon which non-native legal rules and principles were adopted to formulate Scots law during this period. With regard to Roman law in particular, the approach taken by Cairns has represented a major advance in understanding, since it has broadened the focus to the learned laws generally, and has pointed to thinking less mechanistically in terms of a “reception” of Roman law, and more towards explaining the receptiveness of early modern Scotland and its legal culture towards the ius commune in terms of underlying conceptions of the nature of authority. The sixteenth century presents something of a contrast by comparison to these later developments. It does not appear that reliance on the ius commune yet required any overt rationale in this period, but was simply part of the legal culture of the time and was rooted in the medieval inheritance of a country whose legal system had matured by the end of the thirteenth century. We are in the world of interaction between the categories of ius commune and ius proprium as understood by medieval jurists, and in which the ius commune had a powerful supplementary role alongside the strict interpretation of local laws. Professor Cairns has argued that private judicial notes on cases decided by the Court of Session in the 1540s demonstrate “the all-prevailing significance of the ius commune in Scottish legal practice in this era”. He concluded that “there can be no doubt that, in the 1540s, Scottish sources of law, such as statutes, customs, and Regiam Majestatem, were regarded as ius proprium in opposition to the ius commune”55. When there was a Scottish rule this was therefore followed, but, in the absence of one, the ius commune naturally provided possible solutions and a source of legal argument, and its authority could be followed as a supplementary alternative to the ius proprium. An example given elsewhere by Professor Cairns illustrates this view. It concerns the manner in which certain native medieval Scottish forms of liability became from the fifteenth century associated with a new nominate form of action known as “spuilzie” (spoliation, i.e. wrongful dispossession) which was based upon the canonist actio spolii56. As Cairns puts it, the canon law action “crossed over into Scots 55

Cairns, Ius Civile in Scotland, ca. 1600, p. 145.

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law to provide a category in which to deal with wrongs”. Having done so, sixteenth century records of argumentation in court cases demonstrate how this then opened the way for ius commune literature to be further drawn upon in judicial decisions which developed the law on spuilzie57. What are the implications of these developments for how native sources might have come to be regarded as constituting “Scots law”, whilst others could be seen as resting on a different form of authority as “foreign” law? In the sixteenth century we have obviously still not reached the position in which it is accurate to speak of “Scots law” in this sense, whereby principles of judicial decision-making would have had to accommodate the ius commune within the category of foreign law. As Cairns notes in relation to the same judicial notes or “practicks” of the 1540s, “we see Scots law as a largely unwritten customary system, cited imprecisely as ‘practick or ‘custom’, in contrast to ius, a term that nearly always refers to the ius commune, unless qualified in some way to indicate that Scots law is meant”58. By contrast, in the seventeenth century it is possible to find a framework of sources constructed on a more local (i.e. national) basis with explicit regard to grounds of authority such as natural law and considerations of sovereign authority. Sovereign authority could explain the role of sources constituting the municipal law derived from court decisions and legislation, whilst natural law could explain the basis for referring to other sources such as the ius commune. Cairns has argued that in the treatise, Jus Feudale, the advocate and jurist Thomas Craig regarded native sources, and statutes in particular, as ius proprium in contrast to ius civile, ius naturale and ius gentium59. Cairns’ analysis of practicks recording judicial decisions in the first half of the seventeenth century has led him to emphasizes the new coherence with which the native sources were seen to constitute a native, municipal law. This was “a legal system where the substantive municipal law was seen as found in statutes, decisions, and authoritative legal writings”60. On this view, the sources of the ius commune were seen by this time to possess authority resting upon a different basis in natural law and the ius gentium. In a separate intellectual shift with which we need not be concerned, the concept of the ius commune was also coming to be associated in the seventeenth century much more exclusively with the civil law in Scotland, and no longer with the canon law.61 As already noted, the analysis presented by Dr. Ford may provide the basis for an alternative interpretation of the role of authority in formulating seventeenth-century Scots law. However, for the time being the implications of ascribing a more prominent role to conceptions of “learned authority” have yet to be absorbed, though they will be touched on further below. 56 57 58 59 60 61

See generally, Godfrey, Civil Justice in Renaissance Scotland, p. 239 – 247. Cairns, Historical Introduction, p. 73. Cairns, Ius Civile in Scotland, ca. 1600, p. 147. Cairns, Ius Civile in Scotland, ca. 1600, p. 154 – 155. Cairns, Ius Civile in Scotland, ca. 1600, p. 165. Cairns, Ius Civile in Scotland, ca. 1600, p. 168.

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From about 1600 it is nevertheless clear that legal culture was demonstrating a response to shifts in wider intellectual assumptions about law and its relation to sovereign political authority, and that ideas of legal authority were affected by this. In Scotland, this produced (in Cairns’ view) “a need to validate the use of Roman law in the Scottish courts by the argument that it was used in so far as it embodied natural law”62. However, that did not in any sense terminate the authority of Roman law. It simply provided a newly formulated basis for it which was consistent with the authority ascribed to native sources. It would retain validity for as long as natural law was accepted as providing a credible intellectual framework for interpreting the nature of authority. In the seventeenth century, therefore, “judges and pleaders had wide scope to open up arguments from the jus commune”63. Native sources were coming to be recognized as distinctive in terms of their authority, and in the case of statutes this was seen as directly flowing from the sovereignty embodied in the legislature, though further research is required to explore this development. Roman law was conceptually distinguishable, and could in our sense be seen as merely foreign law for the first time. Within the framework of natural law, however, it was heavily relied on in judicial decisions so as to generate a ScottishRoman law or usus modernus Pandectarum64. We can therefore see how the treatment of legal sources in seventeenth century Scotland reveals a tension between the emerging claims of sovereignty and the understanding of the nature of legal authority as derived from the earlier medieval view of the relationship between ius proprium and ius commune. Historically, it would be the resolution of this tension which ultimately would make meaningful a distinct category of “foreign law”. The tension was mediated or even masked to some extent by the prevailing natural law framework within which contemporaries sought to rationalise the activity of judges, jurists and legislators. However, where to locate authority itself became a matter of serious enquiry amongst jurists. It is this development which has been so very greatly illuminated by John Ford’s important recent book, Law and Opinion in Scotland during the Seventeenth Century. Amongst other things, Ford’s book encompasses treatment of the two most important early modern Scottish jurists, Thomas Craig (1538?-1608) and James Dalrymple, Lord Stair (1619 – 95). Ford has drawn attention to the possible relevance to seventeenth-century Scotland of the Aristotelian tradition in which “the law was envisaged as a body of learning fashioned through expert debate”65. Across Europe, such a tradition gained new potency by the sixteenth century in the light of changes in the nature of authorship which reflected a shift away from the medieval scholastic tradition towards an emphasis on individual opinion and authority66. 62 63 64 65 66

Cairns, Ius Civile in Scotland, ca. 1600, p. 169. Cairns, Historical Introduction, p. 100. Cairns, Ius Civile in Scotland, ca. 1600, p. 170; Cairns, Historical Introduction, p. 99. Ford, Law and Opinion in Scotland during the Seventeenth Century, p. 5. Ford, Law and Opinion in Scotland during the Seventeenth Century, p. 32 – 33.

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Ford has pointed to the connections between this development and the sceptical revival arising from the fruits of humanist scholarship, as well as “the increase in the importance attached to the concept of sovereignty, which entailed that opinions would have necessary effect if laid down by those who occupied positions of authority in the state, regardless of their intrinsic merit”67. Following from this, Ford has suggested the possibility of a Scottish parallel in the search for authority to the French sixteenth-century experience in which jurists argued that there had been a “transfer of learned authority from the schools to the courts”68. In seeking to locate the authority of the learned laws, this would represent an alternative model based on a transfer of intrinsic authority to the role of the courts, rather than one which focused on how best to apprehend the extrinsic authority of individual legal sources. It is the latter approach which underlies Professor Cairns’ interpretation, seeking to trace the beginnings of a new form of appraisal by jurists and lawyers of the extrinsic authority of individual sources, in turn importing a new form of reliance on natural law. Ford’s emphasis on the possible continuing vitality of a perceived transfer of learned authority to the Scottish College of Justice allows him to suggest, however, that the “expert opinion of forensic practitioners” could arguably have been equated by contemporary jurists to a legal source in its own right, in terms of its intrinsic authority. Thus it would have been possible (in Ford’s view) for Thomas Craig, author of the treatise Jus Feudale, to have been regarded by contemporaries “as the first learned author to have imported authority into Scotland from the civil law”69. Ford argues on this basis that the emphasis upon explaining Craig’s approach to the authority of the learned laws in terms of natural law and a Bodinian concept of sovereignty is misplaced. This is because “ultimately it was learned authority that Craig took to explain the relevance of the feudal law in Scotland”. The civil law, and within it the feudal law, was in this sense taken by Craig to be “effective . . . as a body of learning with probable rather than necessary authority”70. Ford’s analysis of the role of learned authority in Scotland has added a fundamental new dimension to any discussion of how legal authority was conceived in the seventeenth century. Whether its underlying claims will command acceptance from other scholars, and the extent to which it requires fundamental revision to the account developed by Professor Cairns, remains to be seen. Its full implications require much more extensive consideration, which lie beyond the scope of this article, and the synthesis just presented must be regarded as tentative and preliminary. Ford’s book goes on to contrast the approach identified with Craig, however, with the later seventeenth-century judge and jurist, Stair. In Ford’s view, Stair: appears to have promoted in Scotland a movement away from reliance on the learning of the schools towards reliance on the decisive determination of disputes by the courts, and 67 68 69 70

Ford, Law and Opinion in Scotland during the Seventeenth Century, p. 34. Ford, Law and Opinion in Scotland during the Seventeenth Century, p. 200. Ford, Law and Opinion in Scotland during the Seventeenth Century, p. 49. Ford, Law and Opinion in Scotland during the Seventeenth Century, p. 232.

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Thus in the work of Stair at least, the claims of sovereignty in understanding legal authority, and the resort to natural law and equity to explain the relevance of the learned laws, came to supplant the earlier view associated with Craig which – in Ford’s analysis – would have founded directly upon the transfer of learned authority which, in the Scottish context, had been associated by Craig with the foundation of the College of Justice in 153272. Such more explicit reliance on natural law by the later seventeenth century has been instructively analyzed by Professor Gordon in his treatment of Roman law in Stair’s Institutions of the Law of Scotland, first published in 1681. In line with Stair’s own views it took the decisions of the Court of Session as its primary source. In explaining the apparent incorporation of rules of Roman law into Stair’s presentation of Scots law, Gordon has argued that “insufficient stress has been laid on the role of natural law and equity in the Institutions, mediating Roman law”73. Through the precepts of natural law, rules of the ius commune could naturally be adopted, not in order to give effect to them in themselves, but to formulate the expression of the native rule. Gordon has thus concluded that “Stair’s method seems to me to be essentially what he says it is, namely an attempt to state the rules of natural law and equity, bringing in the civil law in many cases for comparison or illustration of the natural law, and then to state Scots law as deducible from and corresponding to natural law where there is no specific Scottish authority”74. As Gordon puts it elsewhere, Stair was “using the civil law as a guide rather than as an authority”75. Of course, this analysis (of Stair) relates to the method adopted by a particular jurist in creating his own synthesis of the law in the late seventeenth century, albeit that the jurist was also an eminent judge. However, in terms of the role of Roman law and civilian authority in judicial decisions, we may take the history of sale in Scots law as an illustration of how Stair’s view seems to have reflected judicial decision-making in the courts. Professor Gordon has noted in a separate study that sixteenth century sale cases in Scotland seem largely to have been confined to issues about warrandice and were “largely built on native authority although there are echoes of the civil law”76. Awareness of Roman law is clearer in the seventeenth century. In assessing reported seventeenth-century cases, Gordon noted that “it is evident that lawyers were reasonably familiar with the civilian texts dealing 71 72 73 74 75 76

Ford, Law and Opinion in Scotland during the Seventeenth Century, p. 361. Ford, Law and Opinion in Scotland during the Seventeenth Century, p. 51, 419, 539. Gordon, Stair’s Use of Roman Law, p. 121 – 22. Gordon, Stair’s Use of Roman Law, p. 124. Gordon, Sale, p. 311. Gordon, Sale, p. 308.

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with defects and knew of the actio redhibitoria and the actio quanti minoris but there is no question of a simple application of these remedies in Scots law”77. Indeed, both came to be rejected in the eighteenth century. To take an example of the actual adoption of a Roman-derived rule, it seems that “the rule that risk passes to the buyer on completion of the contract is accepted, in relation to the sale of moveables at least, in the 1740s”78. This was a reversal of the medieval law as understood in Scotland, in which risk remained with the holder of the object sold at the time of contracting79. Interestingly, on this aspect of sale, Stair had himself earlier adopted the opposite view to Roman law, citing some minority civilian opinion but choosing to found upon “native custom and practice” in risk remaining with the seller prior to delivery. Though ius commune sources continued to be used in Scotland in the eighteenth century, gradually the intellectual climate shifted in the second half of the century so as to diminish and undermine both the appeal of natural law thinking and the relevance of civil law itself (Roman law) as a body of rules. Instead, English law seemed of much more utility in a commercial society80. Professor Cairns has identified and traced a “shift from reliance on the jus commune to borrowing from England” in “the third quarter of the eighteenth century”81. The decline of the ius commune as a legal source thus seems to have been as much a practical reflection of cultural and commercial irrelevance as of changing intellectual approaches to the nature of law. Intellectual change was ultimately the crucial factor, however, since it involved the undermining of the conceptual capability of natural law thinking to provide a credible view of the nature of legal authority. As Cairns puts it, “by 1800 . . . the view that “the Civil Law was our Common Law” seemed quite outdated”82. From the nineteenth century, civil law would only rarely be drawn upon and then only to elucidate rules or principles of civilian origin which had already been adopted into Scots law, as for example with the forms of liability represented in unjustified enrichment by the condictio indebiti and the condictio causa data causa non secuta83. Gordon, Sale, p. 309. Gordon, Sale, p. 318. 79 Gordon, Sale, p. 306. 80 Cairns, Historical Introduction, p. 162 – 166. 81 Cairns, Historical Introduction, p. 167. 82 Cairns, Attitudes to Codification and the Scottish Science of Legislation, 1600 – 1830, p. 67. 83 See, for example, R. Evans-Jones, “Unjust Enrichment, Contract and the Third Reception of Roman Law in Scotland”, 109 Law Quarterly Review (1993), p. 663 – 681; Geoffrey MacCormack, The Condictio Causa Data Causa Non Secuta, in R. Evans-Jones (ed.), The Civil Law Tradition in Scotland, Stair Society Supplementary Series 2 (Edinburgh, 1995), p. 253 – 76; R. Evans-Jones, Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law, 114 Law Quarterly Review (1998), p. 228 – 249; R. EvansJones, Roman Law in Scotland and England and the Development of One Law for Britain, 115 Law Quarterly Review (1999), p. 605 – 630; R. Evans-Jones, Unjustified Enrichment, 77 78

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III. English Law English law exemplifies our third category of ways in which foreign laws could be “recognized as ‘good reasons’ for decisions”. Though there was an indirect connection in how English law could influence Scots law through the role of the lex mercatoria as a supra-national source of legal norms, it is as a separate body of national law with which we are more concerned here. Under what conditions might Scots law refer to, rely upon or apply rules of English law in formulating rules of Scots law? English law became the most significant form of foreign law to influence Scots law in the latter part of the eighteenth century and subsequently the nineteenth century. Part of the significance of this was also that “reference to other legal systems was becoming limited to that of England”84. The primary channel of influence was until the second half of the nineteenth century through judicial decisions, and not legislation. This seems consistent with wider changes in legal culture in which the role of case law in formulating the law was recognized more insistently. At the close of the seventeenth century it had been legislation rather than case law which was dominant in conceptualizations of the law. As Professor Cairns has put it, “statutes were the core of the law” and it seems significant that “authors were very cautious about ascribing a direct and clear law-making role to the judges”85. Professor Cairns has suggested as an overall characterization that “it is probably fair to describe Scotland, around 1700, as a country of the usus modernus Pandectarum, in which the work of courts and legal scholars had been progressively blending the Roman law and the municipal law, the ius commune and the ius proprium, into a unique system, which could be understood within a general framework of the ius naturale and the ius gentium”86. A change is apparent by 1800. Cairns has argued that by this time “Scots law was moving away from its earlier ideal of legislation as the best mode of law-making towards a system of precedent”, and that “as the Scots moved away from the older ius commune, the development of historical natural jurisprudence had led them to the view that ‘the law of this country consists principally of the decisions of the Court of Session’”87. In tandem with this, it was the nineteenth century which was also the first in which “doctrines of stare decisis began to take root in the Scottish system”88. Prior to the early modern period, English law had already exerted a deep-rooted historical influence on the development of Scots law. The institutions, procedures Volume 1, Enrichment by Deliberate Conferral: Condictio (Edinburgh, 2003); J. W. Cairns and P. du Plessis, Ten Years of Roman law in Scottish Courts, Scots Law Times (2008), p. 191 – 94. 84 Cairns, Historical Introduction, p. 162. 85 Cairns, Attitudes to Codification, p. 24 – 25. 86 Cairns, Attitudes to Codification, p. 24 – 25. 87 Cairns, Attitudes to Codification, p. 56 – 57. 88 T. B. Smith, The Doctrines of Judicial Precedent in Scots Law (Edinburgh, 1952), p. 10.

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and remedies of the medieval common law of Scotland reflected conscious borrowings from the Anglo-Norman law we find described in the late twelfth-century text of Glanvill, as well as some subsequent medieval developments.89 However, that influence can hardly be regarded as a powerful one after the early years of the fourteenth century, though the most authoritative recent interpretation of the long-term historical development of Scots law has stressed a high degree of continuity in Scottish legal development from the medieval period into the early modern and modern periods. In advancing this interpretation, David Sellar has convincingly argued that the Anglo-Norman inheritance was never rejected, but rather was subject to metamorphosis and the effects of new influences, as remedies, procedural law, legal sources and the structure of jurisdiction evolved over time. In relation to the conceptualisation of sources, however, the Anglo-Norman law provided something more than a merely technical foundation for the procedures, courts and remedies of the legal system. Medieval Scots law as applied in the king’s courts was not simply a collection of rules and practices, but was conceived in a unified form as a common law on the Anglo-Norman model. In presenting this insight, David Sellar has argued powerfully that “there can be no doubt that the terminology of a ‘common law’ as it came to be used in Scotland (communis lex or ius commune in Latin; la commune lei in French) was borrowed direct from England”90. The long-term implications beyond the medieval period of developing the concept of a common law have yet to be fully explored, however. Sellar has suggested a connection in this regard between the medieval Scottish terminology and the later use of the term “common law” during the early modern period, as found in the seventeenth-century juristic writing of Stair. If correct, such a connection would represent an example of the endurance of a conceptualisation of a source of law, notwithstanding a shift by the legal culture in question to reliance upon a new conceptual framework based not on the centrality of the native customary law but instead around ius commune and ius proprium. However, the shift in how the wider framework of sources of law was conceived by the early modern period may have coloured and changed the understanding of the Scottish common law more strongly than Sellar has allowed. Professor Cairns has argued that “Stair is, at most, reviving a usage that had become obsolete”91. Certainly, it would not be expected that seventeenth century Scots lawyers would have regarded the usage of “common law” as a basis for suggesting a continuing relevance of the English common law to Scottish development. Sellar’s view on this point has therefore become contested and has the potential to stimulate further productive debate. The manner in which the medieval common law of the Scottish king’s courts was conSee generally MacQueen, Common law and Feudal Society in Medieval Scotland. W. D. H. Sellar, The Resilience of the Scottish Common Law, in D. L. Carey Miller and R. Zimmermann (eds.), The Civilian Tradition and Scots Law (Berlin, 1997), p. 148 – 149 at p. 150 – 151. 91 Cairns, Attitudes to Codification, p. 23, n. 96. 89 90

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ceptualised between the fifteenth and the seventeenth centuries must now become the subject of further research. It was the eighteenth century which saw a renewed pattern of influence, and it has always been assumed that the union of 1707 must have prompted or at least intensified this, as well as the new role developed by the House of Lords as a unified final court of appeal in civil matters for the United Kingdom. However, the influence of English law was rooted not directly in political or jurisdictional imperatives, but in practical matters of commerce. Again, the conceptual framework for elucidation of developing principles of commercial law lay in the wider ius gentium, specifically in the form of the lex mercatoria. The early modern period had witnessed significant development in the way the lex mercatoria was understood. As A.D.M. Forte has observed, “it was not until the sixteenth and early seventeenth centuries . . . that legal writers not only began to exhibit an interest in commercial law, but also to conceptualise it as an autonomous, pan-European, legal order and an important aspect of the ius gentium.” Compared to the more limited procedural conceptualisation of the medieval lex mercatoria this view of the early modern period regarded it more as “a corpus of substantive principles with extra-territorial application” 92. As English law came to develop important principles of commercial law, continuing acceptance of the framework of the lex mercatoria by Scots lawyers opened a channel of influence through which English law could become directly referred to, relied upon and in effect applied in such commercial matters. This has been underplayed by some previous scholars, such as Professor T.B. Smith, of whom it has been remarked that he was more concerned “to convey the impression that Scots commercial law in the early modern period owed most to its Civilian components and heritage”93. Recent scholarship has made the English influence clearer, however. Two main areas of the history of commercial law have received scholarly attention for this period and provide possible case studies of the influence of English law. These relate to bills of exchange, whose development in Scotland is associated with the seventeenth century, and premium insurance, which became a normal means of contractual allocation of the risk of loss in Scotland in the eighteenth century94. Here we will take the case of insurance. A series of studies by Professor Forte has charted the history of insurance law in Scotland, and has illuminated the manner in which English law and the lex mercatoria gained in currency in eighteenth-century Scotland. In summary, it can be said that “use of premium insurance as the principal method of allocating the risk of loss occurred fairly late in Scotland”, with almost no evidence of it in the seven92 A. D. M. Forte, ‘Calculated to the Meridian’? The Ius Commune, Lex Mercatoria and Scots Commercial Law in the Seventeenth and Eighteenth Centuries, in E. Reid and D. Carey Miller (eds.), A Mixed Legal System in Transition: T. B. Smith and the Progress of Scots Law (Edinburgh, 2005), p. 120 – 137 at p. 122 – 123. 93 Forte, ‘Calculated to the Meridian’?, p. 120. 94 Forte, ‘Calculated to the Meridian’?, p. 121.

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teenth century, and only one reported case from the first half of the eighteenth century. Reported cases begin to accrue from 1755, though most date from the final twenty-five years of the century and reflect the “growing use of insurance” in Scotland by that time95. How do these developments reflect the influence of English law, and more especially how its precedents could be “recognized as ‘good reasons’ for decisions” in Scotland? Answering these questions requires an important distinction to be made between adoption of English rules which were accepted as part of the lex mercatoria and adoption of English rules outwith that framework. It is the latter which would mark a novel development in recognizing the role of foreign law. In relation to the former, Professor Forte has observed of the eighteenth century that “the judges of the Court of Session were used to the citation of foreign ideas and material in commercial cases before them”96. What the history of insurance law in Scotland shows in the later eighteenth and early nineteenth century is the gradual acknowledgement that English law could be turned to directly as an authority in commercial matters. Increasingly it was admitted in Scotland that “English mercantile law was in a more advanced condition” than that of Scotland, and that it was expounding principles which ought to help guide Scots law but which could not be located within the traditional supra-national body of rules represented by the lex mercatoria. English law was in this area becoming a foreign source of rules which it was felt Scots law should be adopting97. These developments are clearly present in cases heard before the Court of Session. Forte has concluded not only that “by the last two decades of the eighteenth century reliance on English material in court was fast becoming the norm”, but also that “there are grounds for arguing that counsel were increasingly turning to English cases as primary authorities in their pleadings” (emphasis added)98. The most notable illustration of this in insurance law can be found in the practice of Scottish courts remitting specifically to the opinion of English counsel a point of difficulty arising in the course of litigation. Famously, the Scottish judge Lord Hailes stated that: We in Scotland are in the helpless infancy of commerce . . . On a mercantile question, especially concerning insurance, I would rather have the opinion of English merchants, than of all the theorists and all the foreign ordinances of Europe . . . Our Scottish insurances are copied from the English: for the interpretation of words in such a copy, am I to go to the original, or the ordinances of Amsterdam and Stockholm? I can have no doubt of the law: it is the law of Mr. Dunning, Sir Joseph Yates, Lord Camden, and Lord Mansfield.99 95 A. D. M. Forte, “Insurance”, in K. Reid and R. Zimmermann (eds.), A History of Private Law in Scotland vol. II (Oxford, 2000), p. 333 – 368, at p. 333, 334 – 335. 96 Forte, Insurance, p. 339. 97 Forte, Insurance, p. 339. 98 Forte, ‘Calculated to the Meridian’?, p. 130, 131. 99 A. D. M. Forte, Opinions by ‘Eminent English Counsel’: their use in insurance cases before the Court of Session in the late eighteenth and early nineteenth centuries, Juridical Review (1995), p. 345 – 64 at p. 352; the full quotation is given in Forte, Insurance, p. 343;

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Professor Forte has discussed a case reported in 1808 in which an interlocutor (i.e. a sentence of the court) stated that the judge “recommends to the counsel to consider, whether it might not have been expedient that a case should be made up for the opinion of English counsel, or of the committee of underwriters at Lloyds”. The judge emphasised that the question of law was both important but never previously decided upon in Scotland. An example of one of the questions posed was “how far the creditors of an underwriter, becoming bankrupt during the dependence of a risk, are entitled to rank upon the premiums due to him?”100. In another case, the judge appears to have specifically ordered the opinion of Engish counsel to be obtained on whether a particular form of policy was lawful. The questions included asking whether there was any English case on the point, what decision an English court would make were the same to arise in England, and whether counsel himself viewed the policy as open to any objection. The opinion offered by the English barrister in question survives. It made it clear that there was no English authority directly in point, but offered a clear view of how the English courts would decide the matter, and this was then adopted as the basis for the Scottish decision101. It is quite clear that in such instances the Scottish courts were not simply looking to the traditional law merchant to resolve cases which happened to arise in Scottish jurisdiction. They were self-consciously borrowing rules from a foreign jurisdiction. The suitability of those rules for application in Scotland was their technical and commercial quality. As Lord Hailes remarked of the unanimous opinion of two English counsel in relation to another case in which he was a judge, “I must therefore hold, that they speak the opinion of the Courts where questions of insurance have been more frequently agitated, and are better understood than with us”102.

Conclusion Professor Forte has characterised this reliance on English legal opinion in the eighteenth century as entrusting “the development of an area of substantive law to the perceptions of practitioners from what was then still an alien legal tradition”103. But it also seems to have signified a fracturing of the tradition of the seventeenth and eighteenth centuries which justified reference to foreign law on the basis of the ius gentium. Instead essentially pragmatic arguments about the advanced quality of David Dalrymple, Lord Hailes, Decisions of the Lords of Council and Session from 1766 to 1791, ed. M. P. Brown (1826), vol II, p. 622 – 23 (16th Dec. 1774). 100 Forte, Opinions by ‘Eminent English Counsel’, p. 347. 101 Forte, Opinions by ‘Eminent English Counsel’, p. 351. 102 Forte, Opinions by ‘Eminent English Counsel’, p. 353, citing Wilson v. Elliot (1776) M. 7096 as noted in Hailes, Decisions, p. 679 (23rd Jan. 1776). This case was appealed to the House of Lords. 103 Forte, Opinions by ‘Eminent English Counsel’, p. 363.

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the legal solutions developed by English law were breaking through the older intellectual framework for comprehending the nature of authority as manifested in legal sources. In areas such as insurance this led to English law being the predominant influence for the nineteenth century as a whole, but this also marked the prototype for the modern approach to comparative law as providing a source of “‘good reasons’ for decisions”104. It can be noted that inevitably even this framework for evaluating foreign law through comparative law has been exposed as having its own limitations, as the nature of the international legal order evolved in the second half of the twentieth century. Thus such a framework has not been capable of resolving wider constitutional questions of authority in Scots law of the kind raised by membership of the European Union, and the international application of human rights standards arising from the European Convention on Human Rights. Therefore, not only would the sources of “‘good reasons’ for decisions”, but also the nature of legal authority itself seem to be continuously evolving categories.

104 On the Scottish experience of this development, see John Blackie, Old and Foreign: History, Historiography and Comparative Law, in L. Farmer and S. Veitch (eds), The State of Scots Law: Law and Government after the Devolution Settlement (Edinburgh, 2001), p. 75 – 96; E. Örücü, Comparative Law as a Tool of Construction in the Scottish Courts, Juridical Review (2000), p. 27 – 37. Professor Esin Örücü has summarised in conventional fashion at p. 27 the comparative method in stating that ‘although when there is unequivocal national law foreign material cannot be used to by-pass these rules, where the construction is doubtful or there is a gap, the judge, acting as the legislator and like the modern legislator, can look to comparative law for solutions. In any event comparative law can serve to confirm and support a result reached by a traditional route’.

JUAN JAVIER DEL GRANADO and ALEJANDRO MAYAGOITIA

Roman Law and ratio decidendi in Spanish Colonial Law 16th through the 19th Centuries Following Columbus’s landfall in the Americas in 1492, the Crown of Castile develops a substantial and coherent body of case law1 to administer the newly established Kingdoms of the Indies. This body of newfangled law created to apply the special legislation enacted for the Americas and the Philippines and known as “the law of the Indies” is a high mark in legal history. Commentators stress the wisdom of the law of the Indies. Despite the rhetoric of conquest, colonial judges and administrators, rather than conquistadores, consolidate the Spanish territories through diplomacy2 and through a system of law. Authors have long marveled at how a handful of Spanish soldiers could have subdued a continent in the first place. Early romantic explanations focus on the precious feats of daring3. The “Black Legend” offers its own darker explanation– Spanish military conquistadores vanquish and enslave native peoples with brazen deceitfulness and unbelievable acts of heinousness and cruelty. 17th-century English readers of Bartolome de Las Casas4 eagerly propagate this dark picture of Spain’s work in America5. Thomas Gage’s6 tales of Spanish mistreatment of the Indians further stir up English imaginations7. The 16th-century Frenchman Michel 1 By case law, we mean court-sanctioned ideas of natural right, general principles of law, customs generally accepted as law and precedents and doctrine. 2 See Abelardo Levaggi, Los tratados entre la Corona y los indios, y el plan de conquista pacífica (19 Revista complutense de historia de América, 81 – 92 1993), available at http: // revistas.ucm.es/ghi/11328312/articulos/RCHA9393110081A.PDF. 3 Juan de Castellanos, Elegías de varones ilustres de Indias compuestas por Juan Castellanos, (Alicante: Biblioteca Virtual Miguel de Cervantes, 2007 [1589]), available at http: // www.cervantesvirtual.com/servlet/SirveObras?portal=177&urlPropia=27342. 4 As Borges’s humorous way of saying horrible things reminds us, in order to win better treatment for the Indians, De las Casas proposes in 1517 that Africans be brought in to work as slaves on the sugar plantations, Historia Universal de la Infamia (Buenos Aires: Alianza Editorial, 1935). 5 See William S. Maltby, The Black Legend in England: The development of anti-Spanish sentiment, 1558 – 1660 (Durham: Duke University Press 1971). 6 An apostate Dominican friar turned Puritan propagandist. 7 J. Eric S. Thompson, ed., Thomas Gage’s Travels in the New World (Norman: University of Oklahoma Press, 1958 [1648]).

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de Montaigne writes about the “vile, mechanical victories” of these men in armor astride huge horses8. Yet, to debunk appropriately all the myths and misconceptions that surround the European encounter with America would require a substantial analysis. This analysis is beyond the scope of our study’s objective. Our objective is to provide two basic clarifications. Firstly, the law of Castile and Roman law were local law in the Americas and the Philippines from the 16th through the 19th centuries. Secondly, over this time, Spanish colonial judges helped develop, case by case, the complex legal system of the Indies. Spanish colonial judges apply both the law of Castile and Roman law in the Americas and Philippines from the 16th through the 19th centuries. Accordingly, to call Castilian law or Roman law “foreign” misstates the matter. The law of the Indies protects the secrecy of judicial deliberations when Spanish colonial judges decide cases. Accordingly, to conclude that caselaw is unimportant in the legal development of colonial Spanish America confuses the issue.

I. The law of Castile (as well as Roman law) were local law in the Americas As a legal matter, the Crown incorporates into the Kingdom of Castile the newly discovered territories beyond the known world – what is called America or the New World9. At an administrative level, the Crown organizes the Americas and the Philippines as jurisdictionally independent kingdoms. Yet, ultimate jurisdiction resides at all times with the King of Castile. For all intents and purposes, the newly discovered territories of America come to comprise part and parcel of Castile. To administer these newly incorporated territories of America, beginning in the 16th century, first the Council of Castile, and later the Council of the Indies, develop a special body of legislation and case law known as “the law of the Indies.” To any matter not specifically provided for under the law of the Indies,10 Spanish colonial judges apply the law of Castile as the subsidiary local law of the Americas and the Philippines, under the ius commune doctrine of “Generi per speciem dero8 Ensayos de Montaigne, seguidos de todas sus cartas conocidas hasta el día; traducidos por primera vez en castellano con la versión de todas las citas griegas y latinas que contiene el texto, notas explicativas del traductor y entresacadas de los principales comentadores, una introducción y un índice alfabético por Constantino Román y Salamero (Alicante: Biblioteca Virtual Miguel de Cervantes, 2003 [1912]), available at http: //www.cervantesvirtual.com/ servlet/SirveObras/01372719700248615644802/index.htm. 9 Recopilación de leyes de los reinos de Indias, bk. 3, tit. 1. l. 1 (Lima: Archivo digital de la legislación en el Perú 2007 [1680]), available at http: //www.congreso.gob.pe/ntley/Image nes/LeyIndia/0203001.pdf. 10 Id., bk. 2, tit. 1, l. 2, available at http: //www.congreso.gob.pe/ntley/Imagenes/LeyIndia/ 0102001.pdf.

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gatur”11. Much of the legislation that is enacted specially for the Kingdoms of the Indies touches matters of public law. Accordingly, Spanish colonial judges apply the general private civil law as well as criminal and procedural laws of Castile directly as local law in the New World12. Legal commentators at the time routinely consider the law of Castile to comprise the local law of the Kingdoms of the Indies. To suggest that Castilian law is foreign law in the Americas and the Philippines from the 16th through the 19th centuries, a modern scholar would have to adopt the position that the specialized legislation that was enacted for the Indies was also foreign, which is absurd. Legal authors at the time continually refer to the law of the Indies as “derecho municipal” (local law.) One look no farther than the title of Juan de Solórzano Pereira’s well-known treatise on the subject13. Before the emergence of the nation-state, a modern scholar can hardly say that courts apply foreign law in Europe, much less in the Americas. Instead, most emerging European jurisdictions recognize the entire ius commune as subsidiary local law. For much of the 16th and 17th centuries, to speak of foreign and national law, accordingly, is anachronistic. Up to the 19th century, Spanish colonial judges apply Roman legal rules as subsidiary Castilian local law in the New World. Not only are the Siete Partidas thoroughgoingly Roman in orientation, but the commentaries to Castilian legislation are exercises in Roman legal scholarship14. At the beginning of the 18th century, with the war of succession, the Crown of Castile passes from the Austrian Habsburgs to the French Bourbons. Inspired by French absolutist ideals, the Bourbon monarchs redirect royal policy. The policy of the Crown seeks to reform the Spanish state. To further its reforms, French political culture enshrines royal legislation as ius proprium15. Accordingly, legal com11 Liber sextus Decretalium D. Bonifacii Papae VIII, 5. 12. 34 (Alicante: Biblioteca Virtual Miguel de Cervantes, 2008 [1584]), available at http: //www.cervantesvirtual.com/ servlet/SirveObrasExternas?idAuto=46878. 12 In order of priority, these are the Novísima Recopilacion of 1806, the Nueva Recopilacion of 1567, the Leyes de Toro of 1505, the Ordenamiento de Alcala of 1348, and, finally, the Siete Partidas of Alfonso X. 13 Politica indiana: sacada en lengua castellana de los dos tomos del Derecho i gouierno municipal de las Indias Occidentales que mas copiosamente escribio en la Latina don Iuan de Solorzano Pereira (Madrid: Biblioteca Digital Hispánica, 2003 [1648]), available at http: // bibliotecadigitalhispanica.bne.es/R/6VXMUQS91FEP3A8KAXFSYLSBP4G1YCR4HXQ8U LQ8CTUB5UJQFI-05565?f unc=results-jump-full&set_entry=000020. 14 Las siete partidas del Sabio Rey Don Alonso el nono, nueuamente glosadas pro el licenciado Gregorio Lopez, del Consejo Real de Indias de su magestad (Charlottesville: University of Virginia 2007 [1555]), available at http: //books.google.es/books?id=9LMMAAAAYAAJ& printsec=frontcover&dq=las+siete+partidas+del+sabio&lr=&as_drrb_is=q&as_minm_is=0& as_miny_is=&as_maxm_is=0&as_maxy_is=&as_brr=1&as_pt=ALLTYPES; Commentaria Ioannis Matienzo Regii senatoris in cancellaria Argentina Regni Peru in librum quintum recollectionis legum Hispaniae ([1580]), available at http: //www.bnm.me.gov.ar/ebooks/rea der/reader.php?inv=00068583&num_img=00068583_000a-00&mon=3.

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mentators begin to refer to Roman law as foreign law (“derecho estrangero”)16. Yet as a practical matter, Roman law continues to be directly applicable as subsidiary Castilian local law. That right into the 19th century, the Crown continues to enact laws, which attempt to curb the authority of Roman law, if anything, indicates the continued importance of Roman legal scholarship in the Americas throughout the colonial period. Moreover, well into the 19th century, courts in the newly independent republics of Latin America continue to apply Castilian law and, by extension, Roman law17.

II. The law the Indies comprises a highly sophisticated body of caselaw Legal historians misunderstand precedent-setting ratio decidendi, when they narrow their view to published case reports. Legal treatises that discuss borderline cases also set out and discuss applicable rationes decidendi. To a lawyer, that part of the decision which is binding and is to be followed is called the ratio decidendi. However, judges do not set out the ratio decidendi of a case in a straightforward manner even in the common law. The belief that we can abstract the reason or rationale for a decision from the facts of a case, or extract any coherent ratio decidendi from a line of cases, is false and mistaken. The holding of a case is inseparable from its report of the facts, with a decision. Otherwise 15 See Bernardino Bravo Lira, Derecho común y derecho propio en el Nuevo Mundo (Santiago de Chile: Editorial Jurídica de Chile, 1989). 16 Instituciones del Derecho Civil de Castilla, Escrito por Ignacio Jordán de Asso y del Río, Miguel de Manuel y Rodríguez (Madrid: Universidad Complutense de Madrid 2008 [1806]), available at http: //books.google.es/books?id=EONtODkuDsQC&printsec=frontco ver; Tomás Manuel Fernández de Mesa y Moreno, Arte historica y legal de conocer la fuerza y uso de los derechos nacional y romano en Espan´a y de interpretar aquel por este y por el proprio origen (Madrid: Imprenta de la Viuda de Geronimo Conejos, 1747). 17 Juan N. Rodríguez de San Miguel, Pandectas hispano-megicanas: ó sea, Codigo general comprensivo de las leyes generales, utiles y vivas de las siete partidas (Lansing: University of Michigan 2008 [1852]) available at http: //books.google.com.mx/books?id=iZmvAAAAM AAJ&pgis=1; Curia Filipica Mexicana: Obra completa de practica forense. En la que se trata de los procedimientos de todos los juicios, ya ordinarios, ya Estraordinarios y sumarios, y de todos los tribunales existentes en la República, tanto comunes como privativos y privilegiados (México: Impr. de J.R. Navarro, 1850). See also José Antonio Caballero Juárez, Derecho romano y codificación. Las sentencias de los jueces mexicanos en una época de transición, 1868 – 1872, in Historia del derecho Memoria del Congreso Internacional de Culturas y Sistemas Jurídicos Comparados (México: Biblioteca Jurídica Virtual del Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, 2005), available at http: //www.bibliojuridica.org/libros/4/1733/12.pdf; La supervivencia del derecho español en Hispanoamérica durante la época independiente (México: Biblioteca Jurídica Virtual del Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, 1998), available at http: //www.bibliojuridica.org/libros/libro.htm?l=133.

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precedent in the common law should more accurately be referred to as stare rationibus decidendi. We stand by our decisions and do not move that which is quiet because we treat factually similar cases alike. To be legitimate law, and not judicial fiat or usurpation of the legislative function, case law must remain narrowly factspecific. Because factual findings are the predicate to deciding whether cases are alike or different, the trier of fact must look at evidence and listen to testimony about a dispute. In other words, the trier must decide what probably happened. Once the trier finds the relevant facts of the case, then she may apply the law. However this distinction is more apparent than real, since the ratio decidendi is inseparable from the facts of a case. The common-law distinction between questions of fact and questions of law, rather than separate facts from law, separates fact-finding from the application of legal rules to cases. In the law of the Indies, the votes – and by extension the deliberations – of Spanish colonial judges in deciding questions of fact, were kept secret18. Unfortunately, legal historians schooled in the common law have misinterpreted this formal procedural rule, meant to protect the integrity of fact-finding, for a prohibition of judges stating the reasoning for any particular decision19. Legal historians may have been led astray by the wording of a related provision which, again, refers to a tally book of votes without written explanation that the judges were required to keep locked away20. In all legal systems, the deliberations of triers of fact are protected. In the common law, jurors decide the facts. In the civil law, judges decide the facts. In both systems, their deliberations are kept secret21. The law of the Indies exemplifies a highly sophisticated (and successful) body of caselaw, much as Roman law22. No local procedural rule prohibits the judge from setting out his reasons for deciding a case (“que se funde y motive una sen18 Recopilación de leyes de los reinos de Indias, bk. 2, tit. 15. l. 65 (Lima: Archivo digital de la legislación en el Perú 2007 [1680]), available at http: //www.congreso.gob.pe/ntley/ Imagenes/LeyIndia/0102015.pdf. 19 See Charles R. Cutter. The Legal Culture of Northern New Spain, 1700 – 1810 (Albuquerque: University of New Mexico Press, 1995); Richard L. Kagan, Lawsuits and Litigants in Castile, 1500 – 1700 (Conway: The library of Iberian resources online, 2003 [1981]), available at http: //libro.uca.edu/lawsuits/index.htm; 20 Recopilación de leyes de los reinos de Indias at bk. 2, tit. 15. l. 156; taken almost wordfor-word from Recopilacion de las leyes destos Reynos hecha por mandado de la Magestad Catholica del Rey Don Philippe Segundo, bk. 2, tit. 5, l. 42 (Bizkaia: Bizkaiko Foru Aldundia 2007 [1569]), available at http: //bibliotecaforal.bizkaia.net/search*spi/tRecopilaci%C3%B3n /trecopilacion/1,8,11,B/l962&FF=trecopilacion+de+las+leyes+destos+reynos+hecha+por+ mandado+de+la+magestad+catholica+del+rey+don+philippe+segundo+nuestro+senã&1,1„ 000897,–1. 21 See Alan Watson, Roman Law and Comparative Law (Athens: The University of Georgia Press, 1991). 22 Adjudication in Roman classical law also fails to leave behind case reports, yet Roman jurists write treatises on the civil law and edicts.

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tencia”). An isolated royal decree of 1768 which legal historians misleadingly cite applies to the Kingdom of Majorca23. Occasionally, we find motivated cases in court records24. Instead, the style followed in reporting case decisions in colonial Spanish America generally omits what common-law lawyers would recognize as a court giving reasons for handing down a judgment. Yet case records do provide the ratio decidendi of decided cases. Legal scholars both then and now can find them in the pleadings of the “fiscales” (state attorneys) who represent the King’s conscience25. Almost as a hard-and-fast rule, Spanish colonial judges follow their recommendations.26 Spanish colonial judges indirectly incorporate their reasoning into their sentences through formulae such as “como pide el fiscal” (as the state attorney requests). Moreover, extensive collections of these pleadings were available at the time,27 and eventually some were published28. When legal scholars compose treatises on the law of the Indies, they frequently use caselaw as a major source of law. To illustrate, Juan de Solórzano Pereira translates his case references into Latin. He takes the holding from the pleadings rather than the case report. Accordingly, he incorporates discussions of borderline cases into his treatise on the law of the Indies, and sets out the applicable rationes decidendi. If anything, the law of the Indies is a textbook example of how caselaw and scholarly commentary interact in establishing legal doctrine, and in explaining how judges should apply law.

23 Novísima recopilación de las leyes de España, bk. 11, tit. 16, l. 8 (Seville: Proyecto Pixelegis de la Universidad de Sevilla 2007 [1805]), available at http: //fama2.us.es/fde//ocr/ 2006/novisimaRecopilacionT5.pdf. 24 See Levaggi, La fundamentación de las sentencias en el Derecho indiano (Revista de Historia del Derecho p. 45 – 73, 1978). 25 See Francisco de Alfaro, Tractatus de officio fiscalis, deque fiscalibus privilegiis (Madrid: Ex. Officina Francisci Martinez, 1639 [1606]). 26 More so, at lower jurisdictional levels, where judges are untrained in law. 27 José Mariano Beristain de Souza continually refers to such collections, 1 Biblioteca Hispano-Americana septentrional o Catálogo y noticia de los literatos (México, Universidad Nacional Autónoma, 1980 [1816]). 28 Ferdinando Arias de Mesa, Variarum Resolutorum et Interpretationum Juris Libri tres (Geneva: typis & sumptibus Samuelis Chouët, 1658); Colección de las alegaciones fiscales del Excmo. Señor Conde de Campomanes (Madrid: Universidad Complutense de Madrid 2008 [1843]), available at http: // books.google.com/books/ucm?id=_9k1rDk0HjUC&q=ale gaciones&dq=alegaciones&hl=es&pgis=1; see passim Mayagoitia, Notas para servir a la bibliografía jurídica novohispana: la literatura circunstancial ch. 3 (unpublished thesis, on file with the Universidad Nacional Autónoma de México, 1992).

