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England:
Sir Edward Coke, 1552–1634, The Institutes of the
Laws of England
John Cowell, 1554–1611, Institutiones iuris Anglicani ad methodum et
seriem institutionum imperialium compositae & digestae
French
Customary Lawyers (revisited):
Charles
Dumoulin, 1500–1566, the ‘French Papinian,’ systematizer of the custom of Paris
Guy
Coquille, 1523–1603, custom of Nivernais
treated comparatively
Antoine
Loysel, 1536–1617, maxims arranged according to the Institutes
Louis
Charondas Le Caron, 1534–1613, historical inquiry into the custom of Paris
Charles
Loyseau, 1566–1627, treatises on specific topics
Later French Jurists
Jean
Domat, 1625–1695, The Civil Laws in
Their Natural Order
Gabriel
Argou, 1640–1703, French law arranged according the Institutes
Robert
Joseph Pothier, 1699–1772, treatises on specific topics
- Let us look more carefully at the overall
structure of the three treatises that we have extracted in the Materials,
beginning with Argou on p. XVII-8.
- Argou shows the most obvious influence of
Justinian’s Institutes. It is
divided into four books, persons, things, obligations, and, here he departs
from J’s titles, accessories and consequences of obligations, but it turns
out that this book includes at the end (title 11 forward) the law of actions,
including a relatively full treatment of the ordo. Except for a two sections on crimes (3.38-39), which turn
out to have to do largely with delict, and one on seigneurial justice (2.5),
public law is no place to be found. Commercial law receives a skimpy
treatment at the end (4.20), something of an afterthought. The topics within
the books are treated in the order that we would expect from reading
Justinian, the law of things proceeds from single things to testaments, to
intestate succession to obligations, begining with contract. There’s one
notable exception to Justinain’s order: marriage and marital property are
treated as part of the law of obligations, rather than as part of the law of
persons and of single things. The law of obligations as Justinian would have
understood it, however, is largely derived from Roman law, as can be seen
from the titles (3.23-39). The law of things, on the other hand, incorporates
much of French customary law. We learn of fiefs and free-alods, the retrait lignagier, dower, the
distinction between propres and conquêts.
- Loisel (Materials,
p. XVII-7) has six books, further away from Justinian’s basic scheme. But he,
too, follows the basic scheme of the Institutes
in that he proceeds from persons to things to actions. Within the law of
things, the basic pattern runs from single things, to succession, to
obligations, but the law of obligations is far less contractual than is
Justinian and more concerned with property. Public law appears a bit more
frequently in Loisel than it does in Argou. There is, for example, section on
taxes (6.6), but it is still not prominent.
- Coquille is the least concerned with the order
and content of Justinian’s Institutes.
His pattern largely follows the pattern of the titles of the custom of Nivernais on which he
is commenting (titles on Materials,
p. XVII-2 then skip over to XVII-6). It begins with a kind of law of persons,
proceeding from the king through the peers to castellans to rights of feudal
justice. Then there is a longish series of titles on the law of things. The
final titles, however, are decidely mixed up from the point of view of Justinian.
Titles concerning persons are mixed in with titles concerning obligations
with titles concerning property. The final title (on chaptel) has all
the hallmarks of an afterthought, as it may well have been in the original.
- Maxims the Institutional Treatises
- Important as the overall structure is, perhaps
more important is their focus on principle. This is most obvious in Loisel.
The content of his treatise is a series of maxims, pithy statements of rules,
derived, for the most part, from customary law. The Roman jurists did make
use of maxims, but they were quite cautious about it. “In matters of civil
law,” Javolenus (D.50.17.202) tells us, “all definitions are dangerous. There
is hardly one that cannot be subverted.” Title 17 of Book 50 of the Digest contains 211 maxims derived
from juristic writing, some of which almost certainly did not have the status
of maxims in classical law, although some of them may have. One of them
(D.50.17.30) is quite relevant to our topic of marriage: “Marriages are not
made by bedding together but by consent.” Another maxim, not in D.50.17 and
almost certainly torn out of context, was to have, as we have seen, an
important role in developing Western political thought: “The prince is not
bound by the laws.” (D.1.3.31)
- Digest
50.17 attracted the interest of the jurists quite early on. Bulgarus wrote a
commentary on D.50.17, and works in this genre appear throughout the Middle
Ages and into the early modern period.
