7 Gentilis and the interpretatio duplex

J. L. Barton

One of the reasons for which, in Maitland’s opinion, the history of English law was not written was that much mediaeval English legislation remained in force:

That process by which old principles and old phrases are charged with a new content, is from the lawyer’s point of view an evolution of the true intent and meaning of the old law; from the historian’s point of view it is almost of necessity a process of perversion and misunderstanding^[213]...

The sixteenth-century student of Justinian’s compilations was in much the same difficulty as the nineteenth-century student of the mediaeval sources of English law. His predecessors had been content to treat the compilations as a code. No doubt the provisions of any code have a history, but what that history may have been is a curious rather than an important question for the expositor who is considering their present application, and the glossators had either ignored historical questions altogether, or treated them very casually. D.29.2.60 is an extract from Javolenus’ epitome of Labeo’s Posteriora. It concludes with a note of Paul’s which, in the Vulgate, had become part of the passage of Javolenus:

Paulus et Labeonis sententiam improbant, et in lavoleni sententia sunt.

The gloss suggests that Javolenus is referring to himself in the third person, or that Neratius, from whom L.59 of the same title was taken, is citing Javolenus with approval.

This was not an attitude which an expositor trained in the new learning could easily maintain consistently, whatever his theoretical opinions.

For the honour of his own faculty, Alciatus was willing to defend him against the attacks of others - more particularly of the grammarians, who

³       Gribaldus Mopha, De Methodo ac Ratione Studendi (ed. Lugduni, 1564), book I, ch. 15, 131ff.

⁴        Gl. ‘Quaerere’, C.2.41.5.           ⁵ Essais, book I, ch. 25. were the worst possible judges of the merits of any jurist⁶ - but he did not always speak very well of him himself. Bartolus deserved the gratitude of posterity for opening eyes which would otherwise have been obscured by the graeculae tenebrae in which Justinian’s compilers had involved the Roman texts. Had the works of the ancient jurists still existed, the labours of Accursius and of those who wrote after him would not have been necessary.⁷ Tribonian was capable of error, and if he could be shown to have erred, it might be questioned whether posterity were obliged to err with him.

Balduinus was firmly of opinion that posterity was under no such obligation.

Antony Faber was of opinion that the surest means of detecting the interventions of the compilers was to bear in mind that in their unin-

⁶        Dispunctionum, in Opera (ed. Basileae, 1571), book IV, ch. 7.

⁷        Comment ad Tit.

⁸        See H. Troje, ‘Peccatum Triboniani, zur Dialektik der Interpretatio Duplex bei Francois Baudouin’ (1970) 36 S.D.H.I. 341.

⁹        ‘Ac in Pandectis quidem, ubi hac de re quaeritur, vidimus vindicationis et damnationis mentionem expunctam saepius, deletamque esse. Sed tanto rnagis interea queror, non solum lituram esse relictam, sed et rem ipsam tam varie, adeoque contrarie nihilominus proponi, ut necesse videatur ad conciliationem, repetere vetus illud discrimen, et nos ad illud iterum confugere.’ Justinianus, sive de lure Novo (ed. Basileae, 1560), book II, at 110. telligent haste they commonly mistook the true reason of the law.^[215] In the rei vindicatio, restitution manu militari had replaced the iusiurandum in litem. The iusiurandum in litem appeared in the Digest only because Tribonian did not understand the mechanism of the actio arbitraria. It served no purpose, if the thing itself might be restored in specie.^[216] This is reasoning of which Balduinus might not have disapproved, but if Tribo­nian did not understand the law which he had undertaken to digest, it might be questioned whether it were invariably necessary to attribute legislative force to his blunders. In his De Erroribus Pragmaticorum et Interpretum, which he wrote for the instruction of practitioners, Faber observes at one point that the reader may object that he is discussing the errors not of the interpreters, but of Tribonian. He, however, holds Tribonian to be an interpreter, and an unskilful one, not a iuris auctor,^[217] and he seems willing upon occasion to act upon his opinion.

For Heineccius, Balduinus and Faber were two of the three principal members (Hotman was the third) of the ‘secta Tribonianomastigum’.^[219] He found their opinions so unreasonable that he was driven to conclude that they had been inspired by academic jealousy. They were led to attack Justinian’s compilations because they had very justifiably despaired of ever rivalling the great Cujas as interpreters of them.

