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He^tkju^2lT
J&arbarii College Itbrarg
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HISTORY OF THK ROMAN-DUTCH LAW.
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HISTORY
OF THE
ROMAN-DUTCH LAW.
BY
THE HON. J. W. WESSELS.
ONE OF HIS majesty's JUDGES OF THE SUPREME COURT OK THE TRANSVAAU
<;kahamst()WN, capk colony. AFRICAN BOOK COMPANY, Limited
1908.
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^('■■.7. '-7% 7
AFRICAN P(H»K COM PAN V, LTP.,
ORAHAMSTOWN,
•JAPK OF GOOI> HOPK,
PRINTERS.
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DKDICATEU TO
SIR JAMES ROSE-INNES, K.C.M.G.
(rillKF JUSTICK OK THK TRANSVAAL), AND
THE HONOUKABLE J. G. KOTZ^
(JUDOK-FRESIDKNT OK THK KASTKRN DISTRICTS*
COURT ANO CHIEK JLSTICK OK THK LATE
SOtTH AKRICAN REPLBLIC).
THIS WORK OWES ITS EXISTENCE TO THE
ENCOURAGEMENT OF THE FORMER
AND TO THE TEACHIX(i
OF THE LATTER.
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CONTENTS.
Introduction
PAGE
1
PART I. General DeveloPiMent op the Dutch System of Law.
CHAP.
J. The Periods of Dutch History ... 13
II. E^rly Grerman Period ... ... ... 16
III. Roman Period ... ... ... ... 23
IV. Early Franks, Saxons and Fnsians ... ... 26
V. Charlemagne ... ... ... ... 32
VI. ITie Laws of the Fmnks ... ... ... 37
VIL Capitularia ... ... ... ... 42
VIII. Personal Laws .. . ... ... ... 45
IX. Feadalism and Feudal Law ... ... 50
X. Sketch of the History of the Netherlands ... 57
XI. Early Constitutional History of the Netherlands ... 65
XIL Tlie Councils of State ... ... ... 84
XIIL From the Time of the Republic to 1795 ... 88
XIV. Introduction of the Roman Law into Holland ... 95
(a) Lex Bonujma during the Prankish Period ... 95
XV. (6) Roman Law during the Rule of the Early Counts 104
XVI. (c) The Study of Roman Law during the Twelfth and
later Centuries ... ... ... 112
XVII. {d) The Position of the Roman Law in Holland dur- ing the Fourteenth and Fifteenth Centuries ... 123 XVIIL The Canon Law ... ... ... 130
XIX. Administration of Justice ... ... ... 144
XX. Administration of Justice (con^m?f^) ... ... 155
XXI. Administration of Justice (co7i^/m^) ... ... 166
XXII. Development of Proced ure ... ... 174
XXIII. Practice of the Courts and Writers on Practice
from the Sixteenth Century onwaixls ... 186 ix
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X CONTENTS.
CHAP. PAGE
XXIV. The Practitioiiei-s in the old Dutch Courts ... 191
XXV. The Law of the Sixteenth and Seventeenth Centuries 201 XXVI. Ijegislation of the Sixteenth and beginning of the
Seventeenth Centuries ... ... 212
XXVII. Writers on the Pi-actice of the Dutch Courts, Re- porters and Authoi-s of Consultations . . . 233 XX VIII. The Imnieiliate Pi-edecessors of Gi-otius ... 249 XXIX. HugodeGixx)t (Gi-otius)... ... ... 262
XXX. Grotius' Philosopiiy of Law ... ... 2<S2
XXXI. Writers of the Seventeenth and Eighteenth Cen- turies ... ... ... ... 294
XXXII. Writers of the Seventeenth and Eighteenth Cen- turies (continued) ... ... ... 320
XXXIII. Administration of Justice in South Africa . . . 355
XXXIV. Criminal Procedure from the Sixteenth Century
to the Present Day ... ... ... 372
XXXV. The Influence of finglish Law on the Development
of the Roman- Dutch Law in South Africa . . . 386
PART II.
Law of Persons, Things and Obligations.
I. Conditions of Persons ... ... ... 405
II. Minors and Majors ... ... ... -417
III. Marriage and Divoi-ce ... ... ... 429
IV. Law of Things ... ... ... 474
V. Possession and Ownership ... ... ^^60
VL llie Alienation of Property —Immovables ... 490
VIL Transfer of Movables ... ... ... 502
VIIL Transfer of Property /»«< wMW'^^m ... ... 510
IX. Executoi-s ... ... ... ... 526
X. Law of Intestate Succession , . . ... 540
XI. Succession of Fiscus ... ... ... 555
XII. Succession ab intestato as regards Illegitimate Per- sons ... ... ... ... 557
XIII. Servitudes and Emphyteusis ... ... 560
XIV. Obligations ... ... ... ... 566
XV. Suretyship ... ... ... ... 5b7
XVL Pledge and Mortgage ... ... ... 592
XVIL Sale ... ... ... ... 598
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CONTENTS. |
xi |
|
|
CHAP. |
PAr.E |
|
|
XVIII. |
Laesio Enorrais |
607 |
|
XIX. |
Specific Performance |
612 |
|
XX. |
Letting and Hiring |
622 |
|
xxt. |
Prescription ... |
634 |
|
XXII. |
Partnei-ship ... |
650 |
|
XXIII. |
L.IWS Limiting Liability ... |
653 |
|
XXTV. |
Procedure in Insolvency ... |
661 |
|
XXV. |
History of our Law of Arrest to Found Juris- |
|
|
diction |
674 |
|
|
XXVI. |
Delicts and Crimes |
695 |
|
Appkxixix |
... |
7il |
|
Inijex |
729 |
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TJST OF AinHORTTTES.
Aant^ehiningeii op Lyhrecht,
Amtzenius, De Conditi&ne Homimim.
Baluzius, Capitularia Begum Francwum.
Beijnen, Overzichf van de Stuats^'egfiliiig van ons Vaderland.
Blok. E^ine ffoUandsche siad onder d(*. BourffondwchrOoatenrijksche
heerschappij, Bluntschli, StaatmirOrterbuch, Boey, Wooixien-folk. Bort, Tractaat van het Hollandsch lifienvpchl (in his Vevzam^fdf^
W^^rken). Brandt, Leven van Hnyo de Groot. Brissaud, Hitttoire dn Droit\Franrais public pI priv/. Brouwer, De Jure Conmihinm, Burge, Colonial Law.
Burton (Judge), Insolvency Law of the Cape, 1829. Bynkeixhoek, Opera Omnia. Cae^«ir, De hello Gallico. Cnjte Statute Law, 1714-1863. Cattenburgh, Leven van Hugo de GrooL Cicero, Pro Caec. Conttnltatien and Adx^ysen of Van den Berg, Schrassert, 8ehomaker,
Kop and othern. Conattltatirn Hollandsche (the six original volumes and the Amsterdam
volume). Cuq. Iiistitutions Jnridiques des Romaim*, De Villiers, De InjiiHis, Droysen, Uistoricher Atlas.
Ducange, Glossarinm mediae et infima^ latinitatis. Esmein, Droit Ca^ionique, Fockema Andreae, Bijdra^en tot de NederlandscJie Rechtsgeachiedenis.
Ond'Xederlandsch Burgerlyk Recht.*
Oliiek, Aiutfuhrliche ErlaiUerung der Pandekten.
Grimm, Deutsche Rechtsalterthumer,
Groenewegen, De Legihus Abrogatis,
Groen van Prinsterer, Uandboek der Geschiedetiis van het Vaderland.
* Thift valuable work only reached the antlior after the greater portion of thift book was through the presn.
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xiv LIST OF AUTHORITIES.
(riuKtt Charter Boek, Oroot Placaat Boek. Grotius, Dejure Belli ac Pocm.
Iideiding tot de HoUandscke Uechtstjeleerdheid,
Gudeliniis, Dp jure Nm^wHtmo,
Guetclt, Histoire Elementairedu Droit Francais,
Heineccius, El-ementa Juris Gprmanici, '
Historia Juris Romani ac (xer^nanicL
Heusler, InstUfUian^en des Deutschen Prwaatrechts.
Hofdijk, 0ns Vooryeslacht,
llollaiuische CousultcUies.
Holzendorf, EncyclopoAdie de^* Rechtswisseiischaji.
Hiil^er, lledenda»agsche Mechtsgeleerdheid.
Jutphaas, Scichseiispiegel in Nederland.
Kei-stemau, Woordenhoek and Aanhanysel.
Kluit, Geschiedenis imn het Vaderlaivd.
Kotze, Translation of Van Ijeeuwen.
Locale Wetten de7* Z.A.R.
Maa»dorp, l7istitutss of Cape Law.
Translation of Grotius' Introduction.
Mathyssen, Rechtboek van den Briel, by Pols and Fruin. Matthaeus, De Auction Ibiut,
De Ifobifitaf^.
Paroemiae.
Meyer, Institutions Jvdiciaires des Pays- Bos (vol. 5).
Morice, Bru/lish and Roman-Dutch Law.
M idler, Rechtshronnen de7' stad Utrecht.
Munniks, Handleidiiig tot de Hedeiidaa<i8chp Rechf^geleerdheid.
Nathan, Comman Law of South Afinca.
Nederlandsche Placaathiuidiy Woordenhoek.
Neostadius, Decisianes.
Nooixlewier, XederdeutscJie Rechtsoudheden,
Orange River Colony Proclamations and Ordinances.
OHwyn, Stundhoudend Roonisch Recht.
Peckias, De jure Sisf^ndi and De reynlis juris cftnonici in his Opera
Omnia. Pollock and Maitland, History of English Law. Poullet, Originesy deffeloj)pements et transformations des institutions
datis les Anciens Pays-Bos. Proclamations of the Government of the Ct^pe of Good Hope, 1805-1825. Raepsaet, Analyse historiqrne et critique de Voriijine et des jyrogres de$
droits des Beiges et Gaulois^ vols. 3-5 of his (Emrres Completes. Rechtsgeleerde ObservcUien, Reports — Cape, Transvaal, O.R.C. and Natal.
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LIST OF AUTHORITIES. xv
Rittorhuisius, Dtffer^ntitui jniris ciinlis el cationici,
Roby, Roman PHvate Law,
Ro<]^rs, Thorold, Hollmui.
Sande's Decvtimies.
Savigny, Gegchichte dps Romischen Eechta in MittelcdUr
System des heutiffen Rihnischen Recht.
Scheltinga, Commentary on Grotiun,
Schomaker, ConAfdiatipn,
Schorer, Xot^^ to Qrotins,
Schrassert, Conmd,f€Uieti,
Schroder, Lehrhuch der Deuischen RechtffffiHchichte.
South African Law Journal,
Stallaert, Glotutarium van veroude^'de Rechtatermen,
Star Numan, Leven van Rynke^'shoek,
Statutes of the Cape of Good Hope, 1 652 up to date.
Tacitus, Germania^ Annxds and HisU/i^y,
Tennant, Nota/ry's .\fa/nu(d,
Transvaal Proclamations and Ordinances.
Troplong, Droit CivU,
Van den Berg, Nederlnndacke adnytthoek,
y^n der Aa, Bio(/raphisch Woordenboek der Nederlanden,
Van <ler Bergh, Verhandeliny over de onde wijze van straj vorderiinj
Van der Reessel, Hiema Sdectae,
Van der Linden, Judicieel Praktijk.
Koopmans Handboek.
A'an der Schelling, Hiatori va/n het Notarisschap, Van der Spiegel, Oorttprony der tfetderlandttcke rfchten. Van Leeuwen, Censnra Foi'ewns,
Crimineel en Judicieel Pruktijk.
Roomnch HoUaiidtich Recht,
Van Loon, Aloude regeeringswyze van Holland,
Van Mieris, Charterboek,
A'arro, de re Rustica,
Verhandelingen tei* ivasporinye van de fveften <fti yesteldheid onzes
tfoderlatids. Door een genoot^chap " jn*ojure exeolefiido pairio,^^ Vinnius, ad Institutimiea, Viollet, Histoire du droit Fran^ain, Viiet, (Jommetitary. Wagenaar, Nederlandsche Historie, Va«senaar, Jfidicieel Praktijk,
Xotarieel Praktijk.
Wet Boek van de 0. V,S. Zypaeus, Xotit'm Juris Belgici,
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THE HISTORY OF THE ROMAN-DUTCH LAW.
IXTKODUCTION.
Am far a» I am aware there i8 no work ou the history of the Rouian-Dutch law which deals with the whole subject in a oi>ropact fonu. There certainly is none in the English Ian- gua^. There are quite a number of Dutch works which set oat the history of Dutch institutions or which devote them* 9t<flv«»( to the history of the laws and customs' of particular townn. The nearest approach to a history of the Roman- Ihitch law are the contributions to the history of law in the Nrtherlands {Bijdrageu tot de NederlandHche Recht^etichMr' HM) of Professor Fockema Andreae. This work treats of the family law. the constitution of the courts and the condition of penons. Owing to the fact that the history of the above ^objects ift traced in detail with reference to every province and many towns the work is very diffuse. Besides the Bij- *lrw/en of Fockema Andreae there are several monographs on the laws of different towns, such as Het ReclU^bnek van den Briel, by Fruin and Pols; Hec/it^troniien iUr Stad ZvfpJien, by Hurdijk; Ik Friesche Stadrtchten en Stoilboek tun Groninyen, by Telting; De Sakaenepieyel in Nederland, by Van Jutphaas,
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-J HISTORY OF THE ROMAN-DUTCH LAW.
mvl several otherH. These works are extremely useful to the Htudeiit of Dutch history, but they are too antiquarian and too bulky to interest the South African student of the Roman- Dutch law.
Tlie ^neral history of the Roman-Dutch law can only b(» (gathered from a numl)er of writers, each of whom contributes his share upon some particular subject. The influence of tht^ Roman law upon the development of Dutch law was ver}' fully set out by Van der Spiegel in his little book on tht* 'Oornprottg tier Ntnlerhtnihclte fUokien, and by the Belgian writer Raepsaet in his AiudjfHf HistoHqiu ef Critique dr Vorujine et d^-n progren den Droitfi den Belgen et GatiUnH, form- inj( the third, fourth and fifth volumes of his (Eut^rM Com- jfletfM. There are a few other works of the eighteenth century, such as Arntzenius' /)/• CtmdifioHf Houiinnm, which conoeni theiiiN4>lves with s|)ecial branches of law, and from which a great •deal of historical information can l)e gathered. Besides theste le.Hs known works there are of coui-se the text-books of Grotius and Van Leeuwen, the CimimenUiry of Vo<»t, Groenewegens l^f LegihvH AhrtujatlH and other well-known authorities.
From all these I have endeavoured to gather sufficient material to give a sketch of the gradual development of thf Roman-Dutch law in the Netherlands and in South Afriai. No ambitious attempt lias l)een made to write a complete his- tory, partly because here at Pretoria, where this work wa> written, the material at my dis|K>sal has been very scanty, and partly becau.se I have tried to kt^ep the book within n Hioderatt* compass so as to endeavour to stimulate an inten*>t in tli»' subject ratluT than to terrify students with its hulk. I have endeavoured to follow as much as jxissible the main
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INTRODUCTION. 3
stream of the le^I development of our law, and to disre- gard the variooH tributarieH, each of which, if traced to its ^>arceM. would in \i»e\l yield a small volume.
The historj* of the Roman-Dutch law has been sadly ne- )^Iected in South Africa, m) that the idea^ which prevail in the profession an to the origin and development of the Roman- I hitch law are extremely crude. Ancient law books are 4>ften quote<l in the courts with little or no conception of who the authors were or what place they occupy in the de- velopment of the law. Practitioners know that Xeostadius preceded Voet if perchance they have noticed that he is «|Uoted by the latter. Bynkershoek is often a mystery, and the old Dutch Consultations are regarded with respect more on account of their black-letter print than on account of any knowledge of their authors. It is surely high time that the legal profession as a body should bt^come ao(|uainted with the ^hole eourse of the history of the system of law they are called upon to practise. Something of the fountain-head ^ofleutA know, for a meagre ac<{uaiiitance with the history of the Roman law is picked up from the text-books for the l^gal examinations: and the mouth of the stream they are familiar with, because they nmst road the recent decisions of the courts and the Acts of the legislature, but the course of the vast stream from its fountain-head to its mouth is a Huiu^n ifianjtiitnm. If a person's knowIe<lge of butterflies were conKned to the egg and the full-grown 'uimgo, no one would dream of calling him a naturalist : yet nuinlxM-s of men teach and practise the Roman-Dutch law who only know the egg and the imayo, but to whom the larva and the pupa
are f'ither wholly unknown or wrapt in a profound mist.
A 2
1
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4 HISTORY OF THE ROMAN-DUTCH LAW.
I must warn the reader that he will find little if anything in this work to enable him to pass any of our university examinations. We in South Africa do not require law to be studied as a science. The University of the Cape of Good Hope grants a degree in law without requiring a knowledge of the history of the Roman law, much less of the Roman- Dutch law. Instead of making its requirements such that the student is compelled to study law as a science, and not as a mere tool, it is quite satisfied if he can digest enough law to be able to plead some elementary cause.
This used to be thought enough to enable a student to be called to the English Bar, but it is no longer regarded as sufficient in the universities of England or of the Continent. No doubt when the scales have fallen from our eyes we shall require law to be studied as a science, and then a knowledge of the history of Roman law, before and after the days of Justinian, will be considered as necessary as the Institute of Justinian or the Introduction of Grotius. Meanwhile the student who is not satisfied with a mere empyrical knowledge of law will do well to study the history of the Roman law as well as the history of our own law.
In every law school of Europe the history of the particular system which is taught is at present regarded as a natural concomitant to the study of that system. The history of the Roman law has long been a compulsory subject wherever law is taught as a science, and where mere empyricism is discouraged. In Germany Schroder's Manual of the Histoi^ of German Law and Heusler's Institutes of Oerman Private Law are well-known text-books. In France the history of law '>as made great progress, whilst in England the work of Sir
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INTRODUCTION. 5
Frederick Pollock and Professor Maitland has supplied a long- felt need.
In South Africa it has been quite impossible for the ordinary student to find out much about the history of the Roman-Dutch law. The only English book where a sketch of this history is to be found is Chief Justice Maasdorp's introduction to his translation of Grotius, and, good as it is, it had necessarily to be very brief. It was this absence of any English work which led me to contribute a few articles to the Soatk African Law JouimaL The editor, Mr. W. H. S. Bell, who became interested in the subject, asked me to publish the articles in book form. It soon became apparent that most of them, written as the occasion demanded, had to be entirely recast and considerably amplified. I hope this little book may serve as a tinger-post to the study of the subject it professes to deal with. In many cases conclusions are stated as if no controversy existed about them. Let me warn the reader at the outset that there are few statements in this little work which have not been the subject of long and furious contro- versy. I have, however, thought it preferable to give the conclusions of what 1 thought the better authorities, than to trouble the unfortunate student with the views of every writer and pamphleteer. By referring to the authorities cited he can at his pleasure soon be plunged into the mass of divergent viewa If I have succeeded in giving a bird's-eye view of the development of our law, and in stimulating a desire to know more, I shall be supremely satisfied. No critic can be better aware of the. shortcomings of this work than I am myself. If I wait for publication until the work satisfies myself I am afraid it will be a veiy long time before it sees the light.
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6 HISTORY OF THE ROMAN-DUTCH LAW.
A great deal of the early history of the Romau-Dutch law is hidden in deep darkness. Our information is extremely scanty, and conjecture often has to take the place of accurate information. From records scattered over a wide area, and from customs which crop up here and there, we have to build up and reconstruct the past as best we can. That our laws have been formed in the main from German customs, modi- fied by the principles of the Roman law, will admit of no doubt But when we are asked to give the exact value of any particular custom we must fail, because our records are too fragmentary, and often too indefinite.
In the development of law generally there must necessarily be a great deal of resemblance in various systems, if for no other reason than that law is the product of the human brain, and that a great number of human acts are common to the cultured classes of Europe and the savages of Central Africa and Patagonia. A custom therefore common to the Dutch of Holland and the early Egyptians does not imply that the Dutch borrowed the custom from an Egyptian source. In order, therefore, to trace the history of laws we must have some acquaintance with the political history of the country whose laws we are studying. If one knows that Holland formed part of the Frankish monarchy, and that the early inhabitants of Holland were Franks, one would expect to find Frankish customs in Holland, and the fact that similar cus- toms existed in Lombardy would be a coincidence and no more. If, however, the Lombards were known to be of the same race, and to have spoken a similar language, it would be a fair inference that these customs were common to the ancestors of the two races. So in tracing the history of
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INTRODUCTION. 7
Dateh castomii we often have to consider the cuRtoniH of other nations of the same stock, such as the Alemanni, the Burgun- dians, the Lombards, and even the Visigotha Just as it is the boflincflB of the comparative philologist to build up the ur- mpraehe of the race, so is it the function of the comparative jurist to ascertain the original laws and customs of the race. Moeh of his work is conjecture, but it is based on a process of reasoning from the known to the unknown.