- Maxim jurisprudence does not have a very good
press these days, particularly in the Anglo-American world. We need to be
reminded that as smart a jurist as Francis Bacon, who was an almost exact
contemporary of Loisel’s, thought that a truly scientific approach to English
law would involve extracting principles from the amorphous mass of case law
and arranging these principles in a structured and logical fashion. His
effort in this regard is interesting but odd, and like most of his works, he
probably never finished it. Loisel did finish, and his work was an instant success.
What it did show was that there were guiding principles in the customary law.
Some of them looked very much like Roman law; some of them had probably in
fact been borrowed from Roman law (the same was true of Bacon’s maxims and
even those of Lord Coke in England).
- Part of the difficulty that we have with maxim
juriprudence today probably did not concern the jurists of the 17th century.
We have difficulty with maxim jurisprudence because we do not regard it as a
precise solvent of cases. I’m not sure that anyone in the 17th century
thought that it was. The notion that a judge can be bound by the law to reach
a unique result in any given case is a product largely of the 18th and 19th
centuries not of any earlier period. I think that the jurists of the earlier
period liked maxims and brocards because they expressed central tendencies of
the law, ways of organizing a mass of disorganized material, ways of creating
presumptions about a result that would then admit exceptions if reasons could
be found for making the exception.
- The other reason why today we are
uncomfortable with maxim jurisprudence is that a careful study of many maxims
shows that there are frequently maxims on opposite sides of the same
proposition. Let me take an example from Loisel (p. XVII-7), one that touches
upon one of our major institutional themes, the relationship between the
tenure of land and feudal jurisdiction. In this regard French customary law
had two maxims: fief et justice sont
tout un ‘fief and justice are all one’ (found in L. 2.2.33 in the form la justice est patrimoniale ‘justice
is patrimonial’) and fief et justice
n’ont rien de commun ‘fief and justice have nothing in common’ (L. 2.2.35
in the form: fief, ressort et justice
n’ont rien de commun ensemble ‘Fief, ressort
[geographical judicial competence], and justice have nothing in common’).
Obviously confrontation with such seemingly contractory principles makes for
thought. In a world that is seeing increasing distinctions between public and
private law, the second of the two maxims sounds more like what makes sense.
Loisel avoids the contradiction by changing the contradictory maxim,
substituting instead la justice est
patrimoniale. The question is whether that principle could be reconciled
with the notion that fief et justice
n’ont rien de commun. Ultimately it was in this way: What the first maxim
means, the 17th century lawyers said, as had apparently some of the medieval
lawyers is that someone who has the right to hold a feudal court cannot
separate that right from the land to which it is attached. Fief and justice
are all one means that one cannot sever the justice from the fief, granting
the fief to one person and the justice to another. One the other hand, fief
and justice have nothing in common means that one is a matter of private law,
the other of public, and the king can certainly create jurisdiction
independent of land-holding.
We can see how it all came out in Argou’s treatment
of the topic: (bk. 2. ch. 5, pp. 1.188-9 of the 1753 ed. [p. XVII-8]): “The
justice of lords is patrimonial in France. It gives many rights to
those who possess it, but some of these rights are purely of public law, such
as the nomination or provision of officers, the exercise of justice, the
matters of which their officers can have cognizance.
“There are other rights purely lucrative or honorary
and which can be considered as a true patrimony. Even though the lords enjoy
them only by reason of the high justice which pertains to them, one can
nonetheless put these rights among the rights of property.” [A. goes on to
describe a number of which escheat is most important.]
Just in case you missed the point, the 1753 edition
adds at the beginning: “All justice, royal or seigneurial, comes from the
king, and is dependent on him mediately or immediately.”
