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This Thesis Has Been Submitted in Fulfilment of the Requirements for a Postgraduate Degree (E.G This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. NICOLAS BOHIER (1469 – 1539) AND THE IUS COMMUNE: A STUDY IN SIXTEENTH – CENTURY FRENCH LEGAL PRACTICE Jasmin K. R. Hepburn Submitted for the degree of PhD The University of Edinburgh 2016 TABLE OF CONTENTS Abstract viii Lay Summary x Declaration xi Acknowledgements xii Abbreviations xiii Introduction 1 1. Object of thesis 1 2. Motivation 2 3. Terminology 5 4. Methodology 6 4.1 Limitations 9 Chapter 1 Bohier’s France (1469-1539) 11 1. Introduction 11 1.1 Assessing Legal Humanism 13 2. Evolving legal orders 14 2.1 Placing the Parlement 14 2.2 Regional rule 17 2.2.1 National unity: challenge or purpose? 17 2.2.2 Statesman or servant? 20 2.2.3 Grand Conseil du Roi 20 2.2.4 The right of remonstrance 21 3. National identity 23 3.1 Language 25 3.2 The lawyer and print 26 ii 3.3 Reordering of customary law 28 4. Pays de droit écrit 30 4.1 Montpellier 30 4.2 Bordeaux 32 5. Conclusion 35 Chapter 2 Nicolas Bohier: a history 37 1. Introduction 37 2. Early life 38 3. Bohier’s education at Montpellier 39 3.1 Montpellier 40 3.2 Professeur at Bourges 41 4. Patronage 42 5. Conseiller 46 6. Catholicism 49 7. President of the Bordeaux Parlement 51 8. Bohier as judge 52 8.1 Judging citizenship 54 9. Publications 56 9.1 Bohier as editor 59 9.1.1 Consuetudines Biturigium (1508) 59 9.1.2 Decisiones Burdegalenses (1544) 60 9.1.3 Consilia (1554) 61 9.2 Bohier as annotator and editor 62 10. Conclusion 66 Chapter 3 Consilia 68 1. By what authority? 68 2. The sources: where the ius commune is mentioned 69 2.1 Selection of significant examples 71 3. Consilia 72 3.1 The source 72 3.2 Cons. 8: Ecclesiastical appeal 73 3.2.1 Defining stylus and custom 74 iii 3.2.2 Stylus quid 75 3.2.3 Consuetudo quid 76 3.2.4 The Bartolan World System 81 3.2.5 Introduction through court decisions 82 3.2.6 Conflict and competing sources: stylus, custom and ius commune 84 3.2.6.1 Alexander de Imola 87 3.2.6.2 Filippo Decio 89 3.2.6.3 Decio on stylus and consuetudo 92 4. Cons. 26: Canon law and dispensations 93 4.1 Defining dispensations 94 4.2 Distinguishing ius commune from custom and statute 96 4.3 The canon law and the ius commune 98 5. Cons. 40: Marriage contract 99 5.1 Procedural matters 100 6. Cons. 46: Usufruct 101 6.1 Customary law 102 6.2 Source hierarchy 103 6.3 Authorities cited 104 7. Conclusion 104 Chapter 4 Decisiones Burdegalenses 106 1. The Decisiones as a source 108 1.1 Legal practice and political tensions 108 1.2 Jacques Cujas: a practical comparison 110 1.3 Legacy of interpretation 111 2. Outline: where the ius commune is mentioned 112 3. Procedural matters 114 3.1 Decisio 69: Eviction 115 3.1.1 Competition between contemporary custom and older rules 115 3.2 Decisio 228: Number of witnesses 118 3.2.1 Baldus and the ius commune 119 3.3 Decisio 262: Punishment 120 iv 3.3.1 “Directly against the ius commune” 121 3.4 Decisio 284: Arbiter 122 3.4.1 “Custom fills the place of the ius commune” 124 3.4.2 “Speak and think in terms of the ius commune” 125 4. Matrimonial matters 127 4.1 Decisio 113: Dowry 127 4.1.1 “Beyond the law” 128 4.1.2 “Understood according to the ius commune” 128 4.1.3 “Produces a new remedy” 129 4.1.4 Competing customs on the applicability of the ius commune 130 4.2 Decisio 186: Heritable rights: mother and father 131 4.3 Decisio 188: Heritable rights: mente capto 132 4.3.1 When statute widens the scope of the ius commune 135 4.3.2 Passive interpretation by the ius commune 136 4.4 Decisio 244: Testamentary provision between husband and wife 137 5. Other matters 138 5.1 Decisio 230: Sale of property 139 5.1.1 “In hoc ius commune” 139 5.2 Decisio 263: Feudal matters 140 5.2.2 “Ius commune Romanorum” 141 5.2.3 “Customs are the ius commune in that place” 142 6. Conclusion 143 Chapter 5 Consuetudines Biturigium 145 1. The Consuetudines as a source 145 1.1 History of custom in France 146 2. Bohier’s understanding