Cujas was certainly no Tribonianomastix. Tribonian, he held, was another Papinian.¹⁵ Those who criticised the arrangement of the Digest, or who wished to change it, were ineptissimi and imperitissimi, who knew neither what was an art, nor the art of the Digest, and could never have understood the clear principles of the civil law, though this arrangement was not Tribonian’s own, but that of the earlier jurists whom he had followed.¹⁶ He was prepared none the less to hold Tribonian capable of error, and indeed of negligence - in some instances, of rather grave negligence. In D.50.4.7 Marcian states that imperial constitutions have provided that one accused of crime may not stand for public office though sentence be not yet given, but if a year have elapsed since proceedings were commenced he is not prohibited, ‘nisi per ipsum steterit, quominus causa intra annum expediretur’. Criminal proceedings, as we may see from the Theodosian Code, formerly lapsed if judgment were not given within a year. Justinian extended the term to two years, but the compilers have failed to correct this passage,

quod a me adnotatum est, non tam ut ille locus explicaretur, quam etiam ut Triboniani non curantia proderetur.¹⁷

The compilers, in his opinion, did not always understand the texts which they excerpted. According to D.2.15.6 (Gaius, 17 ad edictum provinciale)'.

De his controversiis, quae ex testamento proficiscuntur, neque transigi neque exquiri veritas aliter potest, quam inspectis cognitisque verbis testamenti.

This is taken from the same passage of Gaius as D.29.3.1, where the verb transigere is applied ‘per translationem ... ad iudicata, non ad conventa sive composita’. It therefore does not properly belong in the title De Transactionibus, for the jurist was speaking of a settlement by judicial decision, not by the agreement of the parties.¹⁸ Elsewhere, Cujas takes occasion to explain that he did not say, as he is alleged to have said, that in C.4.23.4, ‘Praetextu debiti restitutio commodati non probabiliter recu­satur’, we should read commendati for commodati. This could be an impossible emendation, for the constitution is in the title De Commodato. What he did say, and he is of this opinion still, was that commendati was the original reading of the constitution. The emperors were speaking not of commodatum but of deposit, in which there was no set-off. In the copy which the compilers used, commodati had been substituted for the rarer

¹⁵       Comment, ad Lib. VI Cod. tit. 43, upon the rubric. I have used the edition of the works of

Cujas (omitting the posthumous works) which was published at Frankfurt in 1623.

¹⁶       Paratitla ad L Libros Digestorum, at D.17.1.

¹⁷       Observationes et Emendationes, book I, ch. 8.

¹⁸       Comment, ad tit. D. De Transactionibus, at 1.1, in fine. commendati by the error of a scribe, and the compilers therefore assumed that the constitution was intended to apply to commodatum.^{class=a0>[220]}

Cujas had the good fortune to be writing in a country in which the compilations of Justinian did not have the force of imperial legislation. He was not, therefore, obliged to consider whether, if Gaius were not speaking in D.2.15.6 of a settlement of a disputed claim by agreement between the parties, a judge might hold that there was no difference in law between a settlement of a claim under a testament and a settlement of any other claim, or whether, if C.4.23.4 were written of deposit, a judge before whom a defendant who was sued for the return of a thing which had been lent to him for his use attempted to rely upon a set-off might ignore it. Gribaldus Mopha was less discreet. One of his illustrations of the import­ance for the student of a knowledge of the methods of the compilers and of the principles of textual criticism is D.41.2.8 (Paul, 54 ad edictum):

Quemadmodum nulla possessio adquiri nisi animo et corpore potest, ita nulla amittitur, nisi in qua utrumque in contrarium actum est.

Paul says precisely the opposite elsewhere.^[221] The contradiction is easily resolved if for Quemadmodum we read Non quemadmodum - a locution which is frequent in the jurists - but the lex geminata (D.50.17.153 (Paul, 65 ad edictum)) is not so easily amended:

Fere quibuscumque modis obligamur, iisdem in contrarium actis liberamur, cum quibus modis adquirimus, isdem in contrarium actis amittimus. Ut igitur nulla possessio adquiri nisi animo et corpore potest, ita nulla amittitur, nisi in qua utrumque in contrarium actum est.