JAMES OLDHAM

Foreign Law in the English Common Law of the Late Eighteenth Century In contempt or ignorance of the common law of England, you have made it your study to introduce into the court where you preside, maxims of jurisprudence unknown to Englishmen. The Roman code, the law of nations, and the opinion of foreign civilians, are your perpetual theme; – but who ever heard you mention Magna Charta, or the Bill of Rights, with approbation or respect? Junius, letter to the Right Honourable Lord Mansfield, Nov. 14, 17701

Much has been written about the implicit or explicit presence of Roman law in the English common law2. Likewise, many scholars have claimed that “the law merchant,” with all of its connections to the Continent, was slowly but surely folded into the English common law, especially by Lord Mansfield during his thirty-two years as Chief Justice of the Court of King’s Bench (1756 – 88), in cooperation with special merchant juries3. Sir John Baker cautions, however, that by the seventeenth century, “The ‘law merchant’ had become a figure of speech for what we now call mercantile law: that branch of ordinary English law which happens to govern merchants’ affairs.” Baker explains that, “To the extent that there was a law merchant before Lord Mansfield, it was not an importation from the ius gentium,” but “was in reality nothing other than a refinement of the common law which had always governed mercantile affairs”4. That common law “had always provided [Anon.], The Letters of Junius, letter XLI (1796) pp. 169 – 70. The classic work is Thomas Edward Scrutton, The Influence of the Roman Law on the Law of England (1885). See also Thomas Edward Scrutton, Roman Law Influence, in Chancery, Church Courts, Admiralty, and Law Merchant, Select Essays in Anglo-American Legal History, vol. 1 (1907) p. 208; A.D.E. Lewis and D.J. Ibbetson, The Roman Law Tradition (1994). 3 See, e.g., William Searle Holdsworth, The Development of the Law Merchant and its Courts, Select Essays in Anglo American Legal History, vol. 1 (1907) p. 289; F.C.T. Tudsbery, Law Merchant and the Common Law, The Law Quarterly Review, vol. 136 (1918) p. 392. 4 J.H. Baker, The Law Merchant and the Common Law Before 1700, Cambridge Law Journal, vol. 38 (1979) p. 295, p. 316, p. 321 – 322. For additional studies of the medieval law 1 2

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remedies in commercial cases, and it adapted as fast as its formulary system would permit to the requirements of commerce”, but none of the available alternatives treated “the law merchant as a body of law akin to foreign law”5. “Foreign law” emerged, nevertheless, in the English common law of the eighteenth century in a number of contexts. Two types of cases will be addressed in the discussion to follow: First, those in which aspects of the civil law (usually Roman) were said to have been incorporated into English common law or to be the foundation upon which the English common law was erected; secondly, those dealing with commercial transactions that fell within the broad sweep of “the law merchant” as applied on the Continent6. Before taking up individual cases, it is useful to see what William Blackstone had to say about foreign law in his Commentaries on the Laws of England, published in the 1760s. Since Blackstone portrayed English common law as an essentially perfect system, he was cautious about borrowing from the civil law. “Far be it from me,” he said, “to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason,” yet “we must not prefer the edict of the praetor, or the rescript of the Roman emperor, to our own immemorial customs, or the sanctions of an English parliament” 7. Blackstone compared English law (which “is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the same extent and the same duration”) to “the civil law: the text whereof, as collected by Justinian and merchant and the later development of mercantile law, see sources cited by Professor Baker, ibid., p. 295, n. 2. 5 Ibid. p. 321. 6 No attempt will be made in this brief essay to survey the full scope of the appearance of foreign law in eighteenth-century English cases, and it should be stated at the outset what will not be addressed. Only common law cases will be considered, thus excluding the work done in the Ecclesiastical and Admiralty courts by “the civilians” (the doctors of civil law) as well as the extensive business conducted by the Court of Chancery. Also excluded are the following types of common law cases: Those dealing with the extent to which local law is said to preempt English law in a conquered or acquired territory (see, e.g., Campbell v. Hall, 1 Cowper’s Reports 204 (1774); those in which it is argued that the law of another country governs a legal proceeding in England (see, e.g., Robinson v. Bland, 2 Burrow’s Reports 1077 (1760), Somerset v. Stewart, Lofft’s Reports 1 (1772); Jewson v. Read, Lofft’s Reports 134 (1773); Holman v. Johnson, 1 Cowper’s Reports 341 (1775)); and cases addressing whether an English court would have jurisdiction to hear a case involving an alleged crime or civil wrong committed in another country (see, e.g., Mostyn v. Fabrigas, 1 Cowper’s Reports 161 (1774)). To keep this essay within manageable compass, two additional types of cases that will be left to another day – those that can fairly be characterized as “international law” and those depending upon or applying principles of “natural law.” International law examples include prize cases dealing with ransom bills (see e.g., Ricord v. Bettenham, 3 Burrow’s Reports 1734 (1766), and see discussion at James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, vol. 1 (1992), p. 662 – 670), and cases involving diplomatic immunity (see, e.g., Lockwood v. Coysgarne, 3 Burrow’s Reports 1676 (1765); Heathfield v. Chilton, 4 Burrow’s Reports 2015 (1767)). 7 William Blackstone, Commentaries on the Laws of England, vol. 1 (1765) p. 5.

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his agents, is extremely voluminous and diffuse”, with “idle comments, obscure glosses, and jarring interpretations grafted thereupon by the learned jurists . . . literally without number”8. According to Daniel Boorstin, Blackstone “is not particularly concerned with the ways in which legal systems affect each other”; he makes “only occasional references to borrowings,” but is more concerned with similarities and analogies between English law institutions and other legal systems”9. Blackstone, of course, was not making law in his Commentaries, so let us consider some of the judges who did, Lord Mansfield in particular. Mansfield was not an entirely traditional common law judge. Due in significant measure to his classical education at Westminster School and Oxford, and his extensive practice in the Court of Chancery, he was quite prepared to incorporate and apply principles of equity (as descended from Roman law) in cases that came before him. This infuriated some contemporaries, as shown by the Junius epigraph, above. A good example of Mansfield’s readiness to invoke Roman law in his decisionmaking is the case of Windham v. Chetwynd10, decided scarcely a year after he had taken office as Chief Justice of the Court of King’s Bench. The question presented in Windham was the degree of disinterestedness required of witnesses to a will according to the applicable section of the Statute of Frauds. The statute required attestation by two credible witnesses, and Mansfield held that the word “credible” was not synonymous with “competent” and that if the subscribing witnesses became disinterested before the time of the testator’s death, their attestations were valid. Mansfield laid out his reasoning in an extensive opinion running over sixteen pages in Burrow’s Reports. One of the hurdles that Mansfield had to overcome was an unreported opinion of King’s Bench Chief Justice Lee in 1746, Hilliard v. Jennings. According to Mansfield’s description of the case, Chief Justice Lee appeared to be of the view that “the objection of benefit from the will to the witness, at the time of subscribing, could not be answered or taken off by any subsequent fact,” a view that Lee based upon the authority of “the Roman law from the Digest and Code”11. But Mansfield said that the Roman law passage relied upon by Lee “was not enough considered.” He then summarized the learning from the twelve tables and from Justinian’s Institutes to demonstrate that, “There never was a time, in the Roman law, when interest under the will was any objection to subscribing witnesses”12. Mansfield’s Roman law recitation in Windham was not without controversy. Burrow did not report individual opinions of the junior justices on King’s Bench, but William Blackstone, Commentaries on the Laws of England, vol. 3 (1768) p. 328. Daniel Boorstin, The Mysterious Science of the Law (1941) p. 43. Boorstin gives many examples of Blackstone’s comparisons to numerous European countries, but especially to Rome. Ibid., p. 43 – 46, p. 204 – 05 (n. 74). 10 Windham v. Chetwynd, 1 Burrow’s Reports 414 (1757). 11 1 Burrow’s Reports, p. 425. 12 Ibid., p. 425 – 426. 8 9

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the views of one, Michael Foster, were revealed by Foster’s nephew, Michael Dodson, in his brief biography of his uncle. According to Dodson, Foster told Mansfield that he agreed with the result in Windham but not the reasoning, and on the question of Roman law, Foster wrote in his notes that, “When we are upon the construction of a modern act of Parliament, and endeavouring to find the true legal sense of the terms which it useth, I cannot think it extremely material to inquire, what restraints the old Roman law laid on testators, at which time, and upon what principles, and to what degree, the ancient rigour was abated, or what rendered the attesting witnesses competent or incompetent, or how far interest was or was not an objection to their competency”13. Eight years later in the case of Doe d. Hindson v. Kersey, Common Pleas Chief Justice Pratt delivered a lengthy dissenting opinion in which he attacked the views expressed by Lord Mansfield in Windham v. Chetwynd14. Chief Justice Pratt (who shortly would become Lord Chancellor Camden) delivered an opinion that runs forty-five pages in print, and in closing he observed that he took no notice of any part of the civil law learning that had been brought out in argument in discussing Chief Justice Lee’s decision in the case of Hilliard v. Jennings. According to Pratt, Chief Justice Lee mentioned the learning of the civil law in the Hilliard case only “by way of ornament, not argument,” and Pratt concluded his own opinion with the following: I am not wise enough to determine which of the two laws is more perfect, the Roman or the English. This I know, (which is enough for a judge) that although almost every country in Europe hath received that body of laws, yet they have been with a most stubborn constancy at all times disclaimed and rejected by England. For which reason, (and not through any disrespect to the argument I have been endeavouring to answer) I choose to lay aside all that learning as not being relevant in Westminster-Hall15.

Both Windham v. Chetwynd and Doe d. Hindson v. Kersey involved issues of testamentary disposition of a personal estate. This is one aspect of English common law that is generally acknowledged to have a Roman law lineage. In discussing the common query by historians whether the Continental law influenced the development of the common law, R.H. Helmholz tells us that, “In some cases, the law of last wills and testaments probably being the most obvious, the ius commune did have demonstrable effects upon the common law”16.

Michael Dodson, The Life of Sir Michael Foster, Knt. (1811), p. 40 – 41. See [Anon.], Lord Camden’s argument in Doe on the demise of Hindson & Ux. & Al. v. Kersey. Wherein Lord Mansfield’s Argument in Wyndham [sic] v. Chetwynd is Considered and Answered (1776). The Doe d. Hindson v. Kersey case is also reported in Richard Burn, Ecclesiastical Law, 7th edition, vol. 4 (1809) p. 97. 15 Ibid., p. 91. 16 R.H. Helmholz, The ius commune in England (2001) p. 6. Professor Helmholz points out that on “the general evaluative question of overall influence of Roman law in England”, opinions “have remained divided, despite an impressive and long history of scholarship devo13 14

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In Harwood v. Goodright,17 Lord Mansfield affirmed that, “as to personal estate, the law of England has adopted the rules of the Roman testament”.18 In Atkins v. Hill,19 an argument was made that the cognizance of “a legacy, arising out of a will of personal estate,. . .belongs peculiarly and exclusively to the Ecclesiastical Court; and consequently, that the Courts of Common Law have no jurisdiction”20. To this Lord Mansfield responded: It is true that the law concerning legacies was made in the Ecclesiastical Court. The authority of the Roman law was received. The opinions of doctors and foreign authors upon the civil law, were quoted and respected. When the Courts of Equity held plea of legacies, as incident to discovery and account, they adopted the whole system by which legacies were governed in the Ecclesiastical Court. In like manner the Courts of Law, in the exercise of a concurrent jurisdiction, would adopt the same rules21.

In his study of the ius commune in England, Professor Helmholz was able to show “few examples of direct borrowing from the ius commune by the English common lawyers”22. He concluded that in the long development of case law and parliamentary statute from the fifteenth to the seventeenth centuries: Although the ius commune was used occasionally in legal argument, and although it may even have touched statute law here and there, the English common lawyers never felt bound by it. They never “received” it. They felt no need to “rationalize” their own law so as to fit it within the categories of the ius commune. This was true in the thirteenth century, and it remained true in the seventeenth23.

The categories of the ius commune, however, were exactly what William Blackstone found so attractive in his efforts to rationalize the common law in his eighteenth-century Commentaries. Andrew Lewis, echoing Helmholz, writes that, although that there was “little apparent influence of Roman ideas on the Common Law between the thirteenth and the sixteenth centuries”, the “adoption of the ted to it”, citing two reviews of the subject by authors contributing to two German festschrifts published in the 1990s. 17 1 Cowper’s Reports 87 (1774). 18 Ibid., p. 90. Lord Mansfield added: “Yet a devise of lands in England is considered in a different light from a Roman will. For a will in the civil law was an institution of the heir. But a devise in England, is an appointment of particular lands to a particular devisee; and is considered in the nature of a conveyance by way of appointment; and upon that principle it is, that no man can devise lands which he has not at the date of such conveyance.” 19 1 Cowper’s Reports 284 (1775). 20 Ibid., p. 287. 21 Ibid. Mansfield pointed out that due to the advantage of proof in a court of equity by means of discovery and account (unavailable in a court of law), “there is scarce an instance of a legatee attempting to sue at law.” Ibid., p. 288. See also, in general, Thomas Edward Scrutton, Roman Law Influence in Chancery, Church Courts, Admiralty, and Law Merchant, Select Essays in Anglo-American Legal History, vol. 1 (1907), p. 208. 22 R.H. Helmholz, The ius commune in England (2001) p. 245. 23 Ibid.

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Roman institutional scheme” was of real importance24. He concludes that, “The incorporation into the Blackstonian model of the Roman – indeed Gaian – institutional categories, however imperfect, supported by the willingness of judges to accommodate Roman solutions, was a permanent contribution to the reworking of our understanding of the structure of the Common Law”25. In fairness, it should be observed that the Blackstonian vision of the common law was complicated by the institution of trial by jury. Blackstone strove mightily to describe the English common law as tidy and orderly26, but S.F.C. Milsom reminds us that in the English common law heritage, “the generation of a system of substantive rules was a function of jury trial,” and jury trials, especially in criminal cases where there was no possibility of special verdicts, were both untidy and fragmentary27. Milson’s summary appraisal is that “untidiness is not attractive, and the English fragmentation is in stark contrast with the coherence of the Roman mechanism and consequently of the Roman law”28. There was, nevertheless, one prominent example of the accommodation of Roman solutions in the English common law at the beginning of the eighteenth century. Chief Justice Holt of the Court of King’s Bench wrote a seminal opinion on the law of bailments in Coggs v. Barnard29, the effect of which, according to David Ibbetson, “was to restructure English law along the Romanised lines of Bracton and St. German”30. Using a Roman law model, Holt “identified six different sorts of bailment,” and although there is some uncertainty in comparing Holt’s draft opinion in manuscript with Lord Raymond’s printed version, lawyers subsequently took Holt’s categories “at face value, treating them as settled law”31. Almost eighty years later, in 1781, Sir William Jones wrote and published his influential slim volume, An Essay on the Law of Bailments. As Ibbetson states, “it is impossible not to be impressed by the Essay” – ”It stands alone in the literature of eighteenth-century English law for its attempt to synthesise English and foreign legal materials, particularly the texts of Roman law, and for its apparent depth of analysis in doing so”32. After explaining the desultory state of the study of Roman law in England by mid-eighteenth century, Ibbetson tells us that “Jones’s Essay on the Law of Bailments stands out in two ways: the range of literature (all, almost 24 Andrew Lewis, ‘What Marcellus Says is Against You’: Roman Law and Common Law, in A.D.E. Lewis and David Ibbetson, The Roman Law Tradition (1994), p. 199, p. 203. 25 Ibid., p. 208. 26 See, e.g., Daniel Boorstin, The Mysterious Science of the Law (1941) p. 94 – 95. 27 S.F.C. Milsom, A Natural History of the Common Law (2003), p. 20. 28 Ibid. 29 2 Lord Raymond’s Reports 909 (1703). 30 Sir William Jones, An Essay on the Law of Bailments, David J. Ibbetson edition (2004, copyright © 2007) p. 98. 31 Ibid., p. 98, p. 103. 32 Ibid., p. 22.

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inevitably, continental) which it cites; and its willingness to engage with both the Roman legal texts themselves and with the opinions of later civilian writers”33. Although Jones “followed Holt C.J. in Coggs v. Barnard,” and “Roman law was his starting point,” he put his own imprint on the subject matter, borrowing to some extent from the eighteenth-century French writer, Robert-Joseph Pothier34. Jones’s succinct, elegant essay proved to have substantial influence on the developing common law in both England and America35. Returning to the broad sweep of the English common law of the eighteenth century, examples that clearly show the influence of Roman law, beyond those that have been discussed, are not abundant. S.F.C. Milsom observes that the influence of Roman law upon English law “has been a perennial topic among English legal historians. . . . There has been a strong sense that there ought to have been an influence, and this has provoked disappointment in some historians and a rummage for examples (of varying plausibility) in others”36. At least with regard to an earlier period, Milsom is skeptical, pointing out that early sources were in Latin and inevitably used words that were technical terms for Roman lawyers, which historians have been tempted to read with their Roman connotations. Milsom questions “how far English lawyers at the time had those connotations in mind”37. One instance in the late eighteenth century, however, can be given of a decision by the Court of King’s Bench in which Roman connotations quite clearly were very much in mind. I refer to Lord Mansfield’s opinion in Moses v. MacFerlan38. This was meticulously demonstrated by Peter Birks in his scholarly essay, “English and Roman Learning in Moses v. MacFerlan”39. It is not necessary here to summarize Birks’s careful analysis except to state that, quoting Birks, “Everyone knows that Moses v. MacFerlan is the leading case in the Anglo-American law of restitution,” and that “Lord Mansfield used his Roman learning to throw light” on the action on the case in indebitatus assumpsit, especially by means of the “common count” of “money had and received”40. Even so, according to Birks, Mansfield generated his own confusion by using the expression quasi ex contractu. Birks commended the outcome in the case and the use of assumpsit (via the common count of money had and received) to achieve that end, but what he called the “dark side” of the opinion Ibid., p. 35. Ibid., p. 43, 35. 35 Ibid., p. 57 – 73; James Oldham, The Survival of Sir William Jones in American Jurisprudence, in Garland Cannon and Kevin R. Brine, Objects of Enquiry: The Life, Contributions, and Influences of Sir William Jones (1746 – 1794) (1995), p. 92. 36 S.F.C. Milsom, A Natural History of the Common Law (2003), p. 1. 37 Ibid. 38 2 Burrow’s Reports 1005 (1760). 39 Peter B. H. Birks, English and Roman Learning in Moses v. MacFerlan, Current Legal Problems, vol. 37 (1984), p. 1. 40 Ibid., p. 3, p. 5. 33 34

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was its having been interpreted as a species of contract law. The facts of the case provided no basis whatever to claim that the plaintiff was suing upon a promise, and as Birks stated, “It is as certain as anything can be that no Roman lawyer ever intended quasi ex contractu to suggest the shadow of a contract”41. Apart from Roman law, and excepting those categories of cases referred to at the outset of this paper42, references to foreign law of the Continent were occasionally made when striking similarities were perceived by the judges. An example is found in Douglas’s report of the case Grant v. Astle43. The case came to the King’s Bench on a writ of error from Common Pleas, and a new trial was ordered on procedural grounds. In a footnote, Douglas quoted the opinion of Lord Loughborough in the proceeding below, where the question was whether the lord of a manor was bound, in transferring copyhold tenure from a father to a son on the death of the father, to deduct the land tax from the fine that was assessed. Lord Loughborough said that the question was of great concern to the public at large, that it had undergone a very deliberate examination, and all of the Common Pleas judges were of the view that the lord of the manor was not bound to make a deduction for the land tax. Loughborough observed that, according to “some of the most approved authors, the copyhold tenure of land is derived from the state of villeinage, which now happily forms a very obscure title in the law,” and he then offered the following speculative observations: I cannot help doubting whether that deduction is not founded in mistake. The circumstance which first led me to entertain the doubt is, that, in those parts of Germany from which the Saxons migrated into England, there exists, at this day, a species of tenure exactly the same with our copyhold estates, and that there exists likewise, at this day, a compleat state of villeinage; . . . In East Friezeland, the duchy of Brunswick, and other parts of Germany, there are villeins in gross, and villeins regardant, with the same rigour which our law formerly knew. . . . What I have stated I found in a very accurate treatise of German law by Selchow, one of the professors of the University of Gottingen, entitled, “Elementa Juris Privati Germanici.” This seems sufficient to negative the idea that copyholders sprang out of villeins. In England villeinage has ceased, and copyholds remain; but here, as in other countries, they both prevailed at the same time44.

Sylvester Douglas, the reporter, was not persuaded. In his footnote, after referring to Littleton and Bracton, Douglas wrote: “It seems too much, therefore, upon this ingenious speculation, drawn from observations in a foreign state, not conclusive in themselves, to give up the authority of our own law writers (who, living much more near the time, were likely to be much better judges of the fact), and the evidence of our own history and antiquities”45. 41 42 43 44

Ibid., p. 10. See n. 6, above. 2 Douglas’s Reports 722 (1781). Ibid., p. 726.

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It remains to address cases dealing with “the law merchant”. The law merchant is an extremely large subject, and as was remarked earlier, Professor Baker has persuasively shown that the case law before 1700 cannot be said to have been imported from foreign law46. Professor Baker’s interpretation of the common law cases dealing with the law merchant before 1700 was revisionist – as he says, his evidence “confirms the orthodox conclusion that there was no ‘incorporation of the law merchant’ into the common law before the eighteenth century, but it does so for reasons wholly different from and largely at odds with those commonly stated in the legal history books”47. According to the orthodox view, incorporation of the continental law merchant into the early common law of England did not happen because even seventeenth-century sources claimed that, “the cases concerning merchants are not now to be decided by the peculiar and ordinary laws of every country, but by the general Laws of Nature and Nations”48. Recognizing that it was not necessary in England for the early law merchant to incorporate a distinct body of civil law from the Continent, the English law merchant after 1700 nevertheless had to work itself free from the clinging entanglements of the formulary system. This process was begun by Coke and Holt, but it was left to Lord Mansfield to finish the job. There is a broad consensus that by the end of Mansfield’s thirty-two years as Chief Justice of the Court of King’s Bench, he had given shape and substance to many parts of the law merchant in common law cases, justifying Justice Buller’s well-known characterization of Mansfield as “the founder of the commercial law of this country”49. Frequently, Lord Mansfield’s accomplishment is linked to his instrumental use of special juries of merchants. Thomas Scrutton, for example, wrote that Mansfield Ibid., p. 727. Douglas’s footnote is extensive; only a small part has been quoted. See text at nn. 4 – 5, above. 47 J.H. Baker, The Law Merchant and the Common Law Before 1700, Cambridge Law Journal, vol. 38 (1979), p. 320 – 21. 48 See Thomas Edward Scrutton, Roman Law Influence in Chancery, Church Courts, Admiralty, and Law Merchant, Select Essays on Anglo-American Legal History, vol. 1, p. 238, quoting from a seventeenth-century treatise on the jurisdiction of the Admiralty, by Richard Zouch. Blackstone adopted this view in his Commentaries, asserting that “the affairs of commerce are regulated by a law of their own, called the Law Merchant or Lex Mercatoria, which all nations agree in and take notice of; and in particular it is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries.” William Blackstone, Commentaries on the Laws of England, vol. 4, p. 67, quoted by Scrutton at 239. See also William Searle Holdsworth, The Development of the Law Merchant and its Courts, Select Essays on Anglo-American Legal History, vol. 1 (1907), p. 289, p. 319. 49 Lickbarrow v. Mason, 2 Term Reports 63 (1787). See, e.g., William Searle Holdsworth, The Development of the Law Merchant and Its Courts, Select Essays on Anglo-American Legal History, vol. 1 (1907), p. 331. Holdsworth added one qualification: “If Lord Mansfield is to be credited with the honourable title of the founder of the commercial law of this country, it must be allowed that Coke gave to the founder of that law his opportunity.” Ibid., p. 319. 45 46

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“constructed his system of Commercial Law by moulding the findings of his special juries as to the usages of merchants (which had often a Roman origin) on principles frequently derived from the Civil law and the Law of Nations”50. Lord Campbell, in his biography of Mansfield, included the following recollections: [Lord Mansfield] likewise did much for the improvement of commercial law in this country by rearing a body of special jurymen at Guildhall, who were generally returned on all commercial causes to be tried there. He was on terms of the most familiar intercourse with them; not only conversing freely with them in court, but inviting them to dine with him. From them he learned the usages of trade, and in return he took great pains in explaining to them the principles of jurisprudence by which they were to be guided. Several of these gentlemen survived when I began to attend Guildhall as a student, and were designated and honoured as ‘Lord Mansfield’s jurymen.’ One, in particular, I remember, Mr. Edward Vaux, who always wore a cocked hat, and had almost as much authority as the Lord Chief Justice himself51.

At this point it is worth recalling S.F.C. Milsom’s caution that “the generation of a system of substantive rules was a function of jury trial,” and that general jury verdicts were largely inscrutable52. In Vallejo v. Wheeler, Lord Mansfield himself remarked that it was not possible to put much weight on general verdicts, because “certainty is never to be had from them, it not appearing on what grounds the jury found”53. Yet in the same case, Mansfield stated that he “should pay great respect to the gentlemen of the special jury who were considerable merchants, the proper judges of a cause of this nature”54. From these two comments, one might suppose that it was common practice for the parties, encouraged by the court, to ask special juries to return special verdicts in order to get the views of the special jurors on the record, thus fostering the incorporation of mercantile custom into the common law. But this did not happen. In virtually all of the hundreds of special jury cases that I have seen (both in print and in manuscript) the special juries brought in general verdicts. How, then, did the special juries play an instrumental part in incorporating the law merchant into the common law? At the very least, the influence of the merchant juries may have been less direct than has been supposed, taking the form of colloquies between the jurors and the court, questions by the jurors to the witnesses, and definitive statements by the jurors about relevant mercantile customs55. 50 Thomas Edward Scrutton, Roman Law Influence in Chancery, Church Courts, Admiralty, and Law Merchant, Select Essays of Anglo-American Legal History, vol. 1 (1907), p. 240. 51 John, Lord Campbell, The Lives of the Chief Justices of England, vol. 2 (1858), p. 407, note. 52 S.F.C. Milsom, A Natural History of the Common Law (2003), p. 18 – 19. 53 Vallejo v. Wheeler, Lofft’s Reports 631, 643 (1774) (styled Vallezjo v. Wheeler). The case is also reported at 1 Cowper’s Reports 143, and Cowper’s spelling of the plaintiff ’s name is customarily followed. 54 Lofft’s Reports p. 640.

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But they were certainly an important resource for the court on commercial practices. And, reconnecting to the topic of this essay, foreign law, Mansfield was the intellectual intermediary who understood the mercantile customs and who was able to link them to their European heritage. Mansfield did this in a variety of contexts, and it is worth giving a demonstration from the law of marine insurance. When Lord Mansfield became Chief Justice of the Court of King’s Bench in 1756, the law of marine insurance was a fragmentary jumble. When he retired in 1788, “he left a complete system of insurance law, as is so well shown by Sir James Park, a contemporary of Mansfield’s in his brilliant work on marine insurance”56. Many illustrative cases could be given57, but in order not to extend this essay unduly, I will describe but one – the Vallejo case cited above. In Vallejo v. Wheeler, the question was posed whether the actions of the captain of the ship Thomas and Matthew constituted barratry. The ship was chartered from London to Seville, and on the return journey, the captain sailed to Guernsey to take in wine and brandy on his own account. Subsequently, the ship was storm-damaged and could not continue, and the cargo was spoiled. The owners brought suit to collect for cargo damage. The insurance policy became void if the captain deviated from the insured course without necessity, but the policy did cover barratry by the captain58. The case, therefore, turned on the definition of “barratry.” One of the junior justices, Richard Aston, opened his brief opinion by stating, “One would wonder, when this word was in use two hundred years ago, that there should remain now any doubt what about barratry is”59. Counsel for the plaintiffs was John Alleyne, and reporter Capel Lofft appended to his report a note of thanks to Alleyne “for his very polite and friendly assistance, in furnishing me with his notes of the foreign Ordinances to which he referred in his argument; and which notes I have had the pleasure of using in part”60. Alleyne began his argument by reciting two common law cases from the early part of the eighteenth century, but 55 I have written about this elsewhere. See James Oldham, Jury Research in the English Reports in CD-ROM in The Dearest Birth Right of the People of England: The Jury in the History of the Common Law, John W. Cairns & Grant McLeod, editors (2002), p. 135 – 45. Mansfield and his special juries worked together in a cooperative manner approximating partnership; later judges were almost deferential to the merchant jurors. 56 William Reynolds Vance, The Early History of Insurance Law, Select Essays on AngloAmerican Legal History, vol. 3 (1909), p. 98 – 116. Park was assiduous in his attendance in Mansfield’s court, and he took notes of many cases that were not elsewhere reported. His book, A System of the Law of Marine Insurances, was first published in 1796; it was muchrespected and traveled through many editions. 57 See, generally, James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, vol. 1 (1992) p. 450 – 595. 58 For the standard language of Lloyd’s marine insurance policy in the late eighteenth century, see James Oldham, Insurance Litigation Involving the Zong and Other British Slave Ships, 1780 – 1807, The Journal of Legal History, vol. 28 (2007), p. 299, 301. 59 Lofft’s Reports p. 645. 60 Ibid., p. 648.

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added that, even though the cases ought to be clear and sufficient, “yet, as mercantile law is a part of the law of nations, your Lordships will receive the evidence of that law, and be guided by it in your decisions: And since this word barratry does not seem hitherto generally understood, it may not be improper to examine what the language and usage of other commercial nations says, in confirmation of those authorities of our own already cited”61. He then referred to five continental texts, and to Ordinances from France, Spain, Genoa, Rotterdam, Hamburg, Stockholm, Copenhagen, and Bilbao. Opposing counsel, Francis Buller, responded by distinguishing the cases that had been cited, and by quoting from “Postlethwaite’s Dictionary of Trade and Commerce, which I understand to be generally esteemed one of the best books upon this subject, by gentlemen conversant in mercantile transactions”62. He then stated: “I must object to the Ordinances of Stockholm; they are matter of positive municipal law of a foreign country, and ought not to bind the decisions of this Court.” To this Lord Mansfield responded: “It is very proper by way of exposition of the general law and custom of merchants. Colbert’s Edict, 81, has been quoted a hundred times: and this Ordinance goes as part of the general maritime law, which is a branch of the law of nations”63. Buller then carried on by citing in his client’s favor the Ordinances of Middleburgh, Amsterdam, Schoninberg, Hamburg, Florence and Rouen. The court took the case under advisement, observing, among other things, that the Ordinance of Florence spoke most sensibly of all the ordinances that had been considered. When the court reconvened and Lord Mansfield announced the court’s decision, he complimented counsel on their able arguments and noted that, as the matter was of a commercial nature and turned greatly upon the usage and custom of merchants, he had consulted an eminent merchant of whose skill and experience he had a high opinion. He stated that he did not find that the meaning of the word barratry had been settled in England, adding that, “the books and ordinances of other nations were very properly quoted to come at the understanding of their use of the word”64. The court concluded that the captain’s “smuggling voyage was barratry. . . , and consequently comes within the terms of the insurance”; thus a new trial was ordered65. A final example of Lord Mansfield’s readiness to rely upon continental authorities in mercantile cases is the well-known decision, Luke v. Lyde66. The case inIbid., p. 634. Ibid., p. 638. See Malachy Postlethwayt, The Universal Dictionary of Trade and Commerce, 4th edition (1774). 63 Lofft’s Reports, p. 639. 64 Ibid., p. 644. 65 Ibid., p. 645. 66 2 Burrows Reports 882 (1759), also reported at 1 William Blackstone’s Reports 190. For Lord Mansfield’s trial notes in the case, see James Oldham, The Mansfield Manuscripts 61 62

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volved the question of whether freight costs were recoverable on a sea voyage by the ship Sarah from Newfoundland to Lisbon. Approximately three-quarters of the way into the journey, the Sarah was captured by French pirates, but was recaptured three days later by an English privateer and was transported to England. Under established prize law, half of the value of the cargo was awarded to the privateer, and the question was whether the plaintiffs, owners of the ship Sarah, were entitled to recover freight. In resolving this question, Lord Mansfield gave a stunning exhibition of his familiarity with continental sources of maritime law, and his willingness to apply them to the common law case before him. This is the reason, no doubt, that Luke v. Lyde has continued to attract academic attention, even into the twenty-first century. Albrecht Cordes, for example, begins and ends his essay, “The Search for a Medieval Lex Mercatoria,” with Mansfield’s opinion67. Cordes explains that Mansfield reached his decision based on common sense and on his own comparative investigation – ”He concluded that all past and present systems of law, from the ancient Lex Rhodia through the medieval maritime laws of the Catalan Llibre del Consolat de Mar and the French Rôles d’Oléron to the Hanseatic maritime laws and King Louis XIV’s Ordonnance de Commerce had come to this same decision”68. Lord Mansfield had been the trial judge at the Devonshire assizes, and he explained at the outset of his opinion “that though he was of the same opinion at the assizes as he was now; yet he was desirous to have a case made of it, in order to settle the point more deliberately, solemnly, and notoriously; as it was of so extensive a nature; and especially, as the maritime law is not the law of a particular country, but the general law of nations”69.

and the Growth of English Law in the Eighteenth Century, vol. 1 (1992), p. 251. Also, for an explanation of how Lord Mansfield’s trial notes validate Burrow’s report of the case, answering two critical footnotes appended to the edition of Burrow’s Reports that was reprinted in the nineteenth century in the English Reports, see ibid., p. 168 – 69. 67 Albrecht Cordes, The Search for a Medieval Lex Mercatoria, in From Lex Mercatoria to Commercial Law, Vito Piergiovanni (ed.) (2005), p. 53 – 54, p. 66 – 67. For another recent study, see Bridget Murphy, Luke v Lyde: Lord Mansfield and the Development of the Principles of Mercantile Law, Auckland University Law Review, vol. 9 (2003), p. 1140. 68 Albrecht Cordes, The Search for a Medieval Lex Mercatoria, p. 54. 69 2 Burrow’s Reports, p. 887. Albrecht Cordes, at the end of his essay, suggests that Mansfield’s solution (that the freight should be prorated according to the portion of the journey that had been completed) may not have been correct, at least according to a decision by the Council of Lübeck in 1488, in which a fixed principle of half-freight was applied; thus, according to Cordes, the historical uniformity that Mansfield claimed “did not even exist in the field of maritime law of freight, which is a central field of the alleged ‘Lex Mercatoria’. Albrecht Cordes, The Search for Lex Mercatoria, p. 66 – 67. Cordes did acknowledge that the halffreight rule may have only existed at “an earlier stage of the development of the law of freightage,” and that perhaps the more rigid (though useful) half-freight rule had over time given way to the more flexible (and fairer) proportional freight rule. Ibid.

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Conclusion By its nature, the common law has always been polygenetic, a composite of many sources. Foreign law has been one such source, especially in the areas of testamentary disposition of personal estates and mercantile transactions. The classifications of Roman law appealed to Chief Justice Holt, William Blackstone, and William Jones as a scientific template that facilitated organized analysis. Similarly, Lord Mansfield perceived that English commercial law could be sensibly linked to and shaped by its civil law ancestry. A fitting summary of the development of commercial law was written by Joseph Story in 1817, as follows: Previously to the time of Lord Mansfield, there are but few cases in the reports, which are entitled to much respect, either for their interpretations of principles, or general applicability. It is to his genius, liberality, learning, and thorough understanding of the maritime jurists of the continent, of Cleirac, and Roccus, and Straccha, and Santerna, and Loccenius, and Casaregis, and Valin, and to his ardent attachment to the equity doctrines of the civil law, that we are chiefly indebted for that beautiful and national system, which now adorns this branch of the common law. The doctrine of bailments too, (which lies at the foundation of the law of shipments,) was almost struck out at a single heat by Lord Holt, who had the good sense to incorporate into the English code that system, which the text and the commentaries of the civil law had already built up on the continent of Europe70.

Legal historians have given varied assessments of the influence of foreign law in the ever-changing common law landscape. Sweeping claims that the Roman law of testamentary disposition of personal estates, and the continental law merchant were incorporated wholesale into the English common law are no longer advanced, yet it remains clear that the contribution of these and other aspects of foreign law to the English common law of the eighteenth century was substantial.

70 The Miscellaneous Writings of Joseph Story, William W. Story ed. (1852), p. 67 – 68, as quoted in Daniel R. Coquillette, Mourning Venice and Genoa: Joseph Story, Legal Education and the Lex Mercatoria, in From Lex Mercatoria to Commercial Law, Vito Piergiovanni ed. (2005), p. 11, p. 20.

W. HAMILTON BRYSON

The Use of Roman Law in Virginia Courts1 By statute, the courts of Virginia are required to decide cases according to the principles of the English common law2. However, they are not forbidden to resort to any other legal system where the common law of England is silent. Moreover, when the English courts themselves have no English law on a particular point, they often look to the Roman law in its ancient or current form for guidance. Therefore, it is not unreasonable for Virginia courts to do likewise, and in the eighteenth and nineteenth centuries, in fact, they did. The purpose of this essay is to consider how far the Virginia courts have used the Roman law, whether in its ancient form as compiled by the Emperor Justinian in the sixth century A.D., or in its evolved form as the current law of the various countries of continental Europe. For the English jurist, however, Roman Law was important, even though it was not the basis of his general legal system. The English ecclesiastical courts, which dealt with marriage and divorce and wills, among other things, continued to use the Roman-based law of the Roman Catholic Church after the break with the pope. All legal problems involving foreign countries were settled by the common and international principles of the continental countries, whose national law was Roman based. Thus, the English law touching commerce, maritime and naval matters, diplomats, war and peace, and treaties was directly influenced by the Roman law of the neighboring countries. The law of Virginia is founded upon the common law in England. The English common law unquestionably had borrowed from the Roman law to a greater or lesser extent, and therefore much derivative Roman law exists in Virginia. However, this indirect reception, or at least influence, is rather a part of the history of the law of England than that of Virginia, so this essay will not touch upon it but 1 An earlier version of this essay was printed in the American Journal of Legal History, vol. 28 (1984), p. 135 – 146. 2 See generally W. H. Bryson, Virginia Law Reports and Records, 1776 – 1800, in A. Wijffels ed., Case Law in the Making, Comparative Studies in Continental and Anglo-American Legal History, band 17 (1997), part 1, p. 99 – 108; W. H. Bryson, Law Reporting and Legal Records in Virginia, 1607 – 1800, in J. H. Baker ed., Judicial Records, Law Reports, and the Growth of Case Law, in Comparative Studies in Continental and Anglo-American Legal History, band 5 (1989), p. 319 – 335; W. H. Bryson, English Common Law in Virginia, Journal of Legal History, vol. 6 (1985), p. 249 – 256.

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will consider only any direct influence which can be found of the Roman law and the Roman-based civil law of continental Europe. In order to show a direct influence of Roman law on Virginia law, we must find the intellectual link which made it possible. This link is the number of books on the civil law which were present in Virginia at the time of this influence. The following list of books found in private Virginia libraries before 17763 shows clearly the accessibility of Roman law to Virginia jurists and lawyers: Calvinus J., Lexicon Iuridicum De Comitiis Imperatoris Corpus Iuris Canonici Domat J., Les Loix Civiles “La Droite Romaine” Goguet A. Y., Origin of Laws Grotius H., De Iure Belli ac Pacis Heineccius J. G., Methodical System of Universal Law Herauld D., De Rerum Iudicatarum Auctoritate Ferriere, C. J., [?] “Institutiones Iuris Romani ac Gallici” Justinian, Corpus Iuris Civilis Justinian, Institutiones Pacius J., Analysis Institutionum Imperatorum Pacius J., Isagogicorum Pandectae Canoni Gr. & Lat. Patru O., Plaidoyers Perez A., Institutiones Imperiales Pufendorf S., De Iure Naturae et Gentium Pufendorf S., De Officio Hominis et Civis R. de Pennafort, Decretales Gregorii IX Suarez F., De Legibus Summa Iuris Canonici Vattel E., Law of Nations Vinnius A., Commentarius Vinnius A., Ius Civile Volckmar B., De Iure Principum

In the following century, Thomas Jefferson (1743 – 1826) and William Green (1806 – 1880) included large numbers of works on the civil law in their libraries. Jefferson had twenty-three titles, and Green had forty4. This shows that the supply of these continental law sources was not abated by the American Revolution. The most important of the books listed above were and are the basic compilations of the Roman law by Justinian. The works by Domat, Heineccius, and Vinnius were basic textbooks. Grotius, Pufendorf, and Vattel wrote treatises on interW. H. Bryson, Census of Law Books in Colonial Virginia (1978), xvi, p. 27 – 30. E. M. Sowerby, Catalogue of the Library of Thomas Jefferson, vol. 2 (1953), p. 397 – 405; Catalogue of the Library of the Late Hon. William Green, LL. D. (1881), p. 41 – 43, p. 67 – 69. 3 4

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national law, all of which were immensely popular; these books dealt with international law as a practical application of jurisprudence or legal philosophy and were based on Roman law principles. Roman law texts were used occasionally in colonial Virginia to teach Latin grammar. In 1765, Donald Robertson (1717 – 1783), a school master, sold a copy of Justinian’s Institutes to John Crutchfield5. Perhaps George Wythe’s introduction to the civil law was through exercises done to improve his Latin. George Wythe (1726 – 1806) was well grounded in the Latin language, the classical Roman writers, and in Roman law. In addition to having a series of legal apprentices who later distinguished themselves, such as Thomas Jefferson, George Wythe was the first law professor in Virginia teaching the first generation of lawyers in republican Virginia, one of the more famous being John Marshall (1755 – 1835). Wythe frequently referred to the Roman law in his opinions, as will be discussed below, and it is likely that he introduced his students to it as well. Wythe taught at the College of William and Mary from 1779 until 1789, when he was required to move to Richmond6. The Virginia bar at this period was a small fraternity, and they all had the opportunity to benefit from his legal erudition as students in his class, as practitioners in his court, or in many instances as both. Edmund Pendleton (1721 – 1803), one of Wythe’s legal rivals, also had a high regard for the study of Roman law. Near the close of his life, he wrote to a nephew that the civil law, “Where a youth is not hurried into practice by narrow circumstances, is the best foundation. It opens and enlarges the mind by general principles of moral justice, which often apply under municipal regulations, and directs a student to enquire into the reason of cases adjudged, instead of mere dictions of judges”7. Whether or not young Virginia law students agreed with Pendleton’s view, few had the time or inclination to follow his advice in their rush to get into practice. Only a few reports of cases have survived from the colonial period of Virginia; however, these few show that the colonial lawyers had at least some knowledge of the Roman law and that they cited it in court. Between 1733 and 1743, Edward Barradall (1704 – 1743), the attorney general, referred to Domat at least six times8, 5 Donald Robertson’s School, King and Queen County, Va., 1758 – 1769, Virginia Magazine of History and Biography, vol. 34 (1926), p. 143. 6 E. L. Shepard, George Wythe, in W. H. Bryson, Legal Education in Virginia 1779 – 1979 (1982), p. 749 – 755; A. T. Dill, George Wythe, Teacher of Liberty (1979); R. J. Hoffman, Classics in the Courts of the United States, 1790 – 1800, American Journal of Legal Hist., vol. 22 (1978), p. 55 – 84. 7 Letter of Edmund Pendleton to Philip Pendleton, 16 April 1799, in D. J. Mays ed., Letters and Papers of Edmund Pendleton, vol. 2 (1967), p. 668. 8 R. T. Barton ed., Virginia Colonial Decisions: The Reports by Sir John Randolph and by Edward Barradall of Decisions of the General Court of Virginia 1728 – 1741, vol. 2 (1909), p. B43, B48, B75, B193, B225, B236.

