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to derive their authority from heaven, effectually curbed the powers of earth.
The feudal system was however controlled by institutions which it despised, tolerated, or overlooked. Man can no more live by war alone than by bread alone; and the systematic rapine and precarious agriculture of the great fiefs rendered them the more dependent upon the industrial population of the towns. Into the cities and towns had retired the last remnants of the life of the empire, its manual arts, its municipal institutions, the forms of its law, and the practice of its courts. But the townsmen had not carried with them, or at least did not long retain, its despotic usages and uniformity. By the very isolation of their position the necessity for self-government was imposed upon them; and with it revived the embers of civil freedom. The fiscal oppressions of the empire no longer existed; for gangs of handicraft slaves were substituted active and emulous artisans; and the ports which had been generally closed by the exactions of the imperial excise, were again opened to the commerce of the world. The growth of the municipalities was fostered in the silence and confusion of the dark ages; it is recorded sometimes distinctly, and sometimes obscurely, in the charters of the ninth and tenth centuries. But their progress was unimpeded; their rivalry was active and incessant; their affairs were managed by thrifty and intelligent stewards; and, by the close of the eleventh century, we behold, in comparison with the decrepitude of the Roman empire, "a new earth." At the opposite extremities of Europe, on the shores of the Baltic and the Mediterranean, we are afforded the spectacle of civil regeneration; for the same causes produced similar effects among the nations most oppressed by Rome, and those who eluded or scarcely felt its yoke.
resemblance may be ascribed to their retention of ancient laws, and the activity of their commercial enterprise. The latter circumstance connected them with progress, the former with permanence; and the result of this union of opposing forces was, in either case, the conservation of an intelligent though turbulent freedom during that dark period when the rest of society was torn by anarchy or vexed by superstition. It is not pretended that any of these communities possessed the whole of Justinian's laws. His Pandects and Institutes were as incommensurate with their limited necessities, as the extent of their territories was disproportioned to that of the empire. But that the laws of the empire fragmentarily survived in the cities is no longer doubted. The popular story that the copy of the Pandects, now in the Laurentian Library at Florence, was brought to Pisa from Amalfi, after the capture of that city by Roger, king of Sicily, in 1135, is now discredited; and Muratori, in the last century, and Savigny, in the present, have proved satisfactorily that not only an abridgment of the Theodosian code, but that of Justinian also, and even of the Pandects, were known in different parts of Europe long before the date of their supposed discovery at Amalfi. The possession of an entire copy of these laws, and the high reputation of its text, undoubtedly stimulated the study of Roman jurisprudence, and led to the formation of schools, universities, and studies, which, next to the writings of the schoolmen, affected the general texture of European learning.
The laws of Rome were not the least valuable portion of the inheritance of the municipalities. The possession of them either in their integrity, or in portions, saved them from the hazard of theoretical experiments in legislation. It encouraged in them the salutary prejudice that they were still the members of a united empire: their fancied connection with the Cæsars preserved them from unconditional subserviency to the opposite centre of union-the church. It imparted to them a certain uniformity of structure, without shackling their civic development; and if in the thirteenth and fourteenth centuries the Italian republics reflect the image of a family circle of communities, the
Irnerius, by universal testimony, was the founder of modern investigation into the laws of Justinian. The Germans have put in a claim to his birth; but he was unquestionably a native of Bologna, and lectured upon the Codex not long after the commencement of the twelfth century. His oral instructions were the least important portion of his learned labors. With him began the practice of making glosses, or short marginal explanations on the law books, and into such high reputation did these notes arrive, that it was commonly said "No one can go wrong who follows a gloss, and that a gloss was worth a hundred texts." The reverence of the Rabbis for the letter of the Scriptures, the homage which the Latinists of the fifteenth century paid to the authority of Cicero, the devotion with which the Ulemas and the Sunnites respectively study the precepts of the Koran, afford the only parallel to the zeal of the early jurists for these notes on the laws of Justinian. The fanaticism of the