If it be an illustration of the principle of contrarius actus that possession is lost, as it is acquired, animo et corpore, and neither animo solo nor corpore solo, it is hardly possible to argue that a negligent scribe has omitted a negative which would have made the doctrine of contrarius actus inapplicable to the loss of possession. Gribaldus was equal to the challenge. The extracts which compose the title De Regulis luris have been put together from fragments of different jurists by the compilers or by others

unde quidquid ibi primo versiculo (qui ex Pomponio desumptus est) adiectum reperitur, ex nullius jurisconsulti auctoritate, vel sententia prolatum est. Quare expungendum omnino putarem.^[222]

If we may take it that Tribonian, or another, has borrowed Pomponius’ observation upon contrarius actus from D.46.3.80 (Pomponius, 4 ad Q. Mucinuni), and added it to an extract from Paul which did not mention the point, and that this passage of Paul originally (whether or not when it came into the hands of the compilers) contained a negative which has dropped out, or been struck out, of the text which we now have, we may quite prop­erly strike out the reference to contrarius actus and restore the negative. That the compilers clearly thought that the negative had been properly omitted is neither here nor there, for an opinion supported only by the authority of Tribonian is ‘ex nullius iurisconsulti auctoritate vel sententia prolatum’.

From Faber or from Hotman, this would not have been a very remark­able observation. Gribaldus, however, was an Italian, and like most of his compatriots at this period, more conservatively than radically inclined. The authors whom he particularly recommended to the student (who would, he held, profit more from the diligent study of a few good writers than from indiscriminate reading) were Bartolus, Baldus, Paulus Castren­sis, Alexander Tartagnus, Jason Maynus and Imola.^[223] That a writer who was certainly no opponent of the mos italicus should still be capable of holding it self-evident that the authority of the compilers was of no weight if they could be shown to have differed from the jurists of the classical age is a very striking testimony to the prestige of antiquity.

It was not an opinion universally professed by the exponents of the mos italicus. Pacius, who thought the method of the French school of his own day more proper for grammarians than for legists,^[224] held it unnecessary to labour to detect interpolations in Digest and Code, for it was no longer of any consequence how the law stood before Justinian.^[225] However, he was not perfectly consistent:

post editas ex Pandectis Florentinis inscriptiones legum Pandectarum per quas inscriptiones licet capita coniungere a Triboniano seiuncta, iam multa facile et feliciter enarrantur, quorum veram sententiam veteres interpretes ea conferendi leges commoditate destituti assequi non potuerunt.²⁵

size=2 color=black face="Times New Roman">To put together the fragments which Tribonian has separated is no doubt a help to discovering the meaning of the jurist from whom the extracts were taken, but if this be the only way in which it may be discovered, it might seem fairly arguable that we should infer that the meaning of the jurist was not the meaning of the compilers. This was the opinion of Albericus Gentilis, who, almost alone among his contempo­raries, distinguished clearly and consistently between historical and dog- mafic interpretation. The latter, in his view, was the province of the legist, who was not concerned to discover what law the Romans had followed, whether at Rome or at Constantinople, but to determine how the law now stood.²⁶ It was absurd to criticise Accursius for inferring that if, as Modestinus states in D.23.2.1, marriage involves divini et humani iuris communicatio, spouses must be of the same religion.²⁷ Modestinus was indeed a pagan, and it might be that when he spoke of divini iuris communicatio he was referring to the family worship of pagan Rome,²⁸ but whether this were in fact the case was of no more importance than whether by the phrase damnati adferrum in D.28.1.8.4 Gaius meant those condemned to the arena,²⁹ or by the Judaica superstitio which, Ulpian tells us in D.50.2.3.3, Severus and Antoninus had declared not to be a disqualification for municipal office, Ulpian meant the Christian religion, or whether the ignaviae sectatores whom Valentinianus and Valens mention in C. 10.32.26 were monks. The names of the jurists from whom the passages which are excerpted in the Digest were taken are preserved only for the honour of antiquity. Since all the texts of the compilation, from whatever source they have been taken, are to be taken as legislation of Justinian, it is no concern of the legist in what sense a pagan jurist, or one or other of Justinian’s predecessors, may be more or less probably held to have used this or that expression. He is to consider what sense these expressions should be held to bear in the legislation of a Christian emperor, under whom gladiatorian contests were prohibited. What was the original meaning of a text is in any case a speculative question, for the compilers have altered many passages, so that we cannot be certain whether any particular expression should be attributed to the jurist whose name appears at the head of the extract or to the compilers.³⁰

²⁶        De Iuris Interpretibus Dialogi Sex, ed. G. Astuti (Torino, 1937), 86.

