Chapter IX

., II. and III.

[331] For generous samples of it, see _Geistliche Lit. des Mittelalters_, ed. P. Piper (Deutsche National Literatur).

[332] For this novel, a Greek original is usually assumed; but the Middle Ages had it only in a sixth-century Latin version. It was copied in _Jourdain de Blaie_, a _chanson de geste_. See Hagen, _Der Roman von König Apollonius in seinen verschiedenen Bearbeitungen_ (Berlin, 1878). The other Greek novels doubtless would have been as popular had the Middle Ages known them. In fact, the _Ethiopica_ of Heliodorus, and others of these novels, did become popular enough through translations in the sixteenth century.

[333] Hugo of St. Victor says in the twelfth century: “Apud gentiles primus Darhes Phrygius Trojanam historiam edidit, quam in foliis palmarum ab eo scriptam esse ferunt” (_Erud. didas._ iii. cap. 3; Migne 176, col. 767).

On the Trojan origin of the Franks, Britons, and other peoples, see Joly in his “Benoit de St. More et le Roman de Troie,” pp. 606-635 (_Mem. de la Soc. des Antiquaires de Normandie_, vol. vii. 3{me} ser., 1869); also Graf, _Roma nella memoria, etc., del medio aevo_. The Trojan origin of the Franks was a commonplace in the early Middle Ages, see _e.g._ Aimoinus of Fleury in beginning of his _Historia Francorum_, Migne 139, col. 637.

On Dares the Phrygian and Dictys the Cretan see “Dares and Dictys,” N. E. Griffin (_Johns Hopkins Studies_, Baltimore, 1907); Taylor, _Classical Heritage_, pp. 40 and 360 (authorities); also, generally, L. Constans, “L’Épopée antique,” in Petit de Julleville’s _Histoire de la langue et de la littérature française_, vol. i. (Paris, 1896).

[334] Joseph of Exeter or de Iscano, as he is called, at the close of the twelfth century composed a Latin poem in six books of hexameters entitled _De bello Trojano_. It is one of the best mediaeval productions in that metre. The author followed Dares, but his diction shows a study of Virgil, Ovid, Statius, and Claudian. See J. J. Jusserand, _De Josepho Exoniensi vel Iscano_ (Paris, 1877); A. Sarradin, _De Josepho Iscano, Belli Trojani, etc._ (Versailles, 1878).

[335] _Eneas_, ed. by Salverda de Grave (Halle, 1891), lines 7857-9262.

[336] _Roman de Troie_, 5257-5270, ed. Joly; “Benoit de St. More et le Roman de Troie, etc.,” _Mem. de la Soc. des Antiquaires de Normandie_, vol. vii. 3{me} ser., 1869. On its sources see also L. Constans, in Petit de Julleville’s _Hist. de la langue et de la litt. française_, vol. i. pp. 188-220.

[337] _Roman de Troie_, 13235 _sqq._

[338] The _Roman de Thebes_, the third of these large poems, is temperate in the adaptation and extension of its theme. Its ten thousand or more lines of eight-syllable rhyming verse are no longer than the _Thebaid_ of Statius, and as a narrative make quite as interesting reading. Statius, who lived under Domitian, was a poet of considerable skill, but with no genius for the construction of an epic. His work reads well in patches, but does not move. Several books are taken up with getting the Argive army in motion, and when the reader and Jove himself are wearied, it moves on--to the next halt. And so forth through the whole twelve books. See Nisard, _Études sur les poètes latins de la décadence_, vol. i. p. 261 _sqq._ (2nd ed., Paris, 1849); Pichon, _Hist. de la litt. lat._ p. 606 (2nd ed., Paris, 1898). The _Roman de Thebes_ was not drawn directly from the work of Statius, but through the channels, apparently, of intervening prose compendia. It also evidently drew from other works, as it contains matters not found in Statius’s _Thebaid_. It is easy, if not inspiring reading. The style is clear, and the narrative moves. Of course it presents a general mediaevalizing of the manners of Statius’s somewhat fustian antique heroes; it introduces courtly love (_e.g._ the love between Parthonopeus and Antigone, lines 3793 _sqq._), mediaeval commonplaces, and feudal customs. It drops the antique conception of accursed fate as a fundamental motive of the plot, substituting in its place the varied play of romantic and chivalric sentiment.

Leopold Constans has made the _Roman de Thebes_ his own. Having followed the story of Oedipus through the Middle Ages in his _Légende d’Œdipe, etc._ (Paris, 1881) he has corrected some of his views in his critical edition of the poem, “Le Roman de Thèbes,” 2 vols., 1890 (_Soc. des anciens textes français_), and has treated the same matters more popularly in Petit de Julleville’s _Hist. de la langue et de la litt. française_, vol. i. pp. 170-188. These works fully discuss the sources, date, and language of the poem, and the later redactions in prose and verse through Europe.