In the following pages I have had to make use of several of such conjectures, though I have endeavoured to build upon well-ascertained facta In the conflict of influences it is often difficult to attribute to each its due effidct. Where, therefore, I speak of the influence of the German laws, or of the Roman, Canon, or English law, I mean the preponderating force which gave the law a certain direction. This direction is usually the resultant of many forces, but it always lies nearest to the direction of the greatest. If, for instance, we take our Mar- riage Ordinances in South Africa we see at once, when we eompare them with the Roman-Dutch law, that the direction they have taken is mainly due to the law of Holland; but Uiere is a considerable deflection, and that deflection is due to the influence of English law. So again, if we look at our law of Contract we at once conclude that the Roman law forms the greatest factor in that branch of law ; but we soon reoog- nise that German customs and English practice have altered its direction very materially.
I have frequently had to refer to the local customs of Tarioos towns in the Netherlanda It may be said, what have we to do with the customs of Amsterdam or the keuren of Leyden ; these customs do not form part of our common law ^
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8 mSTORY OF THE ROMANS-DUTCH LAW.
If customA grew up qaite independently, and wh<dly odood* nected with the general law, this would be true, but such is ncit the case. The customs of a town are often but a variation of what they accepted as the customs of their ancestors, or when we find these customs appearing in many towns at the same time we may legitimately infer that this was the trend of public opinion as to what the law should be. I have endea- voured to be as sparing as possible in my references to local customs, though they are often interesting as pointing out dangers which we in our hurried and feverish factory of new laws often forget
In explaining a subject I have often taken into consideration the whole of the Netherlanda It may be said, why discos^ what took place in Groningen when our law is derived from Holland ? The answer is obvious. Holland was not cut off from the rest of the Netherlands, but formed part of it : and in the development of its law the adjoining provinces played a very important part. If we want to solve a particular legal problem we must go to the law of Holland and see how that system would solve it; but if we want to know why and how that particular rule of law prevailed in Holland we must see what the law was which prevailed in the neighbouring pro* vinces, and so trace its common origin.
I have confined myself as much as possible to the law of Holland, though it has been necessary in many cases to go outside the law of that particular province in order to under- stand how our present law has assumed its present form. The Koman-Dutch law was not created at any particular date; it is linked to the past, and therefore I have endeavoured to gi> back as far as possible, though it must be confessed that when
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INTRODUCTION. 9
we ipo further back than the fifteenth century the light in not AlwayH clear. There is, however, enough light to trace the oat linen of large and important objectH. I have been obliged to touch briefly upon the political and conntitutional history of the Netherlands and upon the development of some of its institutions, for without a knowledge of the outlines of these i%ubjecti» it is impossible to grasp the history of the develop- ment of the Roman-Dutch law.
The work has been divided into two parts. In the first part I trace the general development of the Dutch system of law. In this part I have included a sketch of the principal Dutch jurists. In the second part I deal with the develop- ment of special branches of law in greater detail. For the chapters whicli deal with the administration of law in South Africa I am indebted to the Rev. Mr. Leibrandt and to Mr. C. H. van Zijl for much valuable information. The work is merely an attempt, and I hope it will be received as such.
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PAKT 1.
<iENERAL DEVELOPMENT OF THE DUTCH SYSTEM OF LAW.
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CHAPTER L
THE PERIODS OF DUTCH HISTORY.
In ctiiuiiderinj^ tho history of the Roman-Dutch law it is
abfiolately neceiwary to have Home idea of the history of the
p«ople who inaaj^rated and developed that nystem. A detailed
aieeaant would carry ua too far afield, but a general review is
indlnpenAable. The Netherlandn have since the Christian era
hrtfn ^> often overrun by various nations that, without analysing
th^* influence of each invasion, we may form an incorrect idea of
the effect of these invasions upon the later laws, customs and
iofttitutions. Antiquarian research has shown us that most of
tiM* European nations have clung tenaciously to their ancient
cQst4im5», and that modem laws and modern customs have their
njuC^ fixed in a distant past The nations and tribes which have
from time to time occupied the territory now known as Holland
miKl Belgium have fonned no exception to this rule. Before
proceeding to deal with the laws, customs and institutions of the
Netherlands I shall first sketch out the periods into which I
propose to group my survey. These periods may be regarded as
landmarks in the history of the Netherlands to which reference
will have to be frequently made.
The histor}' of the Netherlands can be conveniently con-
«idered under the following periods : —
(1) The Early Uerroan period. This period refers to the
time prior to the Roman eon({uest of the Low IS
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14 HISTORY OF THE ROMAN-DUTCH LAW.
Countries, when the Giennan tribes in their west- ward march occupied the country along the bankn of the Rhine, Maas and Schelde.
(2) The Roman period. This includes the four centuries
during which the Netherlands formed part of the Roman Empire.
(3) The Early Prankish invasion. When the troubles in
eastern Europe compelled the Roman emperors to withdraw their legions from Gaul, the Salic Franks attacked the weakened Roman forces and eventually succeeded in driving them out of the country now known as Holland and Belgium.
(4) The Saxon invasion. The Saxons during the fifth
century spread along the coast of the North Sea and gradually drave the Franks out of Holland and Zeeland. These provinces they occupied for some time until they in their turn were driven out by the Frisians. This invasion of the Frisians will con- stitute our fifth period.
<5) Invasion of the Frisians.
<6) The Frankish monarchy. The Salic and Ripuarian Franks joined their forces and. fighting under one king, cxxupied northern Gaul, and then turning back to Holland drove the Frisians out of that province.
(7) The weakening and gradual disruption of the Caro- lingian monarchy gave rise to the i-ule of the here- •litary e«)unts. This period, which may be called the rule (if the House of Holland, lasted froui 922-1299.
<S) This and tlie following periods are determined by the various houses that held sway in the Netherlands*
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THE PERIODS OF DUTCH HISTORY. 15
The House of Holland was followed by the House of Henegouwen (Hainaalt) (1299-1345V (9) The House of Bavaria (1345-1425).
(10) The House of Burgundy (1428-1482).
(11) The House of Austria (1482-1572).
(12) The Dutch Republic (1572-1795).
(13) Holland under Napoleon (1 795-181 4>
The later history of Holland does not concern us in thin tustory of the Roman-Dutch law.
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CHAPTER II.
EARLY GERMAN PERIOD.
The Netherlands was inhabited at the beginning of the Christian era by various tribes of Germanic origin. At that period the German people were wandering over central and western Europe. This wandering (volkerwaTideriing) went on for several centuries, so that it is difficult to say with certainty what particular lands in western and central Europe these nations occupied. At the time of Caesar the Frisians and Caninefates held the coast-line from the Elbe to the Rhine. Between the Rhine and the Schelde dwelt the Batavians. South of them were the Menapii and the Toxandrii. Round the Zuyder Zee {Laciifi Flevo) lived the Catti (probably a Prankish tribe), and the Chamavi.
Later on, as the westward movement of the Germans con- tinued, we find certain well-known branches of that people occupying fairly well-defined tracts of country. Thus after the Volkerwanderwnfj in the fourth century the Frisians occupied the coast-line from the Ems to the Rhine. West of them were the Saxons stretching to the Elbe. On the right bank of the Rhine were the Ripuarian Franks, while the Salic Franks occupied the countries now known as Belgium and Luxembourg. The Alemanni occupied central Europe, with the Burgundians to their west and the Bavarians to their east. Spain and Italy
formed part of the West Gothic kingdom, whilst a large portion
16
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EARLY GERMAN PERIOD. 17
of western Europe was under the sway of the East Goths. About the middle of the sixth century the Long Beards or the Lombards occupied Italy, and part of Austria and Hungary, (Droysen's Atlas ; Schroder's Map).
The Netherlands, therefore, was occupied by Frisians on the north, Ripuarian Franks on the east, and by Gauls and Salic Franks on the south. Of the various tribes that occupied Holland in the early days the Batavians were the most re- nowned. Tacitus tells us that the Batavians who dwelt west of the Rhine were a part of the Catti, and that, driven from their native country, they settled on a waste tract of land on the extreme confines of Gaul, and on an island with the ocean on its north, and on both sides the Rhine (Tacit. Hist iv, 12). These Batavians belonged to the Great Frankish nation which was destined to play so important a part in the history of western Europe.
Roughly speaking, we may say that the provinces of Zeeland and South Holland were inhabited by the Batavians; North Holland by the Caninefaten; Friesland and Groningen by the Frisians ; and Overijssel by the Catti.
We shall now inquire what manner of men these Germans were, and what were their institutions, their customs and their laws. When first we become acquainted with the Germans they had already acquired a certain amount of civilisation. Though they were nomadic and warlike, they had emerged from the state of the huntsman pure and simple. They were essentially a pastoral people, but at the commencement of the Christian era we find them occupied in agricultural pursuits; of trade they knew little or nothing. Before their contact with the Romans they were unacquainted with money, and barter was their only
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18 HISTORY OF THE ROMAN-DUTCH LAW.
means of exchange. Their standard of exchange was cattle Their years were reckoned by winters ; their time not by days, but by nights. Life in towns was unknown to them. They lived either on isolated farms or in small, straggling villages (Schroder, pp. 1-15).
The social unit was not the individual, but the family. The family consisted of the husband, wife and young children, for the grown-up sons left the household to form their own homes, whilst the grown-up daughters married into other families. When the husband died the eldest son took his place, if old and strong enough; if not, the family was absorbed in that of one of the husband's brothers. As in all uncivilised communities, the head of the family was a warrior and the defender of his family. The wife and children helped to tend the flocks and to till the soil (Tacit. Germ, 25). The Germans were greatly addicted to divination by omens and lots, and it was always the head of the family who in private did the interpretation. The husband had the right to punish his family, and if the wife committed adultery he cut off her hair, stripped her, and in the presence of her relatives ex- pelled her from his house, pursuing her with stripes through the village (Tacit. Genu, 10, 19).
The collection of families formed the tribe, but the voice of the tribe was the voice of the majority of the men capable of bearing arms. There was no distinction between the army and the tribe, and the administration which applied to the former also applied to the latter (Schroder, p. 16). The army was divided into bodies of a thousand, and these again into bodies of a hundred men. The commander of the former was called by the Romans a willenarius and of the latter a cevte-
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tJARLY GEilMAiT f>ERIOi). 19
narivs. The bond between commander and men was at first a purely personal bond; in time, however, it came to be not only personal, but territorial. Hence the tribe was divided into Hundreds (centena) and into Thousands (canton or gav,). The Thousand (tavsendschaft) was composed of ten Hundreds. It was known in Latin as the paguSy in German as the gaw (Dutch, gouw). A collection of ganen formed the tribe, nation or civitaa (Fock. And. vol. 4, p. 14).
The great distinction between the east and west Germans is, that when we first become acquainted with them we find the former under kings, whilst the latter, at any rate in times of peace, knew neither hereditary nor elective rulers. In time, however, the west Germans, like the east Germans, came to adopt the kingship. The kingship, however, was elective, and the choice lay with the assembled people.
The king was at first chosen out of the noblest families, but in time the election came to be limited to one particular noble family (Schroder, p. 25). The king was the head of the nation, he led its army, presided at its councils and was also the chief priest. In war his power was great, but limited in peace. Prior to the establishment of the kingship the sovereign ruling power was the great meeting of all the shield and spear bearing men of the tribe. Tacitus calls this meeting a concilium. He tells us that on affairs of minor importance the chiefs (principes) consulted one another. By princeps he means the headman of the gau or pagus. For matters of greater importance the wliole tribe assembled. Be- fore they assembled, however, the headmen came together and deliberated about the matters to be submitted to the council or fylkisthing. The new or the full moon was the most
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20 HISTORY OF THE ROMAN-DUTCH LAW.
auspicious time for meeting. The assembly sat down armed, the priests proclaimed silence and then the chief or other headman {rex aut princeps) addressed the people. If a pro- posal displeased it was rejected by a murmur of disapproval, but if they approved they clashed their arms {honoratissimwm dssensvus genua eat arnnia laudare) (Tacit. Germ, c. 11).
Before this council accusations were heard and capital offences were prosecuted. Punishments varied with the nature of the crime. Traitors and deserters were hanged upon trees, cowards were suffocated in the mud. For most crimes a penalty was imposed upon the accused, part of which went to the king or state, and part to the injured person or his relatives. In this assembly also tlie various district and hundred chiefs were elected (Tacit. Germ, c. 12). This assembly no doubt also determined with regard to war or peace. The principes or canton chiefs (gouwvoraten) were the administrative heads of the gau or canton, and also the judges in minor cases (jura per pagoa vicoaque reddunt. — Tacit. Germ, c. 12); the more serious crimes were tried by the assembly. Most authorities seem to think that just as the head of the canton possessed judicial functions so the head of the Hundred also presided in a Hundred Court (Fock. And. vol. 4, p. 17). The headman was accompanied by a number of youths (comitatua) in times of peace as well as on the held of battle (Tacit. Germ, c. 13, 14).
This comitatus or companionship was a great fctctor in the German national life, and has led in the course of time to important developments. It existed in the Frankish monarchy as late as the eighth century, and was probably the model upon which the Byzantine bodyguard was formed. There is little doubt that it was the origin of feudal chivalry. It rested upon
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EARLY GERMAN PERIOD. 21
a voluntary bond between the chief and his followers. The chief protected and maintained his followers, whilst they, on the other hand, promised him service and assistance. The service was such as one freeman might tender to another, and as they mostly belonged to one family they could rely on one another's loyalty (Schroder, p. 32).
The Kelts possessed an ecclesiastical hierarchy — the Druids — but according to Caesar no such institution was known to the Germans (Caesar, Bel. GaL 6, c. 21). That the Germans possessed priests there can be no doubt, for Tacitus tells us that in the assemblies ailentium per aacerdotes quibus turn et coercendi jus est, imperatur (Germ. c. 11). What their functions were we do not know, but it is very probable that the influence of the priest was not so great amongst the Germans as amongst the Gauls and Romans.
The people were divided into three classes — nobles, freemen and slaves. In the course of time the west Germans (especially the Franks) came to recognise a fourth class, called liteSy liti, or half -free (German, horigen; Dutch, hocyrigen). The slaves were either captives oi persons who had fallen into that state through debt. They were not as a rule domestic servants, but each had allotted to him a hut and land where he raised crops and bred cattle, of which a certain percentage belonged to him and the rest to his master (Tacit. Germ. c. 25). Originally the Germans did not recognise individual ownership in the soil. The laud belonged to the tribe and was parcelled out by lot from time to time to the various families (Caesar, Bel. GaL 6, a 22). The nobles in all probability did not take part in this division. At a very early period the nobles seem to have had tracts of land allotted to them on which they built theif
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22 HISTORY OF THE ROMAN- DUTCH LAW.
strongholds with dwellings for their followers and slaves {hof) (Schroder, p. 59).
Of the private law of the eariy Germans we know very little. There are no written laws or customs. Of the procedure of their courts we are also ignorant, though by comparing the various customs prevalent in later times we gather that they were fond of using alliterative formulae, such as morth motma mit viorthe k-da (murder we must cool with murder), and symbols such as straws, staves, rods, &c. The father was the guardian of his young children, but directly they left the house the father's legal power ceased. They acknowledged no patria potesttxs. The marriage laws were very strict, and the wife brought no dos to her husband ; on the contrary, she received a dowry from him (Tacit. Germ. c. 18). We know nothing of their contracts, though they seem to have attached great im- portance to a promise (Tacit. Germ. c. 24).
It may be a»sked of what value can the customs of the early Germans be to a student of the Roman-Dutch law ? With a view to a practice of the law, none whatever. But for a person who takes an intelligent interest in the development not only of the Roman-Dutch, but of the English law, these customs are of the greatest interest. As we proceed in our investigation it will be found that a great many of the rules of both Dutch and English law have their beginnings in some of the simple customs of our Teutonic forefathers.
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CHAPTER III.
ROMAN PERIOD.
When the Romans had conquered Gaul they made the Rhine their natural frontier. It has been a matter of dispute whether the Batavians were ever conquered by the Romans. It is, however, clear that Batavia was incorporated in the Roman Empire, and that the province furnished the Roman armies with excellent troops. The country was considered by the Romans difficult to colonise on account of its low-lying fens and woods. The Batavians were skilled horsemen, and their valour made them welcome auxiliaries to the Roman forces. Under a chief- tain, called Claudius Civilis by the Romans, they raised a revolt during the reign of Vitellius. This revolt spread all along the Rhine, and Rome was in danger of losing the fairest province of her Empire. Civilis was, however, defeated at Votera, and the Romans occupied Batavia. So strong was the power of Civilis and so insecure was the victory, that the Romans treated with him and accepted his excuse that he did not intend to subvert the Empire, but to support Vespasian against Vitellius. What became of Civilis we do not know (Tacit. Hist bk. iv, c 13 et seq, ; bk. v, c. 14-18).
The history of Civilis shows us that, even prior to the revolt, the Roman influence was strong in all that part of the Netherlands which lay on the left bank of the Rhine. After this revolt the Batavians remained faithful to the Roman Empire, until at the downfall of the Western Empire in thQ
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24 HISTORY OF THE ROMAN-DUTCH LAW.
early part of the fifth century they were merged in the Salic Franks. Th6 country inhabited by the Batavians, Menapii, Toxandrians and others formed the Roman province of Qer- mania Inferior, whilst the Nervii and other Gallic tribes that lived in the present south Belgium and north-eastern France formed the province of Belgica. According to Droysen north Holland and Friesland never formed part of the Roman Empire.
For four centuries south Holland and Belgium remained part of the Roman Empire and aided Rome in her wars. It is therefore inconceivable that Roman influence did not make itself felt in the country between the Rhine and the Schelde. To what extent, however, this influence permanently affected the customs of the people it is difficult to say. The efifect of Roman influence upon Gaul we can gauge, for Gaul was civilised under Roman rule; but the dense woods and exten- sive morasses of the Netherlands made communication difficult, and hindered the progress of civilisation. What the influence of the Roman conquest was upon the laws and customs of the peoples around the mouths of the Rhine, Maas and Schelde we do not know.
Though the fundamental principles of the laws of the Netherlands remained German, there is no doubt that the great body of the laws which prevailed in the Netherlands, as elsewhere in western Europe, must have been modified by its contact with Roman law.
It is difficult to determine to what extent the Roman con- quest over the Batavians, Salic Franks and Saxons was effec- tive. That the Romans at various times held sway over the greater part of the Netherlands admits of little doubt, and
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ROMAN PERIOD. 25
that they imposed upon these peoples a Roman administration is extremely probable; but whether the people who lived in Germania Inferior were brought under Roman influence to the same extent as were the inhabitants of Gaul is a question by no means easy to solve.
In Gaul Roman customs had been everywhere introduced, and Latin was as well known to the people as their own dia- lects. The Roman religion had completely taken the place of the Celtic cults, and Roman priests had largely usurped the functions of the Druids. If this was the case in Gaul the probability is that the same influences produced similar effects in the Netherlands, though no doubt to a less extent. Although it was the practice of the Romans to allow conquered nations to retain their laws and customs, yet a period of Roman rule for several centuries must have had the efifect of considerably modifying the barbarous customs of the German tribes. We have no proof whatever of the influence of Roman law upon the early inhabitants of the Netherlands, yet it seems impro- bable to suppose that with the removal of the Roman legions all traces of Roman customs and Roman law entirely dis- appeared. At any rate, though we may think it probable that the early Roman occupation left some mark upon the later development of the law of Holland, we must remember that there is absolutely no proof of such effect.
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CHAPTER IV.
EARLY FRANKS, SAXONS AND FRISIANS.
Some writers are of opinion that the Batavians and Toxandrians formed part of those German tribes who were known later as Franks, whilst others, admitting them to have been Germans, deny that they were Franks (Fock. And. vol. 4, p. 18). Which- ever view we accept, it is quite clear that at the time the Romans left Ganl the Franks were in possession of a large portion of the Netherlands. In the time of Maximinian and Constantine the Franks were undoubtedly moving in the direction of Holland, and occupying the country around the mouths of the Rhine. Eumenius, writing about Constantine {paneg. Constantino, c. 5), says, Qui terram Bataviam sub ipso qtuondam alumno suo a diversis Francorum gentibtis occupatam omni hoste purgavit Who the alumnus was we do not know. An anonymous writer of that period speaks of the thousands of Franks who invaded Batavia. These Franks were in all probability Salic Franks. Van der Spiegel thinks that the Salic Franks or Salii were the Sea Franks, as distinguished from the Ripuarii or River Franks. He also thinks that the Zeelanders derived their name from these Sea Franks (Van der Spiegel, p. 13).
Besides Batavia the Salic Franks occupied Toxandria, which corrcvsponds to the modern province of Brabant. Julianus, one of the generals of Constantius, and later the Emperor Julian,
seem to have fought against them about the middle pf th^
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EARLY FRANKS, SAXONS AND FRISIANS. 27
fourth century, though apparently after their defeat he left them in occupation of the land.