²⁷        Connanus, Commentariorum Iuris Civilis, book VIII, ch. 4 (ed. Lutetiae, 1553).

²⁸        Alciatus, Parergon, book V, ch. 25.

²⁹        Alciatus, Parergon, book I, ch. 23. See also Gentilis, Lectiones et Epistulae quae ad Ius Civile Pertinent (Londini apud Wolfium, 1583), book I, ch. 7. Cujas (Observationes et Emendationes, book XIII, ch. 10) holds that in the original of the rescript cited in D.47.14.1 pr. Hadrian, after observing that abigei who are to be severely punished are ordinarily damnati ad gladium, went on to add that in case of a very grave or of a second offence damnatio ad metallum might be appropriate. We must therefore take damnatio ad gladium to be condemnation to the arena, and Tribonian should not have omitted these words, since damnatio ad metallum is mentioned subsequently in the same passage. Gentilis’ comment is, ‘At is non debuit eo modo tractare Hadriani rescriptum. Itane loqui possunt? Et nos manus damus.’ Cujas, however, was of opinion that the abolition of gladiatorum spectacula had not entailed the abolition of the ludus gladiatorius, and that damnatio ad ferrum was therefore to be taken to bear its classical meaning in the law of Justinian.

³⁰        De Iuris Interpretibus Dialogi Sex, 167ff. See also at 208, ‘Credo potius controversias, labyrinthos inexplicabiles ex illis monumentis [antiquitatis]; quoniam innumera aliter relata sunt a compilatoribus, innumera translata in alium sensum.’

Since it is not the meaning of the jurist which is in question, it naturally follows that the inscription of the passage is useless as an aid to its interpretation, and indeed that it is improper to make use of it. Justinian has not only stated that the inscriptions are preserved merely for the honour of antiquity; he has expressly forbidden resort to the original text. If the original text would be of no authority had it survived, a conjectural reconstruction of the original text is of even less authority. Whether or not Ulpian was speaking of the lex Falcidia, or of the interdict Quod legatorum, when he said that ‘Per omnia exaequata sunt legata fidei­commissis’,³¹ the compilers were not. That a fideicommissary manumiss­ion differs in effect from a direct testamentary manumission is no objec­tion to this generalisation, for since libertates are to be deemed repeated if legacies be repeated,³² a gift of liberty is not a legacy.³³ Whether it were of the Edict Quod quisque iuris that Ulpian said ‘Cogitationis poenam nemo patitur’³⁴ is of no consequence whatever. To object that this is hardly correct if we take it as a general proposition, since ‘in aliis plerisque causis non tantum effectus punitur, sed etiam voluntas’,³⁵ is to ignore the elementary distinction between simple cogitation and the purpose with which an act is done.³⁶ It is an even graver error to argue that a jurist is not necessarily to be held to have adopted an opinion which he cites. For Cujas, the opinion of Callistratus in D.5.1.37 and of Marcian in D.48.6.5.1 that if violence and possession come in question together the question of violence should be determined before the question of property was no authority that the judge should decide the question of possession before the question of property if possessorium and petitorium be brought together. Had the jurists been speaking of the interdict Unde vi, they could hardly have treated violence and possession as two distinct questions, for a plaintiff who had not been in possession could not be violently ejected. We must take them to have meant that if the party injured chose to proceed criminally for the violence, and civilly for the possession or for the property, the criminal proceedings were to be first determined. Since, however, C.4.62.1 and C.9.12.7 can hardly be explained in this manner, it would seem that the imperial constitution which both jurists cite did refer to proceedings to recover possession rather than to punish the intruder.

³¹       D.30.1 (Ulpian, 67 ad edictum). Cujas, Paratitla ad L Libros Digestorum, book 30. The gl. ‘per omnia’ makes a rather similar suggestion: ‘Vel dic quod aliquid est hic detractum ex verbis Ulpiani a compilatoribus novi iuris, et illud detractum inducit novitatem.’

³²        D.50.16.80.

³³        Gentilis, Lectiones et Epistulae quae ad Ius Civile Pertinent, book I, ch. 17.

³⁴        D.48.19.18 (Ulpian 3 ad edictum).

³⁵        Cujas, Observationes et Emendationes, book VIII, ch. 22.