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and in his argument of the case of Anderson v. Winston he cited Pufendorf, Barbeyrac, and Grotius on the laws of usury9. In addition he makes references to the “civil law” and the “Roman law”10. Thomas Jefferson in his Reports cites Pufendorf three times and Justinian twice11. Jefferson’s manuscripts also show that he was well grounded in the Roman law12. Turning now to the influence of Roman law in Virginia after independence, let us discuss first two Virginia statutes, then the general case law of the courts, and conclude with a note on the secondary legal literature. Certainly the most significant area of Roman law influence in Virginia is that of intestate succession. These are the rules which determine who gets a dead person’s property when there is no will. The Statute of Descents and Distributions of 1785, sections 1 – 1413, is, except for the position of spouses, basically the same in substance as the current statute.14 In 1785, this statute, which was drafted by Thomas Jefferson15, abolished the English common law of primogeniture and set up a system of intestate succession, a parcenary distribution of property, based on the Roman law model. It was certainly not a blind copying of any one of the Roman systems, but it clearly was based on Roman law ideas and was so considered by later jurists. St. George Tucker (1752 – 1827) said, “The rule of partition established by our law is exactly conformable to the rule of the Roman law”16, Later in the same work,17 he also noted the similarity of the Roman and Virginian rules of partition. Similarly, Judge Dabney Carr (1773 – 1837) remarked in the case of Davis v. Rowe18 that “whoever will look into the civil law, especially to the 118th Novel of Justinian . . . will be convinced that that is the foundation from which both [i.e., the distribution of realty and of personalty] these streams have flowed.” Carr added, “I have no doubt that our Act was taken (with the changes stated) from the Statute of Distribution [of personalty]19 and the Civil Law”20. In the same case, Judge John Id., p. B206, B207. Id., p. B50, B106, B112, B360, B362. 11 Jefferson’s Reports, p. 92, 118, 122, 130, 131. 12 In the case of Bolling v. Bolling, Jefferson argues from the works of Pufendorf and Justinian, and he discusses the Roman law on the ownership of crops and the doctrine of accessio; his discussion of the Batture Case in Louisiana is full of Roman law learning: E. Dumbauld, Thomas Jefferson and the Law (1978), p. 61 – 69, 98, 110. 13 W. W. Hening, comp., Statutes at Large: Being a Collection of All the Laws of Virginia, vol. 12 (1969), p. 138 – 139 [hereinafter cited as Hening’s Statutes]. 14 Va. Code §§ 64.1 – 1 through 64.1 – 3 (1980). 15 P. L. Ford ed., The Writings of Thomas Jefferson, vol. 1 (1892), p. 59, p. 60; J. B. Minor, Institutes of Common and Statute Law, vol. 2 (1892), pp. 537 – 540. 16 St. G. Tucker ed., Blackstone’s Commentaries, vol. 2 (1803), p. 217, note 7. 17 Id., app., at p. 25. 18 27 Va. (6 Rand.) 355 (1828). 9

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Coalter (1769 – 1838) declared that “The legislature, in framing the statute of descents, seem to have pursued the policy of the civil law, in applying the same provisions to the descent of lands, and the distribution of personal property. . . Hence I conclude, that that Statute [of 1785] was drawn very much from our Statute of Distributions [of personal property, and from] the Civil Law”21. The point in issue was settled with references, inter alia, to Cujacius, Domat, Heineccius, Huberus, and Vulteius. Judge Richard E. Parker (1783 – 1840) in the case of Garland v. Harrison22, also commenting on the 1785 statute, said, “Its basis was the statute of distributions [of personal property] and the civil law.” The lex mercatoria, the customs of international merchants and the foundation of English maritime and admiralty law, by the seventeenth century was sufficiently influenced by the Roman law and merged into the usus modernus that it should be included within the scope of this essay23. There was a vice-admiralty court from 1698 to 1776 in colonial Virginia; this court was modeled on the English court of admiralty and therefore used the lex mercatoria as precedent24. The presence of books on maritime law in many private colonial libraries25 indicates that a significant part of the population was conversant on the subject. The following titles have been found: Beawes W., Lex Mercatoria Rediviva Duck A., De Usu et Authoritate Juris Civilis Romanorum Jacob G., Lex Mercatoria Justice A., A General Treatise of the Dominion of the Seas Malynes G., Lex Mercatoria Molloy C., De Jure Maritimo et Navali Ridley T., View of the Civil and Ecclesiastical Law Selden J., Mare Clausum Welwood W., Abridgment of All Sea Laws Zouch R., Elementa Jurisprudentiae

When Virginia became independent in 1776, a new court of admiralty was established. This court also was a duplication of the court of admiralty in England, and the founding statute specifically required that its judges “be governed in their proceedings and decisions by the regulations of the continental congress, acts of [the] 19 Hening’s Statutes, vol. 3, p. 371, and Hening’s Statutes, vol. 5, p. 444, which was itself derived from the civil law, Davis v. Rowe, 27 Va. (6 Rand.) 360, 361, 369, 372, 381, 433 (1828). 20 Davis v. Rowe, 27 Va. (6 Rand.) 355, 370, 374 (1828). 21 Id., at p. 408 – 409. 22 35 Va. (8 Leigh) 368, 371 (1837). 23 Note that the Digest of Justinian is cited at length in the discussion of the mercantile law in Virginia in J. B. Minor, Institutes, vol. 3 (1895), part 2, p. 651 – 655. 24 O. P. Chitwood, Justice in Colonial Virginia (1971), p. 71 – 73; G. H. Reese ed., Proceedings in the Court of Vice-Admiralty of Virginia, 1698 – 1775 (1983). 25 W. H. Bryson, Census of Law Books in Colonial Virginia (1978), passim.

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general assembly, English statutes prior to the fourth year of the reign of king James the first [i.e., 1607], and the laws of Oleron, the Rhodian and Imperial [i.e., of Justinian] laws, so far as the same have been heretofore observed in the English courts of admiralty”26. Thus we see that not only were Virginians of this period aware of the civil law, but they also directed that it be used in maritime lawsuits. This court was abolished in 1788 when the newly established federal government was given exclusive control over admiralty, maritime, and international affairs27. This greatly curtailed, but did not destroy, the influence of the civilian lex mercatoria in Virginia. Merchants involved in strictly intrastate commerce occasionally had need to resort to it in the courts of common law. The following extract shows the procedure for bringing the civil lex mercatoria into the jurisprudence of the common law. Judge Edmund Pendleton (1721 – 1803) declared that “[a] custom of this sort [i.e., custom of merchants], when first brought into Court, is a matter of fact, and merchants [are] examined, to prove what it is. When legal decisions are made upon it, it becomes the law of the land, of which, all parties and courts are to take notice, without stating it”28. In general, the most frequent use of Roman law was made by George Wythe (1726 – 1806), without question one of the most erudite and distinguished jurists which Virginia has produced. Wythe was thoroughly familiar with the Corpus Juris Civilis. From two of Wythe’s comments, it appears that he considered the Roman law to be of equal value with the English common law as a source of legal ideas and precedents. However, he does not seem to have regarded it as binding authority like an English case which was squarely on point. In one case he said, “The Roman civil law, the authority of which, if not decisive, is respectable, in cases of testamentary dispositions of chattels, allowed such bequests as this”29. And in another case he stated, “On the contrary, by the Roman civil law, which is ordinarily thought a reasonable rule of decision . . .”30. In his judicial opinions, Chancellor Wythe used the civil law expertly, and he used it over a wide spectrum of legal points. In Pendleton v. Lomax31, he dissented from the ruling that this suit for contribution from a joint endorser of a bill of exchange was not barred by the statute of limitations. Basing his conclusion on Justinian’s Digesta 46. 1. 17 and 36 and Codex 8. 40. 11, which deal with a surety’s 26 Hening’s Statutes, vol. 9, p. 203. This court was active primarily in the enforcement of revenue laws relating to shipping. At least one case from this court was reported, Hogue v. Stratton, 8 Va. (4 Call) 84 (1786), and several appeals from this court were reported: 8 Va. (4 Call) 127, 153, 158, 353, 522, 564. 27 Hening’s Statutes, vol. 12, p. 769; see also Scott v. Graves, 8 Va. (4 Call) 372 (1790), and Commonwealth v. Gaines, 4 Va. (2 Va. Cas.) 172, 177 – 180 (1819). 28 Branch v. Burnley, 5 Va. (1 Call) 147, 159 (1797). 29 Dandridge v. Lyon, Wythe’s Reports, p. 123, 125 (1791). 30 Turpin v. Turpin, Wythe’s Reports, p. 137, 142 (1791). 31 Wythe’s Reports, p. 4, 8 (1790).

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rights to subrogation and contribution, he argued that the plaintiff ’s right to sue the defendant had accrued many years before and was thus barred. The case of Ross v. Pynes32 involved an allegation of slander of title to goods exposed to sale by auction. The defendant’s agent had made public a private letter from the defendant, which resulted in the goods not being sold. Wythe found the defendant liable for the damages, on the authority of Digesta 9.2.31, because he was negligent in not taking proper precautions to avoid the loss. In another case, he cited Digesta 17.2.76 and Digesta 4.8.19 to support his opinion that an award of arbitrators cannot be reviewed by the courts for error33. In the case of Dandridge v. Lyon,34 Wythe relied on the passages in Justinian’s Institutiones 2.20.7 and Digesta 20.24.pr. affirming that one can bequeath that which is not yet in existence; the example given by Justinian, the issue of a slave, was exactly the problem of the case35. The case of Woodson v. Woodson36 involved the pledge of a specific slave to secure the loan of a sum of tobacco. The issue was whether the creditor was accountable for the profits of the pledge, i.e., the value of his services, in the absence of an agreement on the point. Wythe, relying upon Justinian’s Codex 4.24.1 – 3, ruled that he was accountable. The problem dealt with in Turpin v. Turpin37 was a bequest of specific chattels, in this case slaves mentioned by name, which were not owned at the time of the execution of the will but which were subsequently acquired and which were owned at the time of death. Wythe decreed that the bequest was valid on the authority of Institutiones 2.20.4 and Codex 6.37.10. He distinguished the regula catoniana (Digesta 34.7.1.pr.) from the facts of this case by asserting that the regula was not a universal rule but applied perhaps only to legacies which were made by persons who lacked testamentary capacity at the time of executing the will. Wythe’s somewhat bold construction by supplement of a will in Cary v. Buxton38 is supported by an elaborate note which cites Digesta 28.2.13, Digesta 28.5.82, Digesta 28.5.93, Institutiones 2.13.pr., Digesta 28.3.1, Quintilian, Cicero, and Valerius Maximius. In three additional cases, Chancellor Wythe quoted Justinian in passing, by way of obiter dictum. He noted that a guardian should treat all of his wards equally39, Wythe’s Reports, p. 69, 72 (1790). Dawson v. Winslow, Wythe’s Reports, p. 114, 119 (1792). 34 Wythe’s Reports, p. 123, 125, 126 (1791). 35 Wythe’s opinion was followed by Judge George Hay Lee (1808 – 1873) in Taylor v. Yarbrough, 54 Va. (13 Gratt.) 183, 189 (1856). 36 Wythe’s Reports, p. 129, 131, 132 (1791). 37 Turpin v. Turpin, Wythe’s Reports, p. 137, 142 (1791). 38 Wythe’s Reports, p. 183 (1793). 39 Yates v. Salle, Wythe’s Reports, pp. 163, 168 (1792), citing Digesta Justiniani, 50.17.206. 32 33

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that a contract entered into through a mistake should not be enforced40, and that the Roman praetor could appoint a curator for a prodigal41. Aside from George Wythe, it is only occasionally that the civil law of Rome is referred to. In a survey of the period 1776 to 1861 only two judges and one attorney are seen to cite it in court more than a couple of times. Judge John W. Green (1781 – 1834), who sat on the Court of Appeals from 1822 to 1834, cited the Corpus Iuris Civilis at least eight times, Domat three times, and Vulteius twice42. Judge Peter Lyons (1734 – 1809), a judge from 1779 to 1809, referred to civilian treatises seven times43. Daniel Call (1765 – 1840), a distinguished member of the early nineteenth-century Virginia bar, also made use of the secondary civil law sources often44. However, a large number of lawyers and judges cited the Roman law only once or twice in passing. The works most frequently mentioned were the standard texts by Domat, Pothier, Grotius, Vattel, and Pufendorf. The points of law most frequently buttressed by civilian authority involved questions of international law, contracts, suretyship and mortgages, illegitimacy, and slavery. No judge or attorney seems to have resorted to the Roman law as often or as enthusiastically as George Wythe. The rest of the Virginia legal profession used it primarily by way of comparison or as authority where there was no Virginia or English case on point at all. The general opinion seems to be well stated by Judge John W. Green, who said, “If we doubted whether the rule of the civil law or that of the common law were most just or convenient, we should be bound to adhere to the latter”45. Nevertheless, when a crucial point involving a Roman law principle was raised, the bench and the bar could discuss the civil law with understanding and depth. Problems of citizenship and treaties were discussed in Read v. Read46 and Murray v. McCarty47 with references to Vattel, Domat, Grotius, Pufendorf, and Heineccius. 40 Field v. Harrison, Wythe’s Reports, pp. 273, 289 (1794), citing Digesta Justiniani, 50. 17. 116.2. 41 Hinde v. Pendleton, Wythe’s Reports, pp. 354, 357 (1791), citing Institutiones Justiniani, 1.23.3. 42 23 Va. (2 Rand.) 150, 241, 242, 319; 24 Va. (3 Rand.) 260, 345; 25 Va. (4 Rand.) 7, 372, 638; 27 Va. (6 Rand.) 335, 337, 338, 560, 657. 43 5 Va. (1 Call) 317; 8 Va. (4 Call) 401; 9 Va. (5 Call) 230; 10 Va. (6 Call) 180. 44 7 Va. (3 Call) 94; 9 Va. (5 Call) 375, citing Bynkershoek; 11 Va. (1 Hen. & M.) 147; 14 Va. (4 Hen. & M.) 317; 15 Va. (1 Munf.) 305; 17 Va. (3 Munf.) 589; 19 Va. (5 Munf.) 446. 45 Wilson v. Shackleford, 25 Va. (4 Rand.) 5, 8 (1826). Chancellor Creed Taylor (1766 – 1836) was a minority of one when he said, “while I have not less respect for English Judges and English opinions, than other gentlemen; yet I have too much regard for myself, and the national character of my country to rely upon English books, farther than for information merely, but not as authority: it was the common law we adopted, and not English decisions; and we should take the standard of that law, namely, that we would live honestly, should hurt nobody, and should render to every one his due, for our judicial guide.” Marks v. Morris, 14 Va. (4 Hen. & M.) 463 (1809) (quoting Institutiones Justiniani, 1.1.3). 46 9 Va. (5 Call) 160, 201, 209, 213, 221, 230 (1804).

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The Roman law of slavery as expounded in the Institutiones and Digesta of Justinian and by Vattel was mentioned in Maria v. Surbaugh48 and Commonwealth v. Turner.49 Justinian, Domat, Pothier, and Gothofredus were relied upon in Towner v. Lane50 to determine how the profits of a partnership should be apportioned in the absence of an express agreement. The international law of boundaries as expounded by Vattel and Grotius was discussed at length in Garner’s Case51 to determine whether a crime committed at the northern edge of the Ohio River took place in Virginia. Turning to the secondary legal literature of Virginia, we find a great paucity of use of the civilian law. This is to be noted because, in ancient Rome and in modern Europe, the scholarly literature of the civil law was its major means of propagation and growth. The most optimistic note to be found in Virginia is in a letter of Professor John Tayloe Lomax (1781 – 1862) of the University of Virginia to Robert M. T. Hunter (1809 – 1887). Lomax wrote in 1829, “I would recommend to you to study Pothier on Obligations by Evans. The Civil Law is destined, if I mistake not, to have much influence in ameliorating our system of jurisprudence”52. The other nineteenth-century Virginia jurists, however, showed little or no interest in Roman or continental law. In particular, the scholarly works to be examined are those of St. George Tucker (1752 – 1827) and of his son Henry St. George Tucker (1780 – 1848). The elder Tucker succeeded George Wythe as professor of law at William and Mary College; both Tuckers were law teachers, writers, and judges. Neither of these eminent jurists relied significantly on the civil law for any purpose. Occasionally, there can be found in their writings a reference or two to Justinian, but it turns out that these were taken from Blackstone; occasionally the younger Tucker referred to Pothier or Grotius. In general, however, they both ignored Roman law ideas. William Green (1806 – 1880), who wrote and practiced law in the middle decades of the nineteenth century, cited the civil law regularly throughout his scholarly essays. For example, in his notes and comments to Wythe’s Reports, he used it extensively but only comparatively. In addition to the compilations of Justinian, 16 Va. (2 Munf.) 393, 397, 398 (1811). 23 Va. (2 Rand.) 228, 241, 242 (1824); this leading case and the civil law rule partus sequitur ventrem were discussed in Patterson v. Franklin, 34 Va. (7 Leigh) 590, 592 (1836); Poindexter v. Davis, 47 Va. (6 Gratt.) 481, 508 (1850); Wood v. Humphreys, 53 Va. (12 Gratt.) 333, 345, 346 (1855). 49 26 Va. (5 Rand.) 678, 683, 687, 688 (1827). 50 36 Va. (9 Leigh) 262, 268 – 271 (1838). 51 44 Va. (3 Gratt.) 655, 667, 670 – 672, 679, 685 – 687, 699 – 704, 708 – 713, 737, 781 – 782 (1846). 52 W. H. Bryson ed., Essays on Legal Education in Nineteenth Century Virginia (1998), p. 58. 47 48

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Green quoted from Bynkershoek, Domat, Huberus, Mackenzie, Pothier, Stair, Vinnius, and Vulteius. Green was followed by another Virginia jurist of the first rank, Professor John B. Minor (1813 – 1895). Minor had a high regard for Roman law and recommended that practicing attorneys have in their working libraries Cooper’s edition of Justinian’s Institutiones and the Corpus Juris Civilis53. Although Minor appears not to have had a very deep background in Roman law, he included citations here and there to it in his monumental encyclopedia of Virginia law54. These citations were included primarily for historical and comparative purposes. There are a couple of references each to Grotius, Pothier, and Vattel; all the others are to the Institutiones and Digesta of Justinian. In comparison with the size of the entire work, these references are few indeed. The last scholar to be noted is Judge Beverley Tucker Crump (1854 – 1930), a Richmonder who studied the civil law at the universities of Goettingen and Berlin55. When Crump returned to Virginia after his studies in Germany, he published in the Virginia Law Journal an article entitled “The Value of Roman Law to the Modern World”. This was a translation of an essay by Rudolph von Jhering (1818 – 1892)56. Crump, in an article on guardians ad litem which he wrote in 1898, discussed the Roman law origins of the subject.57 Although these articles were no doubt read by the legal profession in Virginia, they do not appear to have effected any revival of Roman law studies. In summary, it can be clearly stated that the height of Roman law in Virginia occurred in the period of 1776 to about 1830. Neither before nor since was it very much in vogue. George Wythe, the teacher and judge, probably had a lot to do with its popularity at that time; on the other hand, William Green, the legal antiquarian of a later generation, was revered but not emulated. Perhaps this decline in Roman law scholarship in Virginia reflects a trend in the legal profession away from the study of political philosophy and jurisprudence and towards commercial expertise and technical proficiency. It is interesting to note a similar decline in interest in the Roman law in other parts of the United States, as pointed out by Professor Peter 53 J. B. Minor, Institutes, vol. 3 (1895), part 2, p. 1219. In 1850, when Minor prepared a detailed program of reading for a young law student, he ignored the civil law. W. H. Bryson ed., Essays on Legal Education in Nineteenth Century Virginia (1998), pp. 151 – 156 (letter to W. W. Henry, 7 August 1850). 54 J. B. Minor, Institutes (1891 – 1895), 4 vols. in 6, especially in his discussion of mercantile law in vol. 3, part 2. 55 H. C. Riely, Beverley Tucker Crump, Virginia State Bar Assn. Repts., vol. 42 (1930), p. 207 – 208; G. H. Gilliam, Crump, Beverley Tucker, in Dictionary of Virginia Biography, vol. 3 (2006), p. 582 – 583. 56 B. T. Crump, The Value of Roman Law to the Modern World, Virginia Law Journal, vol. 4 (1880), p. 453 – 464. 57 B. T. Crump, The Guardian ad Litem, in Virginia State Bar Assn. Repts., vol. 11 (1898), p. 277, p. 285 – 286.

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Stein58. It is more likely, however, that it was easier to meet the ever-changing needs of society by developing the English common law rather than by borrowing the Roman law rules, which were foreign to the existing foundation. Moreover, as the nineteenth century progressed, the body of Virginia case law accumulated. As the quantity of Virginia precedents increased, it became less necessary and then unnecessary to cite English cases, to rely on first principles, or to argue from the civil law of Imperial Rome. The rules of the civil law, however, are reasonable and respectable, as George Wythe pointed out, even if they do not have for Virginia the same authority as the English common law. During the first fifty years or so of republican Virginia, many Roman law concepts became incorporated into the body of Virginia case law, as we have seen, and, in this limited form, the Roman law survives today in Virginia.

58 P. G. Stein, The Attraction of the Civil Law in Post-Revolutionary America, Virginia Law Review, vol. 52 (1966), p. 403 – 434.

JEAN-LOUIS HALPÉRIN

Foreign Law in French Courts from 1804 to 1945, with the Example of the Law of Trusts The modern history of foreign law in French courts is linked with the evolution of an old country unified and centralized in rather early times. It is well known that the kingdom of France, as constituted since the Middle Ages and strengthened during the XVIth and the XVIIth century, has developed a kind of legal pluralism with territorial customs, Roman law, canon law and royal ordinances equally recognized as binding rules. For this reason, the “ancient law” of the Ancien Regime has experienced situations of conflicts of laws, which one can compare with the present questions of private international law. For judges before the French Revolution, the custom of another jurisdiction could be analyzed as “foreign law”. But even for a court of the South of France, the custom of Brittany was not completely “foreign law”. Brittany and Provence were parts of the same kingdom and all the rules of the ancient law have been accepted in the kingdom with the sanction of the royal authority. If it could arrive that a nationalist reaction treated Roman or canon law as a law of foreign origin – that is from Italy – this phenomenon was rather marginal. There was not in France – for evident religious reasons – an allergy for all that was suspected to be “popish” like in Modern England. For French lawyers the Roman law has been “tolerated” – as a kind of local custom, specially for the inhabitants of the South of the kingdom – by the kings of France since the XIVth century and all rule of canon law had to be “received” in France to be enforced by the courts. Around the king there was a formal unification of all the sources of law and the feeling of the existence of a French Law has been strengthened by lawyers since the invention of the expression “droit français” during the XVIth century. The establishment of professors of French Law by Louis XIV in 1679 has strongly contributed to this idea of a national law: there was already a French legal order, even if it was a “decentralized” order to use the term of Kelsen. The “foreign law” was reduced to cases involving new annexed territories or persons who have not the quality to be subject of the kingdom of France (“regnicole”). The French Revolution and the Napoleonic codification have stressed this identification of the national law, with the burst of a new conception of the legal rules nearly confused with statute law. One must not underestimate the break of the legal tradition that constitutes the new concept of French nationality in the Civil Code of 1804. Article 3 of the Napoleonic Code – the sole disposition of the codification

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concerning what we call “private international law” – has connected the laws concerning the status and the capacity of persons to the quality of Frenchman. The laws follow the French nationals, even in a foreign country. This one-sided rule links the personal laws with the nationality, ant not with the domicile like in the civilian tradition. The “foreign law” is ignored by the Napoleonic Code and appears to be twice “foreign”: as a rule exterior to the French legal order – now a “centralized” order – and as an element that the courts would not have to know. We must not forget that the Napoleonic Code has been voted in war period – against the United Kingdom – and that it has reduced in its article 11 the civil rights of foreigners living in France according a strict rule of reciprocity. The question of the application of foreign law by French courts is not well known during the nineteenth century, and even the first half of the twentieth century. The French literature about private international law – that begins with the treatise of Foelix in 1843 and is not very important before the Third Republic (the classical treatises of Weiss since 1886) – is not rich with quotations of judicial decisions applying a foreign law. Probably the cases were not very numerous until the second half of the twentieth century. For example, the decisions involving English law are nearly absent until the commerce treatises of 1860 and 1862 between the United Kingdom and France. One must wait for the creation of the Journal du droit international privé (called Clunet from the name of his founder) in 1874 to have a regular report of decisions involving questions of private international law. In this inquiry we have chosen to be interested, first with the construction of the rules governing the use of foreign law in French courts, then with the decisions concerning the trusts, as example of applying foreign law.

I. As article 3 of the Napoleonic Code says nothing about foreign law, the question of the use of foreign law has been resolved, until today, by the judges and the legal writers (what we call “doctrine” in France). It is noticeable that, during the first half of the nineteenth century, the problem was treated with very few decisions and mainly by two or three authors. The first fact can be explained by various factors: the probability (we cannot say more) of a tenuous litigation (involving rather rich litigants with assets in France and outside France), the self-restraint of the Court of cassation, whose judges were probably not eager to integrate foreign law in the control of legal errors (“erreurs de droit” that constitute the function of the Court of cassation with the legal prohibition to decide about facts1) and perhaps the 1 For the importance of the case law of the Court of Cassation, Jean-Louis Halpérin, The Court of Cassation in Nineteenth Century France and the Binding Effect of Rationes Decidendi, in W. Hamilton Bryson, Serge Dauchy, Ratio decidendi. Guiding principles of Judicial Decisions, Berlin, 2006, I, p. 191 – 200, especially p. 194 – 195 for the publication of the decisions by the law reports directed by Jean-Baptiste Sirey, Recueil général des lois et arreêts,

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selection made by the editors of the judgments who could consider this legal question as uninteresting. This third reason can also explain the lack of interest from professors of civil law, the main legal authors as commentators of the Civil Code. The exceptions are lawyers in a particular situation: some specialists of commercial law (like Pardessus who was also judge at the Court of cassation) interested by contracts with foreigners, Merlin de Douai the former general procurator of the Court of Cassation in exile after the collapse of the Napoleonic Empire and Foelix, an advocate of German origin specialized also in this kind of litigation. Chronologically, the 1827 edition (the sixth one) of the Repertoire de jurisprudence of Merlin de Douai is the first and the more influential text about the question2. Merlin was in a special position: as a procurator general during the reign of Napoleon, he was well aware of the case-law since the Napoleonic Code and inside a multinational empire where foreign laws could be applied for questions arising before the introduction of French laws (for instance, in the case Magnocavalli in 18133), as an exile since 1816 (because of the law against the regicides, the deputies who voted the death penalty for the king) he was probably interested with the question concerning foreigners. In the heading “law” of his Repertoire – a kind of legal Dictionary – Merlin is dealing in about twelve pages of the conflict of laws since article 3 of the Napoleonic Code was in force. After repeating the reasons given during the drafting and the vote of the Civil Code about article 3, Merlin writes that it remains many doubts about this article (vol. XVIII, § VI, p. 430). First he considers that, in some cases, one must take account of contracts involving foreigners and subjected to a foreign law. Even real property about French immovable things could be concerned by this kind of contract. Then, article 3 does not speak anything about movable things and Merlin concludes with the legal tradition that they are subjected to the law of the domicile of the owner: in succession law, and Désiré Dalloz, Jurisprudence générale du royaume (quoted as Sirey and Dalloz in the footnotes below). 2 Jean-Marie Pardessus, Cours de droit commercial, Paris, 1816, vol. IV contains a short discussion about commercial contracts concluded abroad, the interpretation of ones could induce French judges to apply foreign law with certificates of lawyers (p. 216 – 221, n° 1491 – 1494). Charles Bonaventure Toullier, one of the first commentators of the Napoleonic Code is very concise about article 3 (three pages, p. 92 – 94 in the first volume of the 1830 edition of his Droit civil français) and does not deal with the question of applying foreign law in a French court. 3 Cass. 1st of Februrary 1813. It is the case of an Italian monk having renounced to a succession in 1758: the Court of cassation quashed the decision of the Court of Genova for a mistake in applying foreign law without deciding if this error of law was a reason to nullify a sentence (Philippe-Antoine Merlin, Répertoire de jurisprudence, 1827, vol. XXVIII, V° Renonciation à succession future, p. 197). Before this decision, Merlin was implicated in two other cases concerning foreign law: in the case Vonhyssen, the decision of the Court of cassation (24th of August 1808) quashed a sentence of the Court of Appeal of Liege adjudging a succession to sisters (with religious vows) contrary to Prussian laws (Merlin, Répertoire de Jurisprudence, 1827, vol. XXXII, V° Succession, p. 269 – 277); in the case Salis-Haldenstein, the Court of cassation used Roman Law for a Swiss subject about fatherhood (Merlin, Répertoire de jurisprudence, 1827, vol.XVII,V°Légitimité, p. 481 – 494).

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some movable things located in France could be attributed according the foreign law of the domicile of the deceased. About these questions, Merlin does no quote the new case law since the Civil Code. It is different when Merlin enters upon the subject of personal laws about status and capacity. He considers as a logical principle (it follows naturally the rule about Frenchmen living abroad, by reciprocity) that the statute and capacity of foreigners living in France must be ruled by their foreign law. And here he is quoting some decisions of the Napoleonic period applying foreign law to personal status. The main reason is drawn from the decision Busqueta of the Court of Appeal of Paris in the beginning of the Restoration (13 June 1814). The process involved a Spanish monk, who has given up his frock, and have married an American woman. This woman has suited to obtain the nullification of the wedding after discovering the precedent status of Busqueta. The suit was introduced in the Paris Court (in first jurisdiction, the Tribunal civil de la Seine), because Busqueta had his domicile in France – probably he fled Spain and took advantage of the military intervention of Napoleon in this country – with the authorization of the French Government (what article 3 of the Code civil calls admission to domicile, giving full civil rights in principle). Contrary to the first judges, the Court of Appeal decided that the marriage was void, because Busqueta remained Spanish and, as a monk, unable to marry. Many things are a bit surprising in this decision. First, the strong language used to denounce the fraudulent attitude of Busqueta (he has fled to avoid the sanctions of his “excess” [“déportements”], he has lived in different cities, he has maintained contacts with the Spanish Embassy and obtained after a loyalty oath the right to return in Spain): the judges did not fear to say that Busqueta was perpetually chained by the laws of his country (“perpétuellement enchaîné par les lois de son pays”), that an authorization to have a residence in France could not “metamorphose” a Spanish in a Frenchman and that a marriage, valid in a country and void in another, would be “monstrous alloy”. Besides this emphasis – probably the apology of the sacred marriage in the context of the Restoration – there is the affirmation that the personal status follows anywhere the foreigner and involves a State interest. Without quoting article 3 of the civil code, the judges have construed this legal disposition by giving a two-sided interpretation of the rule. In consequence, French judges have to apply foreign law in cases concerning the personal status of foreigners. What is extraordinary is that this decision Busqueta became, thanks to Merlin, the unique authority to this rule. In the decisions quoted by legal authors (there can be, of course, other decisions, not published), one must wait some decisions of the years 30s of the nineteenth century about the status of foreign law4, decisions with4 Some decisions are applying foreign law, without quoting article 3 or giving further explanations: Req. 25th of February 1818 (Gnudi vs. Kellermann, about a marriage in Italy, Sirey 1815 – 1818, p. 437), Court of appeal of Nancy, 30th of May 1826 (Poirson, about a marriage in Prussia, Sirey 1825 – 1827), Req. 16th of June 1829 (Cotty de Brécourt) about a marriage in Cuba (according Spanish laws, with an allusion to “consecrated principles about

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out the same character of generality: one of the Court of cassation of the 17th of July 1833 (rejecting the remedy against the decision of the Court of Appeal of Paris, there is no special provision in article 3 about the status of foreigners living in France and the case involving an obligation contracted in France with a real mortgage is subjected to the French law) and another of the 28th of April 1836 (rejecting also the remedy, arguing that French law has to be applied to succession of immovable things located in France). These decisions are rather equivocal. The former (Hervas) was about the senatus-consultum Velleianum, then in force in Spain, that some writers considered as a personal status, others as a real one. The Court of Cassation refused to apply the Spanish Law, arguing that the matter was one of an obligation contracted in France with a real mortgage on a French estate. What is disturbing is the affirmation of the Court of cassation, contrary to the Busqueta case, that article 3 of the Code civil said nothing about the personal status of foreigners living in France and that the refusal of applying foreign law was not a violation of French law. Perhaps, the judges of the Court of cassation did not want to deal with foreign law and prefer that the inferior courts were free to apply or not foreign law to the personal status. The latter decision (Onslow) was about the succession of an Englisham naturalized as French with all his assets in France, except one estate in England donated in England: the question was if this estate was subjected to the French law restraining the freedom of gifts. Rejecting the remedy, the Court of cassation said that if there was perhaps a mistake in the interpretation of English Law, the respect of the French law of successions could not be a violation of French Law in general. If there is some precedent in theses decisions, it is the preference for the national law of the court against any foreign law. At the same time, the Court of Appeal of Paris has decided, three times (in 1831, 1833 and 1839) that, in the case of a marriage of a French woman and a foreigner, any suit (specially about judicial separation) between the spouses (henceforth both foreigners, the wife following the status of her husband) was normally out the competence of the French courts – except if the two litigants accept the French competence, what was not probable for a foreign husband suited by his wife. These decisions contained a superabundant and surprising reason: the judges said that, if they had to judge such cases, they would have to apply foreign law (that is the precedent Busqeta about the personal status) and that the French courts could make gross mistakes about foreign law. The Parisian judges were particularly reluctant to apply a foreign law that they did not know and did not want to know5. When Foelix was writing the first French treaty about international law (first edition in 1843, second in 1847), he had no much judicial material to explain how to deal with foreign law. When he argued for the two-sided interpretation of the the manner of knowing and applying foreign law”, Sirey 1828 – 1830, p. 312), Cass. 25th of September 1829 (Arnold vs. Fontaine) about bills of exchange subjected to English law (Sirey 1828 – 1830, p. 375). 5 Gazette des Tribunaux, n° 3364, 30 June 1836 (decision of the 23th of June 1836) and n° 4438, 29 November 1839 (décision of the 25th of November 1839).

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rule of article 3 concerning personal status (applying their national personal law to foreigners living in France) he quoted first Merlin (without mentioning the Busqueta case, that is surprising), then decisions of courts of appeal (Paris 23 June 1836 and 25 November 1839 in the Gazette des tribunaux, Bordeaux 15 July 1841 D. 1842, 2, 188 applying Spanish law about the age of majority, again in the Gazette des tribunaux) not of the Court of cassation. Probably the principle was not so well established, as proved by the use of the authorities of Pardessus, Toullier, Cubain (Droit des femmes, rather unknown), by the analogy with the Austrian and the Prussian Codes and by rejecting the decision of 1833 (Hervas) in another chapter of the book6. Foelix is also audacious when he considers as a principle that French courts apply foreign laws as facts and that, for this reason, the false interpretation of a foreign law is not sufficient to obtain the decision to be quashed by the Court of cassation. We can say that Foelix is, in France, the “inventor” of this rule based only on three decisions (25 September 1829, then the cases Hervas and Onslow) and the authorities of Pardessus, Story and, last but not the least, Mittermaier. Between the years 1830s and the years 1870s (after the Treatise of Foelix and before the foundation of the Clunet review) several decisions refused to apply foreign law for diverse reasons. One decision of the Paris Court of appeal (17th of June 18347) considered that a foreign young man – under age in his country, but capable in France – could not invoke his personal law for a bill of exchange contracted in France. Another decision of the same court in 1843 refused to take account of a Jeswih divorce according the Polish law, arguing that the question of marriage – one of purity of morals, giving a basis to the family and the whole society – was a matter of public order (a kind of governmental interest) and a reason to set aside the personal status of a foreigner8. Following the path of the precedent of 1834, the famous decision Lizardi, in 18619, affirmed that restrictions and temperaments had to be used towards foreign law when there was a risk of surprise or mistake detrimental for a Frenchman (about the contract with a young Mexican under age according his personal status). In the way chosen by Foelix, the advocate general of the Court of cassation Hello concluded, in a 1843 decision involving the English law of probates and quoting the 1677 Statute of Frauds, that foreign law was a simple fact for French judges and that our supreme court was not the “avenger of a foreign statute”10. 6 Jean-Jacques Gaspard Foelix, Traité de droit international privé, Paris, 1847, p. 133 – 134 with this critical point of view, p. 23 for the quotation of Mittermaier, p. 45 – 46 for the other authorities. 7 Sirey, 1834, 2, 371. 8 Sirey, 1843, 2, 568. 9 Bertrand Ancel, Yves Lequette, Les grands arreêts de la jurisprudence française de droit international privé, Paris, Dalloz, 4e éd., 2001, p. 40. 10 Cass. 6th of February 1843, Sirey, 1843, 1, 217.

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Since the years 1840s there is no more decision refusing by principle to apply foreign law and there is conversely a limited but growing flow of published judgments of the Court of cassation using foreign law: in 1846 about Spanish Law in Cuba concerning marriage and naturalization 11, in 1861 about a marriage concluded in Hesse12, in 1863 about nobility according Spanish law13, in 1868 about an illegitimate child in Germany, in 1872 about the effect of appeal in English law, in 1874 about an Egyptian law relative to the taxes for using the Suez Canal, in 1879 about a probate made in Belgium. Perhaps – but it is difficult to generalize something from the paucity of published decisions – the development of international commerce was the explanation for more cases involving foreign laws in the French courts. Two remarks can be made about this case law. First, it remains some situations where the French judges tried obviously to reject foreign law. For example, in 1868, the Court of cassation affirmed that the prohibition of the judicial research of fatherhood by illegitimate children in the Napoleonic Code – the very hard rule of article 340, defended by French doctrine, but often criticized by foreign lawyers like Zachariae in Germany – was a stringent norm (“d’ordre public”, of public policy) prevalent upon the foreign law of the personal status of the plaintiff (here the laws of Brunswick)14. Secondly, in almost all the decisions the Court of cassation seized the opportunity to say that the violation or the false interpretation of foreign law was not a reason to annul the decision of the judges, except if there was a direct infringement of French law. This rationale, present in decisions of 1846 (the Cuban marriage), 1861 (the Hessian marriage), 1868 (the Brunswick illegitimate child), 1872 (the effect of an appeal against an executory decision of the British Chancery)15, 1874 (the Suez Canal tax)16, 1885 (the bankruptcy of a British company in Marseille17) and 1886 (the marriage of Jewish people from Morocco in Algeria18), is repeated as a standardized formula: the violation of foreign law, if not an infringement of French law, is perhaps a bad judgment, but not a void judgment. One can say that it is now a real case law with a serial of precedents, particularly in the years 1872 – 1874, among them at least three decisions influenced by the conclusions of the Advocate General Reverchon. This member of the public prosecution in the Court of cassation was probably the initiator of the first reason given in one the 1874 judicial ruling: the Court of cassation “has been created for maintaining the unity of French law by the uniformity of jurisprudence and has no mission for redressing the false application of foreign law”19. In the Suez Canal navigation tax affair, Reverchon concluded that in the 11 12 13 14 15 16 17 18

Req. 9th of November 1846, Sirey, 1847, 1, 55. Req. 15th of April 1861, Dalloz, 1861, 1, 420. Civ. 15th of June 1863, Dalloz, 1863, 1, 313. Req. 25th of May 1868, Sirey, 1868, 1, 365. Req. 4 th of June 1872, Sirey, 1872, 1, 160. Req. 23 th of February 1871, Sirey, 1874, 1, 145. Req. 29 th of April 1885, Sirey, 1886, 1, 118. Req. 18 th of May 1886, Sirey, 1886, 1, 243.

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case of a foreign law referring to a French statute (the Egyptian “firman” has adopted the French measure for the tonnage of ships), this French statute was transformed in a foreign law and its misinterpretation was not a reason to quash a French decision. This case law supported very small exceptions, when the Civil code have recognized the validity of acts written abroad, for example a marriage involving French people according the laws of the place of the marriage (art. 47 and 170) or a will in the same circunstances (art. 999). As a forerunner of the internationalist doctrin of foreign law integrated in national law by the conflict rule (a thesis defended in France by Lainé in 1907), the Advocate General Reverchon said in 1874 that in this hypothesis the foreign law became accidentally a French law. This exception explains the only case where the Court of cassation considered the eventuality of quashing a judgment for false interpertation of the foreign law: it was, in 1879, for a Belgian Law, that means the same article of the Napoleonic Code about the forms of wills20. The exception confirmed the rule of foreign law assimilated to a fact. About this rule created by the judges of the Court of cassation, one can say that practical reasons – the difficulties to know foreign law and the wish of the higher judges not to lose times in building up precedents by interpreting foreign statutes – were probably more important than the theoretical ones. Precisely, on the doctrinal front, this case law did not receive a complete assent, when the specialists of international private law began to develop this subject as an academical one. The first direct attack – after some reserves expressed by Weiss (1886) – was one of the first articles by Ambroise Colin (1890), then a young professor (since 1887). In the Clunet review21, Colin affirmed that the judiciary policy of the Court of cassation was inconsistent with the conflict rule – the obligation to apply foreign law in cases implying personal status of foreigners _, the idea that the French law appropriated the foreign statute, the case law about personal status in French colonies (quoting a 1881 decision for misinterpretation of the Muslim law in the Indian colony of Pondichéry) and another case law about the so-called “return” (“renvoi”, that is the Forgo case judged in 1879, the Bavarian law of successions referring to the French law as law of domicile of the deceased). Colin proposed to give up a system where the first judges have to apply and interpret foreign law, whereas the higher judges considered themselves not competent in the matter. It is noticeable that Colin’s arguments were approved by the well known specialists of private international law, Weiss, Pillet and Bartin, with different ideas about the territoriality or the universality of the conflict rule22. By the same token, two The end of the formula is already present in the decision of the 15th of April 1861. Civ. Rej. 12 février 1879, Dalloz, 1879, 1, 57. 21 Ambroise Colin, Du recours en cassation pour violation de la loi étrangère, Journal du droit international privé (quoted Clunet), 1890, p. 406 – 414 and p. 794 – 807. 22 André Weiss, Traité théorique et pratique de droit international privé, Paris, 1892, vol. 3, p. 174; Antoine Pillet, Traité pratique de droit international privé, Grenoble-Paris, 1923, 19 20

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doctoral theses – one of 1907 (Micard with a jury composed of Weiss, Lainé and Bartin), the other of 1910 (Rogery with a jury composed of Pillet, Weiss, Colin) – concluded against the case law of the Court of cassation and in favor of a control of the interpretation of foreign law. The difficulties for the judges to know foreign law were set aside, Micard observing that the judges felt competent to appreciate the worth of a work of art. In spite of this doctrinal pressure, the Court of cassation never overruled the ruling about foreign law considered as a fact. The higher judges choose to take no account of the doctrine, repeating without more explanations the same reasons in 189223, 191024 and in 193825. Only one decision of the Court de cassation in 1899 (de Bari, about an illegitimate child of the wife of the count of Bari, young brother of the last Bourbon king of Naples) quashed a judgment of the Court of Appeal of Paris, for applying the French Civil Code to an Italian child. If this unique case law supposed that the judges were compelled to apply foreign law for questions of personal status, it did not change the formula about the absence of control of the application of foreign law26. Finally it was the legal writers to yield during the inter-wars period. Probably it was difficult for the Court of cassation to decide an overruling, without political pressure. Perhaps, the judges thought that it was not necessary to change a case law comparable to those of German, British and American Courts as described by the doctrine. The result was the absence of a judicial policy about the interpretation of foreign law. Whereas the conflict rule was, for the major part (because of the laconic article 3 of the Code) judge made law, the use of foreign law was left to the lower judges, without guidelines. It was thus impossible to issue a coherent case law about foreign law. Only the Clunet review and the legal writers could present a necessarily incomplete and subjective statement of account of dispersed decisions.

II. One of the reasons to illustrate this French case law about foreign law, during the nineteenth century and the first half of the twentieth century, by the example of trusts is the Clunet publishing of about twenty judgments on this matter between 1880 and 1945. The subject has also the interest of studying how French judges could understand an English and American institution without the help of statute law texts. In his 1890 paper, Colin was wondering at odd conclusions of the Advop. 138 – 131 ; Etienne Bartin, Principes de droit international privé, Paris, 1930, p. 293 – 294 (rejecting the precedent of 1881 about the personal status of Hindus in Pondichéry). 23 Req. 10th of February 1892, Dalloz, 1892, 1, 299 (it is true about foreign railway tariffs and not about a foreign statute law). 24 Civ. 9th of April 1910, Clunet, 1910, p. 1200. 25 Civ. 7th of March 1938, in Ancel, Lequette, op. cit., p. 146. 26 Civ. 17th of January 1899, Clunet, 1899, p. 546.

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cate General of the Belgian Court of Cassation, speaking in 1882 of the impossible control of an unwritten law as the English one, “a body of doctrine of opinions of lawyers difficult to understand”27. At last a few French lawyers took an interest of this question during the years 1900s-1930s: three barristers (Travers, Miss Lion and Lepaulle), one author of a doctoral thesis (Buron in 1938) and only one future law professor (Nast in 190728). It seems to be a fruitful sign of the understanding of English and American law by the French doctrine before World War II. The first published decision, that I have found, about trusts in France is one of the Court of cassation, dating of 1869, that is a few years after the Lizardi decision and before the creation of the Clunet review. The case (Syndics Ferguson v. Guidou) concerned the bankruptcy of an English citizen and the action of the trustees of his wife to sue for the sale of assets in Mexico (I do not know if the French expedition is linked with the competence of French courts, there was probably a commercial bankruptcy in France). The Court of cassation decided to apply the English law: the wife has given the ownership of her assets to trustees (or “fidéicomissaires”) supposed to be (“censés”) the owners of these properties. Probably the judges were informed about this kind of trusts by the pleas in the Court of Appeal of Paris (18th of December 1868) with a book published by Colfavru about English Law of marriage29. It seems likely that one must wait the period of the Second Empire to see English or American people, rather rich, creating trusts with some assets in France. About twenty years later, the first cases about succession or patrimonial relations between married people were judged by French courts. The first example related in the Clunet review, in 1880, is related to the marriage between the count of Palikao (General Cousin Montauban 1830 – 1889, son of last Prime Minister of Napoleon the Third) and Jane Wright Butterfield, an Englishwoman, beneficiary of a trust settled in Paris in the office of the British Consulate. The civil Court of Paris (Tribunal civil de la Seine) decided that the succession taxes (for an amount of more than 20 000 francs) were owed to the French fiscal administration for the properties situated in France30. Then there is talk of a Californian woman (Curdy, 188331) for a will made in the United States about personal property in France, of an English trustee (Royle, 1888) suing in France for movable Colin, op. cit., p. 800, note 1. Marcel Nast, Note sous Trib. Civ. Seine, 16 mars 1906, Revue de droit international privé, 1907, p. 254. 29 Req. 20th of April 1869, Dalloz Périodique, 1870, 1, 99. The book of Jean-Claude Colfavru, Du mariage et du contrat de mariage en Angleterre et aux États-Unis, Paris, 1868, p. 74 – 75 was, just before this decision, one of the first texts to give a definition of the trust for the French lawyers, by translating Stephen on Blackstone. The word «trustee» is also used in a case judged between 1873 and 1879 by the Parisian courts (Tribunal civil de la Seine 1873, then Court of Appeal 28th of January 1879) about patents (the trustees are considered as acquirers of a patent) ; the advocate general Hemar has given some explanations about the notions of trusts in his conclusions: Dalloz, 1880, 2, 105 – 106. 30 Trib. Civ. Seine, 10th of December 1880, Clunet, 1881, p. 435. 31 Court of Appeal of Paris 7th of August 1883, Clunet, 1884, p. 192. 27 28

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properties of an English married woman, of an American husband living in Paris and settlor of a trust in favor of his separated wife (Terry, 1894), of a French composer naturalized English settlor of a testamentary trust (Hervé, 1897), of the sale in France of one of the master piece of a pictures collection settled in a trust in England (Peel and Van der Heydt, 1901), of the capacity of a British wife beneficiary of a trust to sue in France (Gessling vs. Viditz, 1901), of the action of the French bearer of bonds of a British Company without the help of the trustees of the creditors (Kerr, 1905), of the French widow of Isaac Meritt Singer (the inventor and manufacturer of sewing-machine, Sohège vs. Singer, 1906), or of the Charities Trust settled by a French citizen in favor of the International Arbitration and Peace Association (Dieudonné, 1909, it is the only case, before World War I, of a trust settled by a Frenchman). One can see that these first cases involved wealthy English or American families with French connections rather than commercial companies established in France. The big sums at stake could explain the recourse to French courts, and in some cases, to very well known barristers (like Betolaud in the Curdy case, Barboux in the Peel and Van der Heydt affair, or Poincaré and Cruppi in the Singer affair). In this series of cases, the French judges (in most of the cases in Paris) had to understand the notion a trust, whereas there was no much literature in French about this subject – first, we think a book of Ernest Lehr (1885, then second edition in 1906 with Dumas)32. Like in other suits concerning the application of foreign law, the judges had to rely upon custom certificates furnished by lawyers, probably at the request of the litigants33. No English legal writer, and of course no English or American statute, is quoted in the reasons of these decisions. The tendency of French judges was to compare the trust with a French institution of the Napoleonic Code and to use terms like “fidéicommis” (Palikao, 1881, “trustees or fidéicommissaires”), “mandate” (with the signification of agency, also in the decisions Palikao 1881, Les Fils de Jean Mathieu 1894, Peel and Vand der Heydt 1901, Kerr 1905 and 190834), “curators” (Terry, 1894) or “testamentary executors” (trib. Seine 5th of March 1897, trib. Nice 3th of May 1905). One decision speaks of a “pact mixing the separation of ownership and the dotal system” for married women (1888, Royle). As a result of this brief analysis, the ownership of the trustees seemed unknown by the French judges: trustees were considered as representatives (or agents) of the beneficiaries who were seen as the real owners of the (personal or real) assets (Palikao, 1880 for explaining that the fiscal administration could tax assets remained in the wife’s patrimony; Terry, 1894, to say that the debtor was yet the husband settlor of the trust and not the trustee; Hervé, 1901, for considering the trustees as testamentary executors). 32 33 34

Ernest Lehr, Éléments de droit civil anglais, Paris, 1885, p. 268 – 309 about trusts. For example, Tribunal civil de la Seine, 8th of August 1888, Clunet, 1889, p. 635. Cass. 19th of February 1908, Clunet, 1912, p. 244.