of consuetudo 149 2.1 Baldus’ understanding of consuetudo 151 2.1.1 Baldus and the ius commune 153 3. Analysing the Consuetudines 154 3.1 The language of custom 155 3.2 Classifying custom 156 v 4. “Customs and uses, the laws of the state of persons” 157 4.1 Married women’s contractual capacity 157 4.1.1 A matter of interpretation 158 4.1.2 Custom and the ius commune 159 4.1.3 Ius proprium trumps ius commune 160 4.2 Guardianship: mother’s rights over children 160 4.2.1 Ius proprium corrects ius commune 161 4.2.2 According to the ius commune 162 4.2.3 Baldus 162 4.2.3.1 Consuetudo generalis and consuetudo specialis 164 4.3 Guardianship: ward’s estate 165 4.3.1 Limited remit of the ius commune 166 4.4 “Guardianship is governed by the droit commun” 167 4.4.1 Casuistic application of the ius commune? 167 5. “Customs concerning marriage and dowry” 169 5.1 Donations between husband and wife 169 5.1.1 Competing customs 169 5.1.2 According to the ius commune 170 5.2 Dowry on death 172 5.2.1 “Or that elsewhere the ius commune applies” 173 5.2.2 No citations 174 6. “Customs that touch upon donations” 175 6.1 Donations made “inter vivos” 175 6.1.1 “Interpreted in accordance with the ius commune” 176 7. “Customs that touch upon prescription” 176 7.1 “Mala fide” possession 176 7.1.1 Feoffments 177 7.1.2 The “droit escript [sic]” 179 7.1.3 Statute and ius commune 179 8. “Customs concerning judges and their jurisdiction” 180 8.1 Neighbouring customs or the ius commune 177 9. “Retrait lignager” 182 9.1 Custom provides the retrait lignager 182 vi 9.1.1 “In accordance with ius commune and divine law” 182 9.1.2 “statute or custom that does not deviate from the ius commune” 182 9.1.3 Central or incidental? 183 10. “Customs of fiefs and cens” 184 10.1 Seigneurial system 184 10.2 The division of land 185 11. Conclusion 186 Conclusion 189 Bibliography 199 vii ABSTRACT European legal history, as a field of scientific enquiry, is a relatively young discipline that can trace its roots back to the German jurist Savigny, whose work on the jurists of the medieval ius commune is commonly seen as the first of its kind. As one of the foremost German scholars of the nineteenth century and a fierce opponent of German codification, Savigny laid the foundation for generations of subsequent historians, not only in terms of the scope, but also in terms of the method of enquiry. Thus, in the generations after Savigny, European legal history tended to be approached in terms of general narratives charting the development of the European legal order through successive historical epochs. Within these narratives, jurists played a prominent role. Thus, the creation of the legal order of Europe was based upon a translatio studii from the Roman jurists via the medieval ius commune to civil codes of the nineteenth century. By grouping jurists into “schools” or “movements”, modern commentators, so it was argued, were able to assess the impact of these on the narrative of European legal history. Although, since the end of the Second World War, this narrative has become more nuanced, the jurists remain central to it. This has had a number of consequences. The main consequence of this focus on jurists (mostly academic figures teaching at universities) has been the marginalisation of legal practice and legal practitioners in the narrative of European legal history. And yet, as recent research on the rise of central courts in Europe has shown, legal practice clearly had an impact on the development of the European legal order. In light of these insights, this thesis seeks to contribute to the narrative of European legal history by focusing not on the works of academic jurists, but on the activities of legal practitioners. This statement requires delimitation. Rather than focusing on a number of legal practitioners over a long period of time, this thesis will focus on a single legal practitioner who flourished during a specific period in European history using the principles of a microhistory.
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