Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/46

 32 7. BEFORE THE NORMAN CONQUEST teaching Roman law to an intently listening world. We with our many sciences can hardly comprehend the size of this event. The monarchy of theology over the intellectual world was disputed. A lay science claimed its rights, its share of men's attention. It was a science of civil life to be found in the human heathen Digest.'* A new force had begun to play, and sooner or later every body of law in western Europe felt it. The challenged church answered with Gratian's Decretum (circ. 1139) and the Decretals of Gregory IX (1234). The canonist emu- lated the civilian, and for a long while maintained in the field of jurisprudence what seemed to be an equal combat. Unequal it was in truth. The Decretum is sad stuff when set beside the Digest, and the study of Roman law never dies. When it seems to be dying it always returns to the texts and is born anew. It is not for us here to speak of its new birth in the France of the sixteenth or in the Germany of the nineteenth century ; but its new birth in the Italy of the eleventh and twelfth concerns us nearly. Transient indeed but all-important was the influence of the Bologna of Irnerius and Gratian upon the form, and therefore upon the substance, of our English law. The theoretical conti- nuity or " translation " of the empire, which secured for Justinian's books their hold upon Italy, and, though after a wide interval, upon Germany also, counted for little in France or in England. In England, again, there was no mass of Romani, of people who all along had been living Roman law of a degenerate and vulgar sort and who would in course of time be taught to look for their law to Code and Digest. Also there was no need in England for that reconstitution de Vunite nationale which fills a large space in schemes of French history, and in which, for good and ill, the Roman texts gave their powerful aid to the centripetal and monarchical forces. In England the new learning found laique, la science de la societe civile, telle que I'avaient d^gagce les Romains, et qui pouvait passer pour le chef-d'oeuvre de la sagesse humaine ... II en r^sulta qd'k c6t6 du th^ologien se pla?* le l^giste qui avait, comme lui, ses principes et ses textes, et qui lui disputa la direction des esprits avides de savoir."
 * Esmein, op. cit. 347: " Une science nouvelle naquit, ind^pendante et