³⁶        Gentilis, Lectiones et Epistulae quae ad Ius Civile Pertinent, book I, ch. 13, book II, ch. 12. See also book I, ch. 17, where he observes that in D.30.1 the draftsman ‘in alium sensum omnino deduxerit Ulpiani verba, quam fuerunt ab ipso prolata’.

That they cited it, however, is not proof that they accepted it as sound.^[226] For Gentilis, the question of possession and the question of violence were no more distinct in criminal than in civil proceedings, for violence might be committed only against a possessor. There was therefore no inconsist­ency between C.9.12.7 and C.4.62.1: ‘Prius de possessione pronuntiare, et ita crimen violentiae excutere praeses provinciae debuit’, for to say that the judge must first determine the question of violence and to say that he should have first determined the question of possession and thus deter­mined the offence of violence is to state the same proposition in different words. Both these texts are perfectly consistent with the constitution cited in the two Digest passages, for Marcian states in D.48.6.5.1 that Antoni­nus Pius decided ‘ut prius de vi quaeratur, quam de iure dominii sive possessionis’. He was speaking not of actual possession, but of the right of possession, and though it cannot be known whether I have suffered violence until it appear whether I were in possession, whether I have suffered violence and whether I have a right to possess are undoubtedly two distinct questions.^[227]

If the texts of the compilation are to be taken as different parts of a single law, it is no less improper to argue that one passage states the old law, and another the new. In D.50.16.88 Celsus says that a man is commonly said to leave as much money as his goods are worth, but the case is different if he leave a legacy of another’s land, though he leave money enough to buy it, for one who has money is not said to have what he may buy with it. In D.35.2.61 Javolenus assumes that a legacy of an estate which is not the property of the testator is valid. If these two passages require to be reconciled, to hold that Celsus was speaking of a legatum per vindicationem and Javolenus of a legatum per damnationem is no way to reconcile them.^[228] Similarly whether the jurists differed in opinion, or a particular jurist hesitated, is not a question for the legist, who is concerned to discover the intention of Justinian, not the opinions of the jurists upon whom his compilers drew.^[229] In D.18.7.6.1 (Papinian, 27 Quaestionum) Papinian confesses that he formerly held that if a term which had been inserted into a contract for the sale of a slave at the seller’s instance were intended as a penalty upon the slave, no action would lie against a buyer who ignored it unless the seller had a pecuniary interest in its performance, as if the breach would render him liable to a penalty which he had promised to another. However, the argument of Sabinus, that the action should lie because a slave sold subject to a restriction of this kind may be assumed to have been sold at a lower price for that reason, now inclines him to hold the contrary. In D.18.7.7 (Papinian, 10 Quaes t ionum) Papinian states that if a slave be sold ‘ne in Italia esset’, and the buyer agree, but do not promise by stipulation, that he will pay a penal sum if the slave be brought to Italy, an action will hardly lie for the penalty unless the buyer’s breach make the seller liable to pay a penalty which he has promised to another. For Cujas, Papinian evidently changed his opinion after he had composed the tenth, and before he had composed the twenty-seventh, book of his Quaestiones ^[230] For Gentilis: ‘Variaverit igitur auctor eorum Papinianus: an ideo dicendum est, compilatores etiamnum pugnantia loqui?’ We are to take D.18.7.6.1 with its reason. A term of this kind will be enforceable if it appear that because of this restriction the slave was in fact sold at a lower price.^[231]

It is an even more fundamental error to suggest that one provision of the compilation has abrogated another.^[232] According to a passage from the Sententiae in D.23.2.38, a provincial governor may be betrothed to a woman of his province, though he may not marry her until he has laid down his office, and she may then refuse to marry him, upon returning the arra sponsalicia. C.5.2.1 provides that if the governor’s betrothed, or her relatives, change their minds the arra sponsalicia need not be returned. Cujas held that this constitution abrogated D.23.2.38.^[233] Gentilis adopted the first solution of Accursius. The arra sponsalicia need not be returned if the betrothal were repudiated while the sponsus was still governor of the province, but must be repaid if he had already laid down his office.^[234]