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The French judges considered the transfer of ownership to the trustees as a “fiction” and seemed to misunderstand the nature of the trusts. For example, in the Robert Peel and Van der Heydt case, the Parisian judges said that the intention of the setllor was never to transfer property to trustees: an analysis that is surprising for an English or American lawyer and could be explained by the reluctance of French jurists to divide property between legal and equitable interests. According to Travers35, the judges denature the English or American institution, probably more by ease than by ignorance. We would be more indulgent for this case law. First, French courts arrived in a few years to rather clear conclusions in this problem of private international law. Two principles were set up by these decisions. The former of theses principles considered that a trust settled by a foreigner (generally but not necessary in a deed of settlement contracted outside France, in the Singer case the settlor of the trust was borne French but became American by marriage) was valid for assets situated outside France (Curdy 1883). The latter was much more restrictive for trusts with assets situated in France, particularly with real property submitted to the “lex rei sitae”, that means French law with its “ordre public” (public policy) involving succession rules (reserved portion for children and parents, prohibition of substitutions). For personal property, the problem was rather about clauses of inalienability unknown in France (1901 Robert Peel and Van der Heydt case).Theses principles were applied with a good knowledge of the conflict rules based on article 3 of the Napoleonic Code and were consistent with the recognition of institutions created by foreign law (with vested rights). Trusts settled outside France were submitted to foreign law, except for real property located in France. Trusts settled by a Frenchman (like in the Dieudonné case) could not exist, because there was no comparable French qualification for trusts: it was a “pure English institution”36. The outcome of the judicial cases was the same of the Travers’ one in his 1909 study37. Second, the analysis of the trustee is not so erroneous that it could appear prima facie. For instance, in the Palikao decision (the first of the series), it was not stupid to say – before the 1882 Married Women’s Property Act – that giving to trustees the assets of the married woman was a means to prevent the abuse of the husband38. This was a kind of functional analysis, not so far our modern prospects. 35 Maurice Travers, De la validité, au point de vue du droit français, des trusts créés par des étrangers sur des biens soumis à la loi française ou par des Français sur les biens situés hors de France, Revue de droit international privé 1909, p. 521. 36 In the Dieudonné case, the conclusions of the Advocate General Bouchot are particularly clear : the situation created by the trust has no equivalent in French law, it is neither a dismembered property nor an usufruct or a substitution, Clunet 1910, p. 1160. 37 Travers, op. cit., p. 527 – 528 (quoting Lewin and Underhill and rejecting the idea defended by Nast of a “dominium utile” for the beneficiary): the words of trust and legal ownership cannot be translated in French.

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Third, the French Judges tried conscientiously to get documents and to acquire some knowledge about trusts. According the reasons of the Palikao decision the construction of the trust was “confirmed by the opinion of English and French jurists recognizing the trust as a remedy of equity (“un expédient d’équité”) . . . to avoid the rigorous effect of the English Law about married woman property”. Probably the French judges have read something about the development of trusts, what was not so easy in France in 188039. The definition of the trust as a remedy of equity was used again in the Robert Peel and Vand der Heydt case (1901). The effort for a better understanding of trusts is particularly visible in two 1906 and 1909 cases in which the same Adocate General, Brouchot, gave conclusions for the public ministry. In the Singer case – provoked by the third marriage of Isabelle Eugénie Boyer, first married with Isaac Merrit Singer, settlor of a trust in favor of her children – the judges have well understood that the settlor of the trust has transferred the property of stock actions to the trustees. In the Dieudonné case, the situation was rather complicated by other factors: the French nationality of the settlor (named Thibault, the plaintiffs were his nieces, two misses Dieudonné), the creation of a charity trust by a will written in France, the legacy to an English association (the “International Arbitration and Peace Association”) in favor of international peace. Many lawyers were admitted as witness, among them Professor Louis Renault, the well-known internationalist (rewarded by the Nobel prize in 1907). The Avocate General Brouchot spoke at lengths about the law of foundations – a very debated question in this time in France, with a gap in the law (he quotes the well-known thesis of Geouffre de La Pradelle, a book of another judge about the international notion of foundation and the works of professors like Lainé and Lyon-Caen) –, used the advices of the French lawyer of the French Embassy in London (Astoul) and of an English barrister (sir Thomas Barclay) and explained in three pages what was a trust (and specially a charity trust). Here again, English law (the Mortmain and charitable uses act of 1888) and English lawyers (The Dictionary of Charles Sweet) are correctly quoted. It was difficult to reclaim more information, except perhaps the knowledge of the 1907 thesis of Jean Escarra about English Charities40. There was a real desire to understand the nature of trusts, even if nationalist considerations were not absent: the Avocate General Brouchot said that the matter 38 “Une fiction à laquelle la femme est autorisée à recourir par les usages anglais pour soustraire ses biens aux droits de la propriété absolue . . . qui sont accordés au mari par la loi anglaise sur la totalité du patrimoine de l’épouse”, said the Court. 39 Beyond the French translations of Blakckstone (not very precise about trusts, in his book II, chapter 20), we know only the book of Alexandre Laya, Droit anglais ou résumé de la législation anglaise sous forme de codes, Paris, 1845, vol. I, p. 359 – 360 with a short development about trust (defined as a commission to administer the assets and interests of another person). 40 Jean Escarra, Les Fondations anglaises (étude de droit comparé), doctoral thesis, Paris, 1907.

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was of a “French fortune” and that there could be dangerous to favor a legacy for an antimilitarist association. Does the situation change with the First World War, the alliance with Great Britain and America and the development of trusts in France during the 1920s and the 1930s? One decision of the Parisian Court in 1916 is rather the confirmation of the prudent attitude of French courts towards the qualification of a British trust41. A British citizen has made a will with a trust in favor of his son, then in favor of his grand-children (the revenues of the assets have to be distributed by the trustees). The court said the interpretation of the will as a substitution was wrong, because there was no transfer of the property of assets, first to the son, then to the grand-children. It was not a good method to make an “approximate translation” of the trust. However, the French judges continue to consider that the trustees were mandataries and not really owners of the assets submitted to the trust. The institution was rather compared, that was very new in France, with a kind of “fiduciary duty” (“une charge de restitution ou fiducie”) for the trustees. Another decision of the court of Nice (the litigation was about the sale of a “villa” in Cannes) in 1928 shows also a good knowledge of the principle of the American law of trusts (the trustees have the duty to sale a real property abroad for distributing revenues to the minors who are beneficiary) and a new approach of the “public policy” (“ordre public”) in France. The judges (who were not Parisian ones, accustomed to trusts) decided to apply the American law (of Rhode Island) of the personal status of minors rather that the “lex loci sitae”, probably because the case was about the “power of agency” of trustees in the sale and not about succession or tax law42. The last decision published in the Clunet review before World War II is also one of a provincial court, the Tribunal civil of Le Mans (20th of November 1934) about a family trust between spouses. The husband, a Bristish citizen (who was soldier during the War, then retired and less rich than his British wife), went from Jersey to France, with the project to take again common life with his wife after a conjugal dispute. A house was bought in Le Mans by the husband, with money coming from the wife. But, some months later, the husband left the wife for a mistress, to whom he sold the French house (that is the conjugal domicile). The mistress tried to eject the wife, who pleaded the nullity of the sale. In long reasons, the French court considered as proved that the husband has bought the house with the wife’s money: he was the “trustee” (again called “fiduciaire”) of his wife. The analysis of the trust is not completely exact through translation: the French judges affirmed that the husband had only the “apparent” ownership of the house, the wife being the “real” owner. The consequences are rather surprising and criticized by the annotation of the decision in the Clunet review. The judges refused to void the sale – although it could appear contra bonas mores – 41 42

Trib. civ. Seine, 19th of December 1916, Clunet, 1917, p. 1069. Trib. civ. Des Alpes-Maritimes, 22nd of February 1928, Clunet, 1929, p. 433.

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and decided only to transcribe the judgment in the sales records, in order to permit that the wife could claim in the future for the ownership of the house. It could seem that the trust could always exist and that a kind of dismemberment of ownership could be possible in France43. Unfortunately there is no more decision published in the Clunet to say if a new case law preferring foreign law to the “lex rei sitae” was in formation. For the inter wars period there is a curious contrast between these few decisions and a new legal literature about the “popularity” of trusts in France: an article in 1923 (Miss Lion in the Clunet44), a little book (of 28 pages) of Raoul Aghion in 193245, the Treatise of Pierre Lepaulle in 193246 and the thesis of Buron in 193847, without forgetting an American paper in the Yale Law Journal in 1930 about “common law express trusts in French law”48. All these texts are speaking of the growing of trusts in France, some of them settled by British or American citizens living in France (or with French securities), others created by French citizens for management of shares or fiscal reasons, and also trusts in German railways and companies with the Dawes and Young plans (inside the reparation question). Therese Lion gave an interesting explanation of the decisions of French courts: she considered that, by denaturing the trust institution, the French judges tried to allow the creation of trusts (with a “liberal” spirit) against the traditional conception of “public policy” (“ordre public”). Can we infer from the absence of decisions in the published reviews that these trusts have provoked no more problems and suits? It is not so likely, because the legal writers are always complaining about difficulties of translation and of understanding of trusts by French judges49. Probably the question did no give the opportunity for a great decision of the Court of cassation. Trusts were now a kind of “law banality” for French judges, what does not mean a true understanding of foreign law, even if the notion was better known than fifty years before. A sad note to finish with this use of the foreign trust law in France: in 1943, during the Vichy Regime, Pierre Lepaulle have studied the law of confiscation of Jewish assets; not only the advocate specialized in American law did not Clunet, 1935, p. 651 – 660. Thérèse Lion, Un Anglais constitue un trust conformément à sa loi, sur des biens situés en France. La loi française doit-elle en reconnaître la validité?, Clunet 1923, p. 677 – 683: the writer (a woman advocate) used the Digest of Jenks and the works of Underhill about trusts. Henri Lévy-Ullmann, Répétitions écrites de droit international privé, Paris, 1935, p. 122 alludes also to an unpublished consultation from Pillet (1921) against the introduction of trusts in France. 45 Raoul Aghion, Le trust juridique anglo-saxon, Paris, 1932 with a preface of the avdocate Travers, author of one of the first French articles about trusts in 1909 (note 33). 46 Pierre Lepaulle, Traité théorique et pratique des trusts en droit interne, en droit fiscal et en droit international, Paris, 1932. 47 Robert Buron, Les obligations du trustee en droit anglais, Paris, 1938. 48 Lindell T. Bates, in Yale Law Journal, vol. 40, 1930, 34 – 52. 49 Lepaulle, op. cit., p. 423 – 424. 43 44

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criticize this anti-Semite legislation, but he tried to justify the process of forced sale of Jewish assets by an extravagant comparison with trusts50. Foreign law, as domestic law, can suffer all the uses.

50 Pierre Lepaulle, L’Aryanisation des entreprises, in Gazette du Palais, 1943, 1; Anna de Vita, Proprietà e persona nella strategia dell’esclusione, in B. Durand, J.-P. Le Crom, A. Somma (ed.), Le droit sous Vichy, Frankfurt am Main, 2006, p. 42 – 43.

GEORGES MARTYN

In Search of Foreign Influences, other than French, in Nineteenth-Century Belgian Court Decisions Introduction1 According to Belgian law, judges have to motivate their decisions. This principle was introduced in the Neuf Départements Réunis, i.e. the former Southern Netherlands under French occupation, and it became a constitutional2 obligation when, in 1831, the Belgian fundamental law was adopted. Although Belgium, from 1830 on, was an independent state, this does not mean that the Belgian juridical system developed independently. It is common knowledge that, in many senses, legal Belgium, in the nineteenth and large part of the twentieth century, was actually nothing more than a province of legal France.3 The short period of the United Kingdom 1 This article has been realized with the support of the research program Interuniversity Attraction Pole P6 / 01 “Justice and Society: Sociopolitical History of Justice Administration in Belgium (1795 – 2005)”, Interuniversity Attraction Poles Program – Belgian State – Belgian Science Policy. 2 Today article 149 of the Belgian Constitution (art. 97 in the original version of 1831). 3 D. Heirbaut, M. Storme, The Belgian legal tradition: from a long quest for legal independence to a longing for dependence?, E. Dirix, Y.-H. Leleu (ed.), The Belgian Reports at the Congress of Utrecht of the International Academy of Comparative Law. Rapports belges au congrès de l’académie internationale de droit comparé à Utrecht. De Belgische rapporten voor het Congres van de «Académie internationale de droit comparé» te Utrecht, Brussels 2006, p. 3 – 43; D. Heirbaut, The Belgian Legal Tradition: Does it Exist?, in H. Bocken, W. De Bondt (ed.), Introduction to Belgian Law, Antwerp 2000, p. 1 – 22. Especially on the judicial system: D. Heirbaut, The Revolution betrayed: the Evolution of the Judicial System in France, Belgium and the Netherlands since the French Revolution, in A. Uzelac, R. Van Rhee (ed.), Public and Private Justice. Dispute resolution in modern societies, Antwerp 2007, p. 55 – 85; E. Holthöfer, Beiträge zur Justizgeschichte der Niederlande, Belgiens und Luxemburgs im 19. und 20. Jahrhundert, in Rechtsprechung. Materialen und Studien. Veröffentlichungen des Max-Planck-Instituts für Europäische Rechtsgeschichte, VI, Frankfurt am Main 1993, p. 54 – 87; For a general introduction to the Belgian legal system in English, see H. Bocken, W. De Bondt (ed.), Introduction to Belgian Law, Antwerp 2000, and C. Bevernage, Belgium (the legal system), in M. Sheridan, J. Cameron (ed.), EC Legal Systems, London 1992. For what concerns the legal profession: G. Martyn, Evoluties en revoluties in de Belgische advocatuur, in D. Heirbaut, X. Rousseaux, K. Velle (ed.), Politieke en sociale geschiedenis van justitie in België van 1830 tot heden. Histoire politique et sociale de la justice en

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of the Netherlands under the rule of King William I, between 1815 and 1830, has left only a few legal traces: the best known exceptions are two short statutes, dated January 10, 1824, on the rights of ‘erfpacht’ (Dutch) / ‘emphythéose’ (French) (some kind of long lease) and ‘opstal’ (Dutch) / ‘droit de superficie’ (French) (a type of right to erect buildings or plants on land owned by another party). Although new ‘Dutch’ codes had been elaborated during the fifteen years of union between the Northern and the Southern Dutch provinces, these never came into force. On the other hand, there was not any effort to return to the old ‘proper’ Ancien Régime law either. In 1830, a new state, Belgium, was created. However, it continued to use the French judicial and administrative institutions as well as the Napoleonic codes. The young Belgian state also continued to use French legal reasoning and interpretative methods, especially in court decisions.4 A lot has been written on this ‘French-Belgian’5 legal culture.6 French was the language of the legal profession and French books and periodicals7 were used at the Belgian universities, bars and Belgique de 1830 à nos jours, Bruges 2004, p. 227 – 255; G. Martyn, B. Quintelier, L’introduction des barreaux de modèle napoléonien dans les Neuf Départements et leur évolution au XIXe siècle, in H. Leuwers (ed.), Juges, avocats et notaires de l’espace Franco-Belge (XVIIIe – XIXe siècles). Expériences spécifiques ou partagées, forthcoming. 4 Reference materials on ‘French-Belgian’ ratio decidendi can be found in the former contribution to the ratio decidendi project, G. Martyn, The Judge and the Formal Sources of Law in the Low Countries (19th – 20th Centuries): From ‘Slave’ to ‘Master’?, W. H. Bryson, S. Dauchy (ed.), Ratio decidendi. Guiding Principles of Judicial Decisions, in Comparative Studies in Continental and Anglo-American Legal History, XXV / 1), Berlin 2006, p. 201 – 222. Since the writing of this article can be added: B. Frydman, Le sens des lois. Histoire de l’interprétation et la raison juridique, Brussels 2005. G. De Maeseneire, Motivering van rechterlijke beslissingen, in Nieuw Juridisch Weekblad 2007, p. 194 – 197, concludes that the Belgian Court of Cassation does not easily annul a court decision because of a problem with its motivation. Whereas most authors describe the methods of interpretation and motivation in civil and administrative matters, B. Maes, De motiveringsverplichting van de rechter, Antwerp 1990, only deals with the motivation of criminal decisions. 5 Even some French authors referred to Belgian doctrine and case law when elaborating on the proper French legislation, e.g. R. Saleilles, Les accidents du travail et la responsabilité civile, Paris 1897. 6 For the concept of ‘legal culture’ is relied on M. Van Hoecke, M. Warrington, Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law, in The International and Comparative Law Quarterly 1998, p. 495 – 536; for Belgium elaborated in M. Van Hoecke, M. Elst, Basic features of the legal system, in Bocken, De Bondt, Introduction, p. 23 – 48. If France and Belgium share the same ‘legal culture’, it is because they share common (unconscious) premises on three levels: the level of epistemology (mainly the question what sources create law), the one of methodology (a common set of interpretation rules and techniques and of argumentation theory) and the one of ideology (a common world view among jurists giving content to vague concepts like good faith, reasonableness, abuse of right, etc.). On the French character of Belgian private law: D. Heirbaut, L’émancipation tardive d’une pupille de la nation française. L’histoire du droit belge aux 19ème et 20ème siècles, in A. Wijffels (ed.), Le Code civil entre ius commune et droit civil européen, Brussels 2005, p. 611 – 642.

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courts. Things only started to change in the twentieth century. Changes came piecemeal after the First World War, when, for instance, an official commission was established to translate the French codes and laws into Dutch8, the official language of the majority of the (Flemish) Belgian citizens. More profound alterations followed after the Second World War and this, to a large extend, was due to the influence of the European9 unification process. Meanwhile, Dutch had been introduced in university teaching, and it is my hypothesis that this educational aspect has been of paramount interest for the growing influence of foreign law, other than French. I shall come back to this point in my conclusion.

I. Research on published court decisions Based on the continuous use of the Napoleonic codes and the references to French case law and doctrine, most authors agree on the fact that nineteenth-century Belgian legal culture was French. Nevertheless, little research has been done on the actual use of French law, and a fortiori of other foreign law, by the Belgian 7 It is important to remark at this point that the Belgian nineteenth century legislation did not protect the copyright of foreign authors. Many French manuals were copied and cheaply sold on the Belgian market, B. Dölemeyer, Urheber- und Verlagsrecht, in H. Coing (ed.), Handbuch der Quellen und Literatur der neueren europaïschen Privatrechtsgeschichte, III / 3, München 1986, p. 3973 – 3976. This was not only the fact for books, but also for articles in periodicals. The Revue des revues de droit (1838 – 1852) published a selection of French articles selected from several French periodicals. For an overview of ‘Belgian French’ publications, see Ch. Verbeke, Belgian law: Bibliographic Guide to Reference Materials, 1803 – 1993, in International Journal of Legal Information 1991, p. 133 – 154; H. Dopp, La contrefaçon des livres français en Belgique, 1830 – 1852, Leuven 1932. 8 G. Martyn, Het Burgerlijk Wetboek en de evolutie van de ‘Vlaamse’ rechtstaal in België, in D. Heirbaut, G. Martyn (ed.), Napoleons nalatenschap. Un héritage Napoléonien. Tweehonderd jaar Burgerlijk Wetboek in België. Bicentenaire du Code civil en Belgique, Mechelen 2005, p. 271 – 300; G. Van Dievoet, Het Nederlands als wetstaal in België in de negentiende en de twintigste eeuw, in Pro Memorie 2003, p. 96 – 118; G. Van Dievoet, Historische beschouwingen over het Nederlands als taal voor de wetgeving in onze gewesten, in Een boek van hen . . . voor ons. Lustrumboek Jura Falconis, Leuven 1974, p. 177 – 187; H. Van Goethem, De Nederlandse rechtstaal in België in de negentiende eeuw, in F. Stevens, D. Van Den Auweele (ed.), ‘Hout voet bij stuk.’ Xenia iuris historiae G. van Dievoet oblata, Leuven 1990, p. 587 – 599; H. Van Goethem, De taaltoestanden in het Vlaams-Belgisch gerecht, 1795 – 1935, Brussels 1990. 9 Actually the ‘European’ process is two processes. On the one hand there are the European Communities and the European Union, with their primary treaty law and secondary statutory law, and on the other hand there is the fundamental rights approach of the European Convention for the Protection of Human Rights, secured by the Strasbourg European Court of Human Rights. On the first influences, see, e.g., J. Wouters, D. Van Eeckhoutte (ed.), Doorwerking van international recht in de Belgische rechtsorde, Antwerp 2006; on the second influences, G. Maes, De doorwerking van verdragsrechtelijk beschermde grondrechten in de Belgische rechtspraak, in Internationale aspecten in de verschillende taken van het recht, Brussels 2005, p. 63 – 126. See also M. Kiikerin, Comparative legal reasoning and European law, in Law and philosophy library, L, Dordrecht 2001.

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courts. There are almost no publications on the factual use of the different sources of law by the judges.10 I have tried to fill up a little bit of this gap by sampling some five hundred court decisions. Before drawing some conclusions from this research, some remarks have to be made on the research method used. I have only looked at published court decisions, and did not make use of judicial archives. This leads to, at least, two dangers of interpreting the data. First, one must always ask oneself why a certain court decision is published: is it because it is representative of what courts normally do, or is it, quite on the contrary, precisely because it is an odd decision? Sometimes, a note under the decision is explicit on this point, but this is only very rarely the case. Another difficulty with these published materials is that, again with only very rare exceptions, only the argumentation (often not complete) and decision of the court itself are given, not the pleadings of the parties. Although a diligent judge answers the arguments of the parties, when the court does not use arguments of foreign law, one cannot be certain that the parties did not use arguments based on foreign law. Second, as matters such as criminal and fiscal law are very legalistic, obliging the judge to apply the legal rule in a strict sense, it is very doubtful whether a judge should also apply arguments of foreign law in these kind of cases. Other branches of public law are hardly elaborated in the nineteenth century. The administrative court of the Council of State was only installed in 1946 and the Constitutional Court, actually its predecessor the Court of Arbitration, was a creation of the 1980s, as a consequence of the ‘defederalisation’ of Belgium.11 New branches like environmental, social security, medicine or sports law are of course undiscovered in the oldest investigated periods. For this reasons, court decisions were examined for three issues of private law. The first topic is the real right of ‘servitude’ (easement or charge on real estate), ruled by the Napoleonic Code (today art. 637 – 710bis), almost unchanged at this point since its introduction in 1804; this means, of course, that one might expect an important influence of French case law and doctrine. The second topic is the right of long lease, aforementioned, introduced only in the post- and even anti-French period of the United Kingdom of the Netherlands. Does this bring along a possible influence of Dutch law? The third topic is neighbour nuisance (and abuse of rights12), a problem not legally regulated at all, 10 One important exception is E. Van Dievoet, Het burgerlijk recht in België en in Nederland van 1800 tot 1940. De rechtsbronnen, Antwerp 1943. 11 In the decisions of these ‘new’ courts, the reasoning is stated more clearly than in the other old supreme court, the Court of Cassation. Part of the explanation for this difference is in the fact that being created more than a century later, the French influence has been diminished. On the other hand, especially for what concerns the Constitutional Court, the aforementioned influence of the Strasbourg Human Rights Court is paramount. 12 Abuse of right is what the court of appeal of Liège in its decision of February 9th 1888 (Pasicrisie 1888, II, p. 154) is referring to, without, at that moment, a general principle on the matter being accepted: “Commet un acte illicite et peut être passible de dommages-intérêts celui

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but created by Belgian jurisprudence and, in the first place, by the Belgian Court of Cassation.13 Did this court get any inspiration from abroad? For each of these topics, I searched for all relevant cases in the legal periodicals14, using the list of headwords at the end of each year. The most important source here is the Pasicrisie, a yearly collection of sentences. Until 1998 there were four volumes a year, containing case law of the Court of Cassation (I)15, of the courts of appeal (II), of the courts of first instance (III), and of the Council of State, as well as of the justices of the peace (IV).16 The Pasicrisie only publishes case law. On the other hand, there are several periodicals publishing doctrine as well as case law. I also sampled La Belgique Judiciaire17 (starting 1842) and the Journal des Tribunaux (starting 1881), two Belgian periodicals published in French. Rechtskundig tijdschrift voor (Vlaamsch) België (only starting 1897), the only nineteenthcentury Flemish periodical18, was of no use, as it only published decisions of lower criminal courts. There was no rule, at that time, obliging parties or judges to use Dutch in the lower and higher civil courts. In the court decisions published in these periodicals and addressing one of the subjects mentioned, I sought explicit referqui n’use de son droit que pour nuire à un tiers, sans aucun profit personnel et en violation du droit de ce tiers.” 13 W. van Gerven, Honderdvijftig jaar rechtsleven: het Belgisch burgerlijk recht, in E. Spanoghe, R. Feenstra (ed.), Honderdvijftig jaar rechtsleven in België en Nederland 1830 – 1980. Preadviezen uitgebracht voor een colloquium georganiseerd door de juridische faculteiten van de universiteiten van Gent en Leiden, Gent, 5 – 7 november 1980, Leiden 1981, p. 35 – 52; S. Stijns, H. Vuye, Zakenrecht. 4. Burenhinder, in Beginselen van Belgisch privaatrecht, V, Antwerp, 2000, especially the pages 1 to 119 for the historical part. 14 “The history of law reviews can be seen as a part of the history of science in general, or of legal science, in particular. However, in Belgium they serve very practical goals, the publication of cases”, D. Heirbaut, Law reviews in Belgium (1763 – 2004): instruments of legal practice and linguistic conflicts, in M. Stolleis, Th. Simon (ed.), Juristische Zeitschriften in Europa, Frankfurt am Main 2006, p. 343 – 367. Heirbaut talks about “the French pattern: the law review as the instrument of the practitioner”, again a feature of the ‘Belgian-French’ legal culture. 15 Compared to today’s judicial activity, there are few cassation decisions relating to civil matters in the nineteenth century, Van Dievoet, De rechtsbronnen, p. 307. 16 While in France the justices of the peace were suppressed in 1958, in Belgium they still exist and their competences grew larger, S. Dauchy, S. Humbert, J.-P. Royer (ed.), Le juge de paix. Actes de la table ronde tenue à Lille le 22 mars 1992, Villeneuve d’Asq 1995; J.-P. Nandrin, Justice de conciliation, proximité et carte judiciaire de 1830 à nos jours. Une comparaison franco-belge, in Revue interdisciplinaire d’études juridiques 1997, p. 85 – 102; J.-P. Nandrin, La justice de paix à l’aube de l’indépendance de la Belgique (1832 – 1848). La professionnalisation d’une fonction judiciaire, Brussels 1998; K. Velle, Het Vredegerecht en de Politierechtbanken in België (1795 – 1995). Organisatie, bevoegdheden en archiefvorming, Brussels 1995. 17 Although the subtitle of this review was ‘Gazette des tribunaux belges et étrangers’, mainly Belgian and French cases were published. The editors claimed they would also publish case law from the Netherlands and Germany, but the foreign cases actually were limited to Swiss, Italian and Luxemburg, namely three countries where the French codes were used. 18 Heirbaut, Law reviews, p. 356.

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ences to foreign law. It might, of course, be possible that a judge was implicitly influenced by foreign law, but this is impossible to prove. On this very point, it must be noted that, “following the French tradition, the reasons stated in Belgian judicial decisions are rather limited”.19 Finally, it has to be pointed out that, as I sought explicit references to foreign law in Belgian cases, these cases are really ‘national’. This excludes, on the one hand, cases of international private law, where foreign law is anyhow applicable, and, on the other hand, ‘old’ cases, dating from before 1830, which by a correct temporal application of the law, have to be solved by old rules. This ‘old’ law very often is customary law or, in case of absence of a customary rule, Roman law. At this last point a very interesting evolution has been described by Georges Macours.20 He has discovered that, during the nineteenth century, Roman law was very often quoted in court decisions, most of the time as some kind of doctrinal authority and linked with an argument of equity. If, on the other hand, old law had to be applied, because of the principle of non retroactivity of the Napoleonic Code, then Roman law comes into the picture, because most codified customs declare that Roman law is to be used for all problems not handled by the custom itself. What Macours discovered is that in the first decades of the Belgian independence, Roman law played this subsidiary role immediately, whereas, after the middle of the nineteenth century, it degraded to a sub-subsidiary system, applied only when the common general custom of the region, as a subsidiary system, did not supply any solution. To a large extent, this evolution is demonstrated by the fact that at university a new course on the old customary law was introduced in 183521 and that some legal history writings, especially the magnum opus of Defacqz22, drew the attention of the jurists to the existence of some kind of old ‘national’ law.23 In the same period, the Royal Commission for the edition of the old laws and ordi19 Van Hoeck, Elst, Basic features, p. 28. “Giving reasons for a judgment is considered to be a formality, rather than an attempt to persuade the losing party that (s)he was wrong ( . . . ) Argumentation in the first place aims at linking the decision with the authority of the legislator”, B. Bouckaert, Hoe gemotiveerd is Cassatie? Pleidooi voor een waarachtig precedentenhof en een hernieuwde motiveringscultuur , in Thorbeckecolleges, XXI, Antwerp 1997, p. 3. The supreme court never refers to doctrine or precedents, eod., p. 23 – 24. 20 G. Macours, De visie van de Belgische 19de-eeuwse rechtspraak op de subsidiare rol van het oude Romeinse recht. Een verkennend onderzoek, in Stevens, Van Den Auweele, ‘Houd voet bij stuk’, p. 253 – 289. 21 R. Verstegen, L’enseignement du droit en Belgique. Evolution de la législation aux XIXe et XXe siècle, in Stevens, Van Den Auweele, ‘Hout voet bij stuk’, p. 182. Compare this with the contrary position of the old ‘Flemish’ law in the jurisdiction of the Parlement de Flandre after the introduction of the 1679 decree of Louis XIV on the compulsory teaching of French law in his whole realm, described by Serge Dauchy and Véronique Demars-Sion in their contribution to this book. 22 E. Defacqz, Ancien droit Belgique, Brussels 1946. 23 It is this same influence of legal teaching, I have also met in my own investigation; “D’un monopole du droit romain à une suprématie contestée du droit civil”, Verstegen, L’enseignement, p. 176 – 183.

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nances of Belgium, in which several higher magistrates played an important role, was founded. Let us not forget that at that very moment the young independent state of Belgium was looking for its own identity!

II. References to foreign law, other than French, are non-existent A first conclusion after having looked into several hundreds of court decisions is that, regardless the subject of the decision and regardless the fact that this subject might be regulated by the (Napoleonic) civil code, any reference to ‘foreign’ law, if existing, is a reference to French law. There is, however, quite an evolution in this use of French law.24 In the first years of Belgian independence, judges were rather curt in motivating their decisions. From the 1850s onwards, court decisions were more broadly motivated, with many references to the preparatory works, for instance, but there was not yet any influence of the upcoming Exegetical School. The influence of the Exegetical School may already be felt in the pleadings of the parties, but not yet among the judges of the 1830s to 1850s.25 If the court felt the need to link its decision to tradition, references were made to Roman law26, but above all to French case law and French authors, especially to Merlin de Douai.27 In the last decades of the nineteenth century, the influence of the Exegetical School became more important, for example advocates and judges tried to avoid the use of general principles, like good faith and equity. The manual of François Laurent, Belgium’s shining star of the Exegetical School, was on every advocate and magistrate’s desk. Still, the most cited authors were Pothier, Merlin and Dalloz. In short, the influence of French doctrine remained paramount. Nevertheless, in 24 At this point I fully confirm the findings of Van Dievoet, De rechtsbronnen, published in the 1940s. 25 D. Heirbaut, Les juges belges face au Code civil aux 19ème et 20ème siècles: l’exemple des troubles de voisinage, in B. Dölemeyer, H. Mohnhaupt, A. Somma (ed.), Richterliche Anwendung des Code civil in seinen europäischen Geltungsbereichen ausserhalb Frankreichs, Frankfurt am Main 2006, p. 263. 26 This means that I cannot agree with Heirbaut, Storme, The Belgian Legal Tradition, 11, when they write: “around 1830, in a second generation, things changed. The old law was still quoted, but it had lost its prestige. In the next generation, from the 1860’s, references to the old law disappear almost completely.” Also Van Dievoet, De rechtsbronnen, p. 297, pointed out that in the 1830s, with still some elder judges educated in the Ancien Régime, references to the Napoleonic codes were illuminated with comparisons to the proper old legal order. 27 Van Dievoet, De rechtsbronnen, p. 309; on Merlin and his works, see H. Leuwers, Merlin de Douai (1754 – 1838). Un juriste en politique, Paris 1996 and J.-J. Clère, Merlin Philippe-Antoine, dit Merlin de Douai, in P. Arabeyre, J.-L. Halpérin, J. Krynen (ed.), Dictionnaire historique des juristes français, XIIe – XXe siècle, Paris 2007, p. 559 – 561.

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decisions of the Court of Cassation, no explicit reference was made to other sources than the Belgian legislation.28 Judgments of lower courts on the other hand cited French and Belgian case law and doctrine, although also in a rather scarce quantity. Anyhow, if the edition committee of the Pasicrisie can be relied on, Belgian judges were inspired by French case law. Although French law was indeed quoted frequently, not all French interpretations were accepted.29 Regarding ‘servitudes’, charges on real estate, the Belgian judges seemed to apply the Napoleonic rules more freely than their French colleagues, especially by trying to rely as much as possible on old customary rules. The right to step on a neighbour’s land to use a ladder to work on one’s own house, for instance, is an old customary rule, not mentioned in the Code civil. According to French jurisprudence it was abolished, but in Belgium, it survives. As the inspiration for this matter is found in the proper national legal history and not one reference to foreign law was made in seventy years (1830 – 1900) of published case law, one must conclude that, concerning ‘servitudes’, foreign influences, other than French, were non-existent in the motivation of the nineteenthcentury judges. Let us then turn to the subject of neighbour nuisance. The actual theory of the balance of property rights was ‘eventually’ established, only in 1960, by the Belgian Court of Cassation. In the nineteenth century, the Belgian supreme court, first tried to solve the problem of the hiatus in the Code civil by continuing to apply the Ancien Régime law. This was, on the one hand, a variety of customary rules on neighbour rights and duties, and on the other, mainly the general prohibition of ‘immissiones’, derived from the Digest rule D.8.5.8.5: in suo enim alii hactenus facere licet, quatenus nihil in alienum immittat.30 The rule was regarded as a general principle and acceptable as argument in court as some kind of written ratio. 28 Only in his third period of investigation, 1931 – 35, Van Dievoet, De rechtsbronnen, p. 341, found out that judges give more references to former decisions and doctrine. 29 Van Dievoet, De rechtsbronnen, p. 377 – 391. In some cases identical legal provisions are interpreted divergently in France and Belgium, like the problem of strict liability (art. 1384 Code civil) or that of the seller’s warranty for hidden defects (art. 1648 Cc), ULB Faculté de droit (ed.), Obligations en droit français et en droit belge. Convergences et divergences, Brussels 1993. 30 Aristo cerellio vitali respondit non putare se ex taberna casiaria fumum in superiora aedificia iure immitti posse, nisi ei rei servitutem talem admittit. idemque ait: et ex superiore in inferiora non aquam, non quid aliud immitti licet: in suo enim alii hactenus facere licet, quatenus nihil in alienum immittat, fumi autem sicut aquae esse immissionem: posse igitur superiorem cum inferiore agere ius illi non esse id ita facere. alfenum denique scribere ait posse ita agi ius illi non esse in suo lapidem caedere, ut in meum fundum fragmenta cadant. dicit igitur aristo eum, qui tabernam casiariam a minturnensibus conduxit, a superiore prohiberi posse fumum immittere, sed minturnenses ei ex conducto teneri: agique sic posse dicit cum eo, qui eum fumum immittat, ius ei non esse fumum immittere. ergo per contrarium agi poterit ius esse fumum immittere: quod et ipsum videtur aristo probare. sed et interdictum uti possidetis poterit locum habere, si quis prohibeatur, qualiter velit, suo uti.

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In the middle of the nineteenth century, judges did their best to frame this ancient law within the Code civil framework. In the judge’s view, it was not prohibited to use this old law, because, although not explicitly mentioned in the Napoleonic code, it was in conformity with it. More exactly, the Roman law prohibition of immissiones was accepted to be in harmony with articles 544 and 1382.31 It is highly likely that the attention given to the code may be seen as an expression of the growing influence of the Exegetical School. After the 1860s, explicit references to Roman law became very scarce and, if there were still any reference to older authors, this was commonly nothing more than a single reference to the French author Pothier. Courts sufficed by referring to their own and especially Cassation case law. Even contemporary authors were not cited. References to foreign legal systems were completely non-existent.32 For all three topics investigated, we clearly can conclude that there was a complete lack of non-French foreign influence on nineteenth-century Belgian court decisions. Any other foreign influences cannot be found.

III. Not only case law, but also general ‘legal culture’ Many other sources confirm the trend revealed in the published case law. In their well-known manual for lawyers, Duchaîne and Picard33, for instance, give advice on what young lawyers should learn: general repertories like the French Dalloz (adapted for Belgium), Belgian series of case law and “après avoir épuisé la jurisprudence belge, on passe à la jurisprudence française”.34 And even in the 1990s, an elementary bibliographical guide to Belgian law, still refers to “French classical manuals of civil law, still useful in the Belgian legal system”.35 ‘Genetically’ D. Heirbaut, Les juges belges, p. 263. At the end of the nineteenth century, Belgian case law on neighbour nuisance really lacked any legal basis, Heirbaut, Les juges belges. It was from the 1930s onwards that, in interaction between doctrine and courts, the ‘balance theory’ was constructed, to be finally approved by the Court of Cassation in 1960. On this cooperation, see E. Cerexhe, La mission des revues juridiques. Réflexions sur le rôle de la jurisprudence et de la doctrine dans l’évolution du droit, in Revue régionale de droit 1992, p. 5 – 7. 33 Edmond Picard has rather pompously been called ‘le colosse du barreau belge’ and his importance, as a founding father of legal periodicals and of a huge encyclopaedia of Belgian law, as well as a practising ‘avocat’ and member of parliament, can indeed not be underestimated. B. Coppein, Edmond Picard (1836 – 1924), avocat bruxellois et belge par excellence de la deuxème moitié du XIXe siècle, in V. Bernaudeau, J.-P. Nandrin, B. Rochet, X. Rousseaux, A. Tixhon (ed.), Les praticiens du droit du Moyen Âge à l’époque contemporaine. Approches prosopographiques (Belgique, Canada, France, Italie, Prusse), Rennes 2008, p. 225 – 237. 34 G. Duchaine, E. Picard, Edmond, Manuel pratique de la profession d’avocat en Belgique, Brussels 1869, p. 366, n° 77. 35 Ch. Malliet, Christoph, Elementaire bibliografie Belgisch recht, Gent 1995, p. 19. 31 32

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speaking, references to French law were of course very normal in Belgium, given the paramount influence of the French legislation and organization introduced between 1795 and 1815. But how can one explain the kind of fear Belgian nineteenth-century judges had for taking elements of foreign law into account when motivating their decisions? As mentioned earlier, it seems that the main reason has to be found in legal education.36 The judicial magistrates in the 1830 newborn state of Belgium, had, with only some rare exceptions, all been taught the French Napoleonic legislation in the Brussels law school, established in 1806. During the nineteenth century, the prominent role of Roman law in legal education was substituted by the civil law as laid down in the Napoleonic monument of 1804. The Exegetical School considered it to be an exclusive source of law. Concerning nineteenth-century legal education, it must be stressed that there was absolutely no place for (an introduction to) comparative law in the university program. The proposal to create a course of comparative law had been debated in 1889, but was rejected by parliament.37 And there are more reasons. If foreign influences had a chance, it was to a great extent via comparing authors. In the nineteenth century though, not only the role of foreign law, but also the influence of doctrine as a whole, was very weak. In his thesis on the Exegetical School, Bouckaert concludes that there was some kind of “divorce” between doctrine and case law.38 At this point, the exemplary role of the supreme court, the Cour de Cassation39, must be underlined. Its decisions were very briefly motivated and only refer to 36 Verstegen, L’enseignement, p. 149 – 192; F. Stevens, Het rechtsonderwijs in België in de 19e eeuw, in J. Th. De Smidt (ed.), Handelingen IXe Nederlands-Belgisch Rechtshistorisch Congres “Rondom Feenstra”, Leiden 1986, p. 57 – 71. 37 Verstegen, L’enseignement, p. 180. Was there, anyhow, any need of foreign inspiration, other than French? It is to be admitted that the aspects of private law investigated are a rather stable part of the legal order. Faced with the problems of industrialization, social law for instance was challenged to be much more creative, although also in this matter explicit references to foreign sources are very scarce. 38 B. Bouckaert, De exegetische school. Een kritische studie van de rechtsbronnen- en interpretatieleer bij de 19de eeuwse commentatoren van de Code Civil, Antwerp 1981, p. 365 – 372. 39 Although the Belgian Court of Cassation was created, to French model, in 1832, it was only in 1954 that the proceeding of decision by the general assembly (in order to avoid antagonisms in the decisions of the different chambers of the court, especially between the Dutch and the French speaking ones) was introduced. J. Du Jardin, Voltallige zittingen voor een eenduidige interpretatie van het recht, in Rechtskundig Weekblad 2001 – 02, p. 649 – 676, calls it the ‘meta-legislative’ power of the court in case of hiatus or vagueness of the law. The abovementioned decisions of 1960 on neighbour nuisance were taken by the general assembly. Similar to the Court of Cassation, the Council of State, the highest administrative court of the country, has a general assembly to decide controversies between the interpretations of the Dutch and French chambers. E.g. R. Houben, De verplichte vermelding van de beroeps-

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legislation. If the Court did not refer to foreign law in its decisions, as today, it often does so in its annual reports, where the public ministry of the court dedicates a chapter to proposals de lege ferenda. To understand the (briefly motivated) decisions better, one should also always consult the more detailed advices of the proctor- or advocate-general. The, often very extensive, conclusions of the public ministry contain many references to Belgian and French case law and doctrine.40 Moreover, there was a strong general influence of French culture outside the legal and judicial environment. The nineteenth-century Belgian elite was Frenchspeaking and even Francophile. Jurists, especially advocates and magistrates were part of this elite and regarded the French culture as the sovereign one. Let us not forget that in the nineteenth century the struggle for self-determination of the Flemish people was just starting. It was only through article 49 of the law of April 10, 1890, sixty years after the independence, that certain categories of magistrates were supposed to have some rudimentary knowledge of the Dutch language. And it was also just in the last decade of the nineteenth century that the first Flemish law review saw the light of day. Finally, one must remember that, until the end of the nineteenth century, there was no real theory of the formal sources of law. National legislation was to be applied, that was all. Could a judge refer to foreign law when he was confronted with a hiatus in national law? For the nineteenth century this seems certainly not to have been the case (keeping well in mind that, for the Belgian jurist, French law was not foreign). Even in the French system it is admitted that the law can not foresee every material problem in detail. Very often, referring to the discours préliminaire of Portalis, the existence of a hiatus in the law was admitted.41 To fill it, one can refer to customs and usages, to case law, to writings of scholars, or to legal mogelijkheden, vormvoorschriften en termijnen bij de Raad van State (art. 19, tweede lid, R.v.St.-Wet), in Rechtskundig Weekblad 2005 – 06, p. 147 – 150; J. Goris, De intrekking van een onwettige rechtsverlenende bestuurshandeling, in Rechtskundig Weekblad 2005 – 06, p. 665 – 666. 40 And only very scarcely refers to other foreign law; several examples in J. Du Jardin, Voltallige zittingen. On the creative role of the Court of Cassation, see also E. Krings, Aspecten van de bijdrage van het Hof van Cassatie tot de rechtsvorming, in Rechtskundig Weekblad 1990 – 91, p. 313 – 325 and p. 345 – 359; R. Janssens, Het Hof van Cassatie van België. Enkele hoofdmomenten van zijn ontwikkeling, in Tijdschrift voor Rechtsgeschiedenis 1977, p. 95 – 116. 41 Ch. Huberlant, Les mécanismes institués pour combler les lacunes de la loi, in Ch. Perelman (ed.), Le problème des lacunes en droit, Brussels 1968, p. 31 – 66, especially 53; P. Foriers, Les lacunes du droit, eod., p. 9 – 29. M. Somerhausen, La motivation et la mission normative du juge, in Ch. Perelman, P. Foriers (ed.), La motivation des décisions de justice, Brussels 1978, p. 23 – 36, investigated ‘gap-filling’ decisions by the Court of Cassation and the Council of State. Techniques used were: analogy with another legal rule, considerations of equity, adaptation to new social needs, common experience, but no foreign examples. R. Legros, Considérations sur les motifs, eod., p. 7 – 22, enumerates (page 12): national law, preparatory works, doctrine, customary law, case law, tradition, morality, natural law, science, logic . . . but no foreign examples either.