It is about this time that the Saxons first appear upon the scene. As we have seen in a former chapter, the Saxons had in their western movement occupied the country between the Weser and the Ems. On their western frontiers during the fourth century they came in contact with the Salic Franks and sought to drive them out of the country between the Rhine and the Schelde. Melis Stoke (p. 3) and Klaas Kolyn (p. 136). two old Dutch chroniclers, tell us that the land from Nijmwegen to the western Schelde and thence to the sea was called Nether Saxony {Neder Saxen), From this we may conclude that the Saxons occupied a large portion of Holland and Zeeland. The Venerable Bede tells us that the Britons employed Saxon troops against the Picts and Scots (Ecc, Hist bk. 1, c. 15). These Nether- land Saxons certainly joined the other Saxons and Angles in their invasion of England, and those who remained were so weakened by this exodus of warriors that they fell a prey to the Frisians (Van der Spiegel, p. 26). During the fifth century the hold of the Romans upon the Germanic and Gallic tribes began to slacken, for the Roman troops had to be withdrawn from western Europe to defend Rome and the Eastern Empire against the onslaught of Goths and Huns. At that time the southern Netherlands was occupied by the Franks, and the north by the Frisians. So strong was the Frisian occupation of Holland that the whole country along the coast from the Weser to the Schelde was called Friesland; south and east of the Frisians dwelt the Franks. We saw that the Franks who dwelt in the Netherlands were called Salic Franks, but near them along the right bank of the Rhine dwelt
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28 HISTORY OF THE ROMAN-DUTCH LAW.
another tribe of Franks known as the Ripuarian Franks. These Ripuarian or River Franks formed an independent nation, and occupied the country immediately adjoining that of the Salic or Sea Franks.
About the middle of the fifth century the Salic and Ripuarian Franks formed a bond for purposes of offence and defence. The first king of the Salic Franks was Clodion. He was succeeded by Childeric, who died in 481 at Doomik. Clovis, the son of Childeric, was the most important of the early Frankish kings. He conquered the Roman general Lygarius, and extended the dominion of the Franks as far south and west as the Loire. He became the recognised king of both Salic and Ripuarian Franks.
In 496 A.D. Clovis was converted to Christianity, and this was an important factor in the development of the great empire of the Franks. By supporting the Church he gained the support of the Gallo-Roman Christians, and was thus enabled to spread in western Europe the Roman civilisation of which the Church had become the heir. Clovis perceived the influence which the bishops had over the Christians of Gaul, and by joining the Church he utilised that influence for his own purposes. The bishops, on the other hand, welcomed to the Church a strong monarch like Clovis, for the Roman Empire was crumbling away, and, unsupported by tamporal power, the Church could make no headway against the encroaching German barbarism. Clovis required the bishops as they required him, and both together strove to build up a new empire on the ruins of the one which had begun to totter. Clovis married Clotilda, the Christian daughter of the Christian king of the Burgundians, and his victory at Tolbiac over the heathen Alemanni was attributed by
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EARLY FRANKS, SAXONS AND FRISIANS. 29
the Christian bishops to the God of the Christians. Clovis extended his empire southward as in turn he defeated Bur- gundians and Visigoths. The influence of the Church was established. Between the temporal and ecclesiastical powers a strong alliance was formed. The kings approved of the election of the bishops, whilst they in their turn became important councillors of State. The Church of Rome carried on in the west the institutions and laws of Imperial Rome. Clovis was not a territorial king ; he was merely the leader of a people in arms, and the Gallo-Romans saw in him only the successor of the Roman proconsuls. Later on the kings of the Franks styled themselves Reges Francomm et Romanorum.
This early empire of the Franks is known as the Merovigian dynasty, from Merowig or Merovech, an ancestor of Clovis. This dynasty ruled until 752 A.D., when it was succeeded by Pepin the Short, the first of the Carolingian monarchs. Upon the death of Pepin, Charlemagne or Charles the Great con- solidated the Frankiah Empire (768 A.D.).
I shall now return to the Frisians. We saw that the Frisians had settled themselves in Holland and Zeeland, and had driven out the early Salic Franks from those provinces. From the time of the bond between the Salic and Ripuarian Franks the Frisians and Franks constantly fought in the Netherlands for the mastery of that country. In time, however, the Franks were victorious, and Holland and west Friesland fell under Frankish sway. The other provinces of the northern Nether- lands remained under Frisian rule until Charlemagne completely conquered the Frisians, and the whole of Holland, Zeeland and Friesland became part of the Frankish Empire. It was during the eighth century that Willibord, Bonifacius and other mis-
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30 HISTORY OF THE ROMAN-DUTCH LAW.
sionaries converted Holland to the Christian faith. It rapidly spread through the northern provinces, and Utrecht became the seat of Bishop Boniface. The bishopric of Utrecht was destined to play a great part in the later history of the Netherlands, and the bishops of Utrecht became next to the counts of Holland the most important persons in the State.
Before discussing the influence of these various invasions on the legal history of Holland, I shall briefly resume its earlier history. We saw that the Low Countries were inhabited at the beginning of the Christian era by German tribes in the north and Gauls in the south. The Romans conquered or made allies of the Batavians, Catti, Toxandrians, Menapii and others, and established along the lower Rhine the province of Germania Inferior. When the Romans retired from western Europe the Salic Franks occupied the Netherlands. They were driven from Holland and Zeeland and some of the other northen provinces by the Saxons, who in turn gave place to the Frisians. The Frisians remained in occupation of the northern Netherlands until they were conquered by the united Salic and Ripuarian Franks, and then the Netherlands became a portion of the great empire of the Franks.
We have seen that the Netherlands were inhabited by Saxon and Frisian tribes as well as Franks. The Saxons we learnt were conquered by the Frisians and the latter by the Franks. Now it was not the habit of the Franks to abrogate entirely the laws and customs of those whom they conquered, but on the contrary to allow the conquered nations to retain to a certain extent their own laws. Hence it is not surprising to learn that in Holland and other parts of the Netherlands Saxon customs and Frisian usages lived side by side with the laws of the
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EARLY PRANKS, SAXONS AND FRISIANS. 31
Franks, and so in the course of time came to be incorporated in the common law of the Netherlands. The sources of the Saxon law are to be found in the Lex Saxonum, which dates from the eighth century. The old Frisian law is embodied in the Vetus jtbs Frisicum or the Lex Friaionuvi, which also probably dates from the eighth century.
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CHAPTER V.
CHARLEMAGNE.
In 768 Carloman and Charles the Great began their joint
reign. In 772 a.d. Carloman was dead and Charles the sole
inheritor of the kingdom of the Franks. He was a devout
Catholic and fond of the rites of the Roman Church. He was
first and foremost a conqueror. He annexed to the kingdom of
the older Franks the Lombard kingdom, Saxony, Spain and the
Slavonic lands of the Elbe. The Papacy had been alienated for
some time from the Eastern Empire, and Pope Leo III conceived
the idea of placing the Church under the protection of the great
and growing empire of the west. In 800 A.D. the Pope placed
the imperial crown upon the head of Charlemagne. Charles
was now not only the military head of a great empire, the
elected king of the Franks, but the protector of Christendom
and the emperor crowned by God. In placing the crown upon
the head of the victorious Frank, Leo III said, " God grant life
and victory to Charles the Augustus crowned by God, great and
pacific emperor of the Romans."
This union of Church and State had a great influence not
only upon the temporal power of the emperor, but upon the
development of the system of law which was spread if not
inaugurated by him. This union of Church and State was
not entirely the work of Charlemagne and Leo. It had been
brought about under the Merowigs, but the bond was then a
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OIlAHLEMAGXi;. 33
loose one, whilst under Charles the Great it became a publicly acknowledged fact. Charles was now the legitimate emperor of the Romans, and the Pope was recognised as the highest power that could confer imperial title. From the point of view of legal development this union of Church and State was most important. It gave a new force to the Church as the interpreter and later on as the maker of laws. It aided the spread of the Canon law and added to its prestige, and through the Canon law it indirectly helped the spread of the Roman civil law throughout western Europe. Charles encouraged learning and aided the clergy in their civilising influence. He inaugurated a strong system of imperial government, and above all estab- lished a code of imperial law. He sent out representatives to all lands under his sway. His lieutenants, the Missi Dominici and Missi Decurrentes, kept him in touch with the farthest ends of his empire. He divided the empire into territories ruled over by dukes and counts, and where he thought it advisable he gave the Church territorial rights and substituted bishop for duke. This was regularly done where it was con- sidered necessary to check hereditary power. Hence sprung the dukedom of Brabant, the countshipa of Flanders, Holland and Guelderland, and the bishoprics of Utrecht and Munster.
The foundation upon which the legislation of Charlemagne was built consisted of the early bodies of German law, known as the Lex Salica apd the Lex Ripuaria. From time to time these laws had been modified by the Frankish kings, so that when Charlemagne succeeded the cunruHion was very great. Now the Franks, when they invaded northern France, and spread their conquests, came in contact with a civilisation far greater than their own. They found the Gallo-Roman living under a
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U HISTORY OF THE ROMAN-DUTCH LAW.
system of law far superior to the crude codes of the barbaric Germans. They learnt that the Roman respected the laws of the conquered, and they followed his example. The influence of the Church in smoothing over the eflect of the Prankish con- quest upon the inhabitants of the Roman provinces must not be forgotten. The Merovigian kings were Christian monarchs, and the power wielded by the bishops and other ecclesiastics in the kingdom of the Franks was very considerable. The Lex Ecclesiastica ruled side by side with the Lex Mundana, and tended to soften and modify the latter. Of these factors Charles the Great was well aware, and as he was a conqueror it was in his interest to keep the Church and the people satisfied. Hence he made no innovation on the practice of his predecessors ; but whilst leaving the people to live under their own law, he strove by means of his statute law (capitularia) to introduce as much unity as possible into the administration of law. In the Netherlands it was the policy of Charles to invest the bishops with great political power, and for a long time the power of the Bishop of Utrecht was as great, and often greater, than that of the counts.
The institutions of the Franks may be briefly summarised as follows : —
(1) The King, or Emperor, as he was called after the coro-
nation of Charlemagne by the Pope. He was the executive head of the nation, but his laws were made with the consent of the Assembly of the Freemen Lex fit constitutione Regis consensu autem populi,
(2) The Court of the King. This consisted of the principal
officers attached to his household. The Court was composed of the chancellor, the comes palatii or grand
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CHARLEMAGNE. 35
justicier, usually an ecclesiastic, the chamberlain, the seneschal, the constable and others.
(3) Missi Dominici or Royal Commissioners. Each Com-
mission consisted as a rule of two members, one a high dignitary of State, the other a bishop or abbot. They acted both as high administrative and judicial functionaries.
(4) The National Assembly, composed of bishops, abbots,
counts, dukes, and other magnates as well as of free- men.
(5) Counts, hundredmen (centenarii) and vicars.
(6) Placita Communia or Qeneralia or General Assemblies
of Freemen, for transacting legal and other business.
(7) Placita Indicta or Special Assemblies of Freemen, for
judicial and other purposes.
(8) llachimburgii and Scabini (Schepenen, Echevins) or
Members of Local Courts.
(9) The country was divided into Great Pagi, and these
into pagi medii and pagi minorea. Holland, Ooster- goo, Westergoo, Kennemerland, de Veluwe and Betau formed a Great Pagus. The pagi were ruled over by dukes and counts, and the subdivisions of the pagi by the centertiarii and vicarii,
(10) The tenure of land was either dominium direchim
(allodial land, aUeu) or dominium utile (benefices, feudal property). These again were parcelled out into plots held under servile tenure.
(11) The various divisions of land were known as manses
or small farms, caaae or dwelling plots, hoapitia or small rural holdings, and vilLae or villages.
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36 HISTORY OF THE ROMAN-DUTCH LAW.
(12) The people were divided into clerics and laymen. The latter were either freemen, divided into opti- mates, land-owners (boni viri) and others, or half- free (lites), or, lastly, serfs (PouUet, Origines, vol. 1, pp. 66-110).
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CHAPTER VI. THE LAWS OF THE FRANKS. I SHALL now proceed to give a brief account of the laws of the Franks, for these have played an important part in the development of the law of the Netherlands. I shall first discuss the early laws of the Franks, known as the Lex Salica and Lex Ripuaria, and then pass on to the body of laws, which consist of statutes passed by the Carolingian monarchs and known as Capitularia. From a brief account of these laws I shall pass over to a discussion of a cardinal factor in the development of law in western Europe — the personality of Law. This will enable us to deal with an important part of our investigation, viz., the introduction of Roman Law into the Common Law of the Netherlands.
Lex Salica. — Our knowledge of the early laws of the Franks is derived from two bodies of law, one of which dates back to the sixth century. These laws are known as the Lex Salica or the Laws of the Salii or Sea Franks, and the Lex Ripuaria or Laws of the Ripuarii or River Franks.
It was before the death of Clovis (511 a.d.) that the Lex
Salica was drawn up. It was no doubt a compilation of the
customs and laws of the Salic Franks, but it is clear from
the text that the ecclesiastics played a great part in its
production. It was written in Latin, and much of it was _^.
borrowed from the Roman law. To what extent the Roman
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38 HISTORY OF THE ROMAN-DUTCH LAW.
law was drawn upon we do not know, though, judging from the chapter on contracts, the influence of that system was probably considerable. It is possible that the first compila- tion of the Lex ScMca was written in the language of the Franks. During the reign of Clovis it was in all probability translated and edited by Rom€ui priests, and the language of the Roman law-books was used to express the ideas .of the Franks. We find in the Lex Salica many of the laws and customs which Tacitus mentions as belonging to the other German tribes. Like the earlier Germans the Salic Franks reposed in the Great Council of the Freemen, the CoTiciliuTn Generale, full jurisdiction over all persons in the State. Besides this general assembly there were other courts pre- sided over by the chief of the district {thunginua or tunginua) or by the chief of the hundred (centenarins). The exact jurisdiction of the thunginus is not clear, for we find him also presiding over the mallum legitimum. Next to these two officials the Lex Salica recognised two others called the grafio and the saceharo.
The grafio (later graaf or count), as the representative of the princeps, had charge of the administration. He was, as it were, the executive officer of the princeps. Originally he had no judicial functions, but as the power of the thunginus de- creased the grafio came to possess judicial as well as adminis- trative functions. The sacebaro was also an executive officer, and his functions appear to have been limited to the collection of taxes. At the time of Clovis it would appear that the right of pronouncing judgment over a freeman was not con- fined to the Tnallum legitimum, but that some selected per- sons termed ra^himburgii had the power of pronouncing a
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THE LAWS OF THE FRANKS. 39
•
doom or judgment. Of these I shall treat more fully when I come to deal with the development of the law courts. These rachimburgii do not belong exclusively to the Salic Franks, for they are mentioned in the Lex Ripuaria (Schroder, p. 223 ; Fock. And. pp. 17 et seq,).
The greater part of the Lex Salica deals with criminal law and with the penalties attached to various transgressions. Some titles deal with the administration of justice, others with succession and with the various formulae for contracts. Some of the chapters treat of the possession of land, sale, lease, exchange and payment.
Lex Ripuaria. — The Lex Riptbaria, or the Laws of the River Franks, is considerably younger than the Lex Salica, It was probably compiled some time during the sixth century, probably before 596 A.D. The compilation with which we are acquainted dates from the reign of Charlemagne. In charac- ter it was very similar to the Lex Salica, and a great deal of it is devoted to the penalties due for injury to person or pro- perty. The Franks had in all probability no public oflBcer charged with the prosecution of crime. Each freeborn citizen took into his own hands the pursuit of the criminal, and called upon his relatives to assist him. The injured party undertook the prosecution before the Hundred Court or the Gau Court or even the Great Council, and claimed the penalty which the law accorded to him — Judicia non est qucTiilihet judicare vel condemnare absque legitimo acciusatore. Neither the Salic nor Ripuanan laws mentioned the death penalty or corporal punishment. These were apparently in the hands of the injured party who had not received the wergeld due to him. Thus the Lex Ripuaria provided that for the theft or
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40 HISTORY OF THE ROALdiN-DUTCH LAW.
injury of an ox the penalty was three soldi. A horse was valued at six soldi ; a cow at one ; a cuirass at twelve ; and a trained hawk at six. Not only was the delinquent liable, but his family as well, unless they renounced their family connec- tion (.se de parentela tollere). In the latter case the accused was brought before the princeps, where his prosecutor again claimed the penalty. If he still refused he wa^s declared an outlaw, extra sermionetn regis, and could be put to death by the injured party (Raepsaet, vol. 3, pp. 382 et seq.).
Botli the Salic and Ripuarian Codes were recognised as law in various parts of the Netherlands. Van der Spiegel says (p. 60) : " There can be no doubt that the laws of the Salic and Ripuarian Franks were of force in the Netherlands from the time that the Frankish monarchs conquered that territory. As regards the Netherlands, there is a donation mentioned by Fokkens in the Nova Collectio Diplomatwm Belgicorttm (pt. 1, c. 4) by which certain lands situated in Holland were granted according to the laws of the Salic and Ripxiarian Franks, Besides this there is more than one instance of manumission of slaves according to the provisions of these laws, of which we see one in Mieris' Groot Charter Boek, vol. 1, p. 29. This was not only according to the Lex Salica, but also in accordance with one of the formulae of Marculfus, a jurist who flourished in the seventh century. This shows us that the work of Marculfus was used in the Netherlands, and that the formulae gathered from the Frankish and from the Roman law were used by our ancestors as precedents of judicial procedure."
The sources of law, therefore, in the Netherlands at the time of the Carolingian monarchy were : —
(1) The ancient customs of the Germans, which regulated
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THE LAWS OF THE FRANKS. 41
the relations of the ruling classes to the rest of the freemen and established many of the principles of the family law.
(2) The Leges Barharoruvi, such as the Salic, Ripuarian,
Burgundian, Saxon and Frisian laws.
(3) The Lex EccUsiasticfi, which consisted of the canons of
General Councils, and such legislations of the Popes as applied to that territory.
(4) The Lex Romana, and
(5) The Capitiilaria.
I shall now proceed to deal more fully with the last of these sources.
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CHAPTER VII.
CAPITULARIA.
The Capitularia were the ordinances or statutes of the Caro- lingian monarchs. They were called capitularia either because they were divided into chapters or because they were made by the emperor in council ; for capittdum means either the chapter of a book or a body of persons, just as we speak of the chapter of a book or the chapter of a cathedral (Van der Spiegel, p. 63). They constituted the body of laws passed by the Great Council under the presidency of the king. As this legislation was regarded as imperial, it applied to all the subjects of the king wheresoever they might live. The capitularia applied, there- fore, not only to the Frankish subjects of the Carolingian monarchs, but also to Austrians or Italians. Not only did the capitularia form a part of the Lex Mundana^ but they also formed an important part of the Lex Eccleaiaatica. They were called at the Council of Troffi (909 A.D.) the Companions of the Canons. At the same time the emperors did not allow them to be superseded by the canons of the Church. Thus we find in a capitulare of Charles the Bald (844 a.d.) "that the bishops may not, under the pretext that provision is made by the canons, refuse to receive and to carry out the constitutions of the emperor" (Cap, Carol. Calvi, tit. 5, c. 8; Raepsaet, vol. 4, c. 9).
Church and State mutually assisted one another. The tem-
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CAPITULARIA. 43
poral power was supported by the spiritual power. Without a due appreciation of this important fact it becomes almost impossible to understand how the rough, uncultured Teutons could, in so short a period, have established a monarchy which absorbed all that was most virile in Roman civilisation. The Church preached to her sons and daughters respect for established authority, and respect for the law, whilst to the rulers she preached moderation and the brotherhood of man. The emperors in their capitularia enjoined respect for the Church and for her teaching. The Church was the heir of Roman culture, and of Roman culture in those days the greatest factor was the civil law. Hence the marriage of Church and State meant the softening of manners and the spread of the civilising influence of the Roman law.
There are several extant collections of the Capitularia, the chief ones being those of Ang^sisse and Ben6it. The first printed collection is that of Vitus Amerpachius, dated 1545. The edition used by me is that of Baluzius, 1772. How long the capitularia were regarded as the law of the empire we do not know. Heineccius thinks that they were still recognised as the law of Germany as late as 952 a.d. Raepsaet is of opinion that the capitularia were considered to have had the force of law in Flanders and in the Netherlands as late as the end of the tenth century. He says, " They have never been formally abolished either in France, in the empire or in the Netherlands ; and it is therefore still in the capitularia that we should search for the sources of our civil and public laws" (Raepsaet, vol. 4, c 65). Van der Spiegel expresses a similar opinion, and points out that a great many of the later customs and usages are almost identical with the laws of the capitularia. Unless
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44 HISTORY OF THE ROMAN-DUTCH LAW.
therefore, we assume that the capitularia were always looked upon as a legal force, we should be driven to assume that from the ninth to the thirteenth centuries there was a period of anarchy, after which we meet with the same customs and usages stated in almost the same words as we find them in the capitularia (Van der Spiegel, chap. 3).
