marks, when it may depend upon a single particle whether the claim of Titius or of Marius shall prevail.

Cujacius an inter

preter of

than a

lawyer.

78. Such was the renown of Cujacius that, in the public schools of Germany, when his name was mentioned, every one took off his hat. The continual law rather bickerings of his contemporaries, not only of the old Accursian school, among whom Albericus Gentilis was prominent in disparaging him, but of those who had been trained in the steps of Alciat like himself, did not affect this honest admiration of the general student." But we must not consider Cujacius exactly in the light of what we now call a great lawyer. He rejected all modern forensic experience with scorn, declaring that he had misspent his youth in such studies. We have, indeed, fifty of his consultations which appear to be actual cases. But, in general, it is observed by Gravina, that both he and the greatest of his disciples "are but ministers of ancient jurisprudence, hardly deigning to notice the emergent questions of modern practice. Hence, while the elder jurists of the school of Bartolus, deficient as they are in expounding the Roman laws, yet apply them judiciously to new cases, these excellent interpreters hardly regard anything modern, and leave to the others the whole honour of advising and deciding rightly." Therefore he recommends that the student who has imbibed the elements of Roman jurisprudence in all their purity from the school of Cujacius, should not neglect the interpretations of Accursius in obscure passages; and, above all, should have recourse to Bartolus and his disciples for the arguments, authorities, and illustrations which ordinary forensic questions will require.f

yers below

79. At some distance below Cujacius, but in places of French law- honour, we find among the great French interCujacius; preters of the civil law in this age, Duaren, as devoted to ancient learning as Cujacius, but differing from him by inculcating the necessity of forensic practice to form a perfect lawyer ; Govea, who, though a

Govea and

others.

Heinecc. xiv. 209. Gennari, p. 199. d Gennari, p. 246. Biogr. Univ. Heineccius, ibid. Gennari, p. 242. Gravina, p. 222, 230.

g Duarenus . . . sine forensis exercitationis præsidio nec satis percipi, nec recte commodeque doceri jus civile existimat. Gennari, p. 179.

Portuguese, was always resident in France, whom some have set even above Cujacius for ability, and of whom it has been said that he is the only jurist who ought to have written more; Brisson, a man of various learning, who became in the seditions of Paris an unfortunate victim of his own weak ambition; Balduin, a strenuous advocate for uniting the study of ancient history with that of law; Godefroi, whose Corpus Juris Civilis makes an epoch in jurisprudence, being the text-book universally received ; and Connan, who is at least much quoted by the principal writers on the law of nature and nations. The boast of Germany was Gifanius.

of the Ro

man law.

;

80. These "ministers of ancient jurisprudence" seemed to have no other office than to display the excel- Opponents lences of the old masters in their original purity. Ulpian and Papinian were to them what Aristotle and Aquinas were to another class of worshippers. But the jurists of the age of Severus have come down to us through a compilation in that of Justinian; and Alciat himself had begun to discover the interpolations of Tribonian, and the corruption which, through ignorance or design, had penetrated the vast reservoir of the Pandects. Augustinus, Cujacius, and other French lawyers of the school of Bourges, followed in this track, and endeavoured not only to restore the text from errors introduced by the carelessness of transcribers, a necessary and arduous labour, but from such as had sprung out of the presumptuousness of the lawgiver himself, or of those whom he had employed. This excited a vehement opposition, led by some of the chief lawyers of France, jealous of the fame of Cujacius. But, while they pretended to rescue the orthodox vulgate from the innovations of its great interpreter, another sect rose up, far bolder than either, which assailed the law itself. Of these the most determined were Faber and Hottoman.

81. Antony Faber, or Fabre, a lawyer of Savoy, who became president of the court of Chamberi in Faber of 1610, acquired his reputation in the sixteenth Savoy. century. He waged war against the whole body of com

h Goveanus vir, de quo uno desideretur, plura scripsisse, de cæteris vero, pauciora quia felix ingenio, naturæ viribus tantum confideret,

ut diligentiæ laudem sibi non necessariam, minus etiam honorificam putare videatur. Gennari, p. 281.

mentators, and even treated the civil law itself as so mutilated and corrupt, so inapplicable to modern times, that it would be better to lay it altogether aside. Gennari says, that he would have been the greatest of lawyers, if he had not been too desirous to appear such; his temerity and self-confidence diminished the effect of his ability. His mind was ardent and unappalled by difficulties; no one had more enlarged views of jurisprudence, but in his interpretations he was prone to make the laws rather what they ought to have been than what they were. His love of paradox is hardly a greater fault than the perpetual carping at his own master Cujacius, as if he thought the reform of jurisprudence should have been reserved for himself."