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maxims.42 Before the Second World War, Belgian scholars never admitted that foreign (other than French) law could be instructive.43

IV. Change after the Second World War After the War everything changed drastically,44 especially due to the European (and Benelux) context. Lots of ‘foreign’ rules were first of all introduced from a supranational or international level but with direct effect on the member states’ citizens. The globalization of trade and everyday life brought along many ‘clashes’ with foreign legal systems and these underlined the need to get to know the other systems better. After the Second World War, thanks to specifically the BelgianAmerican Educational Foundation, many scholars studied for some period abroad. From the 1980s onwards, the exchange of law students has increased enormously thanks to the European Union Erasmus and Socrates programs. Today, looking over the hedge has become a normal thing to do for a jurist. Both scholars and legislators seem to be very open to influences from abroad. Magistrates still, however, seem to be afraid to refer explicitly to foreign sources. They certainly never quote them as a direct source, neither as a guiding principle nor as ratio decidendi. And if courts do refer to foreign law, it is still, certainly in matters of private law, to the French system at first.45 Even the recently created Constitutional Court, although there is some international tradition in the motivation of constitutional findings, is not fond of referring to other constitutional or international human rights courts.46 However, Flemish courts – i.e. Belgian courts situated in the Flemish speaking region or in Brussels, the bilingual capital, and using Dutch in their procedures – seem to be more receptive to foreign inspiration. Due to language, Dutch and, to a lesser extent, German law is referred to. Dutch legal H. De Page, Traité élémentaire de droit civil, I, Brussels 1963, n° 214. Neither are resolute changes in the interpretation of a rule by the supreme court explicitly motivated by reference to foreign law. A. Vanwelkenhuyzen, La motivation des revirements de jurisprudence, in Perelman, Foriers, La motivation, p. 251 – 286. 44 On influence of foreign law in Belgian case law in the twentieth century, see Heirbaut, Storme, The Belgian Legal Tradition, p. 27 – 28. 45 E.g. the advice of the public ministry of the Court of Cassation in the case that led to the decision of May 25, 2007, about the appreciation of a conditional suspension clause, contains several references to the French Court of Cassation, Rechtskundig Weekblad, 2007 – 08, p. 1034 – 1038. 46 S. Sottiaux, Arbitragehof moet vaker over grens kijken, in De Juristenkrant, n° 141, January 17, 2007. In a reaction to this article, a professor constitutional law, confirmed that there are no explicit references to foreign decisions, but that there is quite some indirect inspiration. The fact that no explicit references are made is explained by the ‘style’ of motivation, that either does not refer tot doctrine, but only to the constitution, the legislation and case law. All this is still a result of the French influence. K. Lemmens, Arbitragehof kijkt wel over de grens, in De Juristenkrant, n° 142, January 31st 2007. 42 43

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figures like ‘rechtsverwerking’47 or ‘marginale toetsing’48 are used in Flemish court decisions. They are not at all, or at least to a much lesser extent, used by French speaking Belgian judges. This is an indication of the fact that the ‘Belgian’ legal culture is being split up into a Flemish and a French one.49 The same statutory provisions are interpreted differently in the French speaking South than in the Flemish (officially ‘Dutch’) speaking North. Just one picturesque example: graffiti painting on the walls of private houses is punished by Flemish judges under a penal statute on ‘damage to fences’, whereas most Walloon judges do not construe this rule in the same broad sense, and thus, do not condemn for the same offence.

Conclusion “If anything, the attitude of Belgian law practitioners towards foreign law is just one more proof of their pragmatism. Foreign law was at first dominant because there was not enough Belgian law to fall back on. This is clear for French law in the nineteenth century, but also for Dutch law in Flanders. As soon as more Belgian material became available foreign law was relegated to the sidelines. What foreign law is used may be determined by political factors, but most of all by language and availability. Belgian lawyers like to read what they can find in their own country and in a language they understand, French in the past, French or Dutch nowadays. So far their attitude is determined less by a ‘national legal tradition’, than by a pragmatic laziness, though it would be better to say that this is their national legal tradition.”50 “For law practitioners, foreign law exists only in so far as it can be accessed in the publications of Belgian authors”.51 If this is still the case at the beginning of the twenty-first century, how much more is it true for the nineteenth, when the young Belgian state had to build up its own national system on French foundations!

47 The general principle of ‘rechtsverwerking’ holds that after a period of having given the impression to the debtor of no longer insisting on being paid, the creditor is no longer allowed to start a judicial action. R. Tjittes, Rechtsverwerking, Deventer 2007. 48 I.e. marginal control, Van Hoecke, Elst, Basic features, p. 24. 49 Van Hoecke, Elst, Basic features, p. 23. 50 Heirbaut, Storme, The Belgian Legal Tradition, p. 19. 51 Heirbaut, Storme, The Belgian Legal Tradition, p. 18.

HEIKKI PIHLAJAMÄKI

“Stick to the Swedish law”: The Use of Foreign Law in Early Modern Sweden and Nineteenth-Century Finland Introduction: A longue durée History of Foreign Law in Sweden-Finland The relationship of the Finnish legal professionals of the nineteenth century toward foreign law as a permissible source of law remains incomprehensible if one begins the account with Finland’s annexation to Russia in 1809. The roots lie much deeper, and that is why I will start the story in the Middle Ages and sketch the principal development lines of the early modern period. It was in the centuries preceding the nineteenth century that the essentials characteristics of the Finnish Rechtsquellenlehre emerged. For not only can we not begin the recounting the history in 1809: it is equally clear that the theoretical and practical attitude of the Swedish and Finnish legal professional toward foreign law as a legal source cannot be separated from what they thought of other legal sources. My main contention runs as follows. In the late Middle Ages and the Early Modern Age the importance of foreign law in Sweden (and Finland, which was included in the concept of Sweden) remained insignificant. This I will explain with two intertwining arguments. First, the Swedish theory of legal sources remained relatively simple all the period, when compared to the much more polysentric systems of law in other parts of Europe. This left the field open for royal statutory law, which assumed a significant position in the Early Modern Period. The statutory law’s paramount status goes hand in hand with the strong, centralized state that the Swedish crown, using the Lutheran Church as its bracchum spirituale, managed to develop in the sixteenth and seventeenth centuries. The lack of competing legal bodies parallels the Swedish early modern society: a relatively homogenous one with weak nobility and weak towns. A result of the strong Swedish state and strong statute law is that Swedish legal order was not particularly open to impulses of clearly foreign origin. Second, the Swedish legal profession remained unimportant in size and social significance all through the Early Modern Period. The polysentric legal universe of the European ius commune owed its existence to professional lawyers. Without them consolidating and defining the distinct bodies of law, customary law included, and the relations between them, law could not emerge truly

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polysentric. Foreign law could have little success without a sizable corps of legal professionals, familiar with foreign legal orders and capable of basing their advice or to their clients or judgments on alien norms. This was the inheritance on which the Finnish national legal scholarship, emerging in the mid-1800s, was built. When the traditional reserved attitude toward foreign law as a source of law joined nineteenth-century legal positivism with national written law as the paramount legal source, little space was, again, left for foreign law, at least as far as the theory of sources is concerned. Foreign law was not, however, wholly insignificant in nineteenth-century Finland, at least if the use of foreign law is understood sensu largo. First, foreign (mainly German and Nordic) law as object for comparative legal studies and as “common heritage of the civilized peoples” was enormously important in the hands of scholars and law-drafters, as the Finnish legal system was modernized during the latter half of the nineteenth century. Second, during the so-called Stateless Night (1809 – 1863), when the Russian emperors did not convene the Finnish Diet, new legislation could not be given. In many fields of law, reforms were nevertheless badly needed and in fact realized in the practice of the high courts and the Judicial Department of the Senate (the Supreme Court), along the lines of European models. As one such reform, the statutory theory of proof (gesetzliche Beweistheorie) was abolished in the legal practice of the 1850s and 1860s. The context of the reform is clear enough from the contemporary international context and domestic legal writings, although the decisive court decisions were never expressly motivated by foreign law. I will start with describing the early modern Swedish attitudes towards foreign law, from the point of view of legislation and jurisprudence, after which I will seek to explain the early modern development in its political and comparative context. The Finnish nineteenth-century experience will then be placed against this early modern Swedish inheritance. Again, I will consider both jurisprudence and legal practice.

I. Attitudes towards Foreign Law in Swedish Seventeenth- and Eighteenth-Century Jurisprudence In 1442, King Christopher’s Law of the Land (Kungabalken, Ch. 5), as the first Swedish statute, took a position towards foreign law. The position was hostile. According to the Law, the newly elected king was to ensure under oath to all the inhabitants of the kingdom that “no foreign law [would be] introduced into the realm to burden the people”. What was meant by foreign law in this context is not quite clear: Roman, Hanseatic, or perhaps Danish – as Sweden was in a personal union with Denmark-Norway in the so-called Kalmar Union. The prohibition of 1442 against foreign law was, however, not respected. It has been shown that the High Court of Svea, established in 1614 according to German

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models as the first high court in Sweden, periodically took recourse to foreign legal norms1. The high courts were staffed by professional lawyers, many of whom had studied not only in the newly re-established University of Uppsala in the home country but also in foreign institutions of learning, such as the universities at Greifswald or Leiden2. Given the primarily lay-dominated nature of Swedish judiciary in the early modern, the high courts played a crucial role in professionalizing Swedish law – to the extent that it was professionalized. The high courts were the primary channel of reception of ius commune, to the limited extent that learned law could ever be adopted in a country, the judiciary of which continued at the lower court level heavily based on laymen and remained so even to this day. The high courts were thus likely candidates to make use of foreign law in their decisions. As a theoretical framework, the concept of ius gentium was fundamental. Historically the concept has been defined and used in a variety of overlapping ways. On one hand, ius gentium has been seen as more or less as the equivalent of natural law, as in Cicero’s Republic. Cicero defined ius gentium as “right reason in agreement with nature [ . . . ], of universal application and everlasting”3. For an early modern Swedish writer, the other notion of ius gentium, closely intertwined with the first one, was to see it as law common to all nations4. The actual Swedish legal scholarship that had its beginning in the seventeenth century. Johannes Loccenius, one of the first Swedish legal scholars (although of German origin), wrote in 1648: “Si enim historiam et statum aliarum Rerum publicarum civilis prudentiae adquirendae causa, studiose legimus, quidni earundem leges et institute, velut princeps earum instrumentum et nervum, pervolvamus? Si non alia causa, saltem ea, ut illes cum patriis legibus (quae cum istis in multis convenient & lucem à se invicem accipiunt) conferamus & aequi bonique naturam et applicationem evidentius cognoscamus et addiscamus?”

It was thus important for Loccenius to make use of foreign rules, if not for anything else, at least as comparative material in order to understand domestic law 1 It has been debated whether the Court was originally intended as the guardian of the king’s judicial power, or whether it was the intention that the King use his judicial power even after the Court’s establishment separately. Be it this way or that, the Court soon found it place as the middle instance between the lower courts and the king, who continued to grant beneficia revisionis to parties unsatisfied with the High Court’s decisions. The High Court’s role as a middle instance emerged clear with the establishment of other high courts in Åbo (1623), Dorpat (1630), and Jönköping (the Göta hovrätt, 1634). 2 See H. Pihlajamäki, “Finnische Studenten in Greifswald mit besonderer Berücksichtigung der Juristenausbildung,” in D. Alvermann, N. Jörn, J. E. Olesen (ed.), Die Universität Greifswald in de Bildungslandschaft des Ostseeraums (Köln: Böhlau, 2007), p. 267 – 281. 3 Cicero, The Republic, book III, § 33, p. 211 (1928). 4 As Henry Sumner Maine noted, Romans called the rules that the Roman held in common with the neighbouring communities ius gentium. H. Sumner Maine, Ancient Law, (London, J. Murray, 1866), p. 49. Cited at J. Waldron, “Foreign Law and the Modern Ius Gentium”, Harvard Law Review 119 (2005), p. 129 – 147, p. 133.

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better. Loccenius saw the problem that the prohibition of the Law of 1442 against foreign law entailed. He explained the problem away, however, by claiming that foreign rules were not followed because they were forced on Swedes but so that they could “observe the clauses of natural law in [the examples of natural law] and that [they] could follow and imitate the rules of reason and natural equity”5. Natural reason could thus be found in the common rules of nations. Johan Stiernhöök, the “father of Swedish legal history”6, used arguments from foreign law as well, but felt restrained by the prohibition of the Law of 1442 at least in the question regarding stepchildren’s right to inheritance. Stiernhöök observed that although both Roman and Saxon law denied such right, the Swedes were bound by their written law, “sed scripta est” and the rule “had been observed for so many hundred years.” As for the inheritance rights of children and grandchildren, the Swedish law was, in turn, “in accordance with the law of all other peoples”7. Claes Rålamb, a scholar-judge, in this Observationes iuris practicae (1674), however, did not touch the subject of legal sources8. Claudius Kloot, who also came from a judicial background and never taught at a university, paraphrased the Procedural Ordinance of 1615 and its oath formula. In the oath, a judge-to-be swore that he would base his judgments on “Swedish law and legal statutes or the acceptable customs and practices”9, to which list Kloot added “acceptable, natural reasons”10. Jan Schröder describes the Rechtsquellenlehre of the fifteenth and sixteenth century in terms of “legal pluralism,” thus following Paolo Grossi’s description of the medieval legal universe. According to Schröder, “nebeneinander [stand] eine Fülle von Rechte göttlich-natürlichen und menschlichen Ursprungs.” However, the different legal sources were only understood as “different manifestations of the unchanging natural law and justice therewith, implanted in the human soul by God.” The legal scholarship of the sixteenth and early seventeenth centuries was not positivist: written statutes were thus not any preference over other sources of law, and the legal order was not conceived of as a complete and closed system.11 In princiJ. Loccenius, Synopsis iuris ad leges Sueticas accommodata (1648). On Stiernhöök’s legal works, see the articles in K. Å. Modéer (ed.), Johan Olofsson Stiernhöök: Biografi och studier 1596 – 1996 (Lund: Institutet för rättshistorisk forskning, 1996); On Stiernhöök’s person and other literary works, see the texts in H. Helander, A. Nelson, G. Inger, Johan Stiernhöök i sin samtid (Stockholm: Institutet för rättshistorisk forskning, 2005). 7 Stiernhöök, Om svears och götars forna rätt (Uppsala: Almstedt & Wiksell, 1981, orig. 1672). 8 C. Rålamb, Observationes iuris practicae (Stockholm 1674). 9 “[ . . . ] Sweriges Lagh, Rijksens Stadgar, Affhandlingar och Besluth, godhe loflige Bruk och Sedwaner [ . . . ]”, Schmedeman, p. 146. 10 Cl. Kloot, Then Swenska Lagfarenheetz Spegel (Göteborg, 1674), p. 372. 11 J. Schröder, Recht als Wissenschaft: Geschichte der juristischen Methode vom Humanismus bis zur historischen Schule (München: Beck, 2001), p. 21 – 22. 5 6

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ple, the Swedish scholars follow the teachings of their foreign, mostly German and Dutch, colleagues, although they remain more reserved towards foreign law, having to find ways against the prohibition of 1442. Stig Jägerskiöld, in his path-breaking studies from the early 1960s, found several cases of Svea High Court in which the Court applied foreign legal rules12. In some cases, the Court considered matters that today would be classified as international law, such in 1672 as the third party’s right to land and property that had been conquered from an enemy13. In a cause célèbre against Gardemein and others accused of attacking the imperial ambassador von Nostiz the whole discussion was dominated by international law. Interestingly, it was established, that ius gentium could also be criminal law14. Many of the cases in which foreign rules were observed at Svea High Court had to do with maritime law. In one case, the Court considered in its motivations the law of Lübeck15, the maritime law of Emperor Charles V16, and an Italian source17. Not surprisingly, bills of exchange were often considered from the point of view of foreign law as well18. Decisions in regular civil law cases were sometimes grounded with rules of foreign law, as in the case of Gustaf Clodt and Beata Lillieram in 1658. Clodt tried to have a previous settlement and division of property invalidated, even though, as the Court put it, “he had not been ad dimidium laesus” because of the settlement treaty. The plaintiff ’s claim could not be approved “either by iure gentium or by civili”. In an inheritance case the reporting judge that the Court’s decision tallied “with jure naturae and gentium, whence all law must receive its interpretation, when a statute is not so clear that it needs additional clarification”19. In a case concerning a real estate deal, the reporting judge, prone to bypass the strict formalities of written Swedish law, stated that a more liberal rule was observed “in the Roman republic and elsewhere, but especially amongst those nations that flourish in commerce and other countries.” A natural law rule could be formulated on the basis of other nations’ laws, and this rule could even be preferred over Swedish written laws20. Cases cited Jägerskiöld, p. 86 – 87. S. Jägerskiöld, Studier rörande receptionen av främmande rätt i Sverige under den yngre landslagen tid (Stockholm: Almqvist & Wiksell, 1963), p. 86. 14 S. Jägerskiöld, “Ett folkrättsbrott och dess bedömning 1690”, Karolinska förbundets årsbok 1962. 15 Jus Lubecense, tit. 6. tit 1., de novarchis et nautis. 16 Art. 5: “Alle skipsofficieren, botgesellen off knechten . . . hebben helpen iutforen.” 17 “Sono ubligati i marinari a lastrare i dislastrare la naue et forere et di storzare in qua luogo donde se partirà la nave . . .” Jägerskiöld does not identify the source, and neither have I been able to identify it. 18 Jägerskiöld, p. 88. 19 Jägerskiöld, p. 87 – 88. 12 13

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Jägerskiöld’s cases are typical of the early modern European legal thinking. However, it is difficult to know by Jägerskiöld’s examples how often the high courts or their customers based their arguments on foreign law, or whether Jägerskiöld’s cases are exceptional. One gets the idea, at any rate, that Jägerskiöld has listed all the cases he has found. Rudolf Thunander went through thousands of criminal cases in the Göta High Court from the year 1635 – 1690, and his book does not contain a trace of foreign law21. From the late seventeenth century onwards, the predominant ideology of Swedish jurisprudence turned towards natural law, which continued allowing the use of foreign law as a legal source whenever the foreign laws could be considered as best fulfilling the requirement of ius naturale. However, in Sweden such considerations remained rare, and it was normally the national law that was considered the best from the point of view of natural law22. In practice, foreign law continued having little significance. The Swedish eighteenth-century jurisprudence is best encapsulated in the works of the leading scholar of the period, David Nehrman. For him, foreign law meant mainly Roman law, which he saw as a threat to national law. Roman law had nothing to do with either natural law or Swedish law. “The one who, before he knows anything of the Swedish law, reads Roman Law [ . . . ] in order to acquire a clear and correct basis for practical legal work, works in vain and learns incorrect concepts for many things, and will later find more difficulties when trying to interpret and to apply the Swedish law to practical cases than the one who has never studied Roman law”23. Nehrman refers to the Procedural Ordinance of 1615, intended to regulate the procedure in the newly-established High Court of Svea, but in practise applied as a rule for all of the judicial apparatus of the realm. The law-giver discouraged parties to law suits from “at length citing laws, conventions and customs of foreign nations” in their briefs to the courts24. The prohibition thus does not seem absolute, unlike the royal decree of 1683, according to which the judiciary was prohibited from taking recourse to foreign laws25. Deciding an appeals case, the king specifically noted that the Göta High Court had in its “rationibus senten20 Jägerskiöld, p. 88 – 89. See also Å. Holmbäck, Om 1686 års testamentsstadga (1916), p. 10. The presenting judge in this case was Gustaf Rosenhane, one of the best educated of Swedish judges at that time. 21 Thunander. I do not count Mosaic law as foreign law, since it has incorporated as part of the Swedish law in 1608. 22 L. Björne, Nordisk rättskällelära: Studier i rättskälleläran på 1800-talet (Lund: Institutet för rättshistorisk forskning, 1991), p. 179 – 180. 23 D. Nehrman, Inledning til then Swenska Iurisprudentiam Civilem (Lund: Decreaux, 1729), p. 14. 24 Kongl. Stadgar, Förordningar, och Resolutioner ifrån Åhr 1528 in til 1701 angående justitiae- och executions-ährender [ . . . ], Johan Schmedeman (ed.), (Upsala, 1706), § 25, 158 – 159; Nehrman, p. 66 – 67. 25 Nehrman, p. 67.

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tiae [ . . . ] several times referred to foreign laws and jurisconsults, and used the Latin language” to an overwhelming extent. The king reminded the Court to “stick to the Swedish law, statutes, documents and decisions, as well as good lawful practices and customs, and not foreign laws and languages, which [the Court was] not to use from here on”26. The law-giver’s attitude towards the use of foreign law in courts seems thus have hardened during the late seventeenth century, with a decisive shift taking place in the 1680s. The timing of the change makes sense, because it was in the 1680s that Sweden turned towards political absolutism. An absolutist ruler, naturally enough, would not be interested in the courts basing their judgments in the laws of other countries. Cases of private international law called for application of foreign law in Sweden as elsewhere, that is, cases involving foreigners or property owned by foreigners in Sweden. Nehrman referred to legal scholars distinguishing between leges reales and leges personales, thus following the medieval statute theory. Since this distinction, however, was based on “Justinian’s method in Institutiones” only and was prone to increase difficulties, it was better to stick, again, to Swedish law, because “law normally cannot be applied extra territorium”. As for immovable property, the principle was trouble-free; as far as movable property was concerned, some exceptions had to be made. These usually had to do, so Nehrman, with contracts and wills – thus, typical instances of modern private international law. Nehrman mentions as an example a case, in which a Swedish court has to decide a claim based on a contract concluded in another country. If stipulations required by the laws of that country had been omitted, then the law of the foreign country had to be followed27. Of most consideration to the Swedish scholars was Roman law, the reception of which had advanced along in the emerging scholarship of the seventeenth century. Although Nehrman’s principled position vis-à-vis Roman law was negative, he did in fact make considerable use of ius commune in his scholarship. Olof Rabenius, another eighteenth-century scholar, counted foreign legal orders to law’s “help disciplines,” praecognita iuris. Besides Roman and Canon law, almost all European legal orders belonged to those which could be taken into consideration. If they were observed with “unerring eyes” they would not hurt, but serve as great help when studying one’s own legal order28. To sum up at this stage, the Swedish legal scholars and Svea High Court did accept the idea of using foreign law as a source. However, the scholars were not terribly enthusiastic about the idea, and Nehrman, the most influential of all, was downright against it. The use of foreign law was also forbidden in the late seven26 27 28

Schmedeman, p. 856. Nehrman, p. 69. Cited in Björne, p. 181.

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teenth century. Why the reluctance? I will elaborate the answer with two intertwining arguments. First, the Swedish theory of legal sources remained relatively simple all the period, when compared to the much more polysentric systems of law in other parts of Europe. Sweden lacked separate bodies of feudal law (because there was hardly any feudalism to speak of), town law (because there were hardly any towns to speak of), canon law (after the Reformation), or clearly identified systems of customary law. This left the field for royal statutory law, which assumed a significant position in the Early Modern Period. I am not trying claim that the position of written law was anything akin to the position that written law acquired in the Gesetzespositivismus of the nineteenth century. The Swedish legal order, as far as the sources went, was in principle as porous and open to other normative orders as any European legal order. Morals and theology interacted closely with the legal order, and the Bible was frequently cited as a legal source. However, royal law had much less competitors than it had in the other European regions. The statutory law’s paramount status goes hand in hand with the strong, centralized state that the Swedish crown, using the Lutheran Church as its bracchum spirituale, managed to develop in the sixteenth and seventeenth centuries. The lack of competing legal bodies is, of course, a legal parallel of the Swedish early modern society: a relatively homogenous one with weak nobility and weak towns. Second, the Swedish legal profession remained insignificant all through the Early Modern Period. The polysentric legal universe of the European ius commune owed its existence to professional lawyers. Without them consolidating and defining the distinct bodies of law, customary law included, and the relations between them, a truly polysentric law could not emerge. The Swedish lawyers had studied abroad since Middle Ages, and continued doing so even after the founding of domestic universities in Uppsala, Turku, and Lund in the seventeenth century. The high courts were largely staffed by professionals, and so were the city courts in larger towns. The country courts, however, were different. Until 1682 almost all of them very presided by a non-lawyer or a “law-reader”, hired by the actual judge as his substitute and with some legal knowledge. After 1682 the situation changed, when the country court judges were obliged to start taking care of their offices personally, the situation changed a little, although not all the judges were themselves lawyers either29. The crucial point, however, is that the jurymen remained laymen, and their lacking legal knowledge necessarily hindered the proceedings from turning too learned30. Besides, learned advocates were a rarity in the country29 See Y. Blomqvist, Laamannin- ja kihlakunnantuomarinvirkojen läänittäminen ja hoito Suomessa 1500- ja 1600-luvuilla (1523 – 1600) (Helsinki: Suomen Historiallinen Seura, 1958). 30 See my discussion on this topic in “The Painful Question: The Fate of Judicial Torture in Early Modern Sweden,” Law and History Review 25 (2007), p. 557 – 592, p. 586 – 587.

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side and most of the towns31. Furthermore, the institution of notary public never developed in Sweden32. Sweden’s was rustic law par excellence, and it can hardly be labeled polysentric in European sense of the word. Foreign law could only have a limited success in a such legal environment. Foreign law belonged to courts, which were staffed by professional lawyers and frequented by learned advocates. Foreign law could have little success without a host of legal professionals, familiar with foreign legal orders, capable of basing their advice to their clients or their judgments on alien norms. The concept of legal communication is essential when trying to understand the position of foreign law as a legal source. Here, I refer to legal communication in a very specific sense, as communication between different strata of a given legal community. Legal knowledge in early modern Europe was disseminated in a variety of ways. Universities and their legal faculties were one of the primary institutional tools of enabling legal communication in the form of teachers, students, and dissemination of legal literature from some areas of Europe to others. Early modern princes also frequently hired foreign legal counsel to their courts. Nicholaus von Pyhy, doctor of laws, was Gustav I Vasa’s acquisition, intended to help him build government according to the latest models. These channels were those along which “reception” or “transfers” of Roman-Canon law, or ius commune, occurred. The same channels, however, helped foreign legal norms to catch the attention of the courts. To these channels one more should be added: individuals and their lawyers moving across boundaries of legal systems. It was these people on the move that, since the Middle Ages, had caused the courts to consider the application of foreign legal sources. The more people moved across political and thus, legal, boundaries, the more requests and need to apply foreign norms. Thus, and this is my second point, it is likely that the question of foreign law arises in geographical situations, in which foreigners and their legal problems are a commonplace. The less interaction with foreigners, the less likely to emerge are situations in which foreign law is invoked. It would be a gross mistake to claim that early modern Finns and Swedes lived in isolation from the neighbouring regions. Commercial relations had existed from times immemorial with all neighbouring countries and farther – this contention hardly requires elaboration. However, the environment in which the Swedish legal scholars wrote their treatises was profoundly different from the environment of German and Dutch scholars such as Grotius, Carpzov, Gaill and Mynsinger33. The exchange of people in the more 31 On the early Finnish advocates, see Pia Letto-Vanamo, Suomalaisen asianajajakunnan synty ja varhaiskehitys (Helsinki: Suomalainen lakimiesyhdistys, 1989). 32 H. Pihlajamäki, “The Notary Public in the Legal History of Finland and Sweden”, in M. Schmoeckel (ed.), Handbuch der internationalen Notargeschichte (to be published in 2008). 33 On the elaborated stands of these authors on questions of forum, see the edited excerpts of their texts in Christian v. Bar / H. Peter Dopffel (ed.), Deutsches Internationales Privat-

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southern regions of Europe was considerably more intense than it was in SwedenFinland, and that is one of the reasons why the sixteenth- and seventeenth-century jurisprudence needed to formulate stands to questions of foreign law’s applicability. In Sweden this need was hardly pressing. Reception or transfer of legal ideologies is, however, rarely a straightforward process. It almost always involves selection, and many times it also involves modifications of foreign legal material, be it doctrines or norms. In the case of the teachings of influential German figures such as Carpzov this is evident. As I have shown elsewhere, the lay-oriented Swedish legal world was hardly capable of making use of the complicated ius commune norms as such34. The Swedish legal writers, of which there was only a handful in the entire century, felt the need to communicate their findings to a larger domestic audience consisting of mostly unlearned lower court judges, often unlearned high court judges and, by definition, always unlearned lay-members of the lower courts. Although the foreign authors that they read – such as Mynsinger, Gaill and Mevius – frequently continued the Bartolian tradition of commenting on the geographical extension of the statutes, dividing them into statutae personalia and realia, the Swedish did not see the need to follow this tradition. The Swedish scholars were not particularly innovative, but they did not slavishly copy everything they read. Instead, they picked and they chose the elements of international literature that served their purposes. Elements that were too difficult for the Swedish legal audience, consisting mainly of laymen or close-to-laymen, were left out of the treatises because they would have gone to waste. One example of this is the continental statutory theory of proof, which from the elaborate treatises of giants like Benedict Carpzov was boiled down to a few lines in the works of Rålamb, Kloot and Nehrman. Some parts of foreign scholarship were almost completely discarded as alien to the Swedish reality35. Evidently the discussions related to the application of foreign laws were also of that kind, as we have seen. From the seventeenth century onwards, the European doctrine of legal sources went through a thorough transformation. Natural law was now emancipated from positive law. In the writings of Samuel Pufendorf, Christian Wolff and others, natural law emerged as “a complete, autonomous system, detached from moral and religion.” Positive law, then, was now considered a value-free expression of the recht im 16. und 17. Jahrhundert: Materialien, Übersetzungen, Anmerkungen, Erster Band (Tübingen, Mohr: 1995). 34 “Gründer, Bewahrer oder Vermittler? Die nationalen und internationalen Elemente im Rechtsdenken des Olaus Petri”, in J. Eckert & K.l Å. Modéer (ed.), Juristische Fakultäten und Juristenausbildung im Ostseeraum (Stockholm: Institutet för rättshistorisk forskning, 2004), p. 29 – 38. 35 See H. Pihlajamäki, Evidence, Crime, and the Legal Profession: The Emergence of Free Evaluation of Evidence in the Finnish Nineteenth-Century Criminal Procedure (Stockholm: Institutet för rättshistorisk forskning, 1997).

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sovereign will. When in conflict with natural law, positive law was now considered clearly superior36. Again, the Swedish doctrine follows the continental models. Nehrman was, at the same time, both a natural law thinker and a devout positivist. Although Nehrman claimed that natural law was, in his system, superior to positive law, in practice positive Swedish law played a decisive role in his writings37. With positive, written law gaining the upper hand over other sources of law and the old conception of all legal sources mirroring God’s natural law, little place was left for foreign law. Since its practical significance had always been modest, it was easy for Nehrman to disregard foreign law as a legal source. This was the inheritance on which the Finnish national legal scholarship, emerging in the mid-1800s, was built. When the traditional reserved attitude toward foreign law as a source of law joined with nineteenth-century legal positivism with national written law as the paramount legal source, little space was left for foreign law. Foreign (mainly German and Nordic) law as comparative law was, however, enormously important in the hands of scholars and law-drafters as the Finnish legal system was modernized during the latter half of the nineteenth century.

II. Foreign Law in the Modernizing Finnish Law of the Nineteenth Century In the beginning of the nineteenth century, Matthias Calonius, the father of Finnish jurisprudence, followed the tolerant stance of Rabenius toward foreign law. Calonius thought that certain knowledge of foreign law, “both old and new,” could “decorate the legal scholar” and “offered the possibility to solve many points of law more successfully and securely.” Not only was it necessary to acquaint oneself with the laws of the related nations, Denmark and Norway, but also with the laws of Prussia, England, Russia and Poland. Reading foreign legal works required, however, knowledge of not only Latin but also of several modern languages, which was why practicing lawyers could leave foreign law aside without major disadvantage. Calonius pointed out that the study of foreign law was best left to “more mature men, who have already properly familiarized themselves with domestic law”38. Björne has shown how natural law lost its influence on Nordic legal scholarship from the 1820s onwards, in the wake of the historical school of law. With natural law gone, so was an important theoretical device which had helped foreign law influences to sneak into national legal systems39. New ways of accepting foreign Schröder, p. 115 – 116. See his main work on jurisprudence, Inledning til then Swenska Iurisprudentiam Civilem (Lund: Decreaux, 1729). 38 M. Calonius, Siviilioikeuden luennot (Helsinki: WSOY, 1998), p. 20, p. 22. 39 Björne, p. 187. 36 37

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law in domestic legal argumentation developed, however. Ius gentium, the old Roman law concept, was put into recirculation, now referring to common cultural values of the western nations. It was also argued that the needs of human beings were roughly the same everywhere and that certain basic legal concepts were similar in all legal orders40. These arguments were, however, used differently, than in the seventeenth-century theory. The ius gentium now became food for comparative considerations. The argument about similar cultural structures was in Finnish legal literature introduced by the criminal law professor Jaakko Forsman, who could “safely claim that the criminal laws in all nations belonging to the circle of cultural peoples must possess certain similarity, because of certain similarity in these peoples’ understanding of right and wrong”41. Björne has found similar expressions in the works of other major figures of Finnish legal scholarship of the late nineteenth and early twentieth centuries. Thus R. A. Wrede, the founder of Finnish scholarship of procedural law and an important civil lawyer, wrote that the principles of Roman law “through its general human nature had significance in all times and for all peoples.” Furthermore, even when the law of some nations had evolved independently, having reached certain level it would grow closer to other nation’s laws. According to Robert Montgomery, both Roman and foreign legal orders could serve as interpretative help devices, foreign laws especially insofar as commercial law was concerned, and F. E. Ekström went as far as to recommend the use of foreign law at least in scholarly presentations because of many lacunae in Finnish private law. Foreign norms which seemed too alien to the domestic system of law were, however, not to be used42. The general scholarly attitude towards the use of foreign law as a legal source seemed thus positive. However, there is a clear difference between branches of law. Although Forsman, the criminal lawyer, noted the similarities between the criminal laws of Western nations, he did not go as far as to recommend the use of foreign laws as a source in Finland. After the general acceptance of the legality principle in the nineteenth century this would, of course, have been difficult. Forsman’s openness towards foreign law and foreign legal thinking was nevertheless not fake: Finnish criminal lawyers of the era participated eagerly in the Nordic and international cooperation in penal law legislation, criminology and prison administration – all fields of penal thinking, in which international discussions in the forms of conferences, journals and organizations was blooming in the late nineteenth century onwards43. Björne, p. 188 – 189. J. Forsman, Anteckingar enligt professor Jaakko Forsmans föreläsningar öfver straffrättens allmänna läror med särskild hänsyn till strafflagen af den 19 december 1889, ed. Lars Wasastjerna, p. 15 (Helsinki, 1900). 42 R. A. Wrede, Tidsskrift utgifven av Judiriska Föreningen i Finland 1878 – 1879, p. 371; R. Montgomery, p. 10, p. 89; Ekström, p. 8; Björne, p. 197 – 198. 40 41

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Foreign law had other uses as well. During the so-called Stateless Night (1809 – 1863), when the Russian emperors did not convene the Finnish Diet, new legislation could not be issued. In many fields of law, reforms were nevertheless badly needed and were in fact realized in the high court and the Judicial Department of the Senate (the Supreme Court) practice along the lines of European models. As one such reform, the statutory theory of proof (gesetzliche Beweistheorie) was abolished in practice of the 1850s and 1860s. Finland’s law of proof was still in the nineteenth century based on the Swedish Law of 1734 and its provisions on statutory proof. The law was based on the statutory theory of proof, thus requiring two eyewitnesses or a confession at least as far as the most serious crimes were concerned. In the 1850s and 1860s the Finnish high courts, however, increasingly abandoned the old statutory system of proof, starting to evaluate evidence freely. The context of reform is clear enough from the contemporary international context and domestic legal writings, although the decisive court decisions were never expressly grounded on foreign laws. After the French revolution, free evaluation of evidence had gained ground all over Europe, and the Finnish courts now followed suit44. As far as foreign law was genuinely accepted as a source of law, the scholarship was limited to private law. The nationalization of legal orders in the nineteenth century led to the birth of comparative legal scholarship during the course of the nineteenth century. In Finland, Montgomery stressed in his 1871 inauguration lecture the importance of “comparative legal scholarship”. Montgomery observed that since modern law had emancipated itself from Roman law, the need to compare modern systems with Roman law had arisen45. But what happened in legal practice? It seems that the nineteenth century Finnish law understood the use of foreign law mainly under the categories that later came to be gathered under the discipline of private international law. The Law of 1734 had already regulated a foreigner’s right to inheritance in Finland, making it depend on the reciprocity principle (The Inheritance Balk of the Law of 1734, 15:2): “If a foreign heir lives in such a region where Swedes may inherit; let him also enjoy the same right in Sweden”46. The Royal Statute of December 19, 1757 and the Letter of the Åbo High Court of March 9, 1758, had then declared a foreigner’s inheritance rights, and the corresponding rights of the Swedes depended on whether a treaty existed between Sweden and the foreign country. These regulations did not, however, involve direct application of foreign law. The first statutory provision in Finland entailing such direct application was § 86 of the Law of Bills 43 See J. Boucht, “De nordiska juristmötena och rättsgemenskapen i Norden”, Defensor Legis 1999, p. 748 – 775. 44 See Pihlajamäki 1997. 45 Montgomery, Inträdesföredrag, p. 27. 46 “Bor utländsk arfvinge å den ort, ther svensk man arf niuter; tå niute ock han samma rätt i Sverige”.

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of Exchange of the year 1858, which allowed it “should someone invoke a foreign law or custom and wish that attention shall be placed thereupon . . .”. The law thus acknowledged the possibility of applying foreign law at least as far as bills of exchange were concerned47. The Finnish Legal Association (Juridiska Föreningen i Finland) took the matter up as a discussion theme in 1878, and the procedural law professor Bo Palmgren published an article on the subject. The “older” point of departure, as the formulation of § 86 of the Law of Bills of Exchange reveals, was that foreign law could only be taken into consideration if one of the parties to a law suit expressly demanded application of foreign law. The “new” stand of the issue – thus that of the 1930s when Palmgren wrote – was that parties had no right to dispose over the law applied. Instead, the correct law was determined by the norms of private international law in the country of the court. This could, and indeed sometimes should, lead to the court applying foreign law even if neither of the parties invoked such norms. The Finnish statutory law had in the meanwhile changed accordingly (The Laws of 1929 on Bills of Exchange § 87 and Checks § 65; see also the 1929 Law on Certain Family Relations of International Nature, § 56). As Palmgren’s ample footnote apparatus demonstrates, this was the Stand der Lehre in French and German jurisprudence at the time of the writing as well as in the Nordic legal literature of private international law48. The late nineteenth-century legal scholars discussed whether the provision of the 1858 of the Law of Bills of Exchange was an expression of a general rule or whether it was only exception to the main rule, according to which only domestic law was to be applied in Finnish courts. Most scholars thought that the provision had been originally intended as an exception, but as Palmgren notes, “it would have been incorrect if such a special provision would have been able to strain the general legal development in a field in which expediency necessarily called for the taking into consideration of changed circumstances,” with which he meant “better communications and livelier international contacts.” The legal development of the late nineteenth century then followed precisely this direction regardless of what may have been the law-giver’s original intention49. The nineteenth-century legal practice reveals that much of the application of foreign law was limited to cases of family law, and that they were few, even despite the rather lively scholarly debates on the use of foreign law. The decisions of the Judicial Department of the Senate50 from the years 1830, 1850 and 1870 were researched for this study, but these records did not reveal a single case of foreign 47 Bo Palmgren, “Om tillämpningen av utländsk rätt i tvistemål”, Tidsskrift utgifven av Juridiska Föreningen i Finland 1937, p. 34 – 59, p. 43. 48 Palmgren, p. 44. 49 Palmgren, p. 52 – 53. 50 The Judicial Department of the Senate was the highest judicial organ in the Grand Duchy of Finland from 1809 – 1917.

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law applied. Four later cases are recorded in the case reports of the Journal of Finland’s Legal Association and Defensor Legis, the Journal of the Bar Association51. Three of the cases had to do with a Russian citizen’s marital right to immovable property in Finland. In all of them the plaintiff claimed that the case should be decided according to the lex rei sitae, Finnish law. In the first case, the defendant claimed that the case ought to be decided according to Russian law, which gave a spouse no marital right in the other spouse’s property. The Judicial Department decided against the plaintiff, because the plaintiff “against the defendant’s denial had not been able to show that [the plaintiff] would have had a marital right to the real property in question”52. In the second case, both the plaintiff and the defendant in this case were Russian citizens. The High Court as the first appeals instance decided that since neither of the parties was a Finnish citizen and Finnish law was thus not applicable, and because the plaintiff had not shown that she would had a marital right according to the Russian law. In the last instance, the defendant produced a translation of Russian law, made by a sworn translator, which showed that spouses did not have marital rights to each other’s property53. The third and the fourth cases also had to do with the application of Russian marriage law54.

III. Explanations: Why Foreign Law Has Not Been Used Early modern or pre-modern law allowed, in general, foreign law to be taken into consideration relatively liberally. Pre-modern law’s system of legal sources was open. The value of statutes was relative: they suggested a superior legal order, which legal professionals, iurisprudentes, were to bring to concrete level of application. The judge, according to the prevalent ideology, was not absolutely bound by statutes or other positive norms – on the other hand his arbitrium iudicis was delimited by his role as persona publica, who had the responsibility of adjusting the procedure and the law to the circumstances of the case as the representative of the royal power55. The open system of legal sources allowed for sources other than domestic, national statutes to be considered in the decision-making. One such source was foreign law. If foreign law could be understood as an expression of God-given natural See Palmgren, p. 56 – 58. JFT, 517. 53 JFT appendix 193, 153 b, n:o 15. 54 Defensor Legis 1926, rf. N:o 45; HD Red 1929 n:o 41. 55 See C. Garriga, “Justicia animada: dispositivos de la justicia en la monarquía católica”, in M. Lorente Sariñena (ed.), De justicia de jueces a justicia de leyes: hacia la España de 1870 (Madrid: Consejo General del Poder Judicial, 2007), p. 60 – 104, p. 86 – 88. 51 52

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law, there was in principle no problem to use it as a source. This explains the Swedish legal scholarship’s openness towards foreign law. The Swedish seventeenth-century writers closely followed the international trends in many questions. The scholarship, however, was not a strong player on the field of Swedish early modern law. This is because the Swedish legal system was lay-dominated. For some-one acquainted with early modern Swedish court protocols, the idea of foreign law as a source may therefore strike strange. A look in any of the seventeenthcentury lower court records quickly reveals the unsurprising result that no foreign law was ever invoked. As for the high courts were concerned, the situation could have been different – at least in theory. My studies on the Dorpat High Court do not, however, support the suggestion that the Swedish high courts would have been prone to use foreign law to any considerable extent. The Dorpat High Court, true enough, may not be representative of the all the Swedish high courts, as it operated in the conquered province of Livonia, applying a very different mix of legal sources as compared to the other high courts in the Swedish realm. However, the existing scholarship on the High Courts of Svea and Göta do not suggest any regular or wide-spread use of foreign law either56. Whatever the stand of the Swedish early modern legal scholars was vis-à-vis foreign law as a legal source, it hardly mattered much. Swedish society was homogenous, with few foreign impulses as far as law went. Laymen were heavily involved in court proceedings, which limited the possibilities of exposing the courts to any learned legal material, let alone foreign laws. The chances of doing so were greater in the high courts staffed at least partly by legal professionals. The high courts, however, did not act in isolation but were deeply connected to lower courts, to which the opinions and findings of the high courts needed to make sense. The history of the foreign law as legal sources in Sweden-Finland of the early modern period and the nineteenth century can briefly be summarized as followed. The ius commune57 doctrine on the use of foreign law was accepted, as many other things of the European legal scholarship, by the nascent Swedish jurisprudence of the seventeenth century. Swedish legal scholarship did not, however, adopt the foreign norms of private international law in their most elaborated forms. Instead, the Swedish seventeenth-century scholars limited themselves to accepting the use of foreign legal norms in general. This acceptance, however, turned to disapproval in the statutes of the1680s, which not coincidentally is also when Swedish political absolutism gained momentum. David Nehrman, the most important of the Swedish eighteenth-century legal scholars expressed the same disapproval in his writings. 56 Thunander and Jägerskiöld. Unfortunately, no large-scale investigation on the high court archives has been possible for the purposes of this study. 57 I use the term ius commune as a shorthand not distinguishing between its various forms (gemeines Recht, usus modernus pandectarum, droit commun, derecho común etc.). For a useful treatment of these, see H. P. Glenn, On common laws (Oxford: Oxford University Press, 2006).