- The Underlying Method of the Institutional
Treatises
- What makesCoquille’s work on the custom of Nivernais interesting is that, like many of the
customary lawyers of this period, Coquille went far beyond the specific
custom on which he was commenting to do an exhaustive comparison of the rules
of the custom of Nivernais
with other customary jurisdictions and with Roman law. The results of the
comparative method can be seen in the extract from Coquille. In one sense it
is quite mechanical. Once the customs had been redacted, it is a relatively
simple task to lay them side by side the way he does in the title on marital
property in his Institutions to see how the rules are similar and how they
differ. But there is much more to Coquille’s effort than simply getting it
all under the right category. There is running throughout Coquille’s work a
sense that once one makes the comparative effort one is also obliged to ask
the question what is the right rule. In this way, very early on the stream
that runs from the comparativists and the historians connects with that being
espoused by the systematizers. If the historians never ceased to remind
Frenchmen how it was that their institutions and laws had come to be the way
they were, the systematizers never ceased to remind them what it was that
they ought to be. The comparativists, then, provided the link between the
two.
- Perhaps the easiest of Coquille’s
methodological moves to see is where he makes a comparison and the comparison
reveals that there is a difference among the customs. Here he has a tendency
to look to the Roman law rule, the rule of the ius commune, and
to privilege that rule. He won’t deny that the contrary custom exists but he
will require that it be clearly stated and he will apply it only in those
situations to which it applies. We saw basically the same techniques being
used by the Italian jurists in the 15th century when they were dealing with
statutes that were contrary to the ius
commune. But Coquille’s search for principle goes further. Sometimes he
will ask what the purpose of the custom is and will refuse to apply it in
situations where he does not believe that its purpose applies. Again, we saw
the same technique in Panormitanus’s interpretation of the statutes of the
Italian city-states. Occasionally we will find an argument that the custom is
just flat-out wrong, either that it contradicts other higher principles or
that it—this argument is usually only hinted at—does not correspond with
social reality.
- The way that I have told the story so far, it
looks as if the ius commune and
juristic interpretation totally wins the day. But the ius commune was malleable stuff. Let us take a look at how
Coquille handles the problem of when a marriage is deemed to be complete for
marital property purposes. Mats. p.
XVII-3: We begin with the basic proposition, almost all the customary
jurisdictions have community property. Indeed, almost all of them have the
version that is the basic version in France today, community property
of moveables and acquests. The community bears the debts and has the benefit
of the moveable credits. Each of the spouses keeps his or her own patrimonial
land. The question is when are they married for purposes of establishing the
community? We have already gotten some indication of how Coquille is going to
come out on this issue by the way in which he treats the question of
coverture, the incapacity of married women (p. XVII-2). It doesn’t arise
until there are words of the present tense and solemnization of the marriage
in the face of the church. Some customs require a nuptial blessing. But this,
C. tells us, makes no sense because in canon law a blessing can be done
privately or clandestinely without assembly. Amazingly, he does not mention
the ordonnance of Blois.
Rather, he relies on a consilium of
his teacher, Mariano Socini, junior, (who taught at Bologna and died in 1556), and Socini had,
in turn, relied on the very consilia
of Panormitanus that we have already examined. Now Panormitanus, you will
recall, had been willing to import a requirement that for purposes of dowry
there must be a deductio in domum;
he considers, but apparently rejects, a requirement that the marriage be
consummated. But what Panormitanus was concerned about was the notion that
the husband had to bear the expenses of the wedding and maintaining the wife
in his household. Coquille is concerned about publicity. He simply rejects
the customs that call for consummation. He sharply distinguishes the canonic
requirements from the civil requirements. He does not say so, but he almost
certainly goes off in this direction because it is critically important in a
community property system that creditors know with whom they are dealing.
Publicity is essential for community property not only for the rare instances
when the a dispute arises as upon the division of the property but for the
day to day dealings of the community with the couple.
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