He goes on to say (p. 64), "There can be no doubt that the capitularia had the force of law in our country, for they applied to all countries over which the Frankish kings held sway. This appears clearly from the capitularia themselves; and, inasmuch as many of them dealt with the privileges of the ecclesiastics, the Popes themselves admitted their authority. In one of the great Church councils at Ravenna (904 a.d.) all persons were threatened with excommunication who did not acknowledge the capitularia of Charlemagne and his suc- cessors (Labaeus in Concil. tit. ix, p. 508). As clear proof of the authority of the capitularia in the Netherlands we have the CapitiiUdio de partibus Saxoniae (ed. Georg. p. 578), where the words occur, De perjuriis secundum legem Saxmiicwm fit, and also the capitidare in bk. 6, sec. 366, where a command is laid upon all the subject tribes who are specially mentioned, as the Romans, Franks, Alemanni, Bavarians, Saxons and Frisians. Again, inasmuch as the counts of Holland obtained their rule and territory from the Frankish monarchs whilst the capitularia were still in force, it will bear no contradiction that the laws and prohibitions of these monarchs were, at any rate at that time, recognised in Holland."
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CHAPTER VIII.
PERSONAL LAWS.
We have seen above that it was the practice of the Romans to interfere as little as possible with the laws and customs of the people they conquered. By the force of their superior civili- sation they hoped gradually to induce the concjuered nations to accept their institutions and laws. This policy worked very well, and we know that Gaul was almost completely romanised. When, therefore, the Franks overran Gaul, they found there a civilised people living under the Roman law. The Franks adopted the same principle as the Romans, and allowed the conquered peoples to live under their own law (jure suo nti ; siut lege vivere).
This right of choosing your own law had a considerable effect upon the later development of our law, and therefore it will be advisable to explain fully what was meant by living under your own law, the choice of law, or, to express it more in conformity with modern terminology, the personality as opposed to the territoriality of law.
According to our modern system of legislation our laws are territorial, i.e. they bind all the individuals within a certain territory. This is a development of later times, and certainly did not prevail during the Merovigian dynasty. Each inhabit- ant of the Frankish kingdom w^as subject to the law of his own nationality. Thus in France the Frank was subject to
the Lex Halica ; the Burgundian to the Lex Bwrgaiidionam ;
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46 HISTORY OF THE ROMAN-DUTCH LAW.
the Visigoth to the Lex Antiqua Visigothorum ; whilst the Roman lived under the Lex Romana. According to this sys- tem the laws were personal and not territorial. Their appli- cability was determined not by the plcu^e where the person lived, but by the nationality to which he belonged. That this system, which appears so strange and unreasonable to us, did really exist is borne out by a large mass of reliable authority.
In an edict of Lothair we find the following: Volumus ut omnia senatus et populus RoTnantua interrogetur quali wM lege vivere ut sub ed vivat (capit. Lotharii, I, sec. 37). In another edict we find, "We decree that in suits between Romans the judgment shall be according to the Lex Romana " (capit add. iv, sec. 45, ed. Georgius). In the formulae of Marculfus (660 circa) we find the following : " You will govern, according to the law and custom of each one, all the peoples who live under your jurisdiction, the Franks, Romans, Burgiindians and others" (bk. 1, f. 8). In the Lex Ripvuria we find the following: " We have decided that he who lives in the land of the Ripuarians, be he Frank, Burgundian, Alleman or of any other nationality, must answer when summoned before a court of law according to the law of the country in which he was bom." " If a per- son is condemned he must pay his penalty according to his own law, not according to that of the Ripuarian Franks " {Lex Rip, tit. 33, art. 3 ; tit. 31, art. 4).
Agobardus, a favourite of Charlemagne, wrote : Cupio per pietatem vestraTn noase ai non huic tantae divinae operationia unitati obaiatat tanta diveraitaa legum quanta non aolum, in aingulia regionihus et civitatibua aed etiam in multia domibua iuthetur. Nam pleriimque contingil, ut aimul cant aut aedeant
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PERSONAL LAWS. 47
quinque Itomines et nuUaa eorum communeTn legem cum altero habeat ^xtemis in rebus transitoriis cum, intemis in rebus perennibus und Ckristi lege teneantur (Legem. Gund. c. 4, pt. 3, art. 2, ed. Balurus; Van der Spiegel, p. 82).
Matthaeus gives us a number of instances where father and son, husband and wife lived under different personal laws (De Nob, 1, c. 27); and, as we see above from Agobardus, yoti might sometimes find five persons congregated in one place each of whom lived under a different system. Here are a few more examples; " Nos supradicti jugales qui professi sumus lege vivere Salica ; " " Ego Maria quae profeasa sum lege vivere Romana" (Matthaeus, De Nob. 1, c. 27). Qui prof essus siLTn ex natione med lege vivere Salica et Leah legalis filia quondam Adelberti de praedicto loco Agrano qv^ce profeasa sum ex natione med lege vivere Longobardorum (Van Loon's Ahmde Regeeringswyze, vol. 1, p. 201).
Savigny, in his history of Roman law in the middle ages, discusses the raison d'4tre of this personal law. He finds it inconceivable to imagine that the primitive laws of the Ger- mans could have dealt satisfactorily with the advanced civili- sation which the conquerors encountered throughout France. At the same time the Franks were too proud and too stubborn to submit to the civilisation and the laws of the conquered. Extermination of the conquered was out of the question, and, therefore, the only method out of the difficulty was to allow the conquered to retain their own laws, whilst the Germans who lived amongst them should retain theirs. From this fact that the two peoples did not live apart, but occupied one terri- tory, it followed that if each citizen was to retain his own law it could be only a personal law, depending on the nationality
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48 HISTORY OF THE ROMAN-DUTCH LAW.
to which he was born (Savigny, Gesch. des R. R. in M. A, vol. 1, ch. 3, sec. 31). Although it was a general principle that each one lived under his own law, we must not imagine there was no territorial law whatever.
As the Franks were the conquerors, they imposed upon the conquered their system of punishments by means of fines. The Salic law compelled the Roman to submit to compurga- tion in case of arson, and, as the Frank was the conqueror, in some cases the penalty for injuring a Roman was less than that for an injury to a Frank.
It is in the domain of civil law that the personality of Law^ applied more particularly. Suits between Romans were judged by Roman law: Inter Ronuinos negocia caasarum Romania legihvbs praecipiimui tenainam (Capito Lothair. I, 560). If the suit, however, were between Franks or Burgundians their respective laws were appealed to. By the Lex Gondobada if a question arose between a Burgundian and a Roman, then the Roman law was to be consulted in order to decide the dis- pute (Lex Gond, tit. 55, art. 2). The son followed the law of his father, the wife that of her husband, and the freed man the person under wliose mundebiirdiitin or tutelage he stood.
The judges were bound to find out what the personal law of the parties was, and to judge accordingly, and if they refused they were subjected to a money penalty (Lex Sal. tit. 60, arts. 1 and 2).
Whether it wa« possible at will to change from one system of law to another has been much discussed. The probability, however, is that a man was obliged to submit to tlie law of the nationality to which he was born, and that he could only
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PERSONAL LAWS. 4^
effect a change by express consent of the kinor or of some other authority {Lex Sal. tit. 60, art. 4).
Gradually, however, during the Merovingian dynasty, laws were enacted which applied to all the inhabitants of the kings territory. These laws were territorial, and existed side by side with the personal laws. In course of time their scope was extended until they came to form a very important body of law. At first they were called the Edicts of the Frankish kings, but in the Carolingian period they came to be known by the name of Capitularia. I have dealt with these in the former chapter.
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CHAPTER IX.
FEUDALISM AND FEUDAL LAW.
Charlemagne was succeeded by Lewis the Pious. The end of
this unfortunate veign was the commencement of the breaking
up of the empire, which had been built up with such care by
Charles the Great. The wretched custom of partitioning the
empire amongst the sons of the reigning monarch brought the
Carolingian dynasty to the same woeful end to which it had
brought the Merowigs. The important factor of this period
in the development of law was the usurpation of the secular
by the clerical authority. In consequence of this the influence
of the Canon, and, therefore, also of the Roman law was spread
throughout the empire. Lewis the Pious died in 840, and the
next century saw the darkest hour of European history. The
Vikings descended on Europe in the north and the Moors
extended their victories to Italy.
Up to the time of Charlemagne the Northmen had confined
their attacks upon western Europe to the Saxons and Frisians.
During the latter half of the eighth century they commenced
their raids upon the east coast of England, and early in the
ninth century began to fall upon the undefended portions of
the Frankish Empire. During the reign of Charles the Great
their raids were frequent, but not so serious as to be a real
danger. During the latter half of the ninth century, however,
the descents of the Northmen upon the coasts of the Frankish
Empire became frei|uent and serious. The Danes ravaged the
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FEUDALISM AND FEUDAL LAW. 51
coast of Friesland j-ear after year, and the Emperor Lothair wa« obliged to cede the island of Walcheren to Rorik the Viking. In France the Vikings went up the Seine and sacked Paris, and early in the tenth century (911 a.d.) Charles the Simple ceded Normandy to RoUo the Dane.
Holland formed no exception to the inroads of the Northmen. The coast was constantly ravaged, and year after year the Danes sailed up the Maas. The influence of the Danes upon the development of the Roman-Dutch law was quite inappre- ciable. Their frequent invasions no doubt tended to throw the country back to barbarism and so to check the growing influence of the Roman law, but they exercised no positive influence in modifying the laws of the Franks.
The attacks of the Danes in their ships on the north and of
the rapid moving Saracens on the south could not be repelled
by the heavy, slow foot-soldiery of the Franks. It became
necessary to raise horsemen wherever possible, and these bands
of cavalry, raised and maintained by the dukes and counts in
the territories over which they were appointed governors,
formed one of the principal factors in the establishment of the
feudal system. It has often been asserted that the incursions of
the Northmen and Saracens compelled the emperors to place
strong military leaders on the northern coasts and on the
frontiers of the empire, and that fiefs were granted to them
as a reward for their services. They in turn parcelled out
these fiefs to their followers upon condition of service, and so
arose the feudal system. This no doubt is true to some extent,
but the best authorities tell us that this is not the whole truth.
The origin of the feudal system is far more complicated than the
grant of benefices for services against Dane and Saracen.
d2
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52 HISTORY OF THE ROMAN-DUTCH LAW.
Feudalism in Holland, like the whole feudal system of western Europe, was not created by a legislative Act. It was the slow growth of centuries. The rise of feudalism on the Continent differed ver^'^ materially from the establishment of that system in England. Feudalism did not exist in England as a system until its introduction in 1066 by William the Conqueror. William divided the country into a number of baronies, and placed over each either one of his followers or an Anglo-Saxon noble favourable to his cause. He compelled each baron, great or small, to swear fealty to him direct. Feudalism in England was, therefore, an act of conquest. In Holland, as in the rest of Charlemagne's dominions, feudalism grew up from small beginnings until at last it became a vast system of government.
The germ of feudalism is to be sought in the land laws of the Germans and Romans, and in the relationship which existed between the German chief and his followers. It is, therefore, impossible to say here ended the system of government of the Franks and there began the feudal system (Schroder, pp. 158 et neq.).
Feudalism was based upon two elements: the one was personal service and the other was beneficial ownership. The vassal {homo, fidelis, vasmis) swore that he would faithfully serve his overlord {senior, domin^ve), and the overlord gave to his vassal a fief or territory for the use of himself and his descendants. The services of the vassal were such only as could be demanded from a free man — knight's service and attendance at coui-t.
The Germans had from olden times been accustomed to such services, and the freemen expected in their turn services from
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FEUDALISM AND FEUDAL LAW. 53
their various classes of serfs. In the service which the littM (or half-free) owed to his master we see all the elements of vassal- dom. This relationship of litu^ to master was similar to the relation of vassal to overlord, though by no means the same. In both cases we have service, and in both cases the use of land in return for service. During the Merovingian monarchy many of the kings followers had become large land-owners and on their land lived freemen, half- freemen (liti\ and enfranchised slaves of all descriptions. The large land-owner thought it in his interest to light for his sovereign, and his tenants made his interest their own.
Brunner has pointed out that the need for horse-soldiers to defend the Church against the Turk, and the empire against the Dane, was also a cause which operated in the establishment of vassaldom. Modern German historians doubt very much whether the old view is correct that the Merovigian monarchs gave benefices to their followers in order to defend their fron- tiers against the Northmen and the Arabs. That such may have been one of the reasons is highly probable. Roth thinks that the benefices were given in usufruct to the vassals like the leases of Church lands to its tenants.
It is a matter of dispute whether this combination of vassal- dom and benefice — service and land — had its origin in Gaul or in Lombardy. Van Leeuwen gives the following account of the introduction of the jtcs feudi in Holland : *' The origin of the feudal law, and by whom and when it was introduced among us, is uncertain. The common opinion is that it was first intro- duced by the further Saxons and ancient German tribes in Italy, particularly in the duchy of Milan, where they made their first inroad and for a long time had the upper hand under the
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54 HISTORY OF THE ROMAN-DUTCH LAW.
name Loilg Beaixis (whence the term Lombard is still in use), in oixier to make the fealty of their subjects more certain; and having become an institution of the emperors Henry, Lothair, Conrad and Frederick Barbarossa it was transmitted, about 1100, to us as well as to other nations" (Van Leeuweus CommentaHeSy Kotz^'s trans. 2, 14, 1). Most of the modern German writers reject this view, that feudalism was intro- duced by the Lombards, and regard France as the place of its birth. Kindred systems were, however, in all probability in- troduced about the same time in various parts of German territory, though no doubt the feudal system, as it prevailed in Holland, owed its origin to Charles Martel and his suc- cessors. Bluntschli's view is that feudalism originated in a mixture of the Germanic custom of making the chief and his lieutenants mutually dependent, and the Roman custom of settling soldiers on the frontiers {Staatsworterbioeh, sub voce Lehnrecht).
The feudal system as such was born just about the time when the Gennans had made themselves masters of northern Italy, and when they became subject to attacks on all their frontiers. It seems reasonable to suppose that it was the result of a fusion of Roman institutions, the practice of the Church, which was again based on Roman law, and the native customs of the Germans. The system, however, as introduced into Hol- land was the feudalism as perfected by the Merovingian and Carolingian monarchs. It is difficult to say exactly at what period the introduction into Holland took place, but it was probably considerably earlier than the date suggested by Van Leeuwen. In course of time the feudal system became so cry- stallised that the relation of lord to vassal, and their mutual
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rights and duties towards each other as regards the la^d tenure, could be accurately formulated and defined.
The feiuium or beneficium (leen) was an estate which wa.*^ granted by the lord to his vassal, subject to the condition that the dominium civile remained with the lord, whilst the domi- nium, utile went over to the vassal, provided that the vassal Bwore fealty to his lord and performed the required services. Originally personal and real rights were indissolubly mixed^ but in time fealty came to be regarded as attached, not so much to a particular person as to the person by virtue of his ownership (Jidelitas realis). The Roman law was invoked to systematise and codify both the personal and the real rights.
Although, as we have seen, it is very doubtful whether the feudal system as such had its origin in Lombardy, there is but little doubt that the feudal law as a system of jurisprudence came originally from Milan. In 1158 and 1168 two judicial officers Df Milan collected and systematised the law regarding feudal property as it had been recognised by the Milanese courts. These two officers, Obertus ab Orto and G^rardus Niger, published the law regarding feudal property in a book called the Libri Fevdoriim,, It soon became universally recog- nised as the text-book for feudal law. Hugolinus and Colum- binus wrote commentaries and glosses on the Lihri Feiidorum. These gloases were afterwards plcwjed as a decimxt coUatio at the end of the Corpus Juris, where they are still to be found under the designation of Jus Feudorum et OonsuetvxiineH Feudorum.
As the feudal system had been extended to Holland, the Jvs Feudorum applied to that province as it did to the other countries of Europe. It is, however, a noteworthy fact that the
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56 HISTORY OF THE ROMAN-DUTCH LAW.
Frisians never accepted the feudal law as part of their legal system, for, as Huber tells us, they could not endure that- the word "service" should apply to their customs (Huber, Hed, RechL 2, c. 36). This Jus Feudoram was another channel through which the principles of the Roman law flowed into Holland. Its influence upon the general law of Holland was not very great, though it must be remembered that for a long time there was a well-recognised court which dealt with feudal relations and feudal property (leenhof). In time, however, the feudal law in Holland only applied to a particular kind of tenure". In an indirect way it influenced Roman-Dutch law, for it kepi alive such principles of the Roman law in the middle ages as had been introduced into the Gonsitetadhies Fewdoram, more especially with regard to erf'pacht or emphyteusis (Schroder, pp. "158 et seq,: Holzendorfs ETicyclopiedie, vol. 1, pp. 160-62; vol. 3, p. 545 ; Bluntschli's Staatfi Worterbnch, nvb voce Lehn- recht; Guetdt Histoire, p. 274; Bort, Leenrecht).
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CHAPTER X.
. 8KETCH OF THE HISTORY OF THE NETHERLANDS.
In this and the following chapter it is my intention to set out, as briefly as possible, the main features of the history of the Netherlands from the rule of the counts to the establish- ment of the Batavian Republic in 1795. My chief object is to give the student some idea of the constitutional history of the Netherlands, for that history is so bound up with the develop- ment of its laws and institutions that it is somewhat diflicult to appreciate the latter without having some knowledge of the - former. The main facts to which I would wish to draw the student's attention are: (1) That the counts of Holland and other sovereign princes who .held sway in the Low Countries were not monai-chs, but overlords of separate provinces; (2) that the influential forces in the State, until the reign of the House of Burgundy, were the count, the nobles and the clergy ; (3) that the fourth estate, the towns, grew from small beginnings lo great power, and that they formed a powerful burgher aris- tocracy ; (4) that, stirred up by the Reformation and the hatred of the Spanish Inquisition, the towns brought about the Dutch Republic; and (6) that this form of government lasted practi- cally until the French rule. In order to grasp the constitu- tional history I shall first give a brief sketch of the early political history of the Netherlands.
The Netherlands, as we have seen, formed part of the empire
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of the Franks. They were not ruled by a single governor or representative of the emperor, but were divided into a number of provinces and cantons or gouwen, and these were presided over by dukes and counts {graven). In the north the most powerful provinces were Gelderland, Utrecht, Friesland and Holland; in the south Flanders and Brabant. Gelderland and Brabant were dukedoms ; Flanders and Holland were count- ships (gnmfacltappey}) : whilst Utrecht was a bishopric. Over- ijssel, Drenthe, Groningen and the Ommelanden were considered part of the bishopric of Utrecht. Holland included North Holland, South Holland and West Friesland.
In 922 A.l>. Charles the Simple conferred upon Count Dirk I the fief of Holland together with the Church of Egmond. Dirk I was the first hereditary count of Holland and the founder of the House of Holland. The counts of Holland through their connections became extremely powerful. In order to give the student an idea of the influence of the counts of Holland I can do no better than quote the words of Kluit and Groen van Prinsterer (sec. 38) : " Many have too slight an opinion of our earliest counts. They were related to the crowns of the prin- cipal houses of Germany and France. Kings married their daughters. They were the possessors of princely incomes and of property either inlierited from the emperors or won by the sword or purchased with their gold. Floris II was called the very rich count. Dirk II married a daughter of the king of France. Philip I of France was the son-in-law of Floris I. The sister of the Emperor Lothair was married to Floris II; the sister of the king of Scotland was the wife of Floris III ; whilst John I married a daughter of a king of England." Their wealth was great and their courts were equal to, if not better
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than, those of mast European princes. The Church was power- ful and well endowed. Holland possessed many abbeys of considerable influence, such as those of Egmond and Rijnsburg. The noble houses were many and influential. The houses of Egmond, Brederode and Voorne ai*e names well known to the later history of Holland. The counts were staunch adherents of the Church, took part in the Crusades, helped the Pope against the emperor, and aided the Church in the suppression of heresy. It was during the rule of the counts that the towns of Holland began to grow in importance, and to aid the counts against the encroaching power of the nobles.
The House of Holland was succeeded by the House of Henegouwen or Hainault (1299). William III added Zeeland to the tief of Holland, and the counts of Holland became counts of Holland, Henegouwen and Zeeland. Under the House of Henegouwen the trade of Holland increased, and with that the wealth of the province. In 1345 the House of Hene- gouwen died out, and Holland, Zeeland and West Friesland passed by succession to the House of Bavaria. It was during this period that the feud, known as the feud of the Hoeken (Hooks) and Kabeljauwen. broke out. Civil war disturbed the ^country and injured its trade.
In 1428, after the death of John of Bavaria, the provinces of Holland, West Friesland and Zeeland passed to Philip the Good, and thus was founded the House of Burgundy. Philip was Duke of Burgundy, Flanders, Mechlin, Franche Comte, Artois, Salins, Namur, Brabant, Limburg, Hainault, Holland, Zeeland and West Friesland. Philip was the first ruler of the Netherlands who conceived the definite policy of gradually amalgamating the heterogeneous countships, dukedoms and
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bishoprics into one homogeneous state. His inile, however, over the Netherlands was not a happy one. He constantly broke his promises and disregarded th^ privileges of the towns. In 1448 he imposed a tax on salt without the consent of the Estates (Staten). Ghent resisted, and was reduced only after a four years' struggle. The cruel punishment of Ghent caused great misery amongst the industrial population and incensed the Flemish towns.