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I have explained the relative insignificance of foreign law as legal source with two arguments. First, the Swedish theory of legal sources remained relatively simple all the period, when compared to the much more polysentric systems of law in other parts of Europe. Second, the Swedish legal profession remained insignificant all through the Early Modern Period. The polysentric legal universe of the European ius commune owed its existence to professional lawyers. Without a considerable number of legal professionals consolidating, defining, and promoting the distinct bodies of law, foreign law included, law remained simple. Finnish national legal scholarship was built on the early modern experience. When the traditional reserved attitude toward foreign law as a source of law joined with nineteenth-century legal positivism with national statutory law as the dominant legal source, little space was left for foreign law. Foreign law as comparative law was, however, enormously important in the hands of scholars and law-drafters as the Finnish legal system was modernized during the latter half of the nineteenth century. Foreign law was also used during the so-called Stateless Night (1809 – 1863), when new legislation could not be issued. In many fields of law, reforms were needed and were realized in the high courts and the Judicial Department of the Senate (the Supreme Court) practice following European models.

BERNARD DURAND

Reconnaissance et refus d’un droit étranger? Magistrats français et droit musulman dans la colonie du Sénégal L’entreprise de colonisation a été souvent présentée comme une entreprise de domination et d’assimilation, deux démarches qui auraient été intimement liées. Il y aurait eu, de la part du pouvoir colonial le souci d’accompagner sa domination d’une stratégie quasi «totalitaire», à savoir – par l’assimilation, la contagion culturelle, le démantèlement des autorités traditionnelles, l’inflexion des forces religieuses, la substitution des modes de pensée par l’éducation, la diffusion des techniques modernes, etc. – pénétrer la société toute entière dans le but de la transformer. Il est vrai que les dispositions de la loi du 24 avril 1833 qui fondaient l’idée d’assimilation véhiculaient bien cet idéal selon lequel il était quasiment contraire à «l’humanité et au droit naturel» de refuser aux habitants des colonies le bénéfice des lois françaises. Mais, à cette époque, le domaine colonial se résumait aux Antilles, à la Guyane, à la Réunion, au Sénégal, à Saint Pierre et Miquelon, à l’Algérie et aux établissements de l’Inde. On reconnaîtra toutefois que pour certains de ces établissements, les natifs avaient conservé leurs us et coutumes dont les tribunaux devaient s’inspirer. Ainsi pour les musulmans de Karikal ou de Pondichéry (voir l’article 16 du titre II du règlement du 30 décembre 1769 et l’article 3 de l’arrêté du 6 janvier 1819), avec les cadis ou pour les Indous avec le comité de jurisprudence Indou. Et il en allait de même pour les musulmans d’Algérie, où la justice cadiale avait été maintenue1 et ceux du Sénégal puisqu’un décret de 1857 institue à Saint-Louis un tribunal musulman2. De même, les coutumes furent respectées sur bien des points et, par prudence politique bien plus qu’en raison d’un respect dû à un système judiciaire jugé peu performant, les tribunaux «indigènes» furent maintenus . . . et copieusement réaménagés. En bref, la politique d’assimilation s’accommodait de nombreuses réserves, elles-mêmes atténuées par une série d’exceptions allant de la conformité avec les principes de la civilisation française, la limitation de la re1 La justice en Algérie, 1830 – 1962, Actes du colloque, La Documentation française, n° 16, 2005. 2 Décret impérial des 20 mai-6 juin 1857 sur l’organisation de la justice musulmane au Sénégal, D.P. 1857, 4, 70.

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connaissance à quelques domaines et les options offertes aux indigènes qui pouvaient choisir s’ils le voulaient la législation française et / ou la juridiction française3. Ainsi, dans la mise en œuvre des droits autres que le droit français en même temps que de leur mise à l’écart, il faut mettre en cause tout à la fois le législateur qui au détour d’un décret cherche à infléchir l’assimilation, l’administration, souvent persuadée de la supériorité des institutions françaises et enfin les juges qui ont du mal à se dégager des principes français et qui devant une coutume mal définie ont vite fait de la déclarer silencieuse en même temps qu’ils n’hésitent pas à interpréter strictement – et restrictivement – les «libertés» consenties à ces droits si différents du leur. Or si cela leur est relativement aisé en face d’une coutume non écrite, cette attitude devient plus délicate en présence d’un droit écrit, tel le droit musulman, qu’il imprègne certaines coutumes au sein desquelles il s’est propagé ou bien qu’il domine la vie de populations qui se revendiquent de l’Islam et entendent être soumis à ses règles. Sans doute allons nous prendre ici comme axe directeur la démarche retenue pour le Sénégal. Mais s’agissant de droit musulman et même en tenant compte de ce que les législations peuvent être différentes selon les colonies, il est à noter que l’attitude à l’égard de ce droit franchit les frontières et que la jurisprudence, surtout lorsqu’elle émane de la Cour de cassation, s’apprécie en tenant compte d’arrêts rendus pour des colonies différentes, ce que nous ferons lorsque cela nous paraîtra indispensable. Nous observerons toutefois que ces références ne doivent pas faire conclure que les situations sont semblables. En effet, au moment où le décret de 1857 est pris pour le Sénégal, les tribunaux musulmans en Algérie se voient reconnaître une compétence générale «pour toutes les affaires entre mahométans», y compris dans le domaine des contrats. Ce n’est que plus tard (décrets du 13 décembre 1866, du 10 septembre 1868, du 17 avril 1889) que leur sphère d’action se verra réduite4. Quant aux Etablissements de l’Inde, le juge musulman a 3 Au moment où se constituera l’Empire colonial français à la fin du 19ème siècle, les attaques contre l’idée d’assimilation se multiplieront. En 1885, Jules Harmand diffuse le message (qu’il synthétisera en 1910 dans «Domination et colonisation») selon lequel les colonies n’ont pas d’autres raisons d’être que de servir la métropole: «La France n’a plus de colonies, elle n’a que des dominations». Ce n’est donc pas l’assimilation qui est souhaitable mais l’association. Enfin, il est clair que la politique d’assimilation, dans les colonies «nouvelles», a cédé la place à une autre politique, celle du respect des coutumes indigènes même s’il a paru sage d’assortir le principe d’un certain nombre d’exceptions (cas où un français a participé à une opération juridique civile ou commerciale avec un indigène, hypothèse dans laquelle deux indigènes ont entendu spontanément se soumettre à l’application de la loi française, coutume silencieuse ou incomplète, coutume indigène en contradiction avec certains principes de la civilisation française) en même temps que s’est développé un phénomène d’altération du droit coutumier indigène, provoqué par le jeu de la loi sociologique d’imitation et d’une manière générale par les changements sociaux et économiques qui s’opèrent (rapports juridiques avec des Français, activités diverses, agricoles, artisanales ou immobilières qui génèrent l’adoption d’un droit moderne, transformation progressive de l’économie de subsistance en économie de marché).

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dans ses attributions les affaires dites de caste et l’arrêté du 5 mars 1848, celui du 11 novembre 1861 et celui du 24 avril 1880, reconnaissent au «Kazi» le droit de juger en matière religieuse et civile. Il célèbre les mariages entre musulmans et c’est devant lui que sont passés les contrats et tous écrits destinés à devenir authentiques.5 La situation est différente au Sénégal où le Cadi n’est pas appelé à statuer indistinctement sur toutes les questions qui intéressent le statut personnel des musulmans mais sur certaines seulement. Ce droit, étrange autant qu’étranger à beaucoup de magistrats français, n’est toutefois pas étranger au sens du droit car «assimilé au droit français en vertu des textes qui ont décidé que les indigènes continueraient à être régis par leur droits», il est donc appliqué par les juridictions françaises et susceptible d’être, à la différence d’un droit étranger, examiné au fond par la Cour de cassation6. Il est clair que cette apparente contradiction ne fait que s’ajouter aux si nombreuses contradictions qui jalonnent l’histoire du droit colonial, en rupture permanente avec les certitudes républicaines mais en même temps justifiées sur ces territoires par des défis inconnus de la métropole. Ne nous étonnons donc pas qu’y ait été substitué au diptyque «citoyens et étrangers» une tripartition fondée sur la distinction entre citoyens, sujets et . . . citoyens sujets. Et par conséquent qu’un droit put y être tout à la fois . . . étranger et national: national par principe pour mieux le contrôler ou le réduire et étranger par nature pour accepter d’en appliquer des dispositions éloignées des règles du droit national. Ce qui fait de la question moins une question de théorie juridique qu’un problème de politique coloniale par laquelle on accepte le droit de «l’autre» pour en faire «le sien» . . . afin de mieux le réduire! Et, dans les faits, le législateur colonial n’a pu faire autrement que de reconnaître le droit musulman, non sans multiplier les réserves (I) et les juges ont du l’appliquer lorsque, saisis en première instance ou en appel comme en cassation, la question qui leur était posée entrait dans le périmètre officiellement retenu (II). Mais ces mêmes magistrats, condamnés à l’appliquer, n’ont pas ménagé leur effort pour le contrôler et le réduire, chaque fois qu’ils l’ont pu (III).

4 Voir le décret des 13 décembre 1866 – 3 janvier 1867 (D.P. 1867, 4, 17), celui des 10 – 15 septembre 1886 (D.P. 1887, 4, 45) et des 17 – 27 avril 1889 (D.P. 1890, 4, 45). 5 On peut voir deux décisions au Recueil Penant concernant ces compétences: un arrêt de la Cour d’appel de Pondichéry du 16 juin 1894 (Rec. Penant, 1894, p. 480) et un arrêt de la Cour de cassation du 20 juillet 1894 (Rec. Penant, 1894, p. 403, article 625). 6 Voir le réquisitoire de l’avocat général Petiton sous un arrêt du 26 décembre 1881 relatif au droit musulman appliqué en Inde, D.P. 1882, 1, 149. Nous laisserons de côté cette question relative à la «nature juridique de ces droits» et aux positions mouvantes dans le temps et l’espace adoptées par la Cour de cassation et la Doctrine, en réservant l’examen pour un prochain article.

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I. Reconnaître le droit musulman Dans les premiers établissements coloniaux français au Sénégal, réduits à quatre communes, tous les indigènes avaient conservé leur statut personnel dans la mesure où ce statut n’était pas incompatible avec les principes de la civilisation française. Pour beaucoup de musulmans du Sénégal cela signifiait qu’ils s’adressaient non pas aux tribunaux français quand leur statut personnel était en jeu mais à des Marabouts, dépourvus d’ailleurs de toute autorité officielle. Or, deux mesures contradictoires (du moins en apparence) sont intervenues à quelques années de distance. D’une part, un arrêté du 5 novembre 1830 était venu promulguer le Code civil aux colonies (article 1: le territoire de la colonie est considéré dans l’application du code civil comme partie intégrante de la métropole; tout individu né libre et habitant le Sénégal ou ses dépendances jouira dans la colonie des droits accordés par le code civil aux citoyens français) et une loi du 24 avril 1833, applicable à toutes les colonies et assimilatrice à outrance était venue proclamer dans son article premier que «toute personne née libre ou ayant acquis légalement la liberté jouit dans les colonies des droits civils et des droits politiques sous les conditions prescrites par la loi», incidente qui visait les dispositions spéciales qui avaient pu être édictées dans le passé ou le seront dans l’avenir à l’égard des colonies concernant la jouissance de ces droits. A ce titre, il est vrai, cette incidente renvoyait au maintien du statut indigène proclamé lors de l’annexion et en conséquence restreignait la portée de la loi de 18337. Il est vrai, en outre, que ce dernier texte n’avait qu’une portée pratique limitée puisque l’exercice des droits politiques, à cette époque, n’avait guère l’occasion de se manifester8. La réaction au Sénégal, seule colonie française en Afrique avec l’Algérie à cette date, fut immédiate et une série de pétitions fut adressée au Gouvernement pour marquer la volonté des musulmans de n’être pas soumis au Code civil. Dans une pétition datée de 1832 et reprise en 1842, 1843, puis en 1844, et 1847 ils demandaient d’être traités comme les musulmans d’Algérie et donc d’être soumis au Coran. Après de longues tractations et tergiversations, c’est finalement Faidherbe qui pour des raisons militaires et économiques et fort de son expérience algérienne a appuyé le projet d’un tribunal musulman. Et le 20 mai 1857 était créé à SaintLouis du Sénégal un Tribunal musulman composé d’un cadi, d’un assesseur qui le supplée au cas d’empêchement et d’un greffier. Les causes étaient instruites et jugées d’après le droit et suivant les formes de procéder en usage chez les musulmans. Cette création fut complétée par un arrêté local du 24 mai 1862 installant un tribunal musulman à Dakar, à Rufisque et enfin à Kayes. Dareste, Traité de droit colonial, 1932, p. 334. En outre, l’Algérie et l’Inde avaient déjà à cette date un statut particulier et des lois avaient réservé aux indigènes un statut civil personnel et refusé les droits politiques. 7 8

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La contradiction entre la reconnaissance de la citoyenneté et le maintien d’un droit très différent sautait aux yeux et il a fallu que le législateur comme la jurisprudence trouve, dans les années qui ont suivi, à opérer les aménagements nécessaires. En matière de droits politiques et en s’appuyant sur la loi de 1884 (qui ne parlait pas des indigènes), les tribunaux ont reconnu aux indigènes nés sur le territoire des quatre communes le droit de vote et le 29 septembre 1916 une loi votée en pleine guerre martelait que «les originaires des communes de plein exercice du Sénégal et leurs descendants sont et demeurent citoyens français soumis aux obligations militaires prévues par la loi du 19 octobre 1915», loi qui régira les droits des habitants des quatre communes jusqu’en 1945. En matière de droits civils, la contradiction n’était pas entièrement levée et dans un arrêt du 2 avril 1926, la Cour d’appel de l’AOF fut amenée à affirmer que «la loi de 1916 n’a eu en vue que de régler la situation militaire mais non pas de retirer aux indigènes leur statut personnel coranique»9. Cette «reconnaissance» ne fut pas sans être accompagnée de réticences diverses. Réticences d’abord très officielles puisque la création elle-même des tribunaux fit l’objet de tergiversations périodiques, soulignant que la création n’était faite qu’à regret. Ainsi, selon Faidherbe lui-même, cela ne devait être qu’une «concession nécessaire faite à regret à une religion qui nous gêne par son intolérance: aussi devons nous accorder le moins possible». La Troisième République garda cette attitude réticente. Plusieurs dépêches ministérielles émanant du département de la marine et des colonies avaient également souligné que le décret de 1857 devait être interprété dans un sens restrictif et que l’autorité française «ne devait pas se prêter au développement d’institutions qui s’écartent de nos lois et qui tendraient à diminuer notre influence» (DM, 19 juillet 1875). En 1875, le Gouverneur écrivait au Ministre qu’il trouvait que le décret de 1857 était une concession regrettable et qu’il était temps selon lui «d’arrêter dans cette voie». Il fut donc écrit, dès le départ, que ce tribunal n’était pas un tribunal de droit commun, qu’il fallait l’accord des deux parties pour le saisir, qu’en cas de contestation, ce serait l’administration qui trancherait et qu’il pourrait être fait appel de ses décisions devant un conseil d’appel. Ce tribunal connaissait – mais l’article 2 précisait «exclusivement» – des affaires entre indigènes musulmans et relatives «aux questions qui intéressent l’état civil, le mariage, les successions, donations et testaments». Sa compétence était donc restreinte et en aucun cas il n’avait été question de lui attribuer des compétences au pénal. De même, on refusait aux indigènes 9 Elle n’y parvient toutefois qu’en glosant sur le terme de «citoyen» (aucun texte législatif ne définit le mot) et en affirmant que «sa définition grammaticale non légale ne peur prévaloir sur la volonté du législateur et que cette définition doit céder devant l’expression même imparfaite mais claire du législateur», interprétation fort douteuse au vu des termes très clairs du texte et qui faisait du juge le maître d’œuvre (très critiqué par une partie de la doctrine) non d’une application de la loi mais de sa modification!

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musulmans étrangers le bénéfice du décret10. Enfin, tout musulman pouvait décider d’opter pour un tribunal français et / ou pour la législation française11. Réticences ensuite allant jusqu’à la suppression puisque cette création, pourtant étendue en 1898 par la création de Cadis dans chaque cercle (mais il fut très difficile d’installer des cadis compétents), fut brutalement interrompue par un décret du 10 décembre 1903 qui vint supprimer tous les tribunaux musulmans . . . Mais suppression vite contredite puisque ces tribunaux furent rétablis par un nouveau décret du 22 mai 1905 (à Saint-Louis, Dakar et Kayes) et un autre du 29 janvier 1907 (Rufisque) qui confièrent désormais l’appel de leurs décisions à la Cour d’appel. Là encore, ces revirements furent accompagnés d’interprétations restrictives, la Cour d’appel, critiquée par la doctrine, soulignant que même si ces tribunaux avaient été rétablis par le décret de 1905, sa compétence à elle ne lui imposait nullement de s’adjoindre un assesseur musulman, ce décret ne l’évoquant pas12. La vive émotion suscitée par le décret de 1903 venait de ce que, en organisant la justice indigène, le législateur colonial renvoyait ces justiciables à des tribunaux français (jugeant en matière musulmane) ou indigènes, émotion reprise en 1926 lorsque le décret du 22 mars 1924 institua sur tout le territoire de l’AOF des juridictions indigènes sans distinguer selon la religion ou la nature de l’affaire! «Par voie de conséquence implicite», concluait un arrêt du 8 janvier 1926, cela entraînait la disparition des tribunaux musulmans. La Cour d’appel y développait savamment une argumentation selon laquelle ce décret de 1924 avait décidé de faire cesser la diversité ratione loci qui existait dans l’ordre des juridictions à l’intérieur et à l’extérieur du ressort des tribunaux français de Saint-Louis, Dakar et Kayes et de soumettre tous les indigènes, ayant conservé le statut indigène, uniformément, 10 Un arrêt de la Cour d’appel du 2 juin 1911 leur en refuse le bénéfice et exige qu’ils portent leurs litiges devant les tribunaux de droit commun, Rec. Dareste, 1911, 3, 234. 11 Mais il est à noter que en choisissant la juridiction française les musulmans ne renoncent pas à l’application de leur droit sur le fond: l’article 4 du décret de 1857 se contente de dire que dans ce cas le tribunal «statue selon les règles de compétence et les formes de la loi française», l’article 6 voulant que un assesseur musulman soit adjoint au tribunal. En revanche, en optant pour une institution de droit français, ils manifestent par là même leur volonté d’être soumis aux règles du code civil. Ainsi le 6 septembre 1929 la Cour d’appel de l’AOF, en sa même chambre musulmane, déclarera le tribunal musulman incompétent en raison du fait qu’un musulman, qui n’a jamais renoncé à son statut, a rédigé un testament devant notaire et selon le droit français. Le tribunal musulman de Dakar avait jugé que l’intéressé n’ayant jamais renoncé à son statut n’avait pas qualité pour tester suivant les formes et les règles du code civil. A ce titre, le legs fait à sa veuve dépassait la part qui devait lui revenir en tant qu’héritière de son défunt mari aux termes de la coutume coranique. Or, dit la Cour, même s’il a conservé la foi et le statut musulman, rien ne l’empêchait d’opter pour la législation française puisque tous les décrets depuis 1857 lui reconnaissent ce droit. Et en faisant cette option, le défunt a manifesté sa volonté d’écarter la compétence de la juridiction indigène et de voir ses dispositions testamentaires appréciées du seul point de vue de la loi française (Rec. Penant, 1930, p. 259 – 261, article 5136, 2ème espèce). 12 Rec. Penant, 1907, p. 260 – 263, article 2419, arrêt du 18 février 1907.

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dans toute l’Afrique occidentale, à une juridiction identique ayant pour eux plénitude de juridiction, les citoyens français relevant quant à eux des tribunaux français. En conséquence, elle infirmait le jugement du cadi de Rufisque pour incompétence, jugement qui avait ordonné à une épouse de rejoindre le domicile conjugal. Tout aussi savamment, un annotateur avait critiqué cet arrêt et démontré que le décret de 1924 n’avait pas détruit ou restreint l’application des décrets antérieurs et donc aucunement abrogé les dispositions de celui de 1905. Par son silence même, le législateur avait entendu maintenir le statu quo. Il précisait d’ailleurs qu’il ne prenait nullement la défense de ces tribunaux mais que si on pouvait souhaiter leur régression il fallait que le législateur colonial «traduisit, par un texte formel et indiscutable, l’astreinte de tous les musulmans à la juridiction des tribunaux indigènes institués par le décret de 1924, en supprimant les tribunaux de cadi»13. Du reste, le même annotateur, l’année suivante, constatait que la Cour d’appel, présidée par le même magistrat, se prononçait en sens diamétralement opposé pour reconnaître la compétence des tribunaux musulmans sur une question relative à l’existence d’un mariage14. En définitive, le décret du 20 novembre 1932 confirmait le maintien, pour les originaires des quatre communes et leurs descendants, «d’un statut civil réservé» comprenant l’état des personnes, le mariage, les successions, donations et testaments qui devait leur être appliqué soit par les tribunaux musulmans qui sont maintenus, soit par les tribunaux français lorsque ceux-ci sont saisis d’un commun accord. Ce décret, qui n’institue pas directement de tribunaux musulmans mais autorise le Gouverneur général à en instituer «instruisent et jugent les affaires qui leur sont soumises en se conformant à la loi coranique. Le décret ajoutait toutefois «sauf sur les points où prévalent les coutumes locales»15. Le 29 mai 1933 un autre tribunal musulman était créé à Kaolack.

II. Respecter le droit musulman Le droit musulman fut très officiellement appliqué au sein des tribunaux musulmans comme au sein des tribunaux français16 y compris les questions plus sensibles (comme celles relatives au droit successoral ou à la reconnaissance d’un enfant naturel, domaines pour lesquels le droit musulman marque sa différence) comme les plus banales (problèmes relatifs au paiement de la dot, à la répudiation Rec. Penant, 1926, p. 136 – 140, article 4679 et note 1. Rec. Penant, 1927, p. 265 – 267, article 4852, arrêt du 4 mars 1927 15 Dareste, Traité de droit colonial, 1932, tome 2, fasc. 2, p. 458 et s. 16 Notons que le droit musulman «sous la forme de coutumes infiltrées de droit coranique» était appliqué par les tribunaux de subdivision ou de deuxième degré et dans tous les domaines, y compris le droit pénal, sauf dans les dispositions contraires aux principes de la civilisation française. 13 14

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ou au divorce), le juge français n’hésitant pas en outre dans certains cas de faciliter le travail du juge musulman17. Ainsi dans une affaire survenue en 1888 relative à un conflit entre un fils naturel reconnu autrefois par le défunt et la femme, la sœur et la fille du défunt. La reconnaissance d’un enfant naturel étant interdite en droit musulman, le fils avait fait valoir, pour échapper à l’application d’un droit musulman qui lui aurait été défavorable que la loi municipale du 5 avril 1884 emportait qualité de citoyen français et donc application du code civil et que l’acte de reconnaissance valait volonté du défunt d’échapper à la loi musulmane. Saisi par le fils naturel reconnu, le tribunal de première instance de Saint-Louis avait, par jugement du 26 janvier 1888, pris acte de ce que les autres héritières revendiquaient la compétence du tribunal musulman tout en acceptant la juridiction du tribunal civil comme l’exigeait l’autre héritier, ce désaccord fondant la compétence du tribunal civil, et décidé de s’adjoindre un assesseur musulman. Il avait mis en avant le fait que la loi du 5 avril 1884, rendue applicable par le décret du 26 juin suivant «n’a abrogé ni explicitement, ni implicitement le décret du 20 mai 1857 et que les auteurs de cette loi, d’ordre exclusivement politique, n’ont certainement pas entendu, en donnant aux indigènes musulmans la capacité électorale, les priver des avantages bien autrement précieux pour eux de leur statut particulier; que s’ils avaient eu cette pensée, ils l’auraient formellement exprimée». En appel, la Cour confirma «purement et simplement par adoption des motifs» le jugement par arrêt du 15 mars 188918. Sur pourvoi la Cour de cassation tranchera dans le même sens, d’une part en faisant valoir que «les droits politiques sont distincts des droits civils et que la jouissance des uns n’implique nullement celle des autres», d’autre part que la reconnaissance d’un enfant naturel, acte soumis à la loi française et fait conformément au code civil, «n’emporte pas renonciation du défunt, ni pour lui, ni pour son fils au statut personnel musulman et que la succession soit soumise, par rapport au demandeur, à l’application de la loi française». L’enjeu était de taille car le droit musulman ne reconnaît aucun droit à l’enfant né de relations sexuelles illicites, refusant au père de reconnaître un enfant naturel tout autant que de le légitimer par mariage subséquent, ce que dira la Cour d’appel de l’AOF dans une autre affaire en refusant à Rosalie Seck de prétendre à la succession de son père Charles Seck, celui-ci l’ayant reconnu après son mariage avec Dioupou Diop19. 17 Afin de faciliter le travail du juge musulman et de lui permettre l’application de son droit lorsqu’il est constaté qu’en vertu des documents versés aux débats que «la révocation des donations déguisées peut être poursuivie par des héritiers musulmans, le Cour d’appel décidera que dans le silence des textes réglant la procédure devant les tribunaux de l’AOF, on ne saurait refuser à ce juge le droit d’autoriser une deuxième enquête pour éclairer leur religion qui leur permettra d’amener une manifestation plus complète de la vérité (Rec. Penant, 1928, p. 126, article 4897, audience du 24 juin 1927). 18 Rec. Penant, 1891 – 1892, p. 237 – 241, article 84. 19 Rec. Penant, 1908, p. 235 – 236, article 2538, audience du 20 mars 1908. Un autre arrêt du 13 mai 1927 confirme la compétence du tribunal musulman de Saint-Louis pour connaître de la qualité d’héritiers dans une succession musulmane, les parties étant de statut indigène et

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Mais la Cour ira beaucoup plus loin dans «l’application de la loi étrangère». Dans un arrêt (d’ailleurs contesté par la doctrine) elle affirmera «puiser dans sa connaissance personnelle du droit coranique les éléments suffisant pour trancher le litige entre un père musulman qui demande l’annulation d’une reconnaissance qu’il a faite le 28 décembre 1917 d’un fils et la mère de l’enfant qu’il accuse de dol puisque «ayant vu l’enfant, il avait constaté qu’il était étranger à la conception de cet enfant». Le tribunal de première instance de Dakar avait déclaré nulle et de nul effet la reconnaissance. Sur appel de la mère, Elisabeth Grace, la Cour confirma le jugement, attendu que «il apparaît clairement que l’infamie attachée par la loi coranique à la filiation naturelle et l’ignorance volontaire absolue de l’institution de la reconnaissance d’enfant naturel par cette législation qui ne saurait évidemment permettre à une personne de se targuer d’un acte puni par la loi, font ressortir que l’incapacité qui existe pour les sujets musulmans ottomans de se reconnaître les auteurs d’un enfant naturel est d’un caractère radical et absolu, d’ordre public à tel point que l’acte fait en violation de cette incapacité est atteint d’un nullité radicale et absolue qui doit le faire tenir pour inexistant et qui peut être invoquée par toute personne intéressée, d’autant plus que cet acte ne saurait produire aucun effet puisque la loi coranique veut ignorer l’existence d’aucun rapport de parenté hors la parenté légitime prenant naissance dans le mariage; qu’il est ainsi certain que, soit au point de vue de sa loi nationale, soit au point de vue de la loi française, Hassane Hyjazy a qualité . . . pour demander l’annulation»20. Enfin, il est clair que dans une affaire qui oppose le fils naturel d’une femme musulmane, élevé dans la religion catholique et ayant renoncé à son statut personnel et les deux autres fils musulmans qu’a eu cette femme d’une union avec un mari musulman, dans une affaire concernant la succession de la défunte, le cadi de Saint-Louis par jugement du 4 juin 1901, le tribunal de première instance de Saintlouis, le 8 mars 1902, la Cour d’appel du Sénégal le 29 juin 1903 et enfin la Cour de cassation par arrêt du 22 mai 1905, ont unanimement décidé que «la loi musulmane refuse la qualité d’héritier aussi bien à celui qui a été élevé dans une autre religion que celle de Mahomet qu’à celui qui a renié sa croyance et qu’elle l’exclut de toute participation à la succession d’un musulman; qu’il résulte des constations . . . que Gaspard Devès, fils de Sylvie Bruno, a été élevé dans la religion catholique; qu’il n’est pas contesté qu’il a vécu et qu’il est mort catholique; qu’en décidant en conséquence qu’il ne saurait prétendre à la succession de Sylvie Bruno, décédée musulmane, l’arrêt attaqué, d’ailleurs régulièrement motivé, a donné une base légale à sa décision, fait une exacte application de la loi musulmane et n’a violé aucun des textes visés au pourvoi»21. Mais nous verrons plus l’octroi de la qualité de citoyen français aux originaires d’une des quatre communes de plein exercice du Sénégal et à leurs descendants n’ayant pas eu d’effet sur le statut des indigènes nés dans la religion musulmane (Rec. Penant, 1928, p. 129 et s., article 4898). 20 Rec. Penant, 1927, p. 148 – 150, article 4798. 21 Rec. Penant, 1905, p. 295 – 297, article 2182, Chambre des requêtes; voir aussi Rec. Dareste, 1905, page 180.

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loin que la Cour de cassation, il est vrai pour une autre colonie, n’hésitera pas à prendre le contre-pied de cette position et ce au détriment de l’application du droit musulman. L’application du droit musulman par les magistrats français est donc aisément attestée et dans les domaines les plus divers. Ainsi un arrêt du Conseil d’appel du Sénégal du 29 avril 1896 faisant application du droit malékite dans une demande de divorce introduite par une femme mariée se plaignant des injures faites à elle par son mari. Le Cadi s’était contenté de prendre acte de ce que «le mari avait affirmé son intention de consommer le divorce» et le Conseil d’appel constate que le jugement dont est appel «a fait une juste application de la loi»22. Ou encore un arrêt de la Cour d’appel du 17 janvier 1908 par lequel elle confirme la décision du Cadi de Kayes qui condamnait Djeby Sy à remettre une dot, constituée d’une somme de 80 francs et d’une vache, à son épouse, dot qu’il lui avait promise pour qu’elle accepte de se remarier avec lui: Considérant que c’est à bon droit qu’en droit musulman le mari est tenu de remettre à la femme la dot convenue . . . que par suite c’est à bon droit que le premier juge a condamné l’appelant à livrer à l’intimé l’animal», d’autant plus qu’elle avait fait valoir que «c’est la promesse de l’animal qui décida l’intimée à se remarier avec Djeby Sy»23. Le 25 novembre 1902, le Conseil d’appel musulman annule un jugement du cadi de Saint-Louis parce qu’il a prononcé la dissolution du mariage sur la demande pure et simple de l’épouse, Voulimata Niang, sans motifs aucuns et sans aucun torts à la charge du mari. Il semble qu’en l’espèce le Cadi a plutôt appliqué la coutume et les usages locaux. Or, rappelle le Conseil d’appel, cela ne peut être fait que lorsque aucun texte n’existe ayant trait à la matière! Ce qui n’est pas le cas en l’espèce puisque la femme musulmane qui veut rompre son mariage ne peut le faire, au regard «de la loi et de la religion coraniques auxquelles les juges ne peuvent introduire des modifications» sans motifs (sévices, injures graves, défaut d’entretien ou refus de cohabitation) outre l’obtention de l’accord du mari par paiement du khoul. Mais le Conseil laisse la porte ouverte à une nouvelle instance, l’épouse «offrant de prouver les mauvais traitements de la part de son mari» et étant donc «dans un des cas précités où la dissolution du mariage à la requête de la femme est licite et peut être admise». La question de la majorité fut également abordée et les règles du droit musulman appliquées à un enfant, Abdounabi Kamara, mineur au titre de la loi française mais majeur au regard de la loi musulmane. En l’espèce, la mère, agissant comme tutrice naturelle et légale, avait déposé une requête tendant à faire modifier l’acte de naissance de son fils né d’un père citoyen français «mais déclaré par erreur» à l’état civil indigène. Le tribunal de Kaolack jugera qu’il y a «dans la cause un ensemble de présomptions graves, précises et concordantes» qui établissent que le fils revendique la loi coranique. Or né le 13 mai 1907 il n’est pas 22 23

Rec. Penant, 1896, p. 500, article 989. Rec. Penant, 1908, p. 280 – 281, article 2552.

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majeur le jour de la demande (le 20 décembre 1927) au regard du code civil, mais il est majeur au regard du droit musulman, celui-ci exigeant la puberté et la capacité à gérer ses affaires outre d’autres conditions (doué de discernement, libre, musulman) que le juge doit apprécier (comme il aurait eu à les apprécier si l’enfant était une fille, celle-ci pouvant être mineure au-delà de ses 21 ans si elle n’a pas perdu légalement sa virginité, c’est-à-dire par mariage). Le tribunal rejette la requête de la mère24.

III. Réduire le droit musulman Le Conseil d’appel puis la Cour d’appel cherchèrent par leur jurisprudence à restreindre autant qu’elles le pouvaient la plage d’intervention du droit musulman. D’une part en n’hésitant pas à contrôler les cadis ou à leur rappeler les règles de saisine qu’ils doivent respecter25 ou encore à leur refuser toute compétence lorsqu’ils ne sont pas officiellement investis. Ainsi du refus de tenir compte d’un jugement rendu par un cadi qui n’a reçu aucune investiture légale dans une affaire opposant un mari et son épouse, la femme remettant au tribunal de première instance de Dakar un jugement rendu par le cadi de Dakar contenant prononciation de répudiation aux torts du mari alors que celui-ci produisait un autre jugement rendu par un autre cadi, celui de Sakhal, annulant l’autre jugement. Le tribunal, le 18 octobre 1904, donne raison à l’épouse tant parce que le premier jugement a été rendu en la forme contradictoire selon le droit musulman (la correspondance du cadi avait valablement touché le défendeur) que parce que le second cadi était sans investiture régulière alors que le cadi de Dakar l’avait été par décision du conseil d’appel du Sénégal en date du 23 mai 1894. La Cour d’appel qui donnera raison à l’épouse mais tout en donnant tort au tribunal d’avoir retenu la compétence du cadi de Dakar, soulignera que on ne peut accepter l’idée que «en matière indigène l’existence des cadis et leur juridiction ont été tacitement reconnus par l’autorité française et que l’investiture a toujours été donnée aux cadis locaux suivant les formes et les coutumes de chaque pays». Au contraire, la Cour souligne que l’arrêt du conseil d’appel du Sénégal invoqué par le tribunal soutient que «les indigènes de ces anciens territoires d’administration directe sont passés, soit de la juridiction de leurs cadis, soit de celle de leurs chefs et administrateurs sous celle des tribunaux français»26. Rec. Penant, 1928, p. 161 – 162, article 4909. La Cour d’appel infirme un jugement du cadi de Kayes qui a prononcé le divorce entre deux personnes qui étaient venues le consulter sur une difficulté survenue dans leur ménage et pour qu’ils les concilient. «Considérant qu’en prononçant ainsi sur une chose dont il n’était pas saisi, le tribunal musulman a violé de ce chef le principe selon lequel un tribunal ne peut connaître que des demandes portées devant lui par les parties» (Audience du 7 avril 1908, Rec. Penant, 1908, p. 28, article 2617). 26 Rec. Penant, 1905, p. 307 – 311, article 2188. 24 25

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La Cour rappellera également aux juges français de ne pas se déclarer incompétents en faisant une mauvaise appréciation des décrets. Le 17 novembre 1894, le tribunal de première instance de Saint-Louis refuse au cadi de Saint Louis de connaître d’une demande déposée par Codou Sene contre son mari Dialor Gueye en restitution de dot après répudiation au motif que «si le cadi, à la fois magistrat et chef de la religion musulmane, paraît seul qualifié pour prononcer ou constater la dissolution du mariage, sa compétence s’efface pour faire place à celle des Tribunaux français quand il s’agit d’apprécier les conséquences pécuniaires résultant pour les époux du divorce ou de la répudiation. C’est donc aux questions d’état que se limite la compétence des cadis «c’est-à-dire aux matières qui, dans les pays islamiques, touchent autant si non plus à la religion qu’au droit civil». Il s’agit en l’espèce, une fois le mariage dissous par répudiation, de prendre acte que le paiement de la dot incombe au mari et donc que la femme est alors créancière de son mari dès lors que la mariage a été consommé. Même solution dans un arrêt de la Cour d’appel du 2 février 1906 qui, contrairement au tribunal civil de Saint-Louis qui s’était déclaré incompétent pour connaître de la demande d’une épouse en restitution de dots réclamée à son tuteur matrimonial pour deux mariages, l’un avec Lassauna Samba, l’autre avec Amadou Fadiana, ainsi que pour la somme perçue à l’occasion d’une vente d’effets mobiliers dépendant de la succession de son premier mari, décédé ainsi que les objets pris dans la succession. Le tribunal n’avait retenu sa compétence que pour les effets perçus. La Cour soulignera que c’est à tort que pour affirmer son incompétence le tribunal a considéré que la dot était en droit coranique un des éléments essentiels et constitutifs du mariage musulman et donc que la demande de l’épouse touchait à une question relative au mariage . . . «Il ne s’agit pas en la cause d’une dot dont la constitution pourrait intéresser la validité d’un mariage mais simplement de la restitution du montant d’une dot consentie à l’occasion d’un mariage et versée par le mari à un tiers; que dès lors, cette demande n’étant pas relative à une question intéressant le mariage, réservée par le décret de 1905 aux tribunaux musulmans, mais une demande en restitution, les tribunaux civils peuvent en connaître; que c’est donc à tort que le premier juge s’est déclaré incompétent de ce chef»27. D’autre part, en leur rappelant les limites précises dans lesquelles les décrets ont enfermé leur compétence. Une série d’arrêts vinrent les interpréter étroitement. Ainsi, les tribunaux musulmans vont être déclarés incompétents pour les affaires de tutelle des mineurs, du régime des biens entre époux, de restitution de dot, de liquidation et de partage des successions . . . et ce malgré les critiques de la doctrine. Donnons quelques exemples. Le 23 mai 1894, le Conseil d’appel musulman refuse aux cadis locaux et en appel au tribunal musulman de Saint Louis toute compétence en matière de revendications de terrains, qu’il s’agisse de terres possédées suivant les coutumes ou de concessions devenues propriétés aux termes de la loi française, compétences réser27

Rec. Penant, 1906, p. 133 et s., article 2267.

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vées aux chefs indigènes ou aux administrateurs dans le premier cas ou aux tribunaux français dans le second cas28. Le 25 février 1899, le tribunal de première instance de Saint-Louis déboute Ramatoulaye Seck de sa demande en déguerpissement contre Samba N’Diaye, fondée sur un jugement du tribunal musulman en date du 25 janvier 1876 constatant un vente qui la constitue propriétaire d’un terrain. Samba N’Diaye conteste ce titre comme émanant d’une autorité incompétente, tout en reconnaissant que son adversaire, ancienne propriétaire, lui a vendu le terrain moyennant la somme de 450 francs dont 200 restent à payer, ce qu’il offre de faire. Le tribunal, tout en jugeant les offres suffisantes et libératoires, déclarera nul le jugement du tribunal musulman «sans qualité s’agissant d’une vente d’immeuble», les seules questions sur lesquelles le tribunal musulman étant apte à statuer concernant les affaires entre indigènes musulmans relatives à l’état civil, aux mariages, aux successions, donations et testaments»29. Il en va de même lorsque le recours porte sur «la restitution de plans, documents et de diverses sommes d’argent dont Boubacar Gueye se serait emparé au moment du décès du père de Youssouf Diop». Le cadi n’est pas compétent mais bien le tribunal civil «car il ne s’agit pas en l’espèce d’une question intéressant une succession, telle qu’un droit héréditaire»30. Le 31 janvier 1895, la Cour de cassation par un arrêt de la chambre des requêtes décide que les tribunaux français sont seuls compétents pour connaître des questions relatives au fonctionnement et à l’organisation de la tutelle des mineurs musulmans, leur compétence étant limité aux questions d’état et non pas à celles qui concernent leur capacité. En l’espèce, l’affaire avait été décidée le 24 janvier 1894 par le cadi de Saint-Louis en faveur d’Amady Coumba et désigné comme tuteur de trois orphelins, ses cousins germains. Mais le 16 février suivant, un nommé Mambas N’Diop, oncle maternel, convoquait un conseil de famille devant le juge de paix et faisait attribuer à Rabat Fall la tutelle. Le tribunal de Saint-Louis tranchera le 10 mars 1894 en faveur de ce dernier, jugement confirmé en appel par la Cour d’appel et par la Cour de cassation. Cette affaire fit l’objet d’une note fort savante, insérée au Dalloz, à la signature d’un professeur de la Faculté de droit de Bordeaux. Il y démontrait d’une part que l’on ne pouvait, pour résoudre le conflit, s’inspirer ni du droit applicable à l’Algérie, ni de celui applicable dans les établissements de l’Inde, le décret de 1857 ayant énuméré limitativement les compétences et fait du tribunal musulman au Sénégal un tribunal d’exception dont les attributions doivent être strictement respectées. C’est sur ce motif que la Cour de cassation s’était prononcée. Quant au tribunal de Saint-Louis et à la Cour d’appel, ils avaient appuyé leur raisonnement sur un autre motif, celui consistant à dire que la cadi ne peut vendre des biens pour faciliter la liquidation d’une succession puisque le «tribunal musulman ne doit connaître que des affaires litigieuses concernant les Rec. Penant, 1894, p. 417 – 422, article 633. Rec. Penant, 1899, p. 189 – 191, article 1348. 30 Rec. Penant, 1906, p. 203 – 204, article 2291, audience du 4 mai 1906, Cour d’appel de l’AOF. 28 29

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successions». La Cour d’appel soulignait que les termes mêmes du décret «affaires entre indigènes», «causes instruites et jugées», «jugements», «contestation» . . . justifiaient pareille interprétation et déniait au cadi toute juridiction gracieuse, et ce d’autant plus qu’en droit français ce n’est même pas un tribunal mais le conseil de famille qui est chargé de cette opération. En conséquence lorsque pareil problème se pose il faut se comporter selon les principes qui veulent que les questions incidentes soient transmises au juge compétent. En l’espèce, lorsque lors de l’attribution d’une tutelle se posent des questions de parenté, de filiation, bref des questions d’état civil, le juge de paix doit s’adresser au cadi mais une fois la réponse donnée celui-ci n’a nullement le pouvoir d’accomplir des actes qui échappent à sa compétence, en, l’occurrence nommer un tuteur31. La Cour de cassation en négligeant ces arguments et en ne retenant que le caractère restrictif du décret de 1857 mettait fin à un débat déjà ancien en même temps qu’à une pratique cadiale qui avait considéré qu’en dépit des dispositions restrictives organiser les tutelles faisait partie des compétences du tribunal musulman. La chose semblait aller de soi dès lors que personne ne protestait et que les successions en cause étaient de peu d’importance et les héritiers d’accord. Mais en 1863, à la mort d’un traitant de Saint-Louis, le cadi de Saint-Louis, se considérant comme tuteur des deux filles mineures du défunt entend procéder à la liquidation de la succession. Sur la constatation que les deux immeubles sont impartageables en nature (outre les deux filles, sont également héritiers l’épouse du défunt et deux cousins germains), il demande autorisation de vendre au tribunal civil. . .qui refuse. A la demande de la mère des mineures (elle a été répudiée et s’est remariée), le tribunal civil demande au cadi de présenter ses comptes de gestion et ordonne une expertise des immeubles qui conclut . . . à la possibilité du partage en nature. L’affaire prend alors une toute autre dimension, le maire de Saint-Louis, en conciliation, faisant valoir que le tribunal français était compétent puisque le litige portait non sur une succession mais sur une reddition de comptes, la cadi refusant de se rendre devant le tribunal et déniant sa compétence en l’absence d’un assesseur musulman et ce tribunal, le 15 juillet 1867, condamnant le cadi à rendre ses comptes et autorisant le mari de l’épouse répudiée à entrer en possessions des immeubles litigieux. Considérant que ce jugement donnait toute la succession aux filles (contrairement aux règles du droit musulman), le cadi fit appel au Conseil d’appel qui lui donna raison par arrêt du 21 août 1967. L’affaire ensuite se complique et se perd dans les difficultés de procédure: Le chef du service judiciaire affirme qu’il n’y a pas d’autre solution que de demander un règlement de juge à la Cour de cassation, règlement que nous n’avons pas, l’affaire, selon Bernard Schnapper, s’étant terminée par une transaction.32 Ce qui ne signifie pas que les conflits prirent fin, bien au contraire, puisque le même auteur rappelle qu’en 1883, le greffier du tribunal musulman procède à une vente publique d’effets mobiliers et est pourD.P. 1899, 1, 113, note Levillain. Voir aussi Sirey, 1896, 1, 317. B. Schnapper, Les tribunaux musulmans et la politique coloniale au Sénégal, 1830 – 1914, RHD, 1961, p. 90 – 128, p. 116. 31 32