teachers led to bitter feuds among their dis- | others servants of the unclean spirit. These ciples the streets of Padua and Bologna, cordial advances from the Italian cities were seldom exempt from civil broils, were ren- not uniformly met with gratitude on the part dered yet more turbulent by the pugnacity of the recipients. Irnerius and the elder of the law-students. Scenes which had been Accursius were constant to Bologna; but rehearsed centuries earlier at the Universities Francis Accursius abandoned his universityof Athens and Berytus, were repeated with chair, and took service with our English Jusincreased acrimony in such of the Italian tinian, Edward I.; and Roffredo da Benevento cities as were fortunate enough to possess a transferred his learning from Bologna to professor of law. Nor was the number of Arezzo, from Arezzo to Frederick II., from the combatants inconsiderable. To take a that emperor to his enemy, Pope Gregory degree at Bologna was considered essential IX., and finally tired of both the Ghibeline to any ambitious youth who aspired to prac- and the Guelf factions, retired to his native tice jurisprudence at Paris or Augsburg. The city of Benevento. The arrival of an illuspopulation of students was nearly a third of trious lawyer was observed as a festival by the whole population of the town. They the community which had engaged him. The were banded into French and German fac- guilds with their banners, the students artions; and there was generally a pretty ranged according to their several nations, the quarrel going on between these tramontani civic guard in polished armor, the populace and the native students. As soon as a novice in holiday attire, the magistrates in their had entered his name in the university regis- robes of office, met him at the city gates, ter he was assailed by these opposite parties, and followed him to his lodgings with every each eager to enlist him under its favorite demonstration of respect and applause. The professor. He was fortunate if he escaped streets were spanned by triumphal arches, from their rough handling with only the loss and strewed with flowers; nor did the reof half his raiment. More generally he found ception of a distinguished civilian differ in that bruises and broken bones were the first any particular, except in the absence of a fruits of his matriculation. Learned Tybalt military escort, from that which was accorded and learned Benvolio tilted at each other in to the envoys of princes, or even to the the streets; and when the new-comer had Cæsars of Augsburg. The departure of a chosen, or been forced to chose his "mess," popular professor, on the other hand, was he found himself unexpectedly enlisted in a often effected in silence and by stratagem. service which demanded hard fighting no less He withdrew in the night, for hundreds were than hard study. waiting to arrest his person, and forcibly to retain him within the walls. Even the anger of faction yielded to the desire for securing his services. Special decrees were passed, permitting the professor to remain neutral, and exempting himself and his property from the sentences of banishment and confiscation which the rival parties were perpetually issuing against each other. A pleasing example of national gratitude and veneration-the more pleasing indeed from its rarity in the turbulent republics of Italy-occurs in the instance of the elder Accursius. He himself indeed was beyond the reach of the fickleness or ingratitude of mankind; but his descendants were benefited by his renown. In the year 1306, the city of Bologna was divided between the factions of Lambertazzi and Gieremei. The former, who were Ghibelines, had been wholly overthrown, and, according to the usage of Italy, were excluded from all political power. But a single exception was made in favor of his family. They had been on the vanquished side, but they were permitted to enjoy all the privileges of the victorious Guelf party; and it
The cities of Italy rivalled one another in the homage which they paid to the sages of the law. The standard of the people or the banners of the guilds were not held in higher reverence, or guarded with more jealousy, than the possession of a lecturer on jurisprudence. The articles of agreement between the professors and the universities were subscribed by the Podestà and the principal magistrates, and deposited among the public archives. A public residence was assigned to them a liberal stipend was secured; and the gratitude of their pupils expressed itself in the substantial form of regular fees and occasional donations. Every means exerted, both by the state and by individuals, to monopolize the services of the lecturer, and to induce him to bind himself for the ❘ term of his natural life to be their instructor and guide. The church and the professors of the canon law viewed with much jealousy this legal enthusiasm: more than one interdict was levelled against the study and the sages of the Roman law; the one was declared to be a remnant of paganism, and the
was expressly stated, in the decree of exemption, that it was accorded to them "out of respect to the memory of one by whose means the city had been frequented by students, and its fame had been spread through the world."
A strict neutrality indeed in political questions, was not always observed by those who were thus exempted. The man was occasionally paramount to the professor, and the occupier of a chair which pertained to a civil science would excite disaffection by his eloquence, or even take part in the broils in the marketplace. In such cases the personal privileges of the lecturer were abolished, and the sons and grandsons of Accursius appear to have lost the benefit of the edict of 1306, since a few years later their goods were confiscated, and their persons expelled from Bologna. It was permitted, however, to the lawyer to share in national feuds; and the rivalries of Pisa and Florence, of Verona and Vicenza, were frequently represented and aggravated by their respective professors. Even lectures on the Pandects were sometimes made a vehicle of biting satire. Ferrara and Bologna were on bad terms with each other at the time when Odofredo da Benevento filled the chair of law. He differed from his professional brethren in the discharge of his office, inasmuch as he was wont to strew the hard and thorny ground of legal disquisition with historical illustrations and shrewd or pleasant anecdotes. In reference to the pending quarrel between the cities, he quaintly remarked-à propos of some maxim of Ulpian or Paulus" Hence, gentlemen, we may infer that every man, who comes into the presence of a magistrate, is bound to treat him with respect; whereas, the Ferrarese, so far from obeying this sound and wholesome rule, even if they were in God's presence, would neither bend their knees nor doff their bonnets."