bonianus of

82. But the most celebrated production of this party is Anti-Tri- the Anti-Tribonianus of Hottoman. This was Hottoman. written in 1567, and, though not published in French till 1609, nor in the original till 1647, seems properly to belong to the sixteenth century. He begins by acknowledging the merit of the Romans in jurisprudence, but denies that the compilation of Justinian is to be confounded with the Roman law. He divides his inquiry into two questions: first, whether the study of these laws is useful in France; and, secondly, what are their deficiencies. These laws, he observes by the way, contain very little instruction about Roman history or antiquities, so that in books on those subjects we rarely find them cited. He then adverts to particular branches of the civil law, and shows that numberless doctrines are now obsolete, such as the state of servitude, the right of arrogation, the ceremonies of marriage, the peculiar law of guardianship, while for matters of daily occurrence they give us no assistance. He points out the useless distinctions between things mancipi and non mancipi, between the dominium quiritarium and bonitarium; the modes of acquiring property by mancipation, cessio in jure, usucapio, and the like, the unprofitable doctrines about fidei commissa and

i P. 97. Heineccius, p. 236. Fabre, says Ferrière, as quoted by Terrasson, Hist. de la Jurisprudence, est celui des jurisconsultes modernes qui a porté le plus loin les idées sur le droit. C'étoit un esprit vaste qui ne se rebutoit par de

plus grandes difficultés. Mais on l'accuse avec raison d'avoir décidé un peu trop hardiment contre les opinions communes, et de s'être donné souvent trop de liberté de retrancher ou d'ajouter dans les lois. See, too, the article Favre, in Biographie Universelle.

the jus accrescendi. He dwells on the folly of keeping up the old forms of stipulation in contracts, and those of legal process, from which no one can depart a syllable without losing his suit. And on the whole he concludes that not a twentieth part of the Roman law survives, and of that not one-tenth can be of any utility. In the second part, Hottoman attacks Tribonian himself for suppressing the genuine works of great lawyers, for barbarous language, for perpetually mutilating, transposing, and interpolating the passages which he inserts, so that no cohesion or consistency is to be found in these fragments of materials, nor is it possible to restore them. The evil has been increased by the herd of commentators and interpreters since the twelfth century; those who have lately appeared and applied more erudition rarely agreeing in their conjectural emendations of the text, which yet frequently varies in different manuscripts, so as to give rise to endless disputes. He ends by recommending that some jurisconsults and advocates should be called together, in order to compile a good code of laws; taking whatever is valuable in the Roman system, and adding whatever from other sources may seem worthy of reception, drawing them up in plain language, without too much subtilty, and attending chiefly to the principles of equity. He thinks that a year or two would suffice for the instruction of students in such a code of laws, which would be completed afterwards, as was the case at Rome, by forensic practice.

Civil law

not counte

France.

83. These opinions of Hottoman, so reasonable in themselves, as to the inapplicability of much of the Roman law to the actual state of society, were nanced in congenial to the prejudices of many lawyers in France. That law had in fact to struggle against a system already received, the feudal customs which had governed the greater part of the kingdom. And this party so much prevailed, that, by the ordinance of Blois, in 1579, the university of Paris was forbidden to give lectures or degrees in civil law. This was not wholly regarded; but it was not till a century afterwards that public lectures in that science were re-established in the university, on account of the uncertainty which the neglect of the civil law was alleged to have produced.

Turamini.

84. France now stood far pre-eminent in her lawyers. But Italy was not wanting in men once conspicuous, whom we cannot afford time to mention. One of them, Turamini, professor at Ferrara, though his name is not found in Tiraboschi, or even in Gravina, seems to have had a more luminous conception of the relation which should subsist between positive laws and those of nature, as well as of their distinctive provinces, than was common in the great jurists of that generation. His commentary on the title De Legibus, in the first book of the Pandects, gave him an opportunity for philosophical illustration. An account of his writings will be found in Corniani.m 85. The canon law, though by no means a province sterile in the quantity of its produce, has not deCanon law. served to arrest our attention. It was studied conjointly with that of Rome, from which it borrows many of its principles and rules of proceeding, though not servilely, nor without such variations as the independence of its tribunals and the different nature of its authorities might be expected to produce. Covarruvias and other Spaniards were the most eminent canonists; Spain was distinguished in this line of jurisprudence.

Law of nations.

Its early state.

86. But it is of more importance to observe, that in this period we find a foundation laid for the great science of international law, the determining authority in questions of right between independent states. Whatever had been delivered in books on this subject, had rested too much on theological casuistry, or on the analogies of positive and local law, or on the loose practice of nations, and precedents rather of arms than of reason. The fecial law, or rights of ambassadors, was that which had been most respected. The customary code of Europe, in military and maritime questions, as well as in some others, to which no state could apply its particular jurisprudence with any hope of reciprocity, grew up by degrees to be administered, if not upon solid principles, yet with some uniformity. The civil jurists, as being conversant with a system more widely diffused, and of which the equity was more generally recognised than any other, took into their hands the adjudication of all these