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suivi en usurpation de fonction devant le tribunal civil par le commissaire priseur de saint-Louis où il le fait condamner à des dommages-intérêts. Le Cadi, songeant à se pourvoir en Conseil d’Etat, déclarait, dans un mémoire, que le droit musulman lui donnait pouvoir de liquider les successions . . . prétention renouvelée en 1888, lorsqu’il se plaint d’empiètements du greffier-notaire du tribunal. . . La Cour d’appel, par arrêt du 4 décembre 1908, au sujet d’une succession rappelle que ni le décret du 20 mai 1857 ni celui du 22 mai 1905 qui a réorganisé la justice musulmane en AOF «et qui a reproduit les mêmes dispositions que celui de 1857», ne donnent aux magistrats du tribunal musulman le droit de procéder aux liquidation et aux partages des successions musulmanes. Cette interprétation est d’ailleurs corroborée par l’intention du législateur qui dans les dépêches ministérielles sur cette question, datées des 19 juillet 1875, 19 mars 1884 et 9 février 1889 a toujours refusé de reconnaître aux cadis ces attributions pour les partages immobiliers. En conséquence, lorsque les successions comprennent des immeubles, il y a lieu d’ordonner, en cas de besoin, qu’il sera procédé à leur liquidation et partage par un notaire à ce spécialement commis33. Enfin, s’appuyant sur le décret du 25 avril 1910, les magistrats français trouveront le moyen d’écarter le droit musulman au bénéfice de coutumes, certes islamisées, mais qui s’écartent très largement des solutions retenues par le droit classique34. Le décret du 25 avril 1910 dans son article 1er avait certes confirmé que les tribunaux musulmans instruisent et jugent, en se conformant à la loi coranique mais il avait ajouté à cette reconnaissance un petit membre de phrase que soulignait «sauf sur les points où prévalent les coutumes locales (successions et testaments)». A ce titre la Cour d’appel confirmera le 2 août 1929 le jugement du cadi de Dakar qui avait appliqué la coutume Léboue dans laquelle les biens provenant de la ligne maternelle sont dévolus par succession non pas aux descendants directs mais bien aux parents de la ligne maternelle. En l’espèce le cousin maternel avait donc hérité de ces biens et non les fils du défunt35. Une décision identique sera rendue par la Cour d’appel de l’AOF le 5 août 1932. Après avoir rappelé que les décrets successifs n’ont jamais donné aux cadis le droit de procéder aux liquidations et partages des successions musulmanes et rappelé une jurisprudence constante en ce sens (arrêts des 3 décembre 1908; 23 janvier 1925; 4 mai 1906; 3 avril 1920), la Cour ordonne que – l’hérédité comportant des immeubles – qu’il soit procédé à ses liquidations et partage par un notaire à ce spécialement commis, le cadi devant fixer le nombre, la qualité des héritiers et la part proportionnelle à chacun en les établissant suivant la loi coranique sauf dérogation de la coutume, en l’occurrence voulant que l’on partage à égalité entre ligne paternelle et ligne maRec. Penant, 1909, p. 173 – 174, article 2676. Voir sur ces coutumes les articles de J. Chabas, Le droit des successions chez les Wolofs, Annales africaines, 1956, n°1, p. 75 – 119 et Le mariage et le divorce dans les coutumes des Ouolofs habitant les grands centres du Sénégal, Revue juridique et politique de l’Union française, 1952, p. 475 – 532. 35 Rec. Penant, 1930, p. 255 et s., article 5136. 33 34

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ternelle (et non comme en droit musulman par tête). Le notaire procédera à liquidation et au partage en nature de la succession «préalablement divisée en deux parts égale chacune afférente à une série d’héritiers36. On observera que cette approche est assez également partagée par les tribunaux des établissements des Indes puisque on reconnaît à la population musulmane, composée en grande partie d’Hindous convertis, d’avoir conservé sur bien des points leurs usages, que ce soit pour reconnaître à la femme pubère le droit de se marier sans avoir besoin d’obtenir une autorisation quelconque (là où le droit musulman veut l’autorisation de son père ou de son tuteur) et au fils le droit de se marier sans son consentement37, ou que ce soit pour reconnaître à la veuve le droit à exercer la tutelle de préférence à l’aïeul paternel «comme le montrent de nombreux exemples de veuves musulmanes remplissant, de l’assentiment de la famille, les fonctions de tutrices légales de leurs enfants (voir Recueil de M. Eysette un série d’arrêts).38 On voit combien complexe est l’attitude à l’égard du droit musulman et ce d’autant plus, comme nous l’écrivions plus haut, que la Cour de cassation peut, à quelques années de distance prendre le contre-pied de sa propre jurisprudence. Ainsi dans le domaine, si discuté et si caractéristique, de la reconnaissance d’enfant et du droit des successions. Nous avons vu en effet (voir affaire Devès, note 14) que la Chambre des requêtes avait, en déclarant indigne à succéder à un musulman un catholique, reconnu qu’un arrêt de la Cour d’appel avait fait une exacte et juste application de la loi musulmane. Or, dans un arrêt du 10 février 1913, il confirme un arrêt de la Cour de l’Indochine qui avait soutenu que «l’indignité qui serait la conséquence d’après la loi coranique ne peut être admise en droit comme étant contraire à l’ordre public». L’affaire, fort embrouillée, concernait la succession d’un indien musulman, sujet anglais, établi en Cochinchine en 1867 puis mort en janvier 1905 dans son pays natal non sans avoir auparavant épousé une dénommée Aissaoummale en 1880, dans l’inde anglaise, et vécu successivement avec plusieurs femmes annamites dont il avait eu plusieurs enfants. La succession ouverte, l’épouse légitime (une musulmane), un «épouse annamite» (à la religion indéterminée et présentée comme «idolâtre») et trois enfants (à la religion indécise)39 prétendent chacun à des droits qu’ont cherché à démêler à plusieurs reprises le tribuRec. Penant, 1934, p. 33 – 45, article 5489, audience du 5 août 1932. Rec. Penant, 1898, p. 76, article 1161, tribunal de première instance de Pondichéry, audience du 13 décembre 1897. 38 Rec. Penant, 1898, p. 329 – 321, article 1270, tribunal de première instance de Pondichéry, audience du 20 juin 1898. 39 Le Tribunal civil avait noté que «attendu que les intervenants ne se laissent pas prendre au dépourvu, disant que leur mère est musulmane, qu’ils sont eux-mêmes musulmans; attendu que si les intervenants pensent qu’une telle succession vaut bien une «abjuration», il ne s’ensuit pas que le Tribunal doive prendre au sérieux de telles déclarations; attendu que rien, en effet, si ce n’étaient les conclusions de leur défenseur, ne démontre que Tran-thi-Tu et ses enfants soient devenus des musulmans et se soient conformés aux rites du mahométisme; qu’il n’y a pas lieu de s’arrêter à des allégations aussi fantaisistes, n’ayant pour toute valeur que le mérite de l’originalité». 36 37

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nal civil de Saigon, la Cour d’appel de l’Indochine et la Cour de cassation successivement le 26 octobre 1910 et le 10 février 1913. C’est qu’il s’agissait non seulement de dire quelle épouse était légitime (une seule fut finalement retenue), quel statut juridique avaient les enfants, ceux-ci ayant fait l’objet d’une reconnaissance selon le droit français par leur père naturel et finalement, leurs droits à succéder étant reconnu, comment serait répartie entre l’épouse et ces enfants la succession. De l’argumentation, parfois un peu confuse, il ressort d’une part que les magistrats français ont rejeté l’argument fondé sur l’idolâtrie parce que non démontrée mais également parce que «l’indignité qui en serait la conséquence d’après la loi coranique, ne peut être admise en droit, comme étant contraire à l’ordre public» (argument affirmé par le Cour de l’Indochine et confirmé par la Cour de cassation). D’autre part, qu’ils ont reconnu le droit de succéder à un musulman aux trois enfants ayant fait l’objet d’une reconnaissance de paternité naturelle en conformité avec les règles du Code civil (La Cour de cassation affirme même, à la différence de la Cour d’appel qui ne leur reconnaissait que la qualité d’enfants reconnus, «que les trois enfants naturels régulièrement reconnus de feu Mohamed Seissat, sujet anglais et indien musulman, établissant ainsi leur filiation avaient en droit coranique, l’état d’enfants légitimes). Enfin, et sur ce point, les formulations prennent des directions imprécises, la succession sera partagée entre les enfants et la veuve qui recevra comme le veut le droit musulman le huitième de la succession. D’une part, la Cour d’Indochine, quant à elle, affirme que «la capacité des enfants se trouvant régie par la loi française . . . ils sont exclusivement appelés à recueillir la succession de leur père, sauf à eux à délivrer à la dame Aissaoummale, dans la proportion plus haut indiquée, la part qui lui revient en vertu de la loi coranique . . . la dévolution de la succession devant s’effectuer suivant la capacité des héritiers, la succession de leur père doit leur être dévolue suivant la loi française. . ..suivant la même règle, la dame Aissaoummale, veuve légitime, hindoue et sujette anglaise, doit recueillir dans la succession de son mari la part qui lui est attribuée par la loi coranique». Mais d’autre part la Cour de cassation exprime le même résultat en disant que «si l’arrêt examine en même temps la situation juridique, en tant qu’héritier, au point de vue de la loi française, des enfants Seissat qui, tous trois, ont acquis cette nationalité, ainsi que la situation de la veuve Seissat, en tant qu’héritière de son mari, au point de vue de la loi coranique, c’est à fin de fixer leur capacité respective de successibles, laquelle dépend pour chacun d’eux de leur propre loi nationale; mais qu’il ne s’ensuit pas que l’arrêt ait jugé que la dite succession serait régie à la fois par la loi française et par la loi musulmane». Or, dira la doctrine, non seulement la Cour de cassation juge en 1913 que l’exclusion d’un enfant reconnu est contraire à l’ordre public et donc en sens contraire de ce qu’elle avait jugé en 1905 en écartant un enfant reconnu en faisant une «exacte application du droit musulman», mais encore, en déclarant que les enfants sont français, elle sanctionne bien «le cumul de deux législations: pour la même succession il devait être fait à la fois application du droit français et du droit coranique.40

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C’est donc par petites touches que le droit musulman s’est vu condamner à une application restreinte auprès des tribunaux. En 1909, commentant un arrêt de la Cour d’appel, un auteur soulignait «combien il était à craindre que la jurisprudence de la Cour n’arrive à réduire singulièrement l’application et la portée du décret du 22 mai 1905». Il est clair cependant qu’il a du conserver toute sa place au sein de populations qui, loin des prétoires, continuent à vivre selon leurs coutumes et leurs croyances, ce qui limite l’exercice auquel nous nous sommes livrés à une réflexion qui concerne davantage la mise en place d’une politique coloniale que d’une véritable mise à l’écart d’un droit étranger dont la prégnance au quotidien est certainement restée forte. Cette politique coloniale n’en a pas moins débouché sur des résultats dont on ne saurait négliger l’importance. D’une part, en effet, sur bien des points, la stratégie qui a consisté à rogner peu à peu devant les tribunaux l’application du droit musulman a fini par persuader une partie de la population de négliger l’application du droit musulman au bénéfice du droit français. Le Code civil, sur bien des points, a servi alors de référence. En premier lieu, ne négligeons pas la voie de l’imitation, chère aux auteurs comme Gabriel Tarde. Elle vaut autant par la présence de populations directement soumises au droit français que par la possibilité d’obtenir la citoyenneté française et le statut personnel français. De même, il était loisible, dans toutes les colonies, à tout indigène, musulman ou israélite de faire une option de législation en faveur de la loi française, option qui pouvait être expresse et résulter d’une déclaration, contenue dans l’acte ou la convention, que les intéressés entendaient se soumettre à la loi française. En ce cas, l’acte était soumis au tribunal français, seul compétent, et emportait application du droit français. Cette option a permis d’introduire dans la société musulmane des pratiques que celle-ci ignorait, qu’il s’agisse de la validation des testaments permettant de rééquilibrer les parts successorales entre fils et filles (on sait en effet que le droit musulman ne permet pas d’avantager ou de désavantager un héritier qui vient à la succession mais qu’il est possible en revanche de tester en faveur d’un héritier évincé comme d’ailleurs en faveur d’un étranger dans la limite du tiers) ou de substituer au régime de séparation des patrimoines un régime de communauté entre époux. L’option de législation expresse, faite par une personne de statut musulman, lui permettait donc d’être soumise aux dispositions du Code civil, ce qui avait pour effet de faire tomber certains «bastions» du droit musulman, comme la répudiation, la polygamie, le droit de contrainte matrimoniale, le mariage et le droit de successions. En second lieu, par des greffes lourdes, le Code civil s’est imposé, dans certains domaines, par la voie de la législation. Il existait certaines lois communes à tous et, par degrés, selon les pays, s’était opérée une restriction du champ occupé par le statut personnel41. En Algérie, le statut personnel avait fini par se limiter à l’état, à la 40 Voir Rec. Penant, 1911, p. 147 – 149, article 2935; 1911, p. 379 – 386, article 3011; 1913, p. 254 – 256, article 3243. 41 Voir, par exemple, Emile Larcher, les Codes marocains. Alger-Paris, 1914.

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capacité des personnes, aux successions et aux immeubles non francisés. En toute autre matière c’est la loi française qui s’appliquait (avec quelques tempéraments – le juge devant tenir compte des coutumes et usages des parties pour l’interprétation des conventions, l’appréciation des faits et l’admission de la preuve en matière personnelle et mobilière). En outre, le législateur avait fixé, par une loi du 2 mai 1930, à quinze ans révolus l’âge matrimonial pour les Kabyles et, par une ordonnance du 4 février 1959, à l’âge de 18 ans pour les garçons et de quinze ans pour les filles et une législation semblable avait été prise en 1939 et 1952 en Afrique pour le mariage et la dot. Enfin, on ne saurait minimiser l’effet des stratagèmes mis en place par les magistrats, dont la constance a fait la démonstration, ici ou là, de leur impact. Ainsi en Algérie On ne saurait, en effet, négliger le rôle joué par les tribunaux français pas plus que les organes de régulation de la justice qui organisaient le contrôle des juridictions indigènes, examinaient les décisions et sanctionnaient les irrégularités. L’un des moyens utilisé en Algérie, nous l’avons dit, a été l’option de législation expresse. Mais les tribunaux sont allés plus loin en acceptant de reconnaître la validité des options tacites42. Ainsi, à la question de savoir si en faisant célébrer un mariage entre deux indigènes par l’officier d’état civil, cette seule célébration emportait application tacite de tous les effets du mariage du Code civil, la Cour de cassation d’abord puis la Cour d’appel d’Alger ensuite, ont répondu par l’affirmative, avec toutes les conséquences que cela impliquait dans les rapports personnels comme dans les rapports patrimoniaux, y compris l’interdiction de bigamie (il est vrai, après quelques désaccords entre elles, levés de 1882 à 1928 par «l’abjuration» de la Cour d’appel de la position contraire qu’elle avait défendue jusqu’à cette date). Mais après 1928, on ne validera l’option tacite que si l’intéressé a eu la liberté de choix entre les deux formes de mariage (ce qui n’est pas le cas s’il résidait en France) et une ordonnance du 23 novembre 1944 fera obligation aux officiers d’état civil d’avertir les musulmans (mais aussi les israélites) – avertissement qui sera formellement inscrit de même que la réponse des intéressés – que l’acte, sauf manifestation d’une volonté contraire, serait régi par la loi française. La question continuera d’ailleurs à se poser après l’indépendance. Mais cette manière de procéder prit des formes encore plus subtiles43. Ainsi, la jurisprudence cherchera à rapprocher le mariage musulman, par étapes (rôle des parents, promesses de mariage, dot, remise de la jeune fille, consommation) du mariage ponctuel du Code civil. Les juges l’ont fait sur les promesses de mariage, qui normalement engagent les futurs époux et qui sont invoquées contre un mariage conclu avec un autre, en concluant très souvent à leur absence par défaut de preuves, allant jusqu’à dire après 1892 que les promesses de mariage ne produisent aucun effet juridique. Sur 42 Claude Bontemps, une technique jurisprudentielle de pénétration du droit matrimonial français en Algérie: l’option de législation, Revue algérienne, n°4, Décembre 1978, pages 37 – 68. 43 Claude Bontemps, L’influence française dans le projet de Code de la famille algérienne, Revue algérienne, n°4, Décembre 1982, pages 625 – 644.

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le consentement, et pour lutter contre les contraintes matrimoniales, on utilisera successivement plusieurs techniques: jusqu’en 1881, on annulera des mariages contraints en invoquant des motifs aussi divers que: le fait de n’avoir pas fixé la période de paiement de la «dot», ou son montant dérisoire, ou le fait que le titulaire du droit de contrainte n’avait pas la qualité requise, ou encore ici le défaut de preuve du consentement donné par le père (évidemment cela ne marche que si le père a disparu), voire des circulaires ou des arrêtés dont ne trouve pas trace! Par la suite, on s’avisera que les cadis peuvent autoriser la jeune fille à passer outre la mauvaise volonté du wali pour en conclure que les juges ont tout à fait le droit de contrôler ou encore on jouera de l’option de rite, le rite hanéfite exigeant le consentement de la jeune fille, ce qui finalement poussera le législateur à intervenir pour fixer un âge légal. Enfin, dans le but d’inciter les époux à se rendre devant le cadi ou l’officier d’état civil plutôt que de se contenter des deux témoins voulus par le droit musulman, les juges, chaque fois qu’on leur soumettra une contestation portant sur un mariage de ce type, décréteront que les «témoignages sont insuffisants»: la doctrine ira même jusqu’à affirmer que «les témoignages sont toujours insuffisants en cette matière»! Par ces différents canaux, c’est une large part du Code civil sur l’âge matrimonial, le consentement et la publicité qui a été introduite. Il s’agissait bien, comme on l’a vu, de faire d’un droit étranger un droit national pour permettre à des juges français . . . de le traiter en droit étranger.

CAROLYN CRAYCRAFT CLARK and MICHAEL H. HOEFLICH

Roman Law as Ratio Decidendi in Early American Law Introduction In 1828, in a letter to Thomas Washington of Nashville, Tennessee, Chancellor James Kent reminisced about his early years as a judge in New York: When I came to the Bench there were no reports or state precedents . . . We had no law of our own, and nobody knew what it was . . . I made much use of the Corpus Juris, and as the judges (Livingston excepted) knew nothing of French or civil law, I had an immense advantage over them1.

Only two decades after the period about which Kent was speaking, Joseph Story spoke to the Suffolk Bar on the question of authority and precedent as he then saw it: The mass of the law is, to be sure, accumulating with an almost incredible rapidity, and with this accumulation, the labor of students, as well as professors, is seriously augmented. It is impossible not to look with some discouragement upon the ponderous volumes, which the next half century will add to the groaning shelves of our jurists2.

These two quotations illustrate the rapid change with which lawyers in the early Republic were forced to deal. In the very earliest years of the Republic, there were few, if any, traditional sources of authority upon which to rely. It is for this reason that so many early reported decisions base their judgments on natural law or natural reason, a legal source which was, in the hands of a good judge, capable of justifying virtually any decision3. But early American judges and lawyers, even those like Robert Rantoul, who harbored continuing hatred of all things British, including British decisions, recognized the need for some form of authority4. Judges, too, 1 William Kent, Memoirs and Letters of James Kent, LLD. (Boston, 1898), 27, 36 – 37; see also, Alan Watson, Chancellor Kent’s Use of Foreign Law,” in The Reception of Continental Ideas in the Common Law World, 1820 – 1920, ed. Matthias Remann (Berlin: Duncker & Humblot; 1993), p. 45 – 62. 2 Joseph Story, “The Progress of Jurisprudence” (Sept. 4, 1825), in W. W. Story, ed., The Miscellaneous Writings of Joseph Story (Boston, Little-Brown, 1852), p. 198 – 241, p. 237. 3 A good example of this is Chief Justice John Marshall’s decision in Laidlaw v. Organ, 15 U.S. 178 (1817).

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continued to see themselves as in the Common law tradition, but, of course, now politically somewhat cut off from the source of authority: the English court system. In this earliest period, Roman law, broadly defined provided assistance in two major ways5. First, Roman law could be used as a supplemental authority, when Anglo-American authority was unavailable6. Second, Roman legal philosophy, as expressed in the works of Roman authors such as Cicero and Quintilian, could provide a legal philosophical argument to underpin even Common law decisions7. Two decades later, as the mass of decisional law, statutory law, and juristic treatises was on the rise to the point of becoming frightening to jurists like Joseph Story, Roman law could provide a third major help: it provided both models of arrangement as well as pragmatic methods for dealing with the oceana iuris upon which American lawyers found themselves adrift8. This paper discusses these three aspects of the impact of Roman law on ratio decidendi in the early American republic and illustrates how these three ways of using Roman law, i.e. as a supplemental authority, as a jurisprudential framework, and as a source for order and arrangement, were of crucial importance to the development of American law in the antebellum period.

I. Roman Law as Supplemental Authority Chancellor Kent and Justice Story are the two leading jurists of the antebellum period who championed the notion that Roman law, primarily drawn from the Corpus Iuris Civilis and the Institutes in particular, was ideally suited to serve as a supplemental source of authority when no Anglo-American authority existed. Both Story and Kent represented what we may label as proponents of a “partial” reception of Roman law into American law9. Both made it very clear throughout 4 Robert Rantoul, Memoirs, Speeches and Writings of Robert Rantoul, Jr., ed. Luther Hamilton (N.Y.: J.P. Jewett, 1854). 5 M. H. Hoeflich, Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century (Athens, Ga.: Univ. Ga. Pr., 1997), p. 131 – 144. [Hereafter “Hoeflich, Roman Law”]. 6 See, Hoeflich, Roman Law, p. 36 – 43 for a discussion of how Joseph Story used Roman legal sources in this way. 7 This subject was not discussed adequately in Hoeflich, Roman Law. Scholars have explored the importance of Cicero as a role model for antebellum Roman lawyers, however, see, S. Botein, “Cicero as a Role Model for Early American Lawyers: A Case Study in Classical Influence,” Classical Journal 73 (1978), p. 313 – 331, but little has been written on either Quintilian or Cicero as a source of Roman law and legal philosophy for antebellum American lawyers. 8 Hoeflich, Roman Law, p. 133 – 136; M. H. Hoeflich and Carolyn Clark, “Navigating the Oceana Iuris” delivered at a conference on “Legal Uncertainty” held in Edinburgh, Scotland, August, 2006.

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their writings that they did not support the notion of a complete reception where Roman law would, in fact, replace the Common Law and the United States would adopt a Roman Law based system such as then existed in France and Germany. Their opposition to such a radical change was rooted in several things. First, the generation of lawyers to which Story and Kent belonged had been trained in the Common Law and their innate professional conservatism militated strongly against abandoning it. Second, although antagonism against the English and their empire had not fully dissipated by the middle of the antebellum era, fear of what most American lawyers perceived as the tyranny of Napoleon, pushed them away from adopting a Civil Law system. Third, as a very practical matter, neither the educational nor the publishing resources of antebellum America could have supported a full-scale reception of a Roman-based legal system10. Language instruction and literacy in French, German, Latin, and Greek was scarce in the earliest decades of the American Republic, even amongst the educated elite.11 The most widespread language other than English was French, but this, of course, suffered from the Napoleonic taint of tyranny. Further, while larger institutional libraries and the libraries of the most elite jurists, like Story and Kent, held copies of the Corpus Iuris Civilis, these were certainly not nearly so available as Blackstone or Coke12. Indeed, the only widely available Roman legal text in the first quarter of the nineteenth century in the United States was Thomas Cooper’s edition of Justinian’s Institutes, which benefitted both from being published in Philadelphia and from the fact that it was in English13. To have brought about a full reception of Roman or Civil Law in antebellum America would have required levels of literacy, linguistic skills, and learning far beyond any which existed. There can be little doubt that the model of partial reception upon which both Story and Kent based their ideas was that presented by Sir William Jones in his book on bailments, one of the most widely distributed law books in the United States in the late eighteenth and early nineteenth centuries14 . Jones’s book was, in Hoeflich, Roman Law, 142 – 144. See, M. H. Hoeflich, Selling the Law in Antebellum America. The Sale and Distribution of Law Books, 1770 – 1870, forthcoming from the University of North Carolina Press in its series “Studies in Legal History” in 2010. 11 M. H. Hoeflich, “Translation and the Reception of Foreign Law in the Antebellum United States, American Journal of Comparative Law 50 (2002), p. 753 – 775; M. H. Hoeflich, “Comparative Law in Antebellum America,” Washington University Global Studies Law Review 4 (2005), p. 535 – 545. 12 M. H. Hoeflich, “American Blackstones” in Wilford Prest, ed., Blackstone Studies forthcoming from Hart Publishing in 2009. 13 See, M. H. Hoeflich, “Vilnius and the Anglo-American Legal World,” Zeitschrift der Savigny – Stiftung für Rechtsgeschicht, Rom. Abt. 114 (1997), p. 345 – 368. 14 Hoeflich, Roman Law, p. 37 – 41; James Oldham, “The Survival of Sir William Jones in American Jurisprudence,” Garland Cannon and Kevin Brine, ed. Objects of Enquiry – The Life, Contributions, and Influences of Sir William Jones (N.Y.: N.Y.U.Pr., 1995), p. 92 – 101; David J. Ibbetson, ed., Sir William Jones, An Essay on the Law of Bailments (Bangor: Welsh 9

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reality, a book which predated the works of Sir Henry Maine by more than a half century in being a legal treatise written from a comparative legal standpoint15. Jones himself was a man of diverse interests and talents for whom the comparative method came quite naturally.16 Furthermore, the subject lent itself not only to the comparative method but also as an example of the value of a partial reception of Roman legal ideas into the Common law. It did this because the Anglo-American law of bailments was based upon just such a reception in the seminal case of Coggs v. Bernard decided by Lord Holt17. Lord Holt’s decision in Coggs v. Bernard is at the heart of Sir William Jone’s work, for it provides the basis upon which Jones devises his classification scheme for the various types of bailment18. Lord Holt’s decision in the case is a model of what we have called “partial reception.” The case put forward the question of whether one who takes charge of another’s property [in this case it was a cask of brandy] without reward and negligently damages the property [the cask was dropped and brandy spilled] should be liable. The Common Law in the case was barely developed at the time it came before Lord Holt. In the absence of useful precedent, Lord Holt built his opinion on Bracton and upon the Roman law, including Vinnius’ Commentaries upon it. Jones used Lord Holt’s opinion as a basis for his own classification of bailments, but, he himself, modified Holt’s scheme based upon on his readings in Finch, Coke, the Year Books, Roman Law, and even what he called “Mosaic Law” [Exodus]. Thus, one who read Jones as an authority for the Anglo-American law of bailments was, of necessity, accepting the utility of Roman law and, even, Mosaic Law, as a source of authority. Jones’ Essay on the Law of Bailments was first first published at London in 1781 and reissued in a second edition with notes by John Balmanno, a barrister of Lincoln’s Inn, at London in 179819. But American lawyers did not have to search out imported editions of Jones’ work. In fact, Jones’ Essay was one of the most frequently reprinted law books in the early Republic. It was first published in 1796 at Boston. It was reprinted, with Balmanno’s notes, in 1806 in Albany, N.Y. and at Legal History Society, 2004), p. 61 – 67; also of interest is Robert A. Ferguson, “The Emulation of Sir William Jones in the Early Republic,” 52 New England Quarterly, p. 3. 15 See, David Ibbetson, “Sir William Jones as Comparative Lawyer” in Alexander Murray, ed., Sir William Jones, 1746 – 1794: A Commemoration (Oxford: O.U.P. for University College, Oxford, 1998), p. 17 – 42. 16 The standard biography of Sir William Jones remains Lord Teignmouth, “Memoirs of the Life, Writings and Correspondence, of Sir William Jones,” in Lord Teignmouth, ed., The Works of Sir William Jones 1 & 2 (London: Stockdale and Walker, 1807); a more modern text is Garland Cannon, The Life and Mind of Oriental Jones (Cambridge: C.U.P., 1990). 17 2 Lord Raym. 909 (1703). 18 See, Ibbetson, ed. Sir William Jones, Essay on the Law of Bailments, n. 16, above, p. 42 – 53. 19 Sir William Jones, An Essay on the Law of Bailments (London: J. Nichols for Ch. Dilly, 1781); Sir William Jones, An Essay on the Law of Bailments (London: A. Strahan for Ch. Dilly, 1798).

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Brattleboro, Vermont in 1807. It was reprinted at Brattleboro in 1813 and 1818, an indication of how much in demand the book was. It was reprinted in New York City in 1828 and in Philadelphia in 1836. Copies for sale appear in virtually every American law bookseller’s catalogue of the period and in every private law library catalogue as well. It was, very possibly, the first American legal bestseller. The Essay’s popularity is not surprising. It was a short book, fewer than two hundred pages in a small octavo. It was inexpensive and it dealt with a topic of great commercial importance in the new nation. Indeed, because of the importance of the subject, and, perhaps, the availability of the Essay with its comparative approach, Joseph Story chose to make bailments the subject of the first of his series of Commentaries, which was first published at Boston in 183320. Story’s volume on the subject drew extensively from Jones’ work and Story followed Jones in approving Lord Holt’s partial reception of Roman Law into the Anglo-American Common Law21. The more general effect of this intellectual legacy from Holt to Jones to Story is that American lawyers were exposed to the value of Roman law as a supplemental source of authority and used it in cases extending far beyond bailments.

II. Roman Law as a Basis for Common Law Jurisprudence The influence of Roman legal ideas extended well beyond providing doctrinal authority where the Common Law either lacked precedent or where the precedent was deemed unsuitable for the new nation [this latter phenomenon is seen in the development of water law in the Western United States]22. In the early American republic, contemporaries did not limit their understanding of Roman law to the writings of the jurists, emperors, and other authoritative sources contained in the Corpus. On the contrary, early American lawyers also included the works of the Roman rhetores, particularly Cicero and Quintilian, within the scope of Roman Law. This broader definition of Roman law has evaded many contemporary scholars who have written about the influence of Roman Law on Anglo-American law. But the early nineteenth century sources are quite clear on this point. For instance, when John Adams wrote to his son John Quincy, at the time a pupil of Theophilus Parsons, Adams set forth a reading list of important works which any law apprentice should master. At the top of the list were the works of Cicero and Quintilian23. 20 Joseph Story, Commentaries on the Law of Bailments, (Camb., Ma.: Hilliard and Brown, 1832). 21 See, Hoeflich, Roman Law, p. 36 – 43; Ibbetson, Sir William Jones, Essay, p. 67 – 69. Story was not the first to use Jones’ interpretation of Lord Holt’s decision in Coggs v. Bernard; see, Ibbetson, Sir William Jones, Essay, p. 65 – 66, where Ibbetson discusses Kent’s view of bailments and The N.Y. decision in Thorne v. Deas 4 Johns. 84 (1809). 22 See, Samuel C. Wiel, “Waters: American and French Authority,” Harvard Law Review 33 (1919), p. 133 – 167.

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This, too, should not be surprising. Early American lawyers understood their profession as being one centered about the oratorical arts24. Forensic oratory was a central part of popular oratorical treatises such as Blair’s Rhetoric25. At the heart of these treatises and of forensic oratorical instruction were the legal speeches of Cicero. These were part of every lawyer’s education26. They sat on every educated lawyer’s bookshelves. But American lawyers did not read Cicero solely for pointers on legal argumentation. They also read Cicero’s works for their substance. Cicero was a hero of the early American nation. He was the last republican of Rome. He was martyred by his stance against the tyranny of Augustus. He elevated law above the person of the ruler. All of this early American readers learned from another exceptionally popular book of the period, Conyers Middleton’s Life of Cicero27. It is not at all surprising that Cicero’s jurisprudence should also have influenced early American law cases. One of the best examples of this phenomenon is to be found in the debate between John Marshall and Gulian C. Verplanck in the case of Laidlaw v. Organ28. Laidlaw arose out of the British blockade of New Orleans during the War of 1812. A tobacco broker obtained intelligence that the blockade would be lifted on the next morning. Before dawn, he approached a warehouse owner and offered to purchase as much tobacco as the owner would sell. He did not reveal that the blockade would soon end and that prices for tobacco would immediately rise. The seller agreed to the sale only to discover a few hours later that prices had skyrocketed when everyone realized that the British ships had left New Orleans and that trade could resume. He refused to deliver the tobacco and a lawsuit resulted, one which went eventually before the United States Supreme Court. Justice Marshall wrote a brief opinion with no citations to precedent in which he set forth the rule that a purchaser had no legal obligation to disclose facts which were available to anyone who sought them out. Although Marshall’s decision in Laidlaw was instrumental in establishing the legal framework for the American market economy, it outraged many people of more sensitive moral natures. They took the decision in Laidlaw to be a declaration 23 Life in a New England Town: 1787, 1788. Diary of John Quincy Adams (Boston: Little, Brown, 1903), p. 124 – 126 n.3 [letter of JA to JQA, Jan. 23, 1788]. Parsons also advised John Quincy Adams to read “Quinctilian,” Life in a New England Town. 24 See, L. Jenab and M. H. Hoeflich, “Forensic Oratory in Antebellum America,” University of Kansas Law Review 51 (2003), p. 449 – 471. 25 Jenab and Hoeflich, Forensic Oratory, p. 453 – 455. 26 See, M. H. Hoeflich, “Roman Law and Forensic Oratory in Antebellum America,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Rom. Abt., v. 120 (2003), p. 189 – 199. 27 Conyers Middleton, The History of the Life of Marcus Tullius Cicero (London: Innys, Richardson, et al., 1755). 28 15 U.S. 84 (1817); see, M. H. Hoeflich, “Laidlaw v. Organ, Gulian C. Verplanck, and the Shaping of Early Nineteenth Century Contract Law: A Tale of a Case and a Commentary,” University of Illinois Law Review (1991), p. 55 – 66.

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for the separation of morality from legality in the new Republic29. Foremost among the opponents of Marshall’s position was a socially prominent New York lawyer, Gulian C. Verplanck30. Verplanck published his Essay on the Doctrine of Contracts, one of the first American treatises on contract law, at New York in 182631. Verplanck based much of his argument against Marshall’s separation of law and morality on Cicero’s writings as well as upon the Corpus Iuris Civilis. The entire jurisprudential framework of Verplanck’s essay on the American law of contracts came from Cicero and the Corpus. The importance of Verplanck’s adoption of Ciceronian reasoning about fundamental questions of American jurisprudence cannot be overstated. The AngloAmerican Common Law has always been woefully deficient in discussions of legal philosophy. Common Law judges, for the most part, have refused to delve into the realm of legal theory leaving this to academics. But in the period after the Revolution, at a time when a new nation was building a new legal system based upon conceptions of political and moral philosophy different from the former home country, legal philosophy was absolutely necessary. Law without philosophy was seen to be bad law by many like Verplanck. Thus, the jurisprudential theories of a figure like Cicero were immensely attractive and influential. As the extract from Story’s speech to the Suffolk Bar illustrates, by the second quarter of the nineteenth century the problem confronting American lawyers and judges concerning precedent had reversed itself. By 1830 American practitioners were faced with a large mass of authority and one which was expanding daily32. As law book-selling and publishing expanded and became more established, the increasing number of reports, treatises and statutes being produced in all of the American jurisdictions became widely available and lawyers and judges found themselves overwhelmed. Once again, a Roman legal source provided substantial assistance in dealing with the American Bar’s plight. If the works of Cicero provided a legal philosophy which American jurists could adopt as their own as an underpinning of the Common Law, Cicero’s successor as the leader of Rome’s rhetorical masters, Quintilian, provided American lawyers with the basis by which they could conduct their daily practices33. The writings of 29 Not only was the decision one which separated law and morality, it also, ipso facto, provided an important defense for slavery, i.e. that even though slavery might be morally offensive, it could still be legal. 30 Hoeflich, Laidlaw, p. 58 – 60; W. C. Bryant, A Discourse on the Life, Character, and Writings of Gulian Crommelin Verplanck (N.Y., 1870); Robert W. July, The Essential New Yorker. Gulian Crommelin Verplanck, (Durham, N.C.: Duke Univ. Pr., 1951). 31 G. C. Verplanck, Essay on the Doctrine of Contracts (New York: Ch. Wiley, 1826). 32 See, n. 2, above; Anon, “Review of Wheaton, Johnson and Tyng,” American Jurist (1824), p. 371 – 382, p. 375 – 380 “The vast and increasing multiplication of reports, as well as law treatises, is a very remarkable fact in our legal history. . .” 33 On Quintilian and his legal writings see the essays contained in Olga Tellegen-Couperous, Quintilian and the Law. The Art of Persuasion in Law and Politics (Louvain: Leuven Univ. Pr., 2003).

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Marcus Fabius Quintilianus, known in the modern world simply as Quintilian, provided early American lawyers with a strong basis for developing legal ethics, courtroom techniques, including forensic oratory, and, perhaps most importantly, methods of categorization, memorization, and organization of legal authorities34. Like Cicero’s speeches, Quintilian’s Institutes and, to a smaller extent, his Lesser Declamations, were known well by almost every educated antebellum American lawyer. The Institutes were a staple of the legal apprentice’s reading and copies of Quintilian were found in every educated lawyer’s library. In many contemporary law library catalogues are to be found multiple editions of the Institutes, both in Latin and in translation. While it would be impossible here to give an adequate account of the rich rhetorical theories developed by Quintilian in his writings, it is important to understand that it was Quintilian who, building on Cicero’s early work, developed the “method of loci”, an organizational method for ideas which was crucial to modern methods of mnemonics, the science of memory to which many lawyers from the early modern period onwards were devoted, and, even more importantly, to the development of the art of common placing to which Quintilian devoted a substantial part of the Institutes35. It was this technique of recording and indexing concepts developed by Quintilian, which was adopted by John Locke and several of his contemporaries, which became a significant practice tool of early American lawyers. In England lawyers had become accustomed to using various printed practice aids. Among the most widely used of these were the “digests” of cases, often of all the cases decided by a particularly important judge, or of all the cases in a particular court, or of all the cases during a particular time period36. These digests were often arranged by subject matter and consisted of short squibs, each providing the reader with a few lines describing the essence of the decision in the case. These digests often were provided with printed or manuscript indices of key terms. They were important research tools. In an age lacking general indices to the law, a digest provided a short-cut for researching key issues a lawyer might encounter in the course of litigation. A lawyer’s time has always been his stock in trade; any tool which provided efficiency and saved time was invaluable37. 34 M. H. Hoeflich, “The Lawyer as Pragmatic Reader: The History of Common-Placing,” University of Arkansas Law Review 55 (2002), p. 87 – 122. 35 Hoeflich, “Lawyer as Pragmatic Reader,” p. 95 – 96. 36 See, Anon., Review, p. 380 – 381. It is noteworthy that the author of this anonymous review traces the origins of case digests through the English practice back to the Corpus Iuris Civilis and particularly to Justinian’s Digest (380). Thus, at least one American jurist also attributed the habit of preparing published digests to Roman legal practice. See, also, Steve Sheppard, “Casebooks, Commentaries, and Curmudgeons: An Introductory History of Law in the Lecture Hall,” Iowa Law Review 82 (1997), 547 – 644, 550 – 567. 37 See, M. H. Hoeflich, “Legal History and the History of the Book: Three Variations on a Theme,” University of Kansas Law Review (1997).

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As the volume of American law grew in the early decades of the nineteenth century, there were a few attempts to construct digests on the English model. Most notable of these was Dane’s Abridgment, an early nineteenth century bestselling treatise, the profits from which were sufficient to endow the Dane Professorship at Harvard, whose first incumbent was, of course, Joseph Story38. But the vast number of new cases and statutes being produced and published every year in the antebellum United States was too great to be managed by printed digests and abridgements. There simply weren’t enough legal authors to perform this task. Instead, lawyers adopted the Quintilianic method of common- placing. Lawyers and judges like Story, Kent, Webster, Choate, Lincoln, all kept their own common-place books.39 Most began their common-placing in law school or in law apprenticeships and continued to use this method as fully fledged lawyers40. Indeed, so common did common-placing become that a number of legal publishers began to print blank common-place volumes, with both ready-printed lists of topic headings as well as blank spaces to be filled in by the individual attorney as need arose41. One might question the connection between Quintilian, common-placing, and judicial decisions in antebellum America, but the answer to this is quite clear. Common-placing was the preeminent legal information management technique in antebellum America. Without common-place books lawyers and judges could not have controlled the precedents and authorities they needed to argue and decide cases. Just as early twentieth century American lawyers came to be addicted to the West head note system and early twenty-first century lawyers are now addicted to electronic database retrieval systems, so were the early nineteenth century lawyers and judges addicted to the humble common-place book, which owed its existence to Quintilian’s writings.

Conclusion As I hope that we have shown, Roman law played an important albeit secondary role in the development of American law. It provided [and, to some degree, still provides, a source of supplemental authority]. It provided a legal-philosophical and policy justification for important Common law decisions where the pragmatism of the Common Law needed some additional justification. And, finally, Roman law and legal writers provided practical techniques for managing the vast wave of legal authorities which threatened to engulf American lawyers and judges and make the 38 Nathan Dane, A General Abridgement and Digest of American Law, with Occasional Notes and Comments (Boston: Cummings, Hilliard, 1823 – 1829) 9 vols. 39 Hoeflich, Lawyer as Pragmatic Reader, p. 114 – 115. 40 Ann Fidler, Young Limbs of the Law (1996) [unpublished PhD. dissertation, University of California, Berkeley]. 41 Hoeflich, Lawyer as Pragmatic Reader, p. 114 – 115.

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legal system unworkable. Although never out front as the primary source of American law, Roman law always lingered in the background to help when it was needed.

MATTHEW C. MIROW

Military Orders as Foreign Law in the Cuban Supreme Court 1899 – 1900 The use of foreign law as a source in judicial decisions is usually the result of a judge’s voluntary appropriation of such material, either on his or her own or through the urging of counsel or adviser. This study seeks to explore the idea of “foreign law” in judicial decisions when the source is mandated through military occupation. Jurists trained in one tradition and set of sources may have to incorporate new sources into their work, often on newly constituted tribunals under the authority of the occupying force. This was the experience of the Cuban Supreme Court after the Spanish American War of 1898. This study examines a newly constituted court using military orders to determine its jurisdiction and appellate practice. It surveys approximately 400 decisions during the Court’s first two terms to determine the effect of military orders on the functioning of the court. In particular, it examines the language of the court to look for clues concerning how the court responded to this new, foreign law. On December 10, 1898, the United States and Spain entered a Treaty of Peace in Paris1. In Article One of the Treaty of Paris, Spain relinquished sovereignty over Cuba, and the United States became the island’s occupier with the aims of protecting life and property. Spain ceded Puerto Rico, Guam and other islands to the United States. The treaty addressed trading concerns, the exchange and release of prisoners of war and military equipment, the rights of Spanish subjects in the territories concerned, property rights, and the establishment of consular offices. An important aspect of the transition from Spanish rule to United States occupation was judicial proceedings which were addressed in Article 12 of the treaty. A final judgment, for which there was no recourse or review under Spanish law from before the date of ratification of the treaty, was deemed to be final. Pending cases were permitted to be brought to judgment where pending or in the court substituted for the prior court. In this context, the treaty also contemplated the possibility of new courts2. 1 A Treaty of Peace Between the United States and Spain, U.S. Congress, 55th Cong., 3rd sess., Senate Doc. No. 62, Part 1 (Washington: Government Printing Office, 1899), p. 5 – 11. 2 Article 12, A Treaty of Peace Between the United States and Spain, U.S. Congress, 55th Cong., 3rd sess., Senate Doc. No. 62, Part 1 (Washington: Government Printing Office, 1899).

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I. Military Orders establishing the Cuban Supreme Court and its Appellate Procedure On April 14, 1899, United States Military Order No. 41 established the Cuban Supreme Court3. The Court was composed of a President or Chief Justice and six Associate Justices who usually sat as a single body. The Court had original jurisdiction over criminal acts by its members and high-level members of the executive branch. These cases were supposed to be conducted orally and publicly. It also had original jurisdiction in civil matters against members of the court and other highlevel judicial officials. It was, however, predominantly an appellate body. Its broad appellate jurisdiction included: (1) “Review of rulings of Audiencias, denying the right of appeal to the Supreme Court, from decision in which are alleged errors of law, of legal doctrine, or defects in procedure;”4 (2) petitions for annulment of judgments for errors in law, legal docrtrine, where there had been a hearing on such petitions or defects in form of procedure where petitions had been admitted5; (3) the merits of the case itself, where the Supreme Court had granted annulment of a judgment on grounds of error in law or legal doctrine6; (4) petitions for annulments of awards rendered by arbitrators7; (5) petitions for revision in civil, criminal, and administrative (contencioso administrativo) matters8; (6) the execution of foreign judgments9; and (7) appeals from the Audiencia of Havana in administrative (contencioso administrativo) cases10.

The court also supervised the administration of justice throughout Cuba and disciplined judicial officers and staff of the lower courts11. 3 Colección legislativa de la Isla de Cuba, Recopilación de todas las disposiciones publicadas in la “Gaceta de la Habana,” Año 1899, p. 102 – 128. (Habana, 1899). Audiencias were colonial governmental bodies usually having the highest level appellate jurisdiction located in a particular geographic area. M.C. Mirow, Latin American Legal History: Some Essential Spanish Terms, 12 La Raza Law Journal 49 (2001). 4 Order No. 41, sec. 7, para. 9. 5 Order No. 41, sec. 7, paras. 10 & 11. 6 Order No. 41, sec. 7, para. 12. 7 Order No. 41, sec. 7, para. 13. 8 Order No. 41, sec. 7, para. 14. 9 Order No. 41, sec. 7, para. 17. 10 Order No. 41, sec. 7, para. 18. 11 Order No. 41, sec. 7.