The private jealousies of these learned men were as alert as their public predilections. Accursius having learned that his rival Odofredo had been diligently collecting, with a view to prompt publication, his glosses on the Corpus Juris Civilis, and having himself long been occupied with a similar work, gave his lectures to the winds, bolted out his pupils, announced that he was at death's door, and employed his stolen leisure in anticipating his rival's work. We shall not open an account of the private lives and conversation of the old civilians; it would lead us too far into the region of questionable anecdotes. We find some of them branded with
the charge of avarice as regarded their scholars, and others with that of profusion or personal ostentation. The most serious imputation upon Accursius is insinuated by Dante ;* yet it must be added, that if he leaves one civilian in Hell, he has sent another on the high road to Paradise.
Amid all the improvements of our metropolis the common lawyers are still indifferently lodged; and the civilians have little to boast of as regards their accommodation. Trade builds itself palaces in this country, but the dispensers of Justice are imprisoned during two-thirds of the year in apartments which exclude the light and defy ventilation. Even the Hall of Rufus, where Themis has been enthroned for centuries, is shorn of its proportions, and its detached courts present little that is either venerable or picturesque. But the Italian civilians were not only handsomely housed at the public charge, but presided in halls where the genius of the artist was employed for the convenience and dignity of the law. At Florence, Pisa, and Bologna, the courts of justice were the ornaments of their respective cities; and though inferior in size and grandeur to the town halls of the Netherlands, they were neither crowded into alleys, nor obscure and sordid in their interior. Brescia was by no means distinguished among the Lombard towns either by its enterprise or the character of its structures, but it provided handsomely for the accommodation of its magistrates and professors. In the annals of Jacopo Malvezzi, who wrote at the beginning of the fifteenth century, we find the following description of the new palace of justice, which was erected in the year 1223: In that year the citizens built a fair palace, and annexed to it a tower of rare device. And this they did so that the townsmen might have one building where the counsels and sages of the law might dwell, and whence they might issue their decrees and awards; for before that time each quarter of the town had its own judge and lawcourt. And I shall tell you a wonderful matter, yet one well attested both by ancient men and writings. Brescia was then so populous that even that spacious hall seemed narrow for thither flocked on the days when the court held its sittings the most worshipful and wealthy citizens, and troops of knights, attended by their esquires, so that the beholder saw no faint image of the old Roman pomp. The college of the lawyers, when these grave men were all assembled,
* Inferno, xv. 106; Purgator. vi.
showed like Plato's or Aristotle's school, | ble discipline of the intellectual powers. even in those brave days when Europe and The severe logic, the minute distinctions and Asia sent their young men to hear their wise the scrupulous language of the Jurists delore; and in the midst of that goodly company mand and exercise, in a degree scarcely inof men of various conditions sat on lofty ferior to science itself, the faculties of reason chairs the luminaries of the law, insomuch and observation, nor can we furnish a better that a man might deem them no other than recommendation to Mr. Sandars' edition of the senators and the people of Rome." But the Institutes than the following remarks of this stateliness was brief. The glory of a distinguished living scholar, which, while Brescia departed; and the annalist compar- they deplore the neglect of the Roman law ing its former with its latter estate, laments by the English Universities, assert its value over the empty courts and the deserted as an object of study-"That in this country, streets of the declining city. "Where is where we profess to cultivate ancient learnnow that fair college of venerable sages- ing, we should so long have neglected the where the crowds of grave citizens, the just study of the Roman law, the best and only consuls, the wise assessors, and their attendant original part of their literature, and should pomp and chivalry? The Brescian Hall of Jus- have gone on in the dark, admiting and tice now contains a single Podestà and a few thinking that we understood the writings of hungry pleaders." A foreign king ruled in Cicero, our model of Latinity, is a proof the Lombardy, and the honor of the civilians strongest possible, of the degradation into was among the things that had been. which classical studies have sunk in our higher places of education. In one University, lectures on the civil law have ceased to be given, though there is still a professor, and in the other, though lectures are given and degrees are taken in civil law, it is well known in how little estimation both the subject itself and the degrees are held by those who follow what may be called the regular studies of the University. Instead of the lectures on civil law being considered as auxiliary and part of the Latin studies of the University, an attendance on the course of civil law and a residence in the Hall where the lectures are delivered, are generally viewed rather as a convenient means of obtaining a degree. Such being the case, it would not be an easy matter for the professor to restore the study of the civil law to its proper dignity, and to make it an integral part of the University course."