Gentilis does not altogether neglect the ‘secta Tribonianomastigum’. In his final dialogue he has something to say of Hotman, who was the most violent of the three, though the dreadful truth that he thought very little better of the classical jurists than of Tribonian did not become publicly known until his Anti-Tribonianus was published, after his death. Gentilis concentrated his attack, however, principally upon Cujas. This was a judicious choice, for the vices of the historical method might be better illustrated from the work of a writer who applied it to the interpretation of Justinian’s compilations than from the writings of a Tribonianomastix who was more concerned to determine how much of the compilations

must be given up as unsavable. For an author barely thirty years of age to attack the modern school with this vigour was perhaps bold, but is hardly sufficient in itself to explain Gentilis’ bad reputation with posterity. In a remarkable passage of his Respublica lurisconsultorum De Januario observes:

illud tamen miror quamquimaxime, eo furoris devenisse Albericum Gentilem, ut pro hisce ineptiis arma viriliter sumat, putetqe arroganter nimis, Accursium recte coniectare, sacra, quae in Pandectis memorantur, ab religione nostra nequaquam abhorrere, cum opus illud ad lustiniani mentem, Christianique cultus formam sit concinnatum, utut, in veterum iurisconsultorum obsequium, horum nomina in fronte legum prae se ferat.⁴⁶

The charge of arrogance is hardly very well supported by the par­ticulars. Gentilis’ offence is merely to take Justinian’s intimation that constitutionum vicem et has leges optinere censuimus quasi ex nobis promul- gatas⁴⁷

at face value. The charge of insanity is a little extreme, coming from anyone but a convinced Tribonianomastix, who would no doubt have argued that in what sense the references to sacra in the juristic texts were intended to be taken in the legislation of a Christian emperor was an idiotic question, since only an idiot would imagine that the compilers had considered the point at all.

Gentilis, however, had been guilty of a worse offence than supporting Accursius against the moderns. He had spoken of the new learning in a manner which could hardly fail to shock contemporaries, though not altogether without provocation from those ambitious souls who recom­mended the legist to make himself master of the whole circle of the sciences. The task of mastering the law was occupation enough. Since the province of the legist was dogmatic, not historical interpretation, he need not acquire that knowledge of antiquity which would have been necessary to qualify him to interpret the texts historically. It was not merely a knowledge of ancient history that might be dispensed with. He need not aspire to write a Latin of classical purity, and would do better not to attempt it, for the time which he would be obliged to spend polishing his language might be more profitably devoted to the study of the texts.⁴⁸ Greek might be neglected altogether. The old translation was admirably literal, and a perfectly satisfactory substitute for the original, save where the meaning of the original was disputable, and in that case the legist would be obliged to rely on the opinions of others unless he were a profound Grecian. If he aspired to become a profound legist he could ⁴⁶ Ed. Neapoli 1731, at 24-5.          ⁴⁷ Const. Tanta, 20a.

⁴⁸ De Juris Interpretibus Dialogi Sex, II (Paulus), at 45-83. hardly spare the time to become a profound Grecian. If he possessed an elementary knowledge of Greek, he would be no better for it than if he had known no Greek at all. To be able to read the Greek commentators was not an advantage of much value.⁴⁹ Gentilis did not stop there. Since the study of languages exercised the memory rather than the reason, it had ordinarily no very good effect upon the higher intellectual faculties of those who spent much time upon it. Few scholars profoundly skilled in languages attained much distinction in any other branch of learning, and it might be doubted whether the modern practice of requiring schoolboys to learn Greek as well as Latin were good for their future development.⁵⁰ The older commentators were the superiors of the moderns certainly in method, and, Gentilis was prepared to argue, even in style. That they encumbered their commentaries with superfluous references was a criti­cism which came singularly ill from those who were given to appropriat­ing the solutions of their predecessors and superiors without acknowledg­ment.⁵¹ The superfluous and sophistical questions with which they were alleged to complicate the exposition of the texts were not superfluous, and not necessarily the worse for being sophistical. The study of the laws was not a preparation for practice in Plato’s republic, or in Utopia, and the legist must come to court prepared to meet the specious as well as the substantial arguments which might be relied upon against his client. This, Gentilis asserted, had been the practice of the ancients, and in their manner of argument, and in the form of their exposition, the jurists of the mos italicus resembled the jurists of classical Rome very much more closely than did their detractors.⁵²

When Pantagruel studied the law at Bourges, he was accustomed to say that the books of the law seemed to him a beautiful robe of gold, marvellously triumphant and precious, bordered with filth - for, said he, there are not in the world books so fine, so well adorned, so elegant, as are the texts of the Pandects, but their border, that is to say the gloss of Accurius, is so dirty, so infamous and stinking, that it is merely ordure and villainy.⁵³ This is not an opinion which he would have imbibed from Cujas, who held Accursius the superior of any other interpreter of the law, whether Latin or Greek.⁵⁴ Pantagruel’s creator was a physician, not a

⁴⁹ De luris Interpretibus Dialogi Sex, III (Cato), at 86ff.                 ⁵⁰ Ibid., at 104.