Philip the Good was succeeded in 1467 by Charles the Bold (le Ui'iieraire)- This ruler was even more untrustworthy than his father. No oath was sacred to him. His ambition was to extend his dominions from the North Sea to the Mediterranean. For this purpose he engaged in numerous wars, and in order to pay for these he oppressed and taxed the Netherlands. He continued the work of his father in forcing tribute from the towns. In Holland Charles established a military, despotism, while in the southern Netherlands, after the revolt of Li^.ge, he deprived all the impoi-tant towns of the liberties they were so jealous and proud of. In 1477 he marclied against th<^ Swiss Confederation, and was killed at the siege of Nancy. He con- unued the policy of his father Ik) form a monarchy out of his numerous possessions. As he was not entirely dependent on the Netherlands he had but little scruple in exivcting from the towns of Holland, Utrecht, Brabant and Flandei-s as much as he could manage to squeeze out of them. It was during his reign that the idea of a protective union of various provinces and towns became more than a mere political speculation.
The heir of Charles the Bold was his young daughter Maria — the Lady Mary of Burgundy. Louis XI immediately strove to lay his hands on the possessions of the House of Burgundy. He
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«oaght to marry her to the Dauphin, a lad of eight years, or else to a French noble. When these projects failed Louis seized the duchy of Burgundy and occupied Artois. This roused the Flemish towns, and they sided with the Lady Mary against the French - king. She had, however, to pay for their support and to pro- mise to maintain their liberties. In March 1477 she granted to the Netherlands their great Charter — De Gh^oote Privilegie — in return for their assistance. "It wa^s this constitution which Mary s grandson violated, which the Netherlands took up arms to recover and maintain, and which Holland fought for during more than fifty years, and finally secured. It provided that offices should be filled by natives only: that the Great Council and Supreme Court of Holland should be re-established and should be a court of appeal, having no jurisdiction over the other tribunals: that the cities and Estates should hold diets when they chose ; that no new taxes should be imposed without the consent of the Estates ; that no war should be undertaken with- out the consent of the Estates ; that the language of the people should be used m all public and legal documents ; that the seat of Government should be the Hague: that the Estates alone should regulate the currency; and that the sovereign should come in person before the Estates when supply was required " (Thorold Rogers' Holland, p. 41). It also provided that the sovereign could not marry without the consent of the Estates. The provinces then suggested that the Lady Mary should marry Maximilian of Hapsburg, the son of the Emperor Frederick III. This proposal was entertained, and in August, 1477, she became the wife of Maximilian, and their son Philip the Fair was the first of the Austrian line (1482-1506).
Philip the Fair married Johanna, the daughter of Ferdinand
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and Isabella, and their son, the great Emperor Charles V, was born at Ghent, a Dutch sovereign, King of Germany, King of the two Sicilies, Archduke of Austria, Count of Burgundy, Holland and numerous other places. From the death of Philip to 1517 the Netherlands were governed by a regent.
In 1494 Philip the Fair assembled the States at Gertruiden- berg, and informed them that he did not intend to abide by the provisions of the Great Privilege. The provinces objected, but eventually a compromise was arrived at. After that the towns strove hard to gain back what they had lost, but neither Philip nor Charles V were inclined to budge. After the end of the fifteenth century the period of Privileges was closed. During the following century the provinces and towns had to win their liberties by the sword.
In 1555 Charles abdicated the sovereignty of the Nether- lands in favour of his son Philip, who during the following year became Philip II of Spain.
Charles V was very favourably disposed towards the Nether- lands. He never forgot that he was born a Netherlander. On the whole he may be said to have respected the liberties and the privileges of the provinces except where they were used to further heresy, and they in turn were loyal to the emperor. A great deal of important legislation, as we shall see later, was the work of Charles. Philip II, on the other hand, was at heart a Spaniard, and showed but little sympathy with the people of the Netherlands. It was during his reign that the great struggle for freedom took place which has been so eloquently depicted by Motley in his Ri^e of thp Dufrh Rpfpiihlir. Spain was forced to relinquish her liold on the
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northern provinces of the Netherlands, soon after destined to become a strong republic.
The House of Austria continued the policy of the House of Burgundy to unite the Netherlands into one great State. The main object of Charles was to create a powerful bulwark against French aggression. The States themselves desired a defensive union, and Charles thought that it was easier to get contributions from the representatives of the provinces collected in one council than from seventeen different councils. In 1548, by the treaty of Augsburg, the seventeen provinces of the Netherlands were declared independent of the empire though under its protection. The effect of this attempt at union was not quite what Charles contemplated, for instead of increasing the power of the House of Austria in the Low Countries it soon taught the provinces that if they banded together they were far better able to defend their liberties and privileges than if they stood apart. It was this policy of union which eventually brought about the lass of the United Netherlands to Philip of Spain.
In dealing with the history of the law during the reign of the counts, we are apt to be confused by the fact that the same person is Count of Holland, Count of Brabant, Count of Fries- land and Duke of Burgundy. The beginner often thinks that as we change from the House of Bavaria to that of Burgundy t\ut laws of Holland must naturally be affected thereby, ho that at one time Bavarian and at another time Burgundian customs would be introduced. The reader will be spared a great deal of this confusion if he renH»mbers that whetlier a Bavarian or a Burgundian, Austrian or Spaniard ruled over Holland he always ruled over the province as Count of Holland, Zeeland and West
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Frieflland. The lawR that were administered in Holland the law8 promulgated by the Bavarian or Austrian prince solely in his capacity as Count of Holland. These laws were usiudly framed by the Estates of the provinces, and were promulgated after receiving the sanction of the Count of Holland. No doobl the forei^ and home policy varied in accordance with the viewft of the different princes, but the great bulk of the common law of the various provinces of the Netherlands was unaffected by the change of House. The laws promulgated by Charles V. aa Count of Holland, were valid in Holland, Zeeland and West Friesland. and had no effect beyond those provinces, while the laws which he promulgated in Germany or Spain had no recog- iiition in the province of Holland. When, therefore, we speak of the laws that were promulgated in Holland or the privilegea, keuren, chaiiers or handvesten that were granted to the cities in Holland we must always remember that thei gniuted by the various princes as counts of Holland. ^^%n^ and West Friesland.
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CHAPTER XL
EARLY CONSTITUTIONAI. HISTORY OF THE NETHERLANDS.
We aaw that in the early German period the king was the head of the State, and that the Und was parcelled ont into cantons or )ri>nwen. The greater part of the government was carried on by the king and his followers, though at stated times all the free- men assembled, and their voice determined how graver questions should be solved. Every gouw was governed by a chief, whilst nuder them stood the leadera of the hundred. This system was eiMitinued by the Franks, but owing to the introduction of Cliristianity and the gradual growth of towns, to which the «ftrly Germans were unaccustomed, it was found necessary U> modify the old form of government. Lender the Frankish mon- ardui it became impossible to summon all the people to a general eoondl, and so the Frankish sovereign and his entourage obtained a power far more extensive than that of the early German princeps. Aa large provinces fell under the sway of the Merovigian and Carolingian raonarchs it was found necessary to send deputies imim) from the central government to control the provinces and to keep the emperor in touch with them. The influence of the Church on the Crown had also a far-reaching effect. The ecelesiaiitical power was mingled with the temporal in a manner wholly unknown to the early Franks. As trade inct^easecl the
neoowty for towns began to be felt, and the primitive village-
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gradually grew into the fortified town. Again, as the tribe settled down upon the soil, and territorial interests sprang up, the larger land-owners began to assert rights unknown to the early freemen. The freeman who had distinguished himself by his valour in the field became a territorial noble, and on his estates were freemen who paid him tribute for the privilege of living on his land, slaves whom he had emancipated and who now belonged to the land (liteSy hoorigen), and slaves still in a state of thraldom. The king and his followers, the Church, the territorial nobles, the freemen and the burghers of the towns began to act and react upon one another, and so to compose that complicated system known as the State.
We have traced the growth of the feudal system, and shall now trace the rise of a new element in the government — the voice of the burghers of the chartered towns. The idea that the sovereign power should consult the four Estates (Standen or Stenden) was one of slow growth, though the germs of it go back to a remote past. In the early German times, as we have seen, the king consulted his nobles and other freemen, but after the introduction of Christianity and the growth of the Church's power she insinuated herself into the councils of State. Though in theory the freemen were still to be consulted, in practice it only occurred when special money grants were sought. As the towns grew in importance they took the place of the freemen, until they forced themselves to be recognised as a fourth Estate. In many respects the constitutional history of the Netherlands is very similar to that of other European states, but the insignificance of its territory, the wealth and rapid growth of its towns, and the independent spirit of its people, caused it to emerge from feudal oppression and from
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antocratic rule earlier than its neighbours. Its chartered towns at first modified the feudal system and then caused it to disappear almost entirely.
I shall now briefly describe the four Estates, and then show how they were united in the great councils of the State.
The Estates (Staten).— The term " Estates" was first used by Philip the Good in 1428 in the treaty made by him with the Countess Jacoba. Mention was then made of the Estates of Hainault, Holland, Zeeland and Friesland. The term StaUn was not used in Holland until 1658, though the four Estates existed in that province long before.
Sovereign Power. — The sovereign power in the Nether- lands was originally vested in the emperors of the Franks; after the disappearance of the Carolingian monarchs it paased to the emperors of the Holy Roman Empire. This sovereignty, however, became entirely nominal, for after the days of the hereditary counts the bond of allegiance between count and emperor was by no means strong. The Netherlands were in the early days a collection of provinces which had a common in- terest, but were not united by any common bond. Nor was the whole of the country nominally under one overlord, for Flanders was a fief of France. During the thirteenth and fourteenth centuries the overlord of a particular province (landsheer), whether he bore the title of duke, count, bishop or lord, 'except for the shadowy feudal bond to the German Empire, was the sovereign of that province. He made peace or war, he granted privileges and charters, he levied tolls and collected taxes, and disposed of these as he thought fit. Dur- ing the reign of the House of Burgundy the sovereign power
of the various counts became even greater than before. It
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extended over all the Netherlandfl, and was in its nature monarchical. The constant aim of the counts was at unifica- tion and centralisation. They strove to make of the Nether- lands a kingdom like that of France or England. Though they consulted the towns and convoked general councils they re- tained in their own hands the sovereign power. The Hoof<e of Austria continued the work of centralisation, and though Charles V extended the powers of the States-General he never allowed the sovereign power to slip from his hands.
The Nobles (de Edelen).— Next to the overlord stond the nobles. Their authority and prestige dated back to the early German period. At first they were bound to the chief by a purely personal bond, but in the course of time they became the hereditary possessors of large territories, and their influence grew from a personal to a territorial one. Under them stood freemen of various grades as w^ell as slaves. The nobles were bound to the sovereign by fealty, just as their vassals were in turn bound to them. They possessed great privileges, amongst which the chief were to lead their own vassals in the field and to attend the council of their sovereign. Their relation to their sovereign was ruled entirely' by feudal law. Their combined power was very great, sometimes no great as to threaten the rights and privileges of the overlord ; and it was, therefore, not unnatural that the House of Burgundy should have sought to place as a counterpoise to the nobh^n the freemen of the t<*wns.
The nobles were divided into three classes: (1> those descen<l<*d from houw^s which had lxH»n regarded as noble from time immemorial ; (2) persons ennobled by the sovereign ; and (3) the inttririi or persons who held high oflices of State and
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their desceDdants {Ridderschap). In the province of Holland the noble8 who formed one of the Estates were persons en- rolled in the Ridderschap and citable by special summons ilUi^dntie mn H^tUand, 19th March, 1678). In the early days they had their own courts, to which their vassals were «»abject, but this rijjrht disappeared with the disintegration of fendalism. They retained, however, even after the Revolution, a certain number of privileges.
Clergy (Geeeteltiken). —From the time of the Fmnkish Empire to the fifteenth century the influence of the clergy was very great, both directly and indirectly. The influence of the Church was exerted directly through her wealth and her large territorial holdings, such as the bishopric of Utrecht, and indi- rectly because, amidst a people lacking in civilisation imd knowledge, she was the proud poasessor of learned and educated meiL Moreover, the Church represented the might of ancient Rome, which, though traditional, was during and even after the middle ages a sti*ong moral force. In the course of time, however, the influence of the Church began to decline. In the State the (Church was represented by the large abbeys, and as these became corrupt they lost their moral force. In Gelderland the Church ceased to have any influence in matters of State. Id Holland even the Abbot of Egmond had no voice in the administration. In Zeeland and Friesland the power of the Church was greater than in Gelderland or Holland. As a ipeneral rale, however, it may be said that the Church exercised a greater temporal control in the south than in the north, and the wealthy abbeys of Hainault exerted during the reign of the House of Austria considerable influence in matters of State.
After the Reformation and after the establishment of the
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Dutch Republic the clergy ceased to have any direct influence in the State. In Holland the monasteries were suppressed and their goods confiscated for the benefit of the State, and their revenues devoted to the maintenance of churches, schools and charities. All legacies to Roman Catholic institutions were prohibited, and the only ecclesiastical body recognised by the State was the Protestant clergy. Their jurisdiction, however, was limited to church discipline in accordance with the XXXIV Articles of May, 1591. After the Revolution, therefore, the Church ceased to be recognised as an Estate. At the same time we must not forget that the indirect influence of the clergy in matters of policy was exceedingly great during the seventeenth and eighteenth centuries both in Holland and in the other provinces of the Union.
The Towns. — The rise of the towns is an important factor in the constitutional history of Holland. Starting as insig- nificant villages under the entire control of the nobles, they rose in power during the rule of the House of Burgundy, and became during the Republic the ruling force in the State. In order to understand the development of the history of the Roman-Dutch law and the institutions by which that law was administered, the student must become acquainted with the history of the rise in power of the towns of Holland.
The chief event during the rule of the counts which tended to increase the influence of the towns was the Crusades (1096- 1291). The towns of the Netherlands were not, like the towns of France and Italy, the successors of the Roman municipia. The Romans never colonised the Netherlands to the same extent that they colonised Gaul. There were, no doubt, Roman towns in the Low Countries, but they never attained the wealth and
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position of such places as Paris, Rheims or Cologne. It was during the Crusades that the southern towns of the Netherlands began to grow in importance, but it was not until the thirteenth century that the towns of the northern provinces exerted any real influence. The Crusades gave an impulse to trade, not only along the coast of the Mediterranean, but even on the shores of the German Ocean. The Crusaders brought to the West a knowledge of the commercial instincts and the civilisation of the East. The road followed by the Crusaders became the trade route, and along this route sprang up prosperous towna In order to pay for the Crusades the counts wanted money, and as the traders in the towns were the only people from whom this commodity could be got the counts granted them liberties, and they in turn gave money. The preparations for a Crusade were left to the burghers of the towns, and in this way a great deal of money was earned. The nobles found it easier to get money from the towns than from the cultivators of the soil, and so in time they came to recognise that their own prosperity depended directly on the opulence of the towns in their possession.
The count stipulated with the town that he was to receive yearly a certain sum, and in consideration of this grant he conceded certain privileges to its citizens. These privileges took various forms. Sometimes it was the right to elect magistrates, at other times the exemption from military ser- vice or the right to levy toll by road or river. The rapid increase of the trade of the Low Countries with England, France, the Hanseatic towns and other localities brought in its train contracts and treaties. Regulations had to be made as to payments, and a^s to the consequences of failure to meet obligations. The laws of a pastoral and agricultural com-
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munity were not adequate to solve the difficult questions which arose, and therefore men had to resort to the only le^l system which dealt with such questions — the Lex Rmiiaiia, and later on the law of the Corpus Juris. The rise of the towns, therefore, was one of the factors which facilitated the introduction of the Roman law, as we shall see in a later •chapter. The Church also exerted its influence in favour of the towns, partly because it required contributions and partly because the bulk of its priests were the sons of citizens.
From the beginning of the thirteenth century representa- tives of the towns were called as witnesses to treaties or to take part in the settlemeat of internal disputes. In 1296 Floris V requested the towns to assist in the negotiations with the king of England regarding the marriage of the young prince. On that occasion the count spoke of Nohiles homimes et communitates bonarum viUamtn. The principal privileges and charters were granted between the reigns of William II (1256) and John of Bavaria (1425). The Great Privilege of 1477 was not so much a charter granted to the fn^na oa a compact between the sovereign and her people.
The privileges of the towns consisted mainly in freedom from tolls and tribute ; in the right to hold yearly fairs or markets and to tax the citizens ; in the possession of courts of law and the power of coining their own money as well as keeping their own accounts. On the other hand, they "were obliged to pay to the count or noble (landsheer) under whose jurisdiction they fell a fixed tribute under the name of beden, and to contribute, in case the income of the overlord's domains was not suflicient, towards the cost of his military expeditions.
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One of the oldest keuren was that granted by Count William I and the Countess Joanna of Flanders to the town of Middelburg. It was signed in 1217, and was the model upon which many privileges were granted in later years to the various cities. The epitome of this charter as given by Motley (Rise of Dutch Republic, vol. 1, p. 31) is as follows: '''The inhabitants are taken into protection by both the counts. Upon lighting, maiming, wounding, striking, scolding ; upon peace-breaking, upon resistance to peacemakers and to the judgment of schepenen ; upon contemning the Ban ; upon selling spoiled wine, . . . fines are imposed for the benefit of the <»unt, the city and sometimes the «fichepenen. To allMiddel- burgers one kind of law is guaranteed. Every man must go to law before the schepenen. If any man being summoned and present in Walcheren does not appear or refuses submis- sion to sentence he shall be banished, with confiscation of property. Schout and schepenen denying justice shall, until reparation, hold no tribunal again. A burgher having a dis- pute with an outsider (bvAten rrutn) must summon him before the schepenen. An appeal lies from the schepenen to the count. No one but a householder can be a witness. All alienation of real estate must take place before the schepenen. If an outsider has a complaint against a burgher the schepenen and schout must arrange it. If either party refuses submis- sion they must ring the town bell and summon an assembly of all the burghers to compel him. Any one ringing the town bell except by general approval and any one not appear- ing when it tolls are liable to a tine. No Middelburger can be arrested or imprisoned in Holland or Flanders except for crime.''
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One of the most important institutions of the towns of the Netherlands was the guild, coUegium apijicium, or trading cor- . poration. When this institution was first adopted by the towns of the Netherlands is not clear. In all probability it was intro- duced during the rule of the early counts. The main object of the guild was to form a number of trade unions for particular trades. It tended also to keep together the respectable citizens, and to separate them from the rougher classes which were constantly flowing into the towns. Each guild {gild or burger collegie) waa a coi-poration ruled over by a president and council {hoofdrrux/ifi en dekens) elected by the members. The guilds came in course of time to be recognised by the counts, and to be protected by various privileges. In the province of Qelderland the guilds had the power of electing the representatives of the towns. The name of the elected member was submitted to the magistrate, who had no right to reject the elected member except for good cause {Ned. Jaar boek, 1765).
As the guilds grew in wealth and importance it became an inestimable privilege to belong to a guild. In time the right of membership in many of the guilds was made hereditary. So great was esteemed the privilege of becoming a member that many nobles were enrolled in the guilds, and many -wealthy men increased the coffers of these institutions by purchasing member- aigh prices. They became in the course of time not only important political, but also charitable institutions supporting the widows and educating the children of deceased members.
In 1443 Philip the Good conceded to the town of Delft the right to elect a council called a vroedachap {vroed = wise). The vroedschap was a corporation composed of the wisest and richest burghers of the town for the purpose of representing the town
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and maintaining its rights and privileges. Vroedschappen pro- bably existed long before the concession of Philip, though Delft appears to have been the first vroedschap which obtained sovereign recognition. It was not a town council, such as we know, to manage the affairs of the town, but a political body to watch over and protect its liberties and privileges.
In course of time the vroedschappen of the other towns obtained state recognition, and durhig the rule of the Bavarian and Burgundian Houses the vroedschappen played important political rdles. When the towns obtained recognition as one of the Eistates the vroedschappen elected some of their members to represent the town in the councils of the State. In this respect the towns of the southern provinces were far more energetic than those of Holland. The former were always anxious to be represented, whilst the latter, at any rate before the sixteenth century, sought to avoid the expense and trouble. In Holland the representatives of the towns were usually persons who had held some office such as schout, baljuw or schepen, and were known as the lede7t van de Gerechte. The towns of Holland had tEe privilege of electing certain men to a coUegie or kiea coUegie from the noblest and wealthiest of the citizens {wit den buik der stede), and from these alone could the count appoint his magistrates and high officials. In this way gradually grew up a powerful and wealthy burgher aristocracy which in time acted as a strong check on the absolutism of Philip of Spain.