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Two months after the creation of the Court, Military Order No. 92 established procedural rules for the Court on June 26, 189912. This Order is the focus of this study. These rules set out an entirely new system of appeals for Cuba, and this Order tracked the general areas of jurisdiction set out in the Order establishing the Cuban Supreme Court. Precise requirements for the petition are stated in the Order. The petition must state the legal ground for the appeal, and if based on error of law or legal doctrine, “the law or doctrine infringed shall be cited with clearness and precision and in what respect they have been infringed”13. If the appeal was based on a procedural aspect (defect in form), then the petition had to state “in what the defect consists, and what steps have been taken to correct it” and if not corrected, the reasons for not correcting it14. Both the court from which the appeal was taken and the appellate court would examine the sufficiency of the petition without a hearing before proceeding with the appeal15. Once granted, the hearing on the appeal followed precise steps described in the Order. Pertinent documents were read, if requested by the parties, at the hearing16. Arguments by the lawyers were then presented. The appellant spoke first, followed by other who supported the appeal, followed by those who opposed the appeal, and then by the Court’s judicial officer (fiscal)17. The court then provided a written judgment, structured in the particular manner required by the Order. The decision had to contain all the factual specifics of the case for its identification including the names of the parties, their professions and domiciles, as well as the procedural history and general object of the case. The order next required under the word “resultando” the decision appealed from, a directory of the decision, the grounds for annulment advanced by the parties, and the name of the ponente18. Following the word “considerando” the report had to state the bases in law of the decision rendered, and then finally the decision itself19.

II. Decisions of the Cuban Supreme Court The decisions of the newly constitutioned Cuban Supreme Court reveal the Court and its judges responding to the requirements of the Order. Although the 12 Major-General John R. Brooke, Military Governor, Island of Cuba, Civil Report, pp. 57 – 68 (Washington: Government Printing Office, 1900). 13 Order No, 92, sec. 5, para. 4. 14 Order No. 92, sec. 5, para. 5. 15 Order No. 92, sec. 7. 16 Order No. 92, sec. 36. 17 Order No. 92, sec. 36. 18 Order No. 92, sec. 37, paras. 1 – 5. 19 Order No. 92, sec. 37, paras. 7 & 8.

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formulaic structure of the reports of decisions (jurisprudencia) obscures the nature of their practice and concerns, a reader of these reports will note significant telltale language. One of the first challenges of the Court was to deal with proceedings that were already under way in Spanish tribunals at the time Spain relinquished sovereignty. Where should such cases go and did the Cuban Supreme Court have jurisdiction to pick up right where the Supreme Court of Spain left off? After the creation of the Court in April, 1899, but before the procedural rules of Order No. 92 came into effect on June 26, 1899, the Court was faced with such a case. The Court was forced to examine its own jurisdiction20. The appellant had brought an appeal against a decision of the Audiencia of Havana dated January 11, 1898. The certifications for appeal were sent by March 1, 1898, and it appears additional documentation was sent to the Supreme Court of Spain on December 30, 1898. This additional contact was made after Spanish sovereignty over Cuba terminated on December 10, 1898, under the Treaty of Paris. The appellant knew that Spanish sovereignty had terminated when he advanced the appeal before the Supreme Court of Spain. When the Cuban Minister of Justice and the Audiencia of Havana determined that the appeal was not properly before the Supreme Court of Spain and sought enforcement of the Audienca’s judgment, the appellant and Minister of Justice sent the appeal to the new Cuban Supreme Court. The materials forwarded to the Court bore the date December, 30, 1898, a date, the Court noted, that preceeded its creation. The Court noted that Order No. 41, creating the Court, did not give it jurisdiction over appeals that had been requested before the termination of Spanish sovereignty and were then before the Supreme Court of Spain. In effect, the Court said that without a particular grant of jurisdiction under Order No. 41, it could not hear appeals that were made to a court that was not yet in existence. The Court found a second obstacle to jurisdiction under the Treaty of Paris. Article 12 of the Treaty states: “Civil suits between private individuals which may on the date mentioned [April 11, 1898] be undetermined shall be prosecuted to judgment before the court in which they may then be pending or in the court that may be substituted therefore”21. The Court determined that under Article 12 of the Treaty of Paris, the appeal was pending before the Supreme Court of Spain on the date of exchange of ratification of the Treaty, April 11, 1898, and therefore, jurisdiction was properly in the Supreme Court of Spain. The Court read its grant of jurisdiction narrowly under Order No. 41. It seems odd that the Court did not seize on the final words of Article 12, “or in the court 20 Auto de 9 de Junio de 1899, 1 Jurisprudencia de Tribunal Supremo 113. (República de Cuba, Jurisprudencia del Tribunal Supremo, Habana, 1908. This and additional volumes in the series are cited as “J.T.S.”). 21 Article 12, A Treaty of Peace Between the United States and Spain, U.S. Congress, 55th Cong., 3rd sess., Senate Doc. No. 62, Part 1 (Washington: Government Printing Office, 1899).

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that may be substitute therefore” to step into the place of the Supreme Court of Spain for this matter. This interpretation of the Court’s jurisdiction most likely meant that the appellant could not proceed with an appeal. The appellant probably could not have appealed the case again to the Cuban Supreme Court under the new procedural rules that came into effect on June 26, 1898, because of the short periods of time required for notice and appeal under these new provisions. There are several possible explanations for this result. First, such a narrow reading of jurisdiction was probably the dominant trend at the time in civil law countries generally. The Court could only act where the legislator, or in this case, where the military commander, had granted it the power to act. Thus, military orders might be subject to the same interpretive methods code provisions were. It was not the Court’s fault that the military government had failed to give it jurisdiction in this situation. It would maintain its proper constitutional place by not assuming greater power than it had been granted. Second, the Court might be signaling that it would not be pushed into deciding cases by the political expediency of following the Minister of Justice and, perhaps even more so, of following the Audiencia of Havana, a court that was now under its administration and appellate jurisdiction. Indeed, by refusing to hear the case, it may have been asserting its independence from political forces that would gain by telling the Court what to do22. Shortly after this case, Military Order No. 92 established a detailed plan for appellate procedure and jurisdiction. Indeed, Article 108 of Order No. 92 directly addresses the jurisdiction the Cuban Supreme Court found lacking. It reads: In all cases of decisions susceptible of appeal for annulment of judgment which may have been pronounced by the Audiencia of Habana . . . , and against which appeal may have been made for annulment of judgment, for defect of form, or where the intention of appealing for error of law has been announced, without the parties having been notified prior to the 11th day of April, 1899, the date of the exchange of the ratifications of the Treaty of Paris, the parties shall be notified, and from this notification they may make said appeals in the terms, form, and conditions provided for in this order23.

Order No. 92 solved the question, but it was most likely too late for the particular appellant whose case raised the issue. This was only one of many transitional issues the Court faced. The months that followed the new provisions of Order No. 92 were pivotal. In an opinion from August, 1899, the Court was faced with an appellant, Rosa Planas, who had undertaken her appeal under the prior law and who wished to continue after the effective date of the new appellate procedure24. The Audiencia of Havana had denied her 22 The parallelism to Justice Marshall’s decision in Marbury v. Madison is noteworthy. William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review (Lawrence, Kansas, 2000), p. 60 – 71. 23 Order No. 92, Art. 108. 24 Auto de 12 de Agosto de 1899, 1 J.T.S. 120.

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the certifications to appeal the case on July 11, 1899, and she sought review of the denial. She had prepared her appeal of the decision under the prior provisions of the civil procedure code (Ley de Enjuiciamiento Civil), probably not even knowing that the new procedural law had been issued. Order No. 92 was dated June 26, 1899, and officially published and effective on July 14, 1899. Nonetheless, recognizing the new appellate regime, the court would not let her proceed because she had not obtained the new form of certifications required by Order No. 92 and because the new provisions required greater participation by other parties. The Court stated, “by virtue of the procedural reforms recently introduced, intervention is given to the parties of the trial that they did not have before in the decision of appeals of this kind, from which springs the necessity of notifying all others with the intention of the appellant related to the aim of bringing an appeal”25. The Court would not hear the appeal because the certifications under the prior law were not valid and because the appellant did not follow the new appellate procedures required by Order No. 92. In a similar case from the same month the Court noted the new Order repealed many provisions of the former law and since its imposition, “both litigants and courts of justice ought to adjust to it”26. From August, 1899, forward, litigants knew there was a new law of appellate procedure and knew its contents. Nonetheless, there were many questions left open by Order No. 92, and the decisions of the Cuban Supreme Court continued to shape and to define the requirements and procedure for appeal. For example, Article 108, quoted above, did not provide the easy method of continuing an appeal under the new system some might have thought. In one case, the appellant, relying on Article 108 of Order No. 92, sought to continue his appeal under the new procedures without completely redrafting and setting new dates to the petition and documents to comply with the requirements of the Order. The Court agreed with the appellant that the petition had been prepared properly under the prior law, but the Order had served to repeal the prior law, and the appellant had to meet all of the new requirements to go forward27. Similar cases with similar results came before the Court over the following months28. The Court also had to determine what was a “final judgment, or one which should have such character” under Order No. 9229. In one case, it appears that a judgment of the civil division of the Audiencia (Sala de lo Civil de la Audiencia de Habana) was not a final judgment for the purposes of appeal to the Cuban Supreme Court, because further review in the Audiencia was possible30. 25 26 27 28 29 30

Auto de 12 de Agosto de 1899, 1 J.T.S. 122. Auto de 2 de Agosto de 1899, 1 J.T.S. 117. Auto de 14 de Octubre de 1899, 1 J.T.S. 157. Auto de 4 de Noviembre de 1899, 1 J.T.S. 191 – 193. Order No. 92, sec. 7(1). Auto de 20 de Octubre de 1899, 1 J.T.S. 176 – 177.

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Where one provision of the Order listed a number of types of actions that might be appealed by referring to the earlier procedural law (Ley de Enjuiciamiento Civil), the Court, at the urging of the Court’s judicial officer (fiscal), determined that merely averring that the case fell within the enumerated categories was insufficient31. Similarly, when the Order required the appellant to specify the provisions that permitted the appeal, merely listing all the possibilities under the Order did not comply with this requirement32. Thus, the Order meant to “exclude all generality and indeterminacy” in the citation of legal provisions33. In another case, the Court wrote at length to discuss the precision required by the new appellate system34. The Court stated that an appeal could not proceed when its formulation lacks the requirements of Order No. 92. The Court will not grant an appeal where the various grounds are not expressed with proper separation or where the concept of the laws having been infringed is not expressed with precision and clarity. . .confusion and uncertainty of the legal problem comes from such omissions and with them the impossibility of debating it and resolving it concretely and certainly, which is the exact reason that Article 7 of the cited Order No. 92 does not permit the admission of an appeal formulated in such conditions35.

This was the rule so much so that if it is “incorrectly admitted by a judge or tribunal that gives judgment and through lack of timely rejection transmitted, it ought to be definitively declared without merit”36. Indeed, precision and detail in pleading became important requirements the Court sought to clarify in many decisions following Order No. 92. The Court often focused on the specific requirements of Articles 5 and 7. Article 5 required precision in dates, legal grounds for the appeal, proper citation to the individual provision invoked, and specific statements concerning why a pleading was incorrect37. Article 7 required that both the deciding court and the appellate court make separate determinations of the existence of a final judgment, the proper time limits, the appropriate sections of the procedural laws, the clarity and precision of stating the law infringed, and the nature of the defects in pleading38. The decisions of the Court usually do not tell the reader what was missing, only that the petitioner had failed to hit the mark in satisfying the requirements39. Merely averring that the trial Auto de 3 de Octubre de 1899, 1 J.T.S. 138 – 139. Auto de 3 de Octubre de 1899, 1 J.T.S. 139. 33 Auto de 3 de Octubre de 1899, 1 J.T.S. 138. 34 Sentencia No. 2, 1 de Noviembre de 1899, 1 J.T.S. 185. 35 Auto de 1 de Diciembre de 1899, 1 J.T.S. 256. 36 Auto de 1 de Diciembre de 1899, 1 J.T.S. 256. 37 Order No. 92, sec. 5, paras. 1 – 5. 38 Order No. 92, sec. 7, paras. 1 – 6. 39 E.g. Auto Núm. 42, Abril 5 de 1900, 2 J.T.S. 192 – 296; Auto Núm. 48, Abril 18 de 1900, 2 J.T.S. 210 – 213. 31 32

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court misapplied the law or applied the law inartfully was insufficient to have an appeal accepted40. The Court occasionally gave more detailed criticism. For example, it might fault a petition for confusing the various requirements and for creating needless ambiguity and lack of clarity; it might expand a bit on the reasons behind the required specificity in pleading under Order No. 9241. In one case, the Court provided a glimpse into its thinking about the importance of the requirements for citing the applicable provision: In an appeal for infraction of law no other questions can be resolved other than those proposed and developed by the appellant, and from this [follows] the rule of Article 7 of the Order No. 92 to cite in the written filings the provision that authorizes the appeal; and treating the infraction of the law in the final sentence, each of the provisions of [the criminal procedure code] envision distinct juridical problems, [so that] this court has already declared in repeated decisions that it is essential to cite the number of [the criminal procedure code] in presenting the appeal, because only in this way can the question proposed be determined and defined, and it is clear in this respect that by not specifying by the appellants in the written filings of the corresponding case under the [criminal procedure code], [the appellants failed to state] that which is strictly provided in Number 3 of Article 5 of the Order42.

Another case permits the reader to see the thinking behind the requirement of citing the applicable legal provisions. It also, however, indicates the precision the court expected in this regard. In a case of sexual assault, the victim had been attacked “without penetration, and therefore had not lost her virginity”43. In denying the appeal, the court set out the precision it expected when appellants stated the applicable law: When, in an appeal, it is alleged that the proven facts do not constitute the crime punished but another distinct crime that is mentioned, it is necessary to cite not only the legal provisions violated but also that provision which ought to be applied, in the judgment of the appellant; because only in this way can it be known and decided if the facts are or not comprehended by one or another legal provision; and as in the case that has led to this appeal, the convicted, after alleging that the crime committed by him is not rape but of sexual assault (abusos deshonestos) he only cites Article 450 of the code, which punishes the first, and not 455, which punishes the second; it is evident that the precision and clarity required by Number 4 of Article 5 of Order No. 92 is lacking, and as a consequence the appeal ought not to be admitted44. Auto Núm. 98, Agosto 9 de 1900, 3 J.T.S. 77. Auto Núm. 25, Marzo 16 de 1900, 2 J.T.S. 161; Auto Núm. 75, Septiembre 5 de 1900, 5 J.T.S. 156; Sentencial Núm. 33, Octubre 11 de 1900, 5 J.T.S. 306; Auto Núm. 91, Noviembre 12 de 1900, 5 J.T.S. 398. 42 Auto Núm. 14, Enero 22 de 1900, 2 J.T.S. 43. See also, with similar reasons, Sentencia Núm. 8, Agosto 25 de 1900, 3 J.T.S. 108; Sentencia Núm. 67, Septiembre 8 de 1900, 3 J.T.S. 145. 43 Auto Núm. 67, Mayo 30 de 1900, 2 J.T.S. 331. 44 Auto Núm. 67, Mayo 30 de 1900, 2 J.T.S. 332. 40 41

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Usually, however, the court is less precise concerning the reasons the allegations of the pleadings do not meet the requirements of Order No. 9245. Similarly, the court also addressed the need for specificity in the form of pleadings this way: According to the language of Number 5 of Order No. 92 . . . , when the filing of an appeal for lack of form is treated, it ought to be expressed in what consists the said fault, and what action was taken to cure the fault committed, and in cases where it was not possible to do so, the impossibility and its reasons shall be stated, being the obligation of the sentencing tribunal to examine if in the written filing the required formalities have been fulfilled, and in the contrary case to deny the appeal; and as the writing of the private accusers does not contain any expression relative to the procedural form lacking, nor to the preceding work to remedy the fault committed, without also stating that it was impossible to do it and for what reasons, it is evident that the appeal ought not to be admitted for lack of written filing of one of the requirements contained in Article 7 or the fifth provision of Article 5 of Order No. 9246.

Nonetheless, one finds the infrequent appellant who satisfies the strict pleading requirements of the court’s interpretation of Order No. 92. For example, in another case the Court stated: The representation of the appellant, on filing an appeal for lack of form, afterwards having fulfilled the first, second, and third requirements of Article 5 of Order No. 92, revealed that not having provided notice to the parties of the judgment in the principal concern, as required by the law, one of the essential forms of the review was lacking, adding that he was not able to undertake any way to remedy the fault by having made this known precisely in the sentence, by which he exactly complied with what is demanded in the said Article 547.

The appeal was granted. Stressing strict compliance with the procedural requirements, in numerous criminal cases, the fiscal often argued that the pleadings of the cases did not meet the requirements of Order No. 92. It appears this was an easy procedural manner to dismiss appeals of criminal defendants48. The fiscal’s challenge to the procedural sufficiency of the pleadings is noted also, but to a lesser extent, in civil cases as well during this period49. E.g. Sentencia Núm. 40, Diciembre 21 de 1900, 5 J.T.S. 534. Auto Núm. 42, Abril 5 de 1900, 2 J.T.S. 195. 47 Auto Núm. 11, Enero 22 de 1900, 4 J.T.S. 45. 48 E.g. Auto Núm. 6, Enero 13 de 1900, 2 J.T.S. 26; Auto Núm. 29, Marzo 23 de 1900, 2 J.T.S. 170; Auto Núm. 47, Abril 18 de 1900, 2 J.T.S. 209; Auto Núm. 61, Mayo 21 de 1900, 2 J.T.S. 312; Auto Núm. 65, Mayo 29 de 1900, 2 J.T.S. 326; Auto Núm. 67, Mayo 30 de 1900, 2 J.T.S. 332. 49 Auto Núm. 9, Enero 20 de 1900, 4 J.T.S. 19; Auto Núm. 18, Febrero 23 de 1900, 4 J.T.S. 69; Auto Núm. 61, Julio 27 de 1900, 5 J.T.S. 49; Auto Núm. 98, Diciembre 11 de 1900, 5 J.T.S. 467. 45 46

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The Court maintained its strict standards of appeal under the Order in its review of an arbitral decision50, a grant of jurisdiction relatively common in Latin America by this time. Here, again, the Court determined that the appeal would not lie. The petition did not satisfy the requirements that the lower court determine that the appeal was based on a final judgment, was timely, was based on the appropriate articles of the code of civil procedure, stated with clarity the legal bases for the appeal, and other substantive and procedural rules found in Order No. 92. Because the petition was defective, the Court did not have to address other concerns raised by the appellant51. These cases also illustrate the Cuban Supreme Court’s new approach toward Spanish sources, perhaps now, another foreign source. For example, in one appeal, a party was reminded of the necessity of citing the name and article of the law in question when attempting to plead with precision and clarity as required by the procedural rules. In this context, the Court noted that it was not enough to cite the jurisprudence and decisions of the Supreme Court of Spain, but rather the precise text indicated in the appeal52. The court might also look to Spanish sources to determine the proper application of the rule under a military order. For example, in one case, costs of litigation would normally be assigned to a particular party. Nonetheless, because another party acted in bad faith, the court decided that the costs were properly levied against him: Legal doctrine recorded in law 8, title 22, partida 3; law 1, title 22, book 4 of the Novísima Recopilación; law 14, title 8, book 2 of the Novísima Recopilación, and innumerable sentences of the Supreme Tribunal of Justice of Spain establish the rule that costs of the first instance should be levied against the loser of the judgment and the one who defended in bad faith53.

Spanish cases were infrequently cited in other contexts as well54. The Treaty of Paris was invoked in another situation during the early terms of the court. Through executive order, the Governor created a new audiencia court for the province of Santa Clara in 188955. Another order gave audiencia courts appellate jurisdiction in some cases.56 The court used the provisions of the Treaty of Paris to find that the appellate jurisdiction was appropriate: Auto de 18 de Noviembre de 1899, 1 J.T.S. 241. Auto de 18 de Noviembre de 1899, 1 J.T.S. 243. 52 Auto Núm. 73, Junio 15 de 1900, 2 J.T.S. 363. 53 Sentencia Núm. 3, Enero 22 de 1900, 4 J.T.S. 40. For the Siete Partidas and the Novísima Recopilación in Latin America see, M.C. Mirow, Latin American Law: A History of Private Law and Institutions in Spanish America 47 – 53 (Austin: University of Texas Press, 2004). 54 Auto Núm. 51, Junio 28 de 1900, 4 J.T.S. 361 – 362; Auto Núm. 98, Diciembre 11 de 1900, 5 J.T.S. 467. 55 Order No. 80 of 1889. 56 Art. 186 of Decree Law of Enero 5 de 1891. 50 51

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Number 2 of Article 12 of the Treaty of Peace celebrated in Paris between Spain and the United States provides that civil cases pending at the time of the exchange of the ratifications continue their course before the tribunal in which the case finds itself or before the tribunal which is substituted for it, providing with the last phrase the possibility that the present judicial organization at the time of agreement may be changed, as it has been57.

The issue was resolved similarly in several other cases58. Surveying the case reports as a whole for the first terms of the Cuban Supreme Court under United State rule, one is struck by the fact that almost all appeals to the court were dismissed by the court. The reasons stated for dismissal were invariably that the substance and content of the filings for appeal did not follow the requirements of Order No. 92. The number of appeals dismissed for failure to follow requirements of Order No. 92 indicates several things. First, it appears the Cuban Supreme Court was ready to use noncompliance to dismiss a great many cases. Although it is impossible to tell from the reports themselves, strict enforcement of requirements for appeal, particularly in the criminal context, may have been a speedy way of dismissing a case without reaching its merits. In the criminal context, dismissing the appeal for poor pleading meant the conviction stood. Furthermore, one questions if so many lawyers preparing appeals could have been so inept at drafting appeals that their cases were dismissed one after the other. Perhaps the profession had not caught up with Order No. 92 and the courts strict adherence to the new requirements. It takes time for new procedural requirements to find their way to practicing attorneys who might prepare documents for appeal as they always had done, regardless of new requirements. Second, the court applied the new standards set out in Order No. 92 without pause. In many ways, this foreign law was not foreign at all, but rather treated as any other piece of legislation granting appellate jurisdiction and specifying the requirements for filing an appeal. Despite the significant political change, the decisions of the court hardly mention the change in government. The shift is noted by the court when it marked the impossibility of an alleged fact: Finally, respecting the last reason alleged in the written explanation that, having given a sentence in this case by the Sala de lo Civil de la Audiencia de la Habana on May 16, 1898, the epoch of Spanish period, it is clear that, the intervening power (Poder Interventor) was then not ruling, the order of the Secretary of Justice of February 28, 1899, concerning sealed paper, could not have been infringed as alleged by the appellant59.

Nonetheless, statements like these are all one finds in the jurisprudence of the Court concerning the substantial shift from Spanish rule to United States occupation. Sentencia Núm. 1, Abril 19 de 1900, 4 J.T.S. 162. Sentencia Núm. 2, Abril 24 de 1900, 4 J.T.S. 183; Sentencial Núm. 3, Mayo 9 de 1900, 4 J.T.S. 216; Sentencia Núm. 23, Septiembre 4 de 1900, 5 J.T.S. 154. 59 Sentencia Núm. 3, Enero 22 de 1900, 4 J.T.S. 42. 57 58

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The decisions of the Court in this transitional period show little appreciation of the unusual circumstances under which the Court was functioning. The Court quickly adopted and applied the new Military Orders with apparently little change in general interpretive style. The new Orders provided bright line rules for litigants, and the unusual political moment the country was not translated by the Court into an opportunity to broaden is jurisdiction beyond that precisely specified in the Orders. If the new procedural rules provided strict requirements for pleading, the Court found no wiggle room to let appellants slip through during the transitional period for Spanish to Cuban appellate review. The use of a foreign source leads to an interpretive dissonance by the lawyer or judge. One realizes that the source is foreign, and therefore it calls out for something other than the standard interpretive tools employed with domestic sources. The decisions of the Cuban Supreme Court reveal no such interpretive dissonance. Instead, these foreign sources were interpreted in the limited context of the established function of a civil law Supreme Court. In the midst of dramatic change, the laws and their interpretation remained constant. United States Military Orders might have been seen as foreign sources both exterior to the legal tradition to the Court and imposed from without by an occupying force. Nonetheless, if United States Military Orders were foreign, the Court did not say so or act like it during its initial terms.

MATTHEW C. MIROW

Conclusion: Foreign Law and the Birth of Comparative Law Sometimes a judge has to give a decision, or a lawyer has to advise his client, in a case where foreign law has to be applied. This task is very difficult1. René David

This volume follows in the wake of Ratio Decidendi: Guiding Principles of Judicial Decisions, Volume 1: Case Law edited by W. Hamilton Bryson and Serge Dauchy. This second volume expands the enquiry to the use of foreign law as ratio decidendi in judicial decisions. With the addition of the term “foreign law” the complexities of the project were multiplied. While all contributors of the first volume shared a common understanding of what “case law” was, this cannot be said for the term “foreign law.” The chapters assembled here indicate the variety of responses scholars can give to the meanings of both “ratio decidendi” and “foreign law.” The contributions of the first volume explored the idea of ratio decidendi and provide important advancements in our understanding of the term2. Our focus here is the newly introduced term to the course of these two volumes, “foreign law”. While we hope to put briefly the chapters of this book into the context of what they share with us concerning the main themes raised by the idea of foreign law, we conclude that a possible common theme of these chapters is, indeed, the search for the birth of comparative law, or perhaps the less boastful term, “the comparative legal moment”. Here, we do not mean “comparative law” as a scientific discipline, but rather as a particular moment in juristic thought that eventually led to the growth of the scientific discipline. As these chapters indicate, this moment occurred or failed to occur at different times in particular legal systems. It is the moment when the advocate, judge, or legal scholar recognized that a law is foreign and that this quality of being foreign leads to a new way of dealing with the source. 1 René David, Sources of Law, International Encyclopedia of Comparative Law, Volume 2 The Legal Systems of the World Their Comparison and Unification, Chapter 3 (Tübingen, 1984), p. 196. 2 See particularly, Richard H. Helmholz, The Ratio Decidendi in England: Evidence from the Civilian Tradition, in Ratio Decidendi: Guiding Principles of Judicial Decisions, Volume 1: Case Law (W. Hamilton Bryson & Serge Dauchy, eds., Berlin, 2006), pp. 73 – 86.

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I. Foreign Law The idea of “foreign” raises historiographical and methodological challenges. As legal historians, we know that in our analysis of sources we may be reading back the quality of foreignness into a period where the idea does not belong. Thus, particular judges or courts may not have considered foreign, what we consider foreign. The characterization of a law as foreign or not foreign depends upon political considerations that may antedate the period in which we work. Is a particular law foreign because it comes from a different territory or because it is issued by a different sovereign? How do biases arising from local, municipal, regional, or national identity impress their views on legal sources? In this sense, we must not forget that there may be a normative or even emotional response to a determination that a law is foreign. Pragmatic considerations of winning or losing a case or protecting privileges may induce a party to employ or to exclude a foreign source. These chapters illustrate these themes. For example, in their discussion of Spanish colonial law, Roman law and ratio decidendi in Spanish colonial law, del Granado and Mayagoitia note that Roman law was first considered part of the subsidiary local law to be applied in the extended territories of Castile in the New World. Later, under the Bourbon monarchs, royal legislation was privileged as ius proprium with a concomitant push to lessen the influence and impact of Roman law, which was now newly characterized as “foreign”. Pihlajamäki, in his contribution, “Stick to the Swedish Law”: The Use of Foreign Law in Early Modern Sweden and Nineteenth-Century Finland, observes a similar shift away from Roman law as Sweden privileged royal statutory law in the early modern period and turned towards political absolutism in the 1680s. Indeed, because of the subsidiary status of the ius commune for centuries, del Granado and Mayagoitia question whether we may speak of “foreign” and “national” law for Europe and its colonies during sixteenth and seventeenth century. Similarly for Scotland, in Ratio Decidendi and Foreign Law in the History of Scots Law, Godfrey agrees, “It would seem that in the sixteenth century we have still not reached the position in which it is accurate to speak of Scots law in this sense, in which principles of judicial decision-making would have had to accommodate the ius commune within the category of foreign law”. In his contribution, Orbis exiguus: Foreign Legal Authorities in Christinaeus, Wijffels recognizes this universal aspect of the ius commune and also reminds us of its relatively limited “effective catchment area”. “The world of the ius commune was, in more than one sense, a small world,” he writes. In accord with del Granado and Mayagoitia’s views, Wijffels reports that there was no “clear-cut notion of ‘foreign’ law” in Christinaeus’s time (1553 – 1631), but as emergent territorial states developed their iura propria, foreign law became a possibility. Wijffels’s study of Christinaeus’s legal practice makes the important observations that when Christinaeus referred to foreign law, he was able to do so because the primary foreign laws were available in secondary

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sources within the ius commune tradition. Likewise, Godfrey, addressing Scots law, notes that in the sixteenth century Roman law and the ius commune were used as sources without any special rationale because they were viewed as part of the legal system. Conquest and national or imperial expansion are related to the ideas of what is domestic and what is foreign. In their contribution, The “French” Parlement of Flanders in the late 17th and early 18th centuries, Dauchy and Demars-Sion analyze and describe the creation of the Parlement of Flanders in the late seventeenth century and the manner in which the application of local law, and not French law, was used to assert local identity in accordance with the initial institution of the court. Nonetheless, by the eighteenth century, royal efforts were successful in replacing local law, now characterized as “foreign,” with national French law as the predominant source for the court to apply. In his study of French Senegal, Reconnaissance et Refus d’un droit étranger: Magistrats français et droit musulman dans la colonie du Sénégal, Durand notes the way French law accommodated Muslim citizens by recognizing and applying Koranic law in its courts and even creating a separate tribunal and qadis for the application of Koranic law in the mid-nineteenth century, resulting in remarkable legal pluralism in areas of marriage and inheritance, for example. Muslim litigants were even given the choice to opt for a French tribunal and the application of French law. Thus the French colonial legal system was extremely sensitive to the dissonance created by a separate legal system and laws. In contrast, Mirow, in his contribution, Military Orders as Foreign Law in the Cuban Supreme Court 1899 – 1900, observes that the Cuban Supreme Court exhibited very little concern about the foreign nature of military orders issued from an occupying force. In this situation, the Cuban Supreme Court apparently did not recognize the need for new or different interpretive methods in applying the military orders. These chapters also shed light on the practice of private international law and the use of foreign law. Where a jurisdiction has interaction with foreigners, there are more opportunities for foreign laws to wind up before domestic tribunals. Because Sweden-Finland had a somewhat more isolated legal environment than Germany or Holland in the sixteenth and seventeenth centuries, Pihlajamäki observes that there were just fewer situations in Sweden-Finland that required the use of foreign law. Similarly, for Scotland, Godfrey notes that the trading activities of the Scots led to the development of private international law and the application of foreign laws as rules of decision in the sixteenth century. By the eighteenth century one could write of a “Scots private international law”. The same penchant for trade and mercantile activity, according to Godfrey, appears to have led Scots lawyers to seek answers in English commercial law by the end of the eighteenth century. Godfrey sees the adoption of these sources as being based on the suitability, utility, and quality of the particular rules offered by England in these matters. Foreign litigants led to foreign sources. In his contribution Foreign law in French courts from 1804 to 1945, with the example of the law of trusts, Halpérin provides insight into the

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way French courts struggled with the necessity of applying foreign law to cases involving non-French litigants. Into the first half of the nineteenth century there was “the absence of a judicial policy about the interpretation of foreign law”. Nonetheless, because of the fiscal importance of private trusts and the proper distribution of their assets in France, French courts were forced to tackle English and American trusts. French jurists had to become comparatists to try to understand the nature of a trustee’s ownership, notions of equitable and legal title, and the relationship of trust provisions to prohibited substitutions. This led to a significant doctrinal literature about trusts in the first half of the twentieth century. In his contribution, Acceptance and Rejection of “Foreign” Legal Doctrine by the Council of Lubeck around 1500, Cordes similarly notes that the Council’s use of foreign sources was based predominantly on pragmatic concerns, when such uses would advance the particular goals of liberty and independence of the city. Such uses appear to have been quite rare. In Cordes’s study, the Council of Lubeck and its laws offer a counterexample to the idea that trade leads to legal pluralism and the greater use foreign of laws. Where trading becomes a successful, closed system, this can actually produce legal uniformity, even to the point of excluding imperial law; thus, the imperial law and its use of Roman law were viewed as foreign. As Cordes writes, “The Council of Lubeck mainly applied its own rules, the Lubeck town law (Stadtrecht), which had become the legal framework for over a hundred cities on all shores of the Baltic Sea, either by privilege of the founding princes or by free choice of the first settlers”. The foreignness of a particular source may not stem from political or geographical factors. These studies indicate that the language of the source may indicate that it is a foreign source. As expected, where foreign and domestic laws shared a common language, jurists were likely to turn to and consider these sources. For example, Wijffels notes that Christinaeus’s Belgian Decisiones frequently remarked on the similarities between French and Belgian laws. In contrast, Dauchy and DemarsSion observe that the Parlement of Flanders and the writings of Georges de Ghewiet consciously battled against the unconscious temptation to cite and to use French law because of its linguistic similarity and ease of access. By the nineteenth century, French sources in Belgium had won the day. In his contribution, In search of Foreign Influences, other than French, in Nineteenth-Century Belgian Court Decisions, Martyn concludes that the only foreign law referred to by the courts was French. Similarly, in Cordes’s study of the Council of Lubeck, the use of Latin signaled that foreign laws and sources were being introduced into the legal process. Cordes writes, “Around 1500 the mere use of a Latin word may suggest that not only the words but also the ideas they expressed were foreign to Northern Germany”. Foreignness may also stem from the particular way a system of procedural law characterizes what is domestic and what is foreign. Sources that arise from processes outside the predominant legal tradition may be considered as foreign sources and elicit the application of specific procedural rules. In his contribution,

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Iura novit curia: aber auch fremdes Recht?, Nörr places the determination of foreign law within the context of the judge’s application of procedural rules. Until the nineteenth century in German, customary laws and foreign statutes were questions of fact, rather than law, and brought with them separate sets of rules related to proof. The legal education received by judges and lawyers may strongly influence their willingness to consider a particular source as foreign or not foreign. In his contribution for this volume, Pihlajamäki asserts that one of the factors contributing to the general rarity of the use foreign law was the “lay dominated nature of the Swedish judiciary” in the early modern period, although the staff of the high courts included lawyers who had studied in Uppsala, Greifswald, and Leiden. Thus, the “lay-oriented Swedish legal world was hardly capable of making use of the complicated ius commune norms as such”. As may be expected, the high courts, such as the Svea High Court in the seventeenth century, might use foreign law in the context of international cases. The role of legal education is also highlighted by Martyn who notes that in nineteenth-century Belgium, judges were mostly the product of the Brussels law school which emphasized French legislation and the Exegetical school. In the past fifty years or so, the situation in Belgium according to Martyn has changed dramatically. “Today, looking over the hedge has become a normal thing to do for a jurist,” he writes. The change is the result of the new European context, a larger place for Dutch sources in Belgian legal thought, and shifts in legal education that encourage exchange and comparison. Foreign law may become particularly important where domestic law is silent on a particular matter. Thus, the filling of gaps or lacunae in domestic sources is a common reason for jurists to turn to foreign law. In his contribution, The Use of Roman Law in Virginia Courts, W. Hamilton Bryson chronicles this use of foreign law within the colonial courts and the early courts of the commonwealth which were bound by the common law. Although Roman and civil law were not resorted to often, when necessary, lawyers and judges were able to discuss them “with understanding and depth”. The use of Roman law within Virginia courts was at its highpoint from 1776 to 1830 after which legal developments could proceed organically from the common law rather than through the use of Roman and civil law. The gaps became fewer and the common law of the commonwealth became more adept at filling them. Similarly in their contribution, Roman Law as Ratio Decidendi in Early American Law, Clark and Hoeflich observe that Roman law was invoked when Anglo-American authority was unavailable to the courts of the new republic. Their study, however, reveals two other ways early American jurists used Roman law. These were as guides to legal argument, often as expressed in the works of Cicero and Quintilian, and as a useful basis for systematizing American common law. Once a source has been characterized as foreign law, there are several possibilities of what a jurist does with the source. A jurist may decide to reject it from consideration based on its foreignness or for other reasons, and we must not forget

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the pragmatic aspects of lawyering or judging that may influence such a decision to discard the source. The jurist may assimilate the foreign law into a domestic decision without ever noting its foreign quality or the interpretive challenges this presents. A jurist may also note the foreign quality of the law presented to the tribunal and decide that the source imports with it different interpretive demands. The jurist recognizes the source as foreign, and brings out special interpretive tools to apply the source. This intellectual act, as the comparative legal moment, is the birth of comparative law.

II. The Birth of Comparative Law In conceiving the birth of comparative law in this way, we do not mean that the modern discipline of comparative law has a direct lineage to the challenges foreign law presented to the legal systems studied in these chapters. We also do not mean that there is necessarily a chronology of development of comparative law or the comparative method outside the discipline’s full practice in the nineteenth century to the present. We do, however, mean that there is a moment, an intellectual moment, when comparative law is born in the minds of judges and lawyers, and this moment can only occur when a legally trained mind is confronted with foreign law. A substantial body of scholarship has established that comparative law in the modern sense is a product of the nineteenth-century fascination with comparative legislation that led to the flourishing of the discipline in the twentieth century after the Paris Congress of 1900. In this sense, the discipline of comparative law with common methodologies, modes of investigation, and scientific apparatuses, is a relative newcomer3. Throughout the twentieth century, the discipline developed in Europe; the Hague Congress on comparative law in 1932 was another important milestone or even a second beginning of the field4. Others date the discipline of modern comparative law to the 1950s because this decade was a formative time for the discipline in the United States and a period of rapid advances in Europe. Mathias Reimann writes, “In the United States, the early 1950s were the birth-hour 3 Bénédicte Fauvarque-Cosson, Development of Comparative Law in France, in Oxford Handbook of Comparative Law (Mathias Reimann & Reinhard Zimmermann, eds., Oxford, 2006), pp. 36, 39 – 52; Annelise Riles, Introduction: The Projects of Comparison, in Rethinking the Masters of Comparative Law (Annelise Riles, ed., Oxford, 2001), pp. 6 – 18. Some see the origins of modern comparative law in the sexteenth century with the establishment of nations and with attempts to understand the differences between the English common law and the continental civil law. Luigi Moccia, Historical Overview on the Origins and Attitudes of Comparative Law, in The common law of Europe and the future of legal education (Bruno de Witte & Caroline Forder, eds. Deventer, 1992), pp. 613 – 616. 4 Carlos Petit, From Paris to the Hague. Edouard Lambert and Droit Commun Legislatif, in History and European private law: development of common methods and principles (Claes Peterson, ed., Lund, 1997), pp. 137 – 150.

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of the discipline as a clearly identifiable subject”5. Our task here, however, is not to pinpoint the origin of comparative law as a modern discipline. There has long been a scholarly literature of comparison and attempted harmonization of domestic law and foreign law. Once a difference is observed in rules of law from one place and those from another, it is only natural that comparison and attempted explanations follow6. Comparing different laws goes far back in time7. There is a difference, however, between noting different law and applying different laws. The moment of application means that comparative legal thought has moved from theory to praxis. In these studies, foreign law is pressed into service not to discern or to establish a common just law, general principles of law, or a “common core”8. Instead, here, a foreign law becomes ratio decidendi, a source upon which a particular case is decided. Thus, these studies call on the forensic use of foreign law. Even the ancient world had to consider conflicting laws of application9. Foreign law is central to the idea of legal transplants forcefully advocated by Alan Watson as the engine of legal development. The idea has led to numerous related categories and explanatory models including the idea of borrowing and migration10. Indeed, the process of legal transplants, it is exactly foreign law that is being transplanted. For Watson, several interrelated factors guide transplantation including: “(1) non-legal historico-political relations between donor and host; (2) the shared language and proximity between the donor and host; (3) the nationalistic concerns of the host; (4) the lack of a strong native law in the host; (5) the possible misinterpretation of the donor law by the host; and (6) the donor being more ‘legally mature’ than the host”11. Elsewhere, Watson listed the factors to include the 5 Mathias Reimann, The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century, American Journal of Comparative Law, 50 (2002), p. 671. 6 Charles Donahue, Comparative Law before the Code Napoléon, in Oxford Handbook of Comparative Law (Mathias Reimann & Reinhard Zimmermann, eds., Oxford, 2006), pp. 3 – 32. See also, M.H. Hoeflich, Comparative Law in Antebellum America, Washington University Global Studies Law Review 4 (2005), p. 536 – 537. 7 René David & John E.C. Brierley, Major Legal Systems of the World: An Introduction to the Comparative Study of Law (London, 3rd ed., 1985), pp. 1 – 4. 8 Rudolf B. Schelsinger, The Common Core of Legal Systems: An Emerging Subject of Comparative Study, in XXth Century Comparative and Conflicts of Law: Essays in Honor of Hessel C. Yntema 65 (Kurt H. Nadelmann et al. eds. 1961). 9 Gábor Hamza, Did Private International Law Exist in the Imperium Romanum? (Reflections on a vexata quaestio), in Il ruolo della buona fede oggettiva nell’esperienza giuridica storica e contemporanea, Atti de Convegno internazionale de studi in onore de Alberto Burdese. A cura di Juigi Garofalo, vol. II, Padova, 2003, pp. 323 – 331. 10 M.C. Mirow, Marbury in Mexico: Judicial Review’s Precocious Southern Migration, Hastings Constitutional Law Quarterly, vol. 35 (2007), pp. 76 – 81. 11 M.C. Mirow, Borrowing Private Law in Latin America: Andrés Bello’s Use of the Code Napoléon in Drafting the Chilean Civil Code, Louisiana Law Review, vol. 61 (2001), p. 303 citing Alan Watson, Legal Transplants: An Approach to Comparative Law (2nd ed. 1993), pp. 51, 55, 93, and 99.

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respect the donor has in the host country, the host’s national pride in accepting the law of another country, the ease of transplant afforded by language and accessibility, and the past history of the host12. Although compelling factors in explaining legal change as it is related to foreign law, these factors have little to do with the way foreign laws wind up in front of the particular tribunals in these studies. These factors tend toward legislative and doctrinal transplants. Courts are forced to look at foreign laws because an advocate has placed them before the judge for the practical purposes of winning a case. In these studies, the comparative moment has been forced upon a jurist or legal system that may be quite unwilling to consider the foreign law. These studies reveal several situations when foreign law comes into play or factors that influence the use of foreign law. These include the growth of national identity and the strengthening of domestic legal systems and sources, colonial conquest and imperial expansion, the application of private international law to foreign litigants, pragmatic and strategic choices in litigation and legal development especially when domestic law is silent, linguistic similarity and ease of reference, and the legal education of legal actors. In this sense, the proffering of a foreign law, the new interpretative tools it carries with it, and the comparative moment itself were frequently the product of forensic practice and specific goals. Modern comparative law seeks to move its development past the idea that it is merely a new method13. Our focus here, however, has been on the moment when the introduction of a foreign source in legal practice called out for a new method. Comparative law is the product of such a comparative legal moment; and the comparative legal moment only arises when a domestic legal system confronts a foreign law.

12

Alan Watson, Society and Legal Change (Philadelphia, 2nd ed., 2001), pp. 98, 102, 104,

105. 13

Reimann, pp. 683 – 684.

Contributors Bryson, W. Hamilton: Professor at the University of Richmond, School of Law, Richmond, Virginia 23173, USA ([email protected]) Cordes, Albrecht: Professor at the University of Francfort-am-Main, Lehrstuhl für mittelalterliche und neuere Rechtsgeschichte und für Zivilrecht, Fachbereich Rechtswissenschaft, Goethe-Universität, Grüneburgplatz 1, 60323 Frankfurt am Main, Germany (cordes @jur.uni-franfurt.de) Clark, Carolyn Craycraft: Information Instruction Librarian, Baker University, Baldwin City, Kansas ([email protected]) Dauchy, Serge: Directeur du Centre d’Histoire Judiciaire (UMR 8025), Faculté de Droit, 1 place Déliot, BP 629, 59024 Lille Cedex, France ([email protected]) Demars-Sion, Véronique: Professeur à l’Université de Lille 2, Centre d’Histoire Judiciaire (UMR 8025), Faculté de Droit, 1 place Déliot, BP 629, 59024 Lille Cedex, France (veronique. [email protected]) Durand, Bernard: Professeur à l’Université de Montpellier 1, Dynamiques du Droit (UMR 5815), Faculté de Droit, 39 rue de l’Université, 34060 Montpellier Cedex 1 (bernard.durand @univ-montp1.fr) Godfrey, A. Mark: Senior Lecturer in Scots Law, The Stair Building, The Square, University of Glasgow, Glasgow, G12 8QQ, Scotland, UK ([email protected]) Granado, Juan Javier (del): Instituto de Investigaciones Jurídicas, Universidad Nacional Autónoma de México, Mexico ([email protected]) Halpérin, Jean-Louis: Professeur à l’Ecole Normale Supérieure, 48 boulevard Jourdan, 75014 Paris, France ([email protected]) Hoeflich, Michael H.: Professor of Law, School of Law, University of Kansas, 1535 W. 15th Street Lawrence, KS 66045 ([email protected]) Martyn, Georges: Professor at the Ghent University, Faculty of Law, Universiteitsstraat 4, 9000 Ghent, Belgium ([email protected]) Mayagoitia, Alejandro: Universidad Panamericana Campus Ciudad de México, Mexico Mirow, Matthew C.: Professor at the Florida International University, University Park campus, Florida 33199, USA ([email protected]) Nörr, Knut Wolfgang: Professor at the Eberhard Karls Universität Tübingen, Forschungsstelle für internationale Privatrechtgeschichte, Neue Aula, Wilhelmstraße 7, 72074 Tübingen, Germany ([email protected]) Oldham, James: Professor at the Georgetown University, Law Center, 600 New Jersey Avenue, Washington, DC 20001, USA ([email protected])

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Pihlajamäki, Heikki: Professor at the University of Helsinki, Faculty of Law, Department of Criminal Law, Procedural Law and General Jurisprudential Studies, 00014 Helsinki, Finland ([email protected]) Wijffels, Alain: Senior Research Fellow CNRS (UMR5605), Professor of Comparative Law and Legal History, Faculty of Law, Catholic University of Louvain-la-Neuve, Belgium & Leiden University, The Netherlands