[339] On Pseudo-Callisthenes see Paul Meyer, _Alexandre le Grand dans la littérature française du moyen âge_ (Paris, 1886); Taylor, _Classical Heritage, etc._, pp. 38 and 360. In the last quarter of the twelfth century Walter of Lille, called also Walter of Chatillon, wrote his _Alexandreis_ in ten books of easy-flowing hexameters. It is printed in Migne, _Pat. Lat._ 209, col. 463-572. Cf. _ante_, page 192. His work shows that a mediaeval scholar-poet could reproduce a historical theme quite soberly. His poem was read by other bookmen; but the Alexander of the Middle Ages remained the Alexander of the fabulous vernacular versions.

[340] See Gaston Paris, “Chrétien Légouais et autres imitateurs d’Ovide,” _Hist. litt. de la France_, t. xxix., pp. 455-525.

[341] The words “nexum mancipiumque” are more formal and special than the English given above.

[342] The early law had as yet devised no execution against the debtor’s property.

[343] The jurisconsults whose opinions were authoritative flourished in the second and third centuries. The great five were Gaius, Julian, Papinian, Ulpian, Paulus. Inasmuch as these jurisconsults of the Empire were members of the Imperial (or, later, Praetorian) Auditory, they were judges in a court of last resort, and their “responsa” were decisions of actual cases. They subsequently “digested” them in their books. See Munroe Smith, “Problems of Roman Legal History,” _Columbia Law Review_, 1904, p. 538.

[344] _Dig._ i. 1 (“De Just. et jure”) 1. See Savigny, _System des heutigen römischen Rechts_, i. p. 109 _sqq._ Apparently some of the jurists (_e.g._ Gaius, _Ins._ i. 1) draw no substantial distinctions between the _jus naturale_ and the _jus gentium_. Others seem to distinguish. With the latter, _jus naturale_ might represent natural or instinctive principles of justice common to all men, and _jus gentium_, the laws and customs which experience had led men to adopt. For instance, _libertas_ is _jure naturali_, while _dominatio_ or _servitus_ is introduced _ex gentium jure_ (_Dig._ i. 5, 4; _Dig._ xii. 6, 64). _Jus gentium_ represented common expediency, but its institutions (e.g. _servitus_) might or might not accord with natural justice. For _manumissio_ as well as _servitus_ was _ex jure gentium_ (_Dig._ i. 1, 4), and so were common modes and principles of contract. Ulpian’s notion of the _jus naturale_ as pertaining to all animals, and _jus gentium_ as belonging to men alone, was but a catching classification, and did not represent any commonly followed distinction.

[345] _Constitutio_ is the more general term, embracing whatever the emperor announces in writing as a law. The term rescript properly applies to the emperor’s written answers to questions addressed to him by magistrates, and to the decisions of his Auditory rendered in his name.

[346] For this whole matter, see vol. i. of Savigny’s _System des heutigen römischen Rechts_; Gaius, _Institutes_, the opening paragraphs; and the first two chapters of the first Book of Justinian’s _Digest_.

[347] _Dig._ i. 3, 32.

[348] _Dig._ i. 3, 10, and 12.

[349] _Dig._ i. 3, 14.

[350] _Ibid._ 39.

[351] _Dig._ l. 17, 30.

[352] _Dig._ l. 17, 31.

[353] _Ibid._ 54.

[354] _Ibid._ 202.

[355] _Dig._ l. 16, 24; _Ibid._ 17, 62.

[356] _Cod. Theod._ (ed. by Mommsen and Meyer) i. 1, 5.

[357] With the Theodosian Code the word _lex_, _leges_, begins to be used for the _constitutiones_ or other decrees of a sovereign.

[358] From the constitution directing the compilation of the _Digest_, usually cited as _Deo auctore_.

[359] The original plan of Theodosius embraced the project of a Codex of the jurisprudential law. See his constitution of the year 429 in _Theod. C._ i. 1, 5. Had this been carried out, as it was not, Justinian’s _Digest_ would have had a forerunner.

[360] _Juliani epitome Latina Novellarum Justiniani_, ed. by G. Haenel (Leipzig, 1873).

[361] Conrat, _Ges. der Quellen und Lit. des röm. Rechts_, pp. 48-59, and 161 _sqq._; Mommsen, _Zeitschrift für Rechtsges_. 21 (1900), _Roman. Abteilung_, pp. 150-155.

[362] Ed. by Bluhme, _Mon. Germ. leges_, iii. 579-630. Cf. Tardif, _Sources du droit français_, 124-128. A code of Burgundian law had already been made.

[363] Edited by Haenel, with the epitomes of it in parallel columns, under the name of _Lex Romana Visigothorum_ (Leipzig, 1849). See Tardif, _o.c._ 129-143.

[364] _Cod. Theod._ i. 4, 3; _Brev._ i. 4, 1.