The government of the towns was entrusted to a baljuw, hoofdschout or schout with a certain number of advisers called schepenen, or sometimes raden. As the towns increased poort- meesters, burgermeesters or schatmeesters (burgomasters) were appointed out of the raden or councillors.
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76 HISTORY OF THE ROMAN-DUTCH LAW.
The schout and schepenen formed both an administrative and a judicial body. Of its judicial functions I shall treat later. The baljuw was as a rule the count's representative in the district, the schout in the town. On the whole the baljuw was superior to the schout, and the baljuw and schepenen dealt with the more serious matters, whilst matters of less importance were entrusted to schout and schepenen. In the larger cities, such as the Hague, Leyden, Amsterdam, &c., the administration of the town was entrusted to two or three burgermeesters, as they were called in Flanders, or poortmeesters or schatmeeaters, as they were called in Holland.
During the Burgundian rule a functionary grew up who was destined in later times to play an important part. This was the pensionarifl or, as he was called later, the Raadpensionaris (i.e. rmul en peiisionaris). He was paid by the town, and was usually a lawyer of high attainments {e.g, Grotius and Oldenbarneveld). His duties were to act as the spokesman of the town's representatives. He also advised the municipal body in difficult matters and conducted their lawsuits.
From what has been said above it will be manifest that the towns of Holland were very different from the European towns of to-day. They were virtually small republics governed by a burgher aristocracy. Though they foi-med part of the domain of a powerful noble they usually treated him as an equal, not as a governor. In the course of time so many contracts • had been made between the overlord and the town, in the shape of keuren, privileges, charters and handvesten, that the town regarded itself as an independent contracting party. AH the rights granted to the town were carefully registered from time immemorial, and these registei's or archives were regarded as
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EARLY CONSTITUTIONAL HIST. OF NETHERLANDS. 77
a precious possession. Between the thirteenth and fourteenth centuries* the towns of Holland followed the example of the larger towns of Germany, such as Cologne and Strasburg, and , collected all that was important in these registers into a kind of law-book for the town, called in Holland a stadboek, in Germany a stadtbuch. These stadboeken are of the greatest interest to both the legal historian and the antiquarian. I do not think it will be out of place at this stage to give some account of one of these stadboeken. It will enable us to form some idea of the state of the laws and the administration of justice in those far- off days.
Each town had its own body of municipal law, but this was so different from what we understand by municipal law that it would be very misleading to use that term. I prefer, therefore, to adopt the term " local law," though I know that this is also open to great objection. As a matter of fact we find that each town had* a body of laws and regulations which applied to matters of great weight and importance as well as to tilings of a most trivial nature. In many respects they remind one of the Transvaal Grondwet, which regulated the gravest affairs of State in one part, and in another the duties and charges of the market-master. The scientific study of law was unknown, and men made their laws as the necessities called for them, without any regard to order and sequence. After the revival of learning and the assiduous study of the Corpus Juris, a great change came over the scene, and these undigested local laws gave place to the scientific treatises of a Grotius or a Voet, though even then the different districts and towns retained their own peculiar privileges and customs.^ In order to illustrate the local legislation of the fourteenth and fifteenth centuries, I shall take
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78 HISTORY OF THE ROMAN-DUTCH LAW.
the town of Groningen * because its stadboek is perhaps some- what fuller than the others I have come across, and because it has been fully explained by the society, Pro excolendo jure patriae, in one of the volumes of the Verhandelingen ter nas- poringe van de luetten en gesteldheid onzes vaderlands.
The Stadboek of Groningen is divided into nine books or parts, and is dated 1425, though it contains provisions made all through the fourteenth century. It was drawn up by the burgomasters because, as they themselves say, they were desirous of maintaining their ancient rights and privileges. It begins with an account of how the town council and the burgomasters are to be chosen, and how their discussions and proceeding* are to be regulated. The second book deals with the law of intestate succession, and the subject is treated of in a series of articles very much in the same way as a modern code divides up the subject-matter, though of coui*se not so logically or clearly. In this book we find the peculiarity of the Frisian law as to community of property. Article 8 reads as follows : "In the year of our Lord, 1324, on Saint Peters day, the council and burghers of the town decreed that if a man takes to wife a woman or a young maid, and the marriage is con- summated, then the property of the spouses shall be in com- munity immediately after the consummation." In dealing
* As the law of South Africa ifi principally the law of Holland, in attempt- ing to give an idea of the local law8 of the towns I should perhaps choose some principal town of Holland. After careful consideration, however, I prefer to take the stadboek of the town of Groningen. It is true that the common law of Groningen was not quite the same as that of Holland, but for the purposes of giving a sketch of how the law was administered in the towns of the Netherlands we may with equal propriety take the stadboek of a town of Friesland or of Holland.
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with aacoefwion the Htadboek incidentally treats of legitimacy, the children of monks and nuns, secret marriages and the sale of an inheritance. This shows that logical sequence was not a matter of great importance in those days.
Tlie third book or chapter begins by telling us what fines Mhd penalties a person incurs by breaking the law. It then g^w^M on to treat of the penalties or damages a person incurs for slandering another. For the first offence the slanderer had to pay half a mark to the town and another half to the party slandered. Similar provisions are found in the laws of Amster- <iam and many other cities of the Netherlands. After this foilow8 a Maries of special lil)els or slanders, such as calling a {Mrrson a knave, a whoreson, a murderer, &c., with the appro- priate special penalty for each. This book then proceeds to deal with various kinds of assaults and maiming and the penalties attached to each limb that is cut off or injured. The fourth book deals with homicide, riot and serious breaches of thv peace. It begins with the words De wergeldo thttH rwingeld, Ami then goes on to deal with the various penalties for man- slaughter. Tlie 30th article of this book treats of a curious <fid ctiMtom which seems to have prevailed throughout the ;nvAU»r part of the Netherlands. If a person was killed, and It was not a deliberate murder, the guilty party was bound to pay wergeld lx>th to the town and to the relatives of the <l«*eeaAed; if, however, it was not known who had committed the homicide it was the custom for one of the relatives of the •1*^1 man to go to the grave and to call upon the unknown perpetrator or his relatives to pay the wergeld. This book pro- videa that if he does not come forward to j>ay. after being called upon to do so over the grave, then the homicide will be
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80 HISTORY OF THE ROMAN-DUTCH LAW.
considered murder (so sal men dat voer ene mcertdfiet Itolden), This custom existed in the seventeenth century, and was spe- cially abolished at Drenthe in 1614: Den dooden te gdde te bieden, hier bevorens in gebruik geweest zynde, zal niet meer geobserveert warden en de naaste vriewien van den dooden zullen geenen inoort over den dooden by het graf roepen latent.
The fifth book still continues with breaches of the peace, and* then proceeds to deal with injuries to property, setting out in detail the damages to be paid for injuring cattle, pigs, corn, grass, &c. Amongst other provisions we have one that if a dumb animal (onweten dier) . of one person* kills the dumb animal of another then no penalty is due. The sixth book deals with who are burghers, what their duties are and their privileges, and ends up with the rules as to sea-fishing. The seventh book opens with the various building regulations that obtained in Groningen ; it deals with churches and schools, and concludes with tlie penalties for being out after dark without a permit. The eighth book begins by imposing a penalty of five marks on the owner cf a house who allows any gambling therein. The passion of gambling seems to have been inveterate with the Germans. Tacitus in his Germania (c. 24) tells us that the Germans when quite sober play at dice as a serious busineas, and that so desperately that they will stake their liberty on a throw ; if they lose they voluntarily go into slavery. The customs of the various towns of Holland teach us that this passion was by no means extinct in the fourteenth century. In some towns it was the policy of the council to profit by this passion by setting up public gambling places {dobbel scholen). In others, again, there was an attempt to
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dieck gambling by imposing severe penalties on the keep- ing of gaming houses. Article 2 provides that "He who- by gambling wins the clothes off another's back shall, if the clothes are of any value, forfeit five marks to the town." In Amsterdam a person was allowed to lose the money he had with him and his clothes, but no more. In the next article, however, a certain form of dice play called worp tafd was- permitted, provided it was not indulged in at night. If a person played with loaded dice he was punished, and the money he won was forfeited to the town, and not returned to the loser. The next and following articles deal with robbery, theft and their .punishments, and, after discussing witchcraft^ coining offences and poisoning, it suddenly proceeds to consider the punishment for living with another man's wife. The book ends up with a few articles regarding pleading, which are rather important. "Neither man, widow, minor nor guardian may bring an action on worldly matters before an ecclesiastical court." If he did he forfeited one mark to the town. Such cases, how- ever, as were customarily brought before the ecclesiastical courts- he might bring without fear of penalty, but the onus of proving^ the custom lay on the plaintiff. When once a matter had been disposed of in the civil courts it might not be again ventilated before the Church courts, and if it were, the penalty was one mark. In Utrecht, where the sovereign lord was a bishop, the ecclesiastical court had great influence. This was a source of friction between Utrecht and Groningen. We find, therefore^, that the stadboek provides that no priest in Groningen may act on any instructions of the Bishop of Utrecht if such are in. conflict with the privileges of the town. The priest is told that he must disobey the orders of the bishop and report the:
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82 HISTORY OP THE ROMAN-DUTCH LAW.
matter to the town council, who will see him through the difficulty and pay all the costs and expenses incurred by him.
The next and last book opens with provisions regarding betrothal and marriage. As has been pointed out above, com- munity followed consummation of the marriage, but if the parties chase they could marry with antenuptial contract. This con- tr€k5t had to be made before some members of the council, but the terms could afterwards be varied by consent of parties and of two of the next of kin. Then follow the most minute pro- visions as to the expenses, dishes, pipers and other preparations that are allowed at bridal feasts. If the entertainers exceeded the limits laid down in the stadboek they forfeited various sums for the various breaches. It seems strange to us to find sump- tuary laws with regard to bridal feasts, but as these are not confined to atiy particular part of the Netherlands, we can only conclude that our forefathers were extremely lavish whenever a marriage took place, and that the good men of the council thought this lavishness undesirable. The law compelled the entertainers to appear before the council and give an account of the expenses incurred, and if they refused to do so they were mulcted in a fine. The rest of the book contains nothing but laws which would correspond to our town regulations
The country around Groningen was called the Ommeland. It possessed a code of laws of its own called the Landrecht van Ormneland, The origin of both these systems is to be found in the ancient customs of the Germans, but the more recent source from which most of these laws sprung was the veins jus Frist- eum, a privilege granted to the Frisians by Charlemagne. It is quite manifest, when we consider the provisions of the stadboek, that it could hardly have been a sufficient code of laws to regu-
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late all the relations of the citizens towards each other. Where the stadboek was not sufficient to decide a question recourse was had to the Jvs Frisicum or the Capitularia of the emperors, or to the Roman law. This occurred more especially towards the end of the fifteenth century.
Groningen has been merely taken as an example. Every town of any importance had its local laws, and as these were usually insufficient to meet the numerous cases that fell out- side of their provisions it was everywhere necessary to fall back upon some wider system of law. We have seen that in Groningen the Lex Frisica was appealed to, but in the provinces of Holland anjj Zeeland the Lex Salicay and sometimes the Lex Ripwariay were resorted to in the first instance, together with the modifications introduced by the Capitularia, If these, how- ever, were insufficient, the Roman law was appealed to. In " Utrecht the Canon law had great influence, for there the ad- ministration of justice was very largely in the hands of the eeclesiastica
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CHAPTER XIl.
THE COUNCII^ OF STATE.
We are now in a position to understand how the Councils of State came into existence and developed. The ordinary Council of State (Curia Comitis) prior to tl^e reign of Philip the Good consisted of the count or overlord (lorndsheer), his relatives, friends and favourites. The number of councillors was not fixed, nor was the place of meeting. It served not only as a parliament, but also as a supreme court for the nobles, and as a court of appeal for the provinces. Besides tht^ ordinary council there was the traditional Great Council consisting of the county nobles and freemen. This, however, was only assembled in times of great trouble.
Towards the end of the thirteenth century it first became customary to summon representatives of the great cities, such as Dordrecht, Delft, Haarlem, and Leyden, to the counfcil of the count. \
During the fourteenth century there are many occasions upon which the towns were called upon to send representati\\es to the Council of State. In 1465 Philip the Good called together a Council of State at Brussels, to which he summoned the noblej^^ the clergy and the representatives of the larger towns. This\ meeting was convoked for the purpose of obtaining supplies for •
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THE COUNCILS OP STATE. 86
the war with France, and to proclaim Philip's son Charles as hiB successor. From that time onwards it became the custom to summon representatives from the towns to the General Council together with the nobles and clergy. No particular rule was followed in summoning the towns, though apparently the largo towns were always appealed to, and the smaller only when the count thought fit to do so. Dordrecht, Haarlem, Leyden, Delft, Gouda and Amsterdam were always summoned, and in 1553 a petition was presented to Charles V by Rotterdam, Schoonhoven, Gomichem, Schiedam, Heusden, Vlaardigen, the Hague and other towns with a request that representatives from them also might be summoned. In 1583, after the War of Independence, twenty-three towns were summoned to the Great Council of the States-General.
The representatives of the towns were not elected by the burghers, but by the vroedschappen, or in some cases by the kies collegies, and in a few others by the guilds. As the various counts were not kings of a definite territory, but overlords of separate provinces before the rule of the House of Burgundy, the count seldom summoned a General Council of the various provinces. If he wished the advice of his Estates he convoked an assembly in each province, so that the Estates of Holland might be summoned independently of the Estates of Friesland, Zeeland and the other provinces.
An important Council of State created in 1455 was the Great Council of Mechlin. The object of Philip in creating this council was mainly to establish a supreme court of appeal for all his provinces. Its influence in the unification of the Roman- Dutch law was very great, thoagh it was always looked upon with distrust by the provinces as an infringement on their
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86 HISTORY OF THE ROMAN-DUTCH LAW.
Hberties. What especially vexed them was to be deprived of the right of refusing to appear before a judge who was not a judge of the province (jws de non evocando). Besides acting as a judicial body, this Groat Council developed into a privy council clothed with great power.
Philip the Good initiated the practice of summoning the Estates of all his provinces to meet in one general council It was mostly for the purpose of obtaining supplies (beden), and no legal right of being convened was acknowledged thereby. The Lady Mary was compelled, on account of the attitude of Louis XI, to appeal frequently to the assembled provinces. When, however, Margaret of Savoy was regent of the young Emperor Charles the General Assembly of the Estates of all the provinces was so frequently assembled that its power became very real, and it succeeded in making itself felt as an important element in the government of the State. It was during this period that the General Assembly was convened almost every year and sometimes two or three times in the same year. The Assembly dared to refuse supplies, and even went so far as to request Maximilian to put an end to the regency of Margaret of Savoy when Charles was only fifteen years of age.
Charles V completed what was initiated by the House of Burgundy. The General Council became, not only in name, but in fact, a legislative body with supervision over the ad- ministration. During the reign of Charles the Council General of the provinces was called together more than fifty times. The convocation of the General Council in which the towns were so largely represented had the inevitable consequence of aggrandising their power, for their wealth and influence con-
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stituted the backbone of the Netherlands. In this General Council, therefore, we see the precursor of the States-General of the seven provinces which formed the supreme governing body of the Dutch Republic. An account of the States- General and the States of Holland will be given in the next chapter.
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CHAPTER XIII.
FROM THE TIME OF THE REPUBLIC TO 1795.
It is not my intention to give a lengthy account of the history of this period. I shall confine myself to such important facts -as are necessary for a due comprehension of the development of the legal history of the Netherlands. The Reformation may with justice be regarded as the origin of the Dutch Republic. The direction the Reformation took in Holland was not the ecclesiastical system of Luther, but that of Calvin. Luther did not seek to divorce the Church from the Crown and so to destroy the doctrine of the divine right of kings. Calvin's doctrine, on the contrary, had that effect. Hence the form of government which was most acceptable to the reli- gious revolutionaries of the northern provinces was a republic. To this cause, however, must be added the revival of learning, which inclined the minds of the learned, and they were many in the Netherlands of the sixteenth century, towards the glorious days of the Greek and Roman republics. Besides these there were other reasons which induced the northern pro- vinces to establish a republican form of government. They could find no foreign sovereign to protect them: Elizabeth of England had refused the trust. As the people had just emerged from a struggle with kings, it was but natural for the Dutch to adopt a form of government which resembled their own municipal institutions and which had made Rome
mistress of the world.
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The great influence which the Reformation had in moulding the later history of Holland must not be overlooked. It was not a 8udden outburst of religious enthusiasm. For a long time past the people of the Netherlands had been dissatis- fied with the diasolute lives and selfishness of the monastic orders. Gerard Groote (1340-84), Wessel Gansfort (1419-89), and Erasmus (1467-1536) were all reformers. The glowing embers were ready for a Luther to cause them to burst into flame. The persecutions of Charles V and of Philip of Spain only tended to harden the hearts of an obstinate and courageous people,, and to drive them to extreme Calvinism. Hatred of foreign tyranny and the love of freedom, especially the freedom of religious worship, caused the Dutch to draw the sword; an indomitable courage and a lirm trust in Providence kept that 8Word in their hands until the tyrant was conquered and the Protestant religion safe. The revolutionary States cried out for tolerance of the Protestant religion ; the victorious Re- public was as intolerant of Roman Catholicism as Philip had been of Protestantism. The Calvinistic Church became a pillar of the State, and demanded that all officials of the Republic should be Protestants. As we shall see later on, the laws which had grown up under the 8Bgis of the Church were altered. Marriage was no longer regarded as a sacrament, and the authority of the Canon law was completely undermined. The story of William of Orange is familiar to every one. On the 9th August, 1559, William received his commission from Philip 11 as Stadhouder of Holland, Zeeland, and West Friesland. The title of stadhouder has nothing to do with the word sUidy meaning a town. It is derived from the word BUede, and means the steede or plaata hcmder, i.e, the person
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90 HISTORY OF THE ROMAN-DUTCH LAW.
who holds the place of another, a representative.* Hence in the commission, which was written in French, William is called Lieutenant. The counts of Holland had from early days been accustomed during their absence to appoint stedehoudera in the provinces to act as their representatives. The stadhouder had^ no legislative functions. He was an executive and administra- tive officer.
After William of Orange took up arms against Philip, his commission as stadhouder was naturally revoked, but he nevertheless retained the title. In the early days of the struggle the provinces pretended that they were not fighting the sovereign of the Netherlands, but his foreign emissary, Alva the Spaniard. At the convocation of the Estates of Holland on the 18th July, 1672, William was recognised as the Stadhouder of Holland and Zeeland. In 1576 came the paci- fication of Ghent, when Holland and Zeeland and thirteen provinces swore to uphold the liberties of the Netherlands. In 1578 followed the union of Brussels, and in 1579- was concluded the union of Utrecht, which was virtually the con- stitution of the Dutch Republic. In 1580 Philip declared the Prince of Orange an outlaw, and promised a purse of gold and a patent of nobility to his assassin. The next year (1581) saw the Declaration of Dutch Independence.
The Declaration of Independence was issued on the 26th July, 1581, in the form of a placaat. It was called the Act of Abjuration, and was signed by the deputies of Holland, Zeeland, TItrecht, Friesland, Brabant, Flanders, Qelderland, Zutphen, Overijssel, and Mechlin. It deposed Philip from his sove-
* In steede tYin= instead of.
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reignty, but it placed no hereditary sovereign in his place. An attempt was made to place Francis, Duke of Alen9on and Anjou, at the head of the confederacy, but this failed because Holland and Zeel^nd would have no other sovereign than William of Orange, ^There were, therefore, two confederacies — Holland and Zeeland under the stadhoudership of William, and the rest of the provinces iftider the leadership of the Duke of Anjou. The Prince of Orange refused to accept the title of Count of Holland. He preferred to retain the title of Stadhouder until the end of the war.
By the Act of Abjuration the provinces declared that the King of Spain had no authority over the Netherlands, and the use of his name and seal was forbidden under severe penalties. In 1582 the Prince of Orange accepted the hereditary sove- reignty of Holland and Zeeland under the title of " Graaf van Hdland," but before the preliminaries had been completed he was assassinated by the hand of Balthazar Gerard. Upon his death the Catholic provinces of the south made their peace with the King of Spain. After the Act of Abjuration the sovereignty of the United Provinces resided in the people as represented by the Estates of the nobles and the towns. The Estates had wished to confer the sovereignty upon William, but after his death they retained it in their own hands.
The States-General established a State Council to exercise the executive power in the provinces of Holland, Zeeland, Utrecht, Friesland and such parts of Flanders and Brabant as formed part of the Union. At the head of this council was placed the young Maurice, son of William the Silent, with the title of Stadhouder of Holland, Zeeland and West Friesland.