⁵¹       See, for example, De luris Interpretibus Dialogi Sex, VI (Antipater) at 225: ‘An legatum in extranei voluntatem transferri possit; magna est quaestio. Tu vide meos interpretes ad 1. capilatorias, de her. inst. et ad 1. captatoriae, de leg. 1, et si Cuiacius quidquam ex se dicit, mentiar ego in aeternum.’ Cujas considers this question in Observationes et Emendationes, book II, ch. 2.

⁵²        De luris Interpretibus Dialogi Sex, IV (Trebatius) at 115.

⁵³        Rabelais, Pantagruel, ch. 5.

⁵⁴        Observationes et Emendationes, book III, ch. 11. He was even prepared to defend the style, if not of Accursius, at least of Bulgarus and Johannes: Observationes et Emen­dationes, book VII, ch. 36. legist. It was one thing, however, to argue that the faults of the older commentators were those of the less happy times in which it had been their misfortune to live, and that they might be pardoned the barbarity of their style and their ignorance of good letters in consideration of their other merits. It was a very different matter to suggest that elegance of style and a knowledge of good letters were not accomplishments which any legist need trouble to cultivate, and that the commentaries upon the texts of Justinian which had been written in an age of Gothic barbarism were more truly classical than the works of contemporaries. This was to argue that ignorance was to be preferred to enlightenment, and it was perhaps inevitable that this apparent perversity should distract attention from the substantial point that Gentilis was making; a point upon which he was exceptionally clear-sighted.

Nearly two centuries after his time Bynkershoek, who was both a historian of Roman law (and a very learned one) and a judge, found it impossible to hold that whether a text were interpolated was a merely historical, not a legal question:

Quemadmodum vero... ipsius iurisprudentiae interresset, nullum omnino dari emblema, ita et interest, dari quam paucissima. Quapropter non oportet nos esse liberales in his vel temere iactandis, vel anxie investigandis; quin nec ullum largiendum, si res aliter salva esse possit, et an possit, tentanda prius omnia, omnis movendus lapis.^[235]

The legist should approach the question whether a passage of the Digest be interpolated in the same manner as he should approach the question whether it be impossible to reconcile it with another passage in the same compilation. If two provisions in the same legislative code might appear to the superficial eye to be inconsistent, the office of the expositor is to reconcile them, and if they may be so construed that they can stand together, this is to be deemed their true construction. Whether, as a matter of historical fact the difficulty may not be due to the over­sight of the draftsman is a question upon which it is not necessary, or indeed proper, to speculate. Since both provisions are equally authorita­tive, effect must be given to both. Interpolation, we are to take it, is as much a defect as bad draftsmanship. It would be better for the science of jurisprudence if Justinian’s compilations contained no interpolations. Since it cannot be denied that some passages are interpolated, it is better to hold that the compilations contain as few interpolations as may be, and the office of the expositor of a text is to discover reasons to hold it genuine.

The English reader may be reminded of the controversy between Challis and Maitland upon the question whether a remainder might be limited after a conditional fee in the reign of Henry III. Maitland had been at pains to stress that he was not suggesting for a moment that a remainder limited after a conditional fee might be good in the reign of Victoria. Challis, while admitting that such remainders appeared in thir­teenth-century settlements, was reluctant to hold this evidence of any­thing save the ignorance of the draftsmen, or, to put it at its highest, of the uncertainty of the law, which encouraged conveyancers to experiment with speculative limitations.^[236] We should not admit that a limitation which would be clearly invalid at this day would have been supported six centuries ago if the evidence can be made to bear any other interpretation, for to do so would be to throw doubt upon the claim of the modern rule to be deemed a rule of the common law. Similarly for Bynkershoek, to admit that a doctrine to be found in the Digest was not classical would be to give more countenance than was desirable to conclusions which were not ‘practically sound’. That the law is one study and the history of the law another is not a position which it is easy to maintain consistently, if the law is founded upon ancient texts. That Gentilis was capable of doing so might be held a singular merit, though it was one which gained him little esteem in his own day.