[365] On these epitomes and glosses see Conrat, _Ges. der Quellen, etc._, pp. 222-252. Mention should be made of the Edict of Theodoric the Ostrogoth, a piece of legislation contemporary with the _Breviarium_ and the _Papianus_. In pursuance of Theodoric’s policy of amalgamating Goths and Romans, the Edict was made for both (_Barbari Romanique_). Its sources were substantially the same as those of the _Breviarium_, except that Gaius was not used. The sources are not given verbatim, but their contents are restated, often quite bunglingly. Naturally a Teutonic influence runs through this short and incomplete code, which contains more criminal than private law. No further reference need be made to it because its influence practically ceased with the reconquest of Italy by Justinian. It is edited by Bluhme, in _Mon. Ger. leges_, v. 145-169. See as to it, Savigny, _Geschichte des röm. Rechts_, ii. 172-181; Salvioli, _Storia del diritto italiano_, 3rd ed., pp. 45-47.

[366] Cf. Brunner, _Deutsche Rechtsgeschichte_, i. p. 109 _sqq._

[367] For the characteristics and elements of early Teutonic law see Brunner, _Deutsche Rechtsgeschichte_, Bd. i.

[368] See Brunner, _Deutsche Rechtsgeschichte_, i. p. 254 _sqq._, and 338-340.

[369] “Adversus Gundobadi legem,” c. 4 (_Mon. Germ. leges_, iii. 504). As to Agobard see _ante_, Vol. I. p. 232.

[370] The matter is suggested here only in its general aspects. The details present every kind of complication (for some purposes to-day a court will apply the law of the litigant’s domicile). The _professio_ (_professus sum_ or _professa sum_), by which a man or woman formally declares by what law he or she lives, remained common in Italy for five centuries after Pippin’s conquest, and indicates the legal situation there, especially of the Teutonic newcomers.

[371] One sees an analogy in the fortunes of the Boëthian translations of the more advanced treatises of Aristotle’s _Organon_. They fell into disuse (or never came into use) and so were “lost” until they came to light, _i.e._ into use, in the last part of the twelfth century.

[372] See Conrat, _Ges. der Quellen_, pp. 182-187.

[373] See Conrat, _Ges. der Quellen, etc._, pp. 162-166, 168-182, 192-202, 240-252.

[374] See Salvioli, _Storia di diritto italiano_, 3rd ed., 1899, pp. 84-90; ibid. _L’ Istruzione pubblica in Italia nei secoli VIII. IX. X._; Tardif, _Hist. des sources du droit français_, p. 281 _sqq._; Savigny, _Geschichte, etc._, iv. pp. 1-9; Fitting, “Zur Geschichte der Rechtswissenschaft im Mittelalter,” _Zeitschrift für Rges. Sav. Stift., Roman. Abteil._, Bd. vi., 1885, pp. 94-186; ibid. _Juristische Schriften des früheren Mittelalters_, 108 _sqq._ (Halle, 1876).

[375] A contemporary notice speaks of the enormous number of judges, lawyers, and notaries in Milan about the year 1000. Salvioli, _L’ Istruzione pubblica, etc._, p. 78. It is hard to imagine that no legal instruction could be had there.

[376] The evidence is gathered in different parts of Savigny’s _Geschichte_.

[377] _De parentelae gradibus_, see Savigny, _Geschichte_, Bd. iv. p. 1 _sqq._

[378] See Savigny, _Geschichte_, Bd. ii. pp. 134-163 (the text is published in an Appendix to that volume, pp. 321-428); Conrat, _Ges. der Quellen, etc._, pp. 420-549; Tardif, _Hist. des sources du droit français_, pp. 213-246.

[379] This follows the so-called Tübingen MSS., the largest immediate source of the _Petrus_. As well-nigh the entire substance of the _Petrus_ is drawn from the immediately prior compilations (which are still unpublished) its characteristics are really theirs.

[380] Apparently the chief magistrate of Valence: “Valentinae civitatis magistro magnifico.”

[381] _Petri exceptiones_, iii. 69.

[382] _Petrus_, i. 66.

[383] See Conrat, _Ges. der Quellen, etc._, 550-582; Tardif, _Hist. des sources, etc._, pp. 207-213; Fitting, _Zeitschrift für Rges._ Bd. vi. p. 141. It is edited by Bocking (Berlin, 1829) under the title of _Corpus legum sive Brachylogus juris civilis_.

[384] For instance, _Brach._ ii. 12, “De juris et facti ignorantia,” is short and clear. It follows mainly _Digest_ xxii. 6.

[385] _Summa Codicis des Irnerius_, ed. by Fitting (Berlin, 1894). See Introduction, and also Fitting in _Zeitschrift für Rechtsgeschichte_, Bd. xvii. (1896), _Romanische Abteilung_, pp. 1-96.

[386] Cf. _Summa Codicis Irnerii_, vii. 23, and vii. 31. 1.

[387] _Summa Codicis Irnerii_, i. 14. The corresponding passages in Justinian’s Codification are _Dig._ i. 3, lex 12 and 38, and _Codex_ vii. 45, lex 13.

[388] _Summa Codicis Irnerii_, vii. 22 and 23. The chief Justinianean sources are _Dig._ xli. 2, and _Cod._ xii. 32.

[389] See Salvioli, _Manuale, etc._, pp. 65-68; ibid. _L’ Istruzione pubblica in Italia_, pp. 72-75; Brunner, _Deutsche Rechtsgeschichte_, i. p. 387 _sqq._

[390] _Post_,