The constitution as established in 1584 remained the con-
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92 HISTORY OF THE ROMAN-DUTCH LAW.
stitution of the seven northern provinces, though modified in detail ft*om time to time. In 1593 it took the shape which it practically retained as long as the United Netherlands existed. The Union consisted of the provinces of Holland, Zeeland Friesland, Overijssel, Gelderland, Utrecht, and North Brabant. The sovereign power was the States-General, consisting of the representatives of these seven provinces. Each province was independent as far as local government was concerned, and possessed its own council or raad, but the seven provinces* formed a Bond State of which, 6ks I have said, the States- General was in reality the sovereign power, though its per- manent executive head was Prince Maurice. Each province was a member of the Bond State, and possessed a single vote. The number of deputies, however, varied. Holland and Gel- derland usually sent six, the spokesman of the representa- tives of Holland being the Raadpensionaris. The president of the Council changed from week to week. The senior deputy of each State presided in turn. The stadhouder only appeared in the Council when he had some proposal to make. Up to 1656 the title of the States of Holland was De EdeU Mogende Heeren; after that it was changed into De Edde Oroot Mogende Heeren. The title of the States-General from 1653 was De Hoog Mogende Heeren, myn Heeren de Staten Oeneraal.
The functions of the States-General were: —
(1) To determine peace or war ; to provide for the army
and navy;
(2) To levy taxes for the purposes of the Union;
(3) To exercise supreme control over the Dutch posses-
sions oversea;
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(4) To promulgate Placaats and Ordinances affecting the
seven provinces;
(5) To appoint officials, control the mint and do such
things as affected the welfare of the Union. The nobles were represented in the Council, but they had only one vote, and this was recorded by the Raadpensionaris. After 1608 eighteen towns were represented in the Council, each with one vote, recorded by the pensionary of the town. The provincial councils (Staten van HoUand, Oel<lerlandy &c.) made laws affecting the provinces, levied taxes each for its own province, and appointed both superior and inferior magis- tratea Qradually, however, Holland sought to obtain the first political place amongst the provinces. She began to assert that the States of Holland were independent, and that in them resided the sovereign power of Holland. She did not wish to withdraw from the Union, but she desired to act independently where she thought tit, and so by virtue of her wealth and powef to obtain the hegemony of the provinces. The death of William II (1650) gave her the opportunity. From 1650 to 1672 there was no stadhouder. During this time Holland usurped the lead of the other provinces, and the latter were obliged to acquiesce. Hollanders were appointed as officials in nearly all the provinces, and Hollander influence was exerted in every quarter of the Union. In 1658 de Wit, at the age of twenty-eight, was, as Raadpensionaris, at the head of the Republic, and the main objects of his policy were the aggrandisement of Holland and the downfall of the House of Orange. The former object was attained, but the murder of de Wit and the war against Louis XIV brought back the stadhoudership under William III (1672). After the death of
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William III once more a period intervened during which there was no stadhouder. In 1747 the House of Orange again took the reina of government in hand under William IV. After his death followed a regency, and then William V became stadhouder. As a sovereign he was incompetent, as a man he was contemptible. The States-General once again asserted their right of sovereignty, substituted the arms of the States for those of the House of Orange in public documents, on the regimental colours, and even on the State furniture. In 1789 broke out the French Revolution, and the stadhouder joined the alliance of European monarchs. The revolutionary party in Holland gained the upper hand, and during the winter of 1794-96, when the stadhouder fled to England, the Dutch welcomed the French. The Dutch Revolution was complete and the Batavian Republic established. Holland then fell completely under the French, at first as a kingdom under Louis Napoleon, and later as an integral portion of Napoleon's empire.
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CHA.PTER XIV.
INTRODUCTION OF THE ROMAN LAW INTO HOLLAND.
I SHALL now proceed to consider how the Roman Law came . to be introduced into Holland. In dealing with this subject I shall first treat of the Lex Romana as it existed during the Prankish monarchy, and shall endeavour to show that the influence of the Lex Romana was constant and never died away completely. I shall then pass over to the revival of the study of the Roman law in Italy and western Europe, and show how the consequence of this revival was the dis- appearance of the old law books, such as the Breviarium Alaricum, and the introduction of the law books of Justinian. This will bring me to a consideration of the gradual develop- ment of the study of Roman law from the twelfth to the sixteenth century. I shall then briefly summarise the manner in which the Roman law came to be regarded as almost " equivalent to the common law of Holland. This part of our subject will, therefore, naturally divide itself into, (a) the Lex Romana during the Frankish period; (b) the Roman law during the rule of the early counts ; (c) the Roman law during the twelfth and later centuries; and {d) the position of the Roman law in Holland during the fourteenth and fifteenth centuries.
(a) Lex Romana during the Frankish Period. — In addition to the laws embodying the German customs, our forefathers in the Netherlands were acquainted with and
frequently employed the Roman law or the Lex Romana, as it
95
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96 HISTORY OF THE ROMAIC-DUTCH LAW.
was called in contradistiuction to the bodien of Germanic or Frankish law. It has been a favourite subject of controversy at what exact time the Lex Romana was introduced into the Netherlands. Some authors deny that Roman law had any influence in Holland. Fockema Andreae (Bijdragen, vol. iv^ p. 434, says: "The force of the Roman law in Holland and Zeeland has often formed a subject for discussion. As far as this refers to the question when and by what statute or resolution it has been incoi*porated the investigation must be fruitless: such a legal acceptance of the Roman law .has never occurred. . . . We see, therefore, there has never been any re- cognition of the Roman law even as a subsidiary law."
In 1782 the Brussels Academy proposed the following question : Depuis qvAind le Droit Romain est il connu dans les prcnrinces dea Pays-Baa autrichiens et depuis quand y a-t'U de force de loi / De Bergh, whose essay was crowned by the academy, answered that there was no trace of the Roman law having been in use in the Netherlands prior to the twelfth century, and that it was not recognised as raison icrite until the end of the fourteenth century. This called forth a very virulent article by Raepsaet in support of the view that Roman law had been constantly invoked in the courts of the Netherlands from the days of the Frankish monarchs.
Although it is clear that there was no special Ordinance by which the authority of the Roman law was established, it does seem more reasonable to accept the view that the Roman law was always appealed to since the days of the Frankish monarchy, than to believe that what was undoubtedly the common law of Friesland in the fourteenth century and of Holland in the fifteenth century was introduced en bloc as a
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foreifi^n law some time after the rule of the counta The- tenacity with which all people, and the German nations in- particular, cling to their laws and customs seems to militate aorainst the view of a sudden introduction of the Roman law.. If we accept the view that the Lex Ratnana prevailed and! w&s appealed to throughout the Frankish dominions and,, therefore, in the Netherlands, at the time when the monarchy of the Merowigs was founded, then the gradual extension of* its authority in Friesland, Holland and the other provinces- of the Netherlands is easily underatood. But if we accept the conclusion that the Roman law was not in any way appealed to until the fourteenth century, then it becomes difficult to understand its complete and universal reception a^ few centuries later. This reasoning is purely a priori ^^nd therefore, by no means conclusive ; but I think that the con- clusion arrived at can be supported by sufficient facts to* justify the acceptance which it has received from such writers as Merula, Huber, Raepsaet, Van der Spiegel and De Haas.
We have seen that for four centuries the Romans ruled ini the Netherlands. During that time no doubt Roman laws and customs exercised some influence on the people; but as this period was followed by the invasions of the Saxons and Frisians almost all, if not all, traces of Roman law must have disap- peared. We cannot, therefore, regard the Roman occupation as the period from which dated the adoption of the Roman law. It was not until after the introduction of Christianity into the Netherlands that the Roman law once more began to influence the settlement of disputes. The ecclesiastics did not refer directly to the Roman law, for their law was to be found in the canons of the Church ; but these very canons, as I shall endeavour
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to show later, embodied many of the principles of the Roman law, and were founded upon Roman jurisprudence. Indirectly, therefore, a reference to the Canon law meant a reference to the Roman law. The use of the Lex Ecclesiastica familiarised the inhabitants of the Netherlands with many of the principles of the Lex Romana. In order to understand the influence of the Lex Romana in the Netherlands after they became a portion of the Frankish monarchy, and after the establishment of the rule of the counts in Holland, we must first form some idea of the position of the Roman law in the courts of the Carolingian monarchs.
Besides the Lex Salica and the Le^ Ripuaria there were two other bodies -of law which applied to a considerable portion of the Frankish monarchy — the Lex Rurgundiomcm and the Lex Visigothorum. Although the Burgundian kingdom did not long survive Gondebaud, for it fell into the hands of the Franks in 584 a.d., the national law of the Burgundians survived for some time, until it was almost completely replaced by the Lex Visigothorum. The latter was probably first started in the reign of Eurick, though its first important com- pilation was made by Alaric II in 506 a.d. It was then known as the Lex RoTtiana Visigothoriiirty and was the law applicable to the Gallo-Roman subjects of Alaric. The collection of laws was made by Anianus, Alaric's chancellor, from whom it came to be known as the Breviariiim Aniani. After the tenth century it was usually called the Breviarium Alaricum. Its preface begins thus : Jncipit Lex Rorruxna ; in hoc corpore contiiientwr leges sive species juHs de Tfteodosiano et ex diversia libris selectae et sicut precept it in eit expUmaiae anno XXII regnante domino Alarico rege ordinante viro ilhiMri Goiarico
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comite, exemplar auctoritatia. Alaric enjoined that this Bre- viarium should be regarded as an authoritative code, for he says: Providers ergo te convenit lit in foro tuo nvMa alia lex neque juris forviulu proferri vel recipi praemiTvmtur. This Breviarium contained not only a summary of the Codex Theo- dosianus, but also extracts from the Institutes of Gains, and the Sentences of Paul.
Heineccius {Hist. Jur. Germ. 1, 1, 15), Van der Spiegel {Oorsprong, p. 74) and Savigny {History of Roman Law in Middle Ages, chaps. 8 and 9) are of opinion that this Breviarium. was, during the earlier part of the middle ages, the favourite text-book from which the principles of the Roman law were gathered. It was frequently called the Codex Theodosianus, Leges Theodosianae or even simply the Lex Rornana. Although the law-books of Justinian were promulgated soon after the compilation of the Breviarium, it was not until a much later date that they became familiar to the jurists of western Europe. As we have already seen, the Franks were not in the habit of suppressing the laws of those whom they conquered. There existed, therefore, in France, on both sides of the Loire, recog- nised bodies of law which were known by the generic term of Lex Rom^ana, and of these the Breviarium Alaricum came in time to be considered as the most convenient text-book.
In addition to the Breviarium there existed another com- pUation, also mainly based on the Theodosian Code and chiefly used by the Burgundians, called the Librum Responsorum Papiani (Hein. Hist Jur. Oerm. 2, 1, 16, 17). Both these text- books were used throughout the Frankish monarchy, and
»
therefore, also in the Netherlands when reference had to be
made to the Lex Romano. Though botn the Lex Salica and the
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Lex Ripmiriff contain references to the Roman law, yet upon examination of these Codes we find that they are mainly con- cerned with the Jus Personarum, Of the Jus Remm and the Jus Ohligationum very little is found in the early laws of the Franks. It is, therefore, easily understood that as soon as the legal relations of men became more complicated, recourse was had to some body of law uiore advanced than that of the con- quering Germana
As commerce, which was practically unknown to the early Germans, began to grow, the disputes engendered thereby had to be settled by reference to some stable and scientific principles. What more leasonable than that the judges should have recourse to those Roman laws which had for centuries regulated the legal relations of a highly civilised and energetic people. It was not as though these laws were only to be found in learned books; they were daily referred to in the decisions of disputes which arose amongst the Gallo- Romans, for the conquered inhabitants of Gaul continued even after the establishment of the Frankish monarchy to live under their own laws. This will also account for the fact that most of the cases that have come down to us, where the Roman law was applied, were disputes between persons of considerable means. These were the persons in a position to make wills and donations, to endow their wives and to manumit their slaves, and to enter into commercial transac- tions. Examples of such transactions may be found in Matthaeus, De Xobilitate, bk. 1, c. 27. We learn that Agathias, who wrote in the sixth century, speaking of the Franks and Germans, says : Ro'inuLiiae eos politicie non omnino exsortes esse Romamasque inter se leges et eosdeTn in contractihiis connuhiisque Tnores servare.
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The learned men of those days were the ecclesiastics, and they were also the lawyers of that time. In the Roman laws they found the Church supported as a State institution, and respect inculcated for her functionaries and her possessions. What therefore was more reasonable than that they should teach a reverence for the Roman law and reliance on its authority. Gregory of Tours thus praises a certain Andarcius (bk. 4, c. 41) : QtMd operibuH Vergilis, legis Theo<lo»ianae libris, arteqwe adeuli adplene ervditus fuerit (Van der Spiegel, pp. 74-77).
In his History of the Roman Law in tJui Middle Ages Savigny devotes several chapters to the influence of the Roman law in the Frankish monarchy. He points out that in the CapitulaHa there are many references to the Roman law. The books from which these are taken are principally the Breoiariiurif the Code of Theodosius, the Epitome of Julian, the Sentences of Paul, and in the later laws even the Code oi Justinian. Van der Spiegel (p. 81) quotes a eapitulare of Charles the Bald in which these words occur : Super illam legem (Ronmnam) vet contra ipscun legem nee antecessores nostri qitodcamqtt'e capitidam statuerunt nee aliquid constituimus.
Savigny, dealing with the extant documents, says (ch. 9, sec. 37), "There exists a number of documents which bear testi- mony to the u.se of the Roman law in the Frankish Empire." He then proceeds to enumerate a large number of these, but as they refer exclusively to France it is unnecessary to *|Uote them here. In dealing with the teaching of Roman law in the Frankish monarchy he tells us that there were in those days no schools of law properly so called. The study of law both for the Gallo-Romans and for the Germans was practical. The notaries and the scabini had a practical knowledge of law, but the sources
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of the Roman law formed part of the subjects read in the schools, and Roman law was studied side by side with dialectics. Besides those Frankish writers who wrote glossaries on the BreviariuTn there were compilations of formulae in which we find a good deal of the principles of the Roman law, such as (a) the formulae of Angers ; (6) those of Marculfus ; (c) those of Sirmond ; (d) the formulae Bignonenses; (e) the formulae Baluzianae minores; and (/) the formulae Mabillonis. In addition to these Savigny mentions the PetH Exceptionea (i.e. eoccerptionea) Legum Raman- orum, which was a text-book containing a systematic exposition of law, and to a very large extent of the Roman law (Savigny's History, vol. 2, c. 9, sees. 44-56).
We have seen in a former chapter that laws were to a great extent personal, and that in the Frankish Empire people lived under their own law. This applied to the Netherlands as well as t(T the possessions of the Franks in Gaul. The judges were, therefore, obliged to have some knowledge of the various laws which prevailed in the Frankish Empire, and more especially of the Lex Romana, as this not only occurred more frequently, but as it was the only jurisprudence on which systematic treatises were to be found, and the one most useful for settling disputes arising out of commercial transactions. No doubt there was a considerable confusion in the application of all these laws, but as the Lex Rovuina was the most widespread, and as it was more in agreement with the Jms Canonicumy it was the one system least likely to increase the confusion. Bishop Hincmarus writ-es in the ninth century : Quando aperant oh id lucraH ad leaem Romanam ae convertunt qv/indo vero per legem non a^Mitnant acquirere ad Capitula confugiunt A contemporary oL Hincmarus says, " Let them know that on the
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Day of Judgment they will be judged neither by the laws of the Romans, nor of the Salic Franks, nor yet of the Burgundians, but by the laws of God " (Van der Spiegel, p. 83).
As the Ca'pitularia gradually became more and more com- plete they took the plfiWJe of the various German and Frankish laws. The Lex Romana also lost a great deal of its force, though part of it was no doubt incorporated in the Capitularia. There is frequent reference in the Gapitvlaria to the Lex Rcntuwna: "Ut jtusta Romanain legem hoc corrigantnr /' ''Inter Rofnanoe negotia cauaamm Romania legibua praedpiumua terminaH" (Hein. Jur. Oerm, 2, 1, 44; Cajnt. 4, sec. 45). In a constitution of Chilperic reference is made to the Lex Tricenuria, which is taken directly from the Codex Tfieodo- siamua. Wherever business was carried on to any extent the native laws and customs of the Germans were quite inade- quate to deal with the new order of things, and the principle of the Lex Romana were resorted to in order to supplement the lacunae of the Frankish laws.
The Lex Romana was never recognised in the Netherlands, either during the period of the Frankish monarchy or during the rule of the counts, as the common law of that territory. It was only admitted in a modified form to supplement the deficiency in the local laws and customs. All that I have tried to show is that during the Frankisli period the Roman law was not dead and forgotten, and that when later on it played so vigorous a part in the legal system of the Netherlands it was not appealed to as a newly discovered system of jurisprudence, but as a system which, for several centuries before the birth of the Bologna school of law, had been referred to in the courts of the Netherlands.
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CHAPTER XV.
(b) ROMAN LAW DURING THE RULE OF THE EARLY COUNTS.
It has often been asserted that during the anarchy which fol- lowed upon the splitting up of the Carolingian dynasty law- books were destroyed and the Latin language lost. No doubt during the inroads of the Northmen on the coasts of Holland and France a great number of books, legal as well as eccle- siastical, were destroyed; yet it seems somewhat far-fetched to hold that the destruction of law-books was so great that all knowledge of the Lex Romana was lost. The lists of several of the libraries of that time contradict this assertion most emphatically. A more important factor in the decline of the Roman law was the ignorance of the Latin tongue during the tenth and eleventh centuries. The inroads of the Northmen coincide with the period of private wars and of the anarchy of the middle ages.
Gerlache, speaking of this period (Esstii tmr le-s Gravdes Epoques, p. 97), says : " Eighty years of plunder and murder had made a wilderness of the fields ; the towns were like oases in the desert ; the wealth of the monasteries was destroyed ; the people were either slain or else they joined the raiders ; all the essentials of political life >vere confusedic kingship, nobility and clergy were confounded; and every tie of civil society broken." This state of anarchy and confusion con- tinued all through the tenth, eleventh and twelfth centuries.
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Ifabillon called the tenth century a century of slaughter and inisery {scieciilum fen**iicm ef infausticm). No wonder that -during tliese dark ages Latin had lost ground as a language, -and Roman law was in a period of decadence. The Council ■of Mayence (847 a.d.) complained that the priests were igno- rant of Latin, and enjoined them if they could not compose sermons to read the homilies in the vulgar tongue. It seems <|uite clear that during these dark centuries the Roman law could not have been readily referred to except in the highest courts. By this time, however, a great deal of the Roman law had been so accepted in the territory of the Carolings that it formed part of the customary law of the land.
It is extremely difficult to lay one s hands on the writings of ^ny author who recognised the Roman law as authoritative or as supplementary. Hence some writers have gone so far AS to say that with the loss of the Latin language Roman law completely disappeared in the Netherlands between the tenth and fourteenth centuries. If the priests could not undei*stand Latin, the probability is that the judges were also ignorant of the language ; and if the judges knew no Latin how could they refer to the Roman law ? Both Raepsaet and Van der Spiegel deal with this question, and the conclusion they come to is that the Roman law was neither forgotten nor allowed to fall into disuse. Ce pr^tendu oubli et cette demi^iibde dans lesqueln strait tombe, le droit roinain du X^ au XIIP siede en Fnivce et daiiM len PayS'Bas est done tine chim^re incentee par les ecrivains ^igera et superficiels et accreditee par ceiu^ qui frouvent ^>Z?t.s commode de r^utre toiite la jurispradeV'Ce d Vaequiun et bonum cerebHnum que de se liorer a de tongues Etudes,
Van der Spiegel points out that if we compare the language
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106 HISTORY OF THE ROMAN-DUTCH LAW.
of the charters with the Frankish and the Roman laws we find
that there is a great similarity. Moreover, he thinks it highly
improbable that the counts of Holland would have suddenly
abandoned the laws of the monarchy under which they lived,
and to which they looked for support. To what laws did they
refer their disputes ? It is hardly credible that at a time when
the towns began to assert their importance, and when the growth
of trade and commerce became marked, the people of the Nether- e- lands should have resorted to the ancient Germanic laws rather
than to the later laws so much better adapted to the needs of a civilised people. " I think from all these facts I may safely con- clude that the state of the laws in this country remained the same after the commencement of the rule of the counts as it had been in the Frankish period. It is for him who alleges the contrary to show that a change took pla^e" (Van der Spiegel, p. 93).
Professor Poullet, who has recently written a history of the institutions of the Netherlands, points out that towards the latter end of the Carolingian monarchy the distinction between the law administered in the various provinces of the Netherlands was not very great. Naturally the nearer to France the greater the influence of the Roman law. In deal- ing with the sources of the law of the Netherlands he says: " In the Netherlands, as in the north of France, the Droit Cou- tivmier prevailed. The Roman law was never regarded as the principal law. The only question is within what limits was the Roman law considered as having any force in this terri- tory during the middle ages. This matter has given rise to considerable disputes, and during the reign of Joseph [of Bel- gium] in the former century (eighteenth) it was obscured by
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political views. This is not a place to go too deeply into the question^ It is enough to say concerning this matter that there are two essential points to be remembered. Numerous facts prove that the Roman law has never been completely forgotten in the Netherlands, and that certain rules estab- lished by this law have never fallen into desuetude. Other facts no less numerous and no less convincing show that the rules of the Roman law, accepted as the basis for legal decisions, were observed less on account of their legislative origin than becaase they had ptissed into a tradition which regarded them as necessary, and which constantly invoked them [que pour itre passSes dans une tradition constctntp. et nicessaire], and that if the judges and the national practitioners had recourse to the Roman law it depended on the extent of their know- ledge merely as a reference, and not because it was obligatory " (Histoire des Institutions des Pays-Bos^ vol. 1, p. 340).