Mr. Sandars may have reason to complain that we have treated him like the extinct John Doe and Richard Roe of the common law, and ignored his personality while we made use of his name. In seeking, however, to direct attention to the object of his studies, we have not been forgetful of his editorial cares. Should the civil law reassert its dignity as a branch of University learning, Mr. Sandars' edition of Justinian's Institutes deserves to become the text-book of the lawschools.
We shall not attempt with our narrow limits a task which even the minute diligence of Tiraboschi declined-an account of the order and succession of the civilians in the Italian schools. They did not indeed, even at their most prosperous epochs, attain to the universal fame and sounding titles of the theologians of the dark ages; they were not designated as the irrefragable, the seraphic, or the angelic doctors of their profession. For the influence of the church pervaded Europe, while that of the civil law was confined to certain portions of it. It is enough to know that the reputation of Azzo and Accursius, of Bartolus and Baldus, of Accolti, Fulgosius, and Panormitanus, were once as celebrated as that of Arago, Faraday, and Owen at the present day. But the names of the modern sages are inseparably connected with the laws of nature, whereas the honors of the civilians depended on the precarious tenure of the learning which they professed.
But although the credit of the old civilians has nearly declined to the level of that of the ancient alchemists, the fruits of their studies have not entirely perished with them, and their labors upon the text and elucidation of Justinian's Laws paved the way for the researches of Heineccius in the last century, and Savigny in the present. The study of the Roman law is still both an essential adjunct to classical literature and an admira
From Bentley's Miscellany.
weather * Between them.
THE OLD POET WALLER.
EDMUND WALLER in swaddling clothes, mewling and and puking in his nurse's arms, and Edmund Waller in the rôle of lean and slippered pantaloon,-between these twain how long, changeful, eventful an interval of time! They may be taken as two symbols, representing the one the positive pole and the other the negative pole-that is to say the right and the wrong end of the electrically charged seventeenth century.
There are eighty odd seasons of fair and foul make the age to come his own "-retired in disappointment, pined in seclusion, and died despondent. Before half that term was over, Suckling, Waller's junior by some three summers, had carolled his last gay lyric. Waller was at man's estate when Isaac Barrow and Robert South were born, but he wrote verses at leisure and made speeches at St. Stephen's after they were both housed in earth. Older than Fuller and Marvell, than the astute Clarendon, and the Platonic More, than John Bunyan the poetic and John Owen the ponderous, than Otway who expressed the woes of Belvidera, than Roscommon who alone of Charles's satellites could "boast unspotted bays," than Rochester whom nothing in his life became so well as the leaving it, than Butler who lashed that stubborn crew of er
rant saints "whose chief devotion lies in odd
perverse antipathies," than Denham who sang of Cooper's Hill in verse "though genle yet not dull," than Davenant who took his stand so doughtly by the "legitimate drama" in general and Shakspeare in particular, though himself, by his spectacular successes, a main cause of Shakspeare's eclipse and the legitimate drama's decline, than Sir. Thomas Browne who enshrined the flies of vulgar errors in the amber of imposing rhetoric, than Jeremy Taylor whose buoyant imagination and whose chastened devotion together soared to and expatiated among things above-older than these, and many more than these, of our seventeenth century British classics, real or reputed, Edmund Waller survived them all, and some of them by many a long year,
When Edmund was born, the first of the Stuarts was beginning to settle himself on his newly-acquired throne, as snugly as gunpowder plots beneath it would allow. When Edmund died, the last of the male Stuarts was slipping from his as fast as fastest Orangeman could wish. The poet came into the world when our literature was in its rich and rare Shaksperian prime; when he left the world, our literature was degrading into French foppery, frippery, frivolity,-verging on that anti-Shaksperian epoch, the worshipful Augustan age. Between Waller's baptism and his funeral occurred the Great
Rebellion and the Glorious Restoration. Another year to his long lease of life, and he had seen the Revolution of '88. In his young days were being celebrated those lyric feasts made at the Sun, the Dog, the Triple Tun," whereat the Herricks, Fletchers, Jonsons, quaffed the mighty bowl, charged
A line parodied from one of Wordsworth's least known but not least noticeable poems-noticeable not only for its picturesque interest, but as one of his most successful (but wisely rare) attempts at the humorous-viz., "The Two Thieves; or, the Last Stage of Avarice:"
"The One, yet unbreeched, is not three birthdays old,
His Grandsire that age more than thirty times told;
with such clusters "as made them nobly wild, not mad." In his old days, the theatres and taverns were haunted by people with whom Shakspeare was out of date, out of mind, and Milton insufferable unless served up with Dryden's tag-rag and bobtail. Milton himself, within Waller's career, was born, wrote himself among the immortals, and, as far as could be, deceased. Within the same term of years, Cowley struggled for prefermentlabored to become "for ever known, and