Naturally the influence of Roman law in the northern provinces was less than in the south ; it would, however, have been extremely difficult in the tenth century to say on this side of a line the influence of Roman law was felt, but not on that. The more reasonable view seems to be that the in- fluence of Roman law infiltrated the whole of the Nether- lands, and its principles became mixed up with those of the customary law, which formed so large a part of the jurispru- dence of the Frankish monarchy. In other words, it helped to mould and shape the customary law which was so jealously guarded. The counts were obliged to swear to the people that they would maintain the laws and charters that obtained at their accession. " Ego Florentinus, etc., omnihtis Twhilibus ut hanc legem sive Chartam eligeretit sibi, concessit qiiam ego.
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108 HISTORY OF THE ROMAN-DUTCH LAW.
•et dominies Henricus de Voame cortfirinamits" "Die grave van ZeeUtnd is schtddich de keure van Zeeland te zweren met zijne barggrave" (Keure van Zeeland, 1290, sec. 80).
It is clear that besides the keuren* and handvestenf there ■existed a kind of common law or landrecht composed of what was called the oiide costiimen. What these old customs were our authorities do not state, but from numerous charters and -extracts Van der Spiegel concludes " that it is certain that these old customs were nothing but the old laws and cus- toms which had grown up with our forefathers ; they were the mares Genminorum, the laws of the Franks and the neighbouring nations, and the then known Lex Romana'' <Van der Spiegel, p. 95).
That the Roman law was often referred to before and during the tenth and later centuries as Conxuettido Romana is capable of proof. We find in the Lex Burgitndionwm: ^i qiils post haec barbcu'us testari volaerit vel donare ant Romanam Consnetthdinem aiit harharicam esse servandam sciat (tit 60, c. 1).
In the catalogue of the library of St. Bertin, in the town of St Omar, the Roman law is indicated by the words Con- siLetudinum legxim Romanaricm. This shows, moreover, that in 1104 A.D. Roman law-books were to be found in the towns of the Netherlands (Raepsaet, vol. 4, p. 95).
It maj'^ be that a great deal of this Consitetitdo Romana was traditional between the ninth and thirteenth centuries, unless we are mistaken in our supposition that the Latin language had fallen so into disuse as not to have been under- stood. But even if the Latin language was not universally * I^cal enactments. t Charters.
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understood at the court and in the larger towns, at any rate^ there were always ecclesiastics and lawyers who could read and understand it. Raepsaet points out that where the sche- penen were ignorant of the law they used to refer their diffi- culties to persons skilled in the law, called as^e^soi^es, Thia idea of reference to a jurisconsult was no new one. It had existed in the Roman law. The reference was known to the Franks when a suit had ^ be determined between two per- sons of different nationalities and the judge was ignorant of their laws. Although we find no mention of assessores in the writers of this period, we find them later in the towns of the Netlierlands. The i^ensionatnes are probably a relic of this custom. In Flandere there was an old law that the judges in the seignorial courts had to send the records of cases heard by them to three advocates (called advocati pi^o judice) of an adjoining town for their advice. This law was probably the legislative enactment of a custom which had existed ever since the days of the Franks (Raepsaet, vol. 4, p. 94). The practice of Hofvaart (i.e. for the schepenen of smaller towns to consult the courts of the larger towns), Van der Spiegel thinks, was not on matters of fact, but on tjuestions of law. In the larger towns there were always either laymen or ecclesiastics skilled in the Roman law, and when ques- tions were referred to them which the local statutes could not solve thej' resorted to the system they knew most about, viz., the Roman law.
As against the view that the Roman law was used to supplement the defects in the Codes of the Franks, it has been pointed out that there are a number of charters which show that the judges were required to give their judgments according
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to their innate feelings of what was right, if they could find no definitely accepted custom (Fock. And. Bijdr. vol. 4, p. 435). They were required to pronounce judgment ''na recht en na oordeel;** ''na (xiide Costumen en na beate oordeel;'' ''na den gemeenen landrecht en na hunne fijf zinnen ;" "na de beate redelijkheid en na den ouden hercomen,'* Now what was meant by the terms in accordance with the landrecht, i.e. law of the country, and " nu kunns Jijf zinnen" i.e. according to their common-sense.
We find that the Oapitularia as early as 802 a.d. required the judges to give their opinion according to the Lex Scriptay *' %bt judices secundain acriptam legein non aecunAum arbitrium 8umn, judicant" They were expressly enjoined not to judge according to their sweet will, but to follow the Lex Scripta, What was the Lex Scripta ? Van der Spiegel is of opinion that the Lex Scripta meant the various compilations of laws then in existence, such as the Lex Salica, Lex Ripuaria, the Leges Bnrgitndion.uvi and Visigothorum, the privileges of the towns and the Gapitxdaria, To these must be added the Roman law as found in the Brevvartum Alaricum and a great deal of the Canon law. We find similar language used in the charters of the fifteenth and sixteenth centuries, and there the words beschrenen wetten;" " gemee7ie beschrevene wetten;'' and "be- Hchre^mne rechten'' always mean the Roman law (Scheltinga, oaI Grot. 1, 22).
Raepsaet points out that the seignorial courts were required to pronounce their judgment aecundwm Rectum, 'and that Rectum meant the Roman law (Raepsaet, vol. 4, p. 92; Du Cange, GU^ssarium, sub voce Rectuin). A further proof ad- duced by Van der Spiegel is that in many cases the judges of
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ROMAN LAW DURING RULE OF EARLY COUNTS. Ill
the small towns were required to consult the judges of larger towns, such as Leyden (Van Mieris, G.CB. vol. 1, p. 63). If, therefore, by the words na hunne fijf zinmen were meant their peculiar notions of what was right, then it seems objectless to have required them to refer to the practice of other towns. Van <ler Spiegel thinks that the reason the judges of the smaller towns were required to follow the practice of the larger towns was that the lawyers of the larger towns were supposed to have a greater knowledge than they of the landrecht and the Lex Scripta, The expression, therefore, " according to their five senses," meant little more than according to their conscience and according to such legal principles and precedents as the judges knew of, or could become acquainted with by refer- ence to those who knew more than they.
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CHAFfER XVI.
(c) THE STUDY OF ROMAN LAW DURING THE TWELFTH AND LATER CENTURIES.
I HAVE shown that the Roman law to which reference was-
made during the Frankish monarchy was not the law as
found in the law-books of Justinian, but that which had been
compiled by Anianus from the Codex Theodoaianiis. About
the twelfth century a purer and better form of the Roman
law came to be introduced. The law-books of Justinian,
though not known to western Europe, had never been quite
forgotten in Italy. In the eleventh century the law school
of Bologna took up the neglected study of the Roman law.
In the twelfth century it had become a seat of learning of
great importance. A tale is told that in 1135 A.D., after the
siege of Amalfi, a valuable manuscript containing the whole
of the Corpus Juris of Justinian fell into the hands of the
Pisans. Some have ; attributed the revival of the study of
JiLstinian to this fact, though according to the best authorities
this view is fanciful. The Corpus Juris of Justinian was
studied before the siege of Amalfi, though the date oi- this
vsiege synchronises with the great activity in the study of the
pure Roman law. A crowd of students flocked from all parts
of Europe to Bologna to study Roman jurisprudence, and
returning to their own countries taught the Roman law of
the Corpus Juris of Justinian.
Bernardus, Abbot of Clairvaux, complained that at the palace of Pope Eugenius he heard more about the laws of
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Justinian than about the laws of God. The Church digni- taries in Germany were well acquainted with the Code of Jus- tinian, and there is no reason to believe that the high Church dignitaries of so important a see as that of Utrecht were not as well informed as those of MUnster. We know that scholars went from Friesland and Flanders to study law in Italy (Savigny, Histoi^y, p. 19), and we may, tlierefore, fairly assume that the law-books of Justinian were not unknown to the higher Church and State officials of the Netherlands. Its superioritj' to the law of the Theodosian Code came to be recognised, and in time it completely supplanted the latter.
In Germany the Corpus Jiiris of Justinian was well known in the time of Henry II (1002-1024), for he passed a law^ with regai-d to the oaths of ecclesiastics in which, inter alia, we find, CicTYi dimis Justiniamcs jure decreverit ut canones jmiruin Hm leguni habere (Van der Spiegel, p. 105). This very law was in all probability known to the ecclesiastics of Utrecht, for this emperor was a great supporter of the bishops of that city. Frederick Barbarossa in 1158 summoned to the Council of Roncalie four of the pupils of Irnerius, the great Bologna professor of Roman law. Now at these Councils were present many of the counts and bishops of the Netherlands,, and they must have become acquainted with the influence and prestige of the teachers of the civil law of Justinian. More- over, many of the counts of Brabant, Luxembourg and Lim- burg had studied law in Italy, where at that time only the Corpus Juris of Justinian was recognised as authoritative. Id this way, then, the law of Justinian took the place of the law of Theodosius, and helped to build up the common law of the Netherlands.
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In order to understand fully the impulse which the study of Roman law received in the eleventh and twelfth centuries, we must have some comprehension of the great influence exerted by the Italian universities. Bologna, Pisa, Padua, Perugia and Venice were practically small, though extremely energetic republics. They vied with each other not only in commerce, but also in learning. Their universities differed from ours inasmuch as they were the sole seats of learning. No gymnasia, colleges and high schools competed with them. Hence thoj' attracted not only all the young men of their respective towns, but the youth of the empire. Learning did not then consist of the numerous subjects taught to-day; it was practically confined to dialectics, law, theology and medi- cine, and of these law and theology were the favourite sub- jects. Again, the .study of law wtis practically confined to the Corpus Juris of Justinian, and the Epitome of Julian. From Italy the study of the Roman law spread to the universities of France (Paris, Montpellier, Orleans) and to those of Spain, Portugal and England.
A short account of the men who spread the knowledge of the Roman law of the Corjyiis Juris throughout Europe may not be amiss here. All historians seem to agree that the founder of the Bologna school of law was Irnerius. He was born at Bologna, and was during the years 1113-18 in the service of the Countess Mathilda and of Henry V. Besides teaching law at the University of Bologna he edited the Corpus Juris, and wrote glosses upon the text. The com- pilation of the Novels as printed in the Corpus Juris is be- lieved to be due to Irnerius. He is also credited with having collected or composed a volume of formulae for the use of
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notaries. Certain writers of the thirteenth century refer to some Quuestiones as those of Irnerius. Few of the above works have come down to us except in so far as they have been incorporated in .the works of later authors (Savicrny, History, vol. 4, c 27).
Towards the middle of the twelfth century there lived at Bologna four jurists who had acquired so great a reputation that they are always cited as the Quutuor Doctor eSy or the four doctors. Their names are Bulgarus, Marthinus Gosia, Jacobus and Hugo. They are said to have been pupils of Irnerius. Of these four doctors Bulgarus seems to have held the first place in public esteem. Besides being a professor of law, he held very high political and judicial offices. He wrote glosses, a commentaiy on the De Regulis juris, and a treatise on the law of procedure. Marthinus Gosia was a Ghibelline, and as such was banished from Bologna. He is chiefly known by his glosses. Of Jacobus we know very little except that he composed glosses. The same may be said of Hugo, or Ugo, as he is often called.
The four doctors acquired considerable reputation during the twelfth century. They were great favourites at the court of the Emperor Frederick, and were consequently violently attacked by writers belonging to the anti-imperial party. Their glosses, however, enjoyed much reputation during the twelfth and • thirteenth centuries. Other lawyers of the twelfth century were Rogerius, Placentius, Bassianus, Cyprianus, Otto, Burgundio and Vacarius. The last of these taught law at Oxford.
The first great law teacher of the thirteenth century was
Azo. A story is told that be had as many as 10,000 students,
80 that he was obliged to lecture under the open sky. He
occupies an important place amongst the glossators, and a
u2
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knowledge of his works was apparently regarded as essential to the success of a lawyer, for there existed an Italian say- ing— Chi non Jut Azo ncni vada a Palazzo ("He who did not know the summary of Azo had poor chance of success at court ")• Another great lawyer of the thirteenth century, and a contemporary of Azo, was Hugolinus. He was ambassador of Bologna at Rome, Florence and Reggio. His chief works are glosses, Qitaestiones, and controversies on disputed points of law. Jacobus Balduinus, Carolus de Tocco and Accursius were the last great names of the old school of glossators. Accursius was the pupil of Azo. He was a lecturer on law for a period of forty yeai's, and became assessor to the Podesta of Bologna in 1252. He died an exceedingly wealthy man in 1260. His gloss is un(|uestionably the most important of those composed by the old glossators. Savigny, in dealing with the glass of Accui*sius, says {History, vol. 4, p. 149): "The gloss [of Accursius] is of great historic value to us, because the greater part of the works referred to by Accursius have been lost or are unpublished. It has rendered to the science of law- the same' service as did the compilations of Justinian. Indeed, it hiis preserved the memory of the glossators and of their works better perhaps than would have done those works them- selves. . . ." The success of this gloss was extremely great. Before the tribunals it almost obtained the force of law, and Acci\rsius was looked upon as the most eminent lawyer, not onl}^ of his own, but of all preceding centuries. Some towns decreed that Accursius' interpretation of the Roman law was to be accepted as final. When once the authority of the gloss of Accursius was established the ancient glosses were com- pletely neglected, and neither read nor copied. Often the
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ancient glosses were actually destroyed and erased in order to enable the copyist to use the parchment for the gloss of Accursius.
Accursius was the last of the old glossators. Their in- fluence upon the study of Roman law had been very great. We may smile at their useless disquisitions and refinements, yet we must acknowledge that they did a great deal towards the scientific study of the Roman law. They helped to estab- lish the text of the 6W/>u^ Juris, and by their exegetical as well as dogmatic treatises they assisted the jurists of the fifteenth and sixteenth centuries to understand the true mean- ing of the Roman law. No doubt a great deal of their work was useless, for they often had to grope in the dark. Of the history of the development of the Roman law they knew little or nothing, for the works of Gains, Ulpian and other pre-Justinian writers were very imperfectly known to them. Though our knowledge' to-day is far gi*eater and our method superior to theire, we owe to them a debt of gratitude for the ^^tivity they displayed in resuscitating the study of the Roman law.
From the middle of the thirteenth century the schools of law changed the character of their teaching. Instead of a scientific exposition of the civil law we come upon an era of great prolixity, with very little originality. The first of the new school, or perhaps the last of the old school, was Odo- fredus, the pupil of Balduinus and for some time the contem- porary of Accursius. To the latter half of the thirteenth century belonged Guido de Suzaria, Andreas de Barulo, Vicentius and others whose names may be passed by.
The fourteenth century saw a revival in the scientific
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method of teaching and expounding law. The jurists of this century largely introduced dialectics in the study of law. The number of writers on the theory and practice of law during this century was very large, and I shall, therefore, content myself with some of the most eminent names. In France Johannes Faber had acquired a great reputation. He criticised the prolixity of his contemporaries, taught in the French language and became a great authority on the practice of tlie courts. In Italy the principal jurists were Cinus, Bartolus de Saxoferato, Baldus, and Lucas de Penna. Of these Bartolus was the most celebrated. In Spain the opinions of Bartolus were long considered as conclusive upon the cjuestions discussed by him. His commentary on the Code was trans- lated into Portuguese, and regarded of equal value to the text and the glosses. At Padua lecturers explained the text of the Corpus Jurvi, the gloss and Bartolus. Many consider him (though according to Savigny erroneously) the founder of the Commentary so largely used by the writers of the fifteenth and sixteenth centuries. It was during this century that the Consultatimi came to be adopted as a method of expounding law. The ancient glossators very seldom had recourse to this method, but during the fourteenth and fifteenth centuries jurists wrote consultations upon disputed points of law and published their collections. There are numerous Vonstdtationa of Bartolus, Baldus, Jason and others.
There was very little difference between the jurists of the fourteenth century and those of the first half of the fifteenth. Towards the end of the fifteenth century came the earnest revival of learning in general, and with that a great develop- ment in the study of Roman jurisprudence. It was during
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this century that the Eastern Empire was completely over- thrown by the Turks, and the learned men of Constantinople and the other eastern towns were compelled to migrate from the east to western Europe. Every science and every form of learning was improved, and in consequence of this activity the teachers of Roman law came to regard their science in a new light. The frivolous disputations of the teachers of the last two centuries made way for the solid learning and great acumen of the new school. Moreover, the art of printing facilitated reference to the original texts of the Corpus Juris, and the vstudy of the civil law became less laborious than it had been in the previous centuries. During the fifteenth century a very large number of jurists continued the work of Accursius, Bartolus and Baldus. The principal names of those who followed the methods of the fourteenth century are Jason and Paulus de Castro. Of the jurists of the end of the fifteenth century who saw the necessity for reform the names of Ambrosius, Camaldulensis, Nicolaus Everard, Rebuffus and Voerda must suflSce.
With Udalricus Zazius and Andreas Alciatus we enter upon a new period in the study of the Roman law — a period during which flourished Cujacius and Donellus, the greatest and most scientific expounders of the Roman civil law. * Zazius was bom in 1461, studied at Tubingen, became registrar of the court of Constance, and afterwards professor of law. He wrote a num- ber of Responsa and GonsiMa as well as commentaries on several titles of the Pandects. Alciatus was born at Milan, taught at Avignon, Bourges, Bologna and Ferrara. He died in 1560. His chief works were annotations on the Code, disputations and consultations.
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These two authors may be regarded as the founders of the New School of Commentators. The former introduced the modem method of teaching the civil law into Germany, whilst the latter did the same for France and Italy. Men began to study law in the same way as they studied the other monu- ments of antiquity. The InHfitufes, the Digest, and the Code were no longer regarded as though they embraced a system of law which stood separate and apart from all other branches of learning. The history of Roman institutions, the texts of the works of ante-Justinian authors and the literature of Rome were all examined with a view to arriving at the true mean- ing and spirit of the legislation of Justinian. This was the method adopted by Alciatus and Zazius, and followed by those illustrious commentators Cujacius and Donellus, whose works are still regarded as the greatest commentaries on the civil law. Cujacius (Cujas) was bom at Toulouse in 1522, and died in 1590. He lectured on law at Valence and Bourges, where he taught a number of men who became illustrious jurists. He was a man of great learning, and brought to bear upon the interpretation of the text his immense knowledge of Roman literature and Roman institutions. He possessed a critical faculty of a high order and a remarkable method of expo- sition. His emendations, corrections, restitutions and conjec- tures were stamped with the mark of genius, and soon came to be recognised as authoritative. His principal work is a commentary on the Digesty Code, Novels and the Decretalen. Besides his commentaries he wrote a number of treatises on special branches of the civil law, and edited the Codejr Tlteo- dosianus, the Institutes and a number of otber law-books. Next in rank to Cujacius stands Donellus (Hugo Doneau).
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He was bom in 1527 at Chalon sur Sadne. He taught law at Bourges, at Heidelberg and at Leyden.
From both these illustrious jurists the lawyers of the Netherlands borrowed a great deal, and we find them freely quoted by all the Dutch lawyei-s of the seventeenth century. The influence which Donellus had upon the study of the Roman law in Holland was exceedingly great, both through his personal influence and through his wonderful commentary on the civil law — a work which is to-day still one of the best and most methodical expositions of the Roman law. Of all the writers on the Roman law, this man seems to be the most lucid and most interesting. But for the fact that the commentary is written in Latin, it reads like a legal treatise of our own time. He was one of the first professors of the University of Leyden, and there he lectured for nearly ten years. If his oral lectures were as clear and interesting as his books, he must have contributed in no small degree to the spread of the Roman law in Holland. The extent of his influence upon the later lawyers of the Netherlands is mani- fest from the frequency and respect with which he is quoted by all the great Dutch writers on law, and especially by Johannes Voet.
The influence of Cujacius and Donellus upon the common law of Holland, nay, indeed, upon the common law of the Continent generally, cannot easily be exaggerated; and with- out constant reference to their works it is by no means easy to understand the great Commentary of Voet, and for that reason alone the works of Cujacius and Donellus should be constantly re|erred to by the student of Roman-Dutch law.
Besides Cujas and Doneau, the sixteenth century produced
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a number of eminent jurists of whom the following were the most celebrated. To the French School belonged Duarenus (Franyois Le Douaren), who was born at Moncontour in 1509, and died at Bruges in 1559. He was a pupil of Alciatus and the teacher of Donellus. Balduinns (Fran9ois Badouin) 1620- 1578. The brothers Fithon (FUhoei fraf res), Barnabas Brisson