Law School of Harvard University / 2010–11
LEGAL HISTORY: CONTINENTAL LEGAL HSTORY
Professor Donahue
April 25: 12:00 p.m. — May 11: 4:30 p.m.
GENERAL INSTRUCTIONS
This is a take-home exam. It will be distributed on April 25 (the last class) at 12:00 p.m.
You may, if you wish, also pick it up in my assistant’s office (Hauser 518) any time after the last
class; it is also available on the class website. The exam should be returned to me as an email
attachment (rspang@law.harvard.edu) any time before 4:30 p.m. on May 11 (the last day of 1L
exams). I have deliberately extended the time of the exam to the end of the 1L exam period to
give you plenty of time to do it. Since this extension brings me very close to when the grades are
due, please don’t ask for an extension beyond this time. I am happy to answer a “return receipt
requested” on the email. If you insist on a paper copy, it should be delivered to my assistant Jane
Reader, in Hauser 518, (If you can’t find her, put the exam under my door [Hauser 512].)
(Please note that this is different from the usual procedure. You do not turn in the exam to the
Registrar’s Office.) You should also turn in the second draft of your paper at the same time
preferably as an email attachment, or if by paper, stapled to the back of the exam. The exam is
regarded as a paper by the Registrar’s Office; you should therefore put your name (not
your Student ID number) on both the exam and the paper.
You may not discuss this exam with anyone between 12:00 p.m. on April 25 and 4:30
p.m. on May 11. If you have not picked up the exam, you may, of course, discuss the course
with anyone who has also not picked up the exam.
This is an open-book exam. You may use any materials that you want. The exam is not,
however, intended to be a library exercise. You should be able to do it with just the books
assigned for the course and your class notes.
There is no limit on words, but conciseness will be rewarded and verbosity penalized.
One way to be concise is not to recite at length material that was contained in the lectures. By
and large, I know that material, and in a take-home exam I can assume that you do too. What I
am interested in is your ideas, how you put the material together. If you find yourself writing
more than five double-spaced typewritten pages on each question, you’re probably writing too
much. You may, however, find that you need to write a more than five pages on the first
question; because it requires that you integrate ten guide questions into a coherent essay. The
second question is a “think piece,” the results of which can, and should, be quite concise.
The first of the two questions gives you a text to comment on and poses some guide
questions. The second calls for a general essay. The questions will be given approximately
equal weight, and the paper will count for one-third of your grade. I will break ties on the basis
of the paper.
© Copyright 2011 by Charles Donahue, Jr.
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Law School of Harvard University / 2010–11
CONTINENTAL LEGAL HISTORY, QUESTION I
QUESTION I
Reproduced below is a translation of the opinion of the Roman Rota in Lisbon.
Matrimony. Monday (15 March, 1574), in Caesare de Grassis, Decisiones Sacrae Rotae (Rome
1590) 79–80. It is also found in the Materials, p. XIV–20. It is followed by some guide
questions that reproduce some of the material that is cited in the case. (Most of the citations,
which are quite extensive, have been omitted.) You should answer the guide questions in the
process of writing a coherent essay about the case.
The lords [of the Rota] said that diminished faith, at the discretion [arbitrio] of the lords,
was to be given to Helena de Conto and Catharina Gundisalvi, witnesses examined for
donna Maria. And some of the lords thought that absolutely no faith was to be given to
the aforesaid Helena, because she is a slave [serva], as all the witnesses both of don
Pedro and of donna Maria seemed to confess in deposing that she is the daughter of
Maria Roderici, an engendered slave [seminigtae servae], and the rule is undoubted that
the offspring follows the womb. ...
Nor was it pleasing, what was urged on the other side, that servitude is not one of those
things that are perceived by the senses, for the witnesses further deposed that she was
treated like a slave and was taken for one at home and outside, that she served and that in
effect she was called a slave. From which things it is clearly to be inferred that she is in
the status of servitude. That seems to suffice that she not be admitted as a witness. ...
Nor do the witnesses of donna Maria stand in the way when they say that the aforesaid
Helena was very well treated in that house, and that it was said by many that she was the
sister of the same Maria. For it is said, and the witnesses confirm it, that she is a slave,
insofar as it is said that her father left her liberty, her father still being alive. Whence she
cannot be free by this, because a testament is confirmed by death, as is generally held.
Nor does it stand in the way that she is the slave or freedwoman of the father and not of
Maria, for as soon as she is the slave or freedwoman of the father, she is also the slave or
freedwoman of the daughter, and thus also of Maria. [D.50.16.58.1].
Further it is said that she is an aya or a cuitos.1 Whence it seems to be in her great
interest to act so as not to be said to be engaged in bawdry, in which case a witness is
repelled. ... And let her not only try to exonerate herself but also her mother ... . Since all
these things came together, it seemed to some of the lords that she ought be entirely
repelled ... . Which proceeds even where the truth cannot otherwise be had. ... On the
part of some, as I have said, it seemed that she ought to be repelled entirely.
Some said that she ought not be entirely repelled, since some of the witnesses seemed to
depose of her reputation and of a certain sort of treatment as a freedwoman, and since the
matter is favorable. When there is a case about proof of marriage, in the proof of it
witnesses not greater than any exception seem to be admitted, as is handed down to us in
[X 4.18.3; Panormitanus ad X 2.20.22] in 3 not., more clearly in [Philippus Decius,
Consilium] 163. col. 4. sub. numer. 7. vers. octavo oppono., after [Alexander Tartagnus,
Consilium] 146. col. 6. vers. nec obstat si aliquis, vol. 5.
Both words apparently mean “nanny.” “Aya” is today a Spanish word and “cuitos” Portuguese, but in
this period the distinction between the two languages was not that great.
1
© Copyright 2011 by Charles Donahue, Jr.
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Law School of Harvard University / 2010–11
CONTINENTAL LEGAL HISTORY, QUESTION I (CONTINUED)
Even those who felt this way agreed that her faith should be reserved for discretion, with
not a little diminution.
As to the second witness, Catherina Gundisalvi, since she is [Maria’s] nurse and her
familiarity remains and consequently she still is a domestic, both of which things
normally repel a nurse (. . .) and because she desires that the marriage be effectuated,
which desire similarly in marriage cases totally rejects a witness (. . .), on this account the
lords wanted equally to reserve her faith also for discretion with considerable diminution.
So much the more so because between the first and second examination there are certain
variations, which although it seemed possible that it [the testimony] could be saved on
account of the lapse of time that intervened between the first and second examinations,
nonetheless they displeased the lords.
1. A word should be said to start off with about the institutional and social context of this case.
What is this court? In all probablity, who are these people?
2. While little is said about the underlying substance of the case, enough is said that we can infer
that it was a dispute about whether a marriage had been formed, probably between don Pedro
and donna Maria. Your essay might begin by pointing to the phrases in the case that indicate
that this was the underlying issue and how the fact that that was the underlying issue affected the
ruling in the case.
3. Having decided that the underlying issue was whether a marriage had been formed, one might
then puzzle about why the testimony of these women could be relevant to that issue granted that
the case was decided eleven years after the decree Tametsi of the council of Trent (Materials. p.
XVI–2).
4. Assuming that the pre-Tridentine law was being applied in the case, what was that law and
why did it give rise to the types of problems being dealt with in this case?
5. What does the court decide about the testimony of Helena and Catherina? How does this
decision (or perhaps it might be described as a non-decision) reflect the principal tension in the
law about the exclusion of certain types of witnesses as that law developed from Tancred
(Materials, p. IX–4) to Maranta (Materials, p. XII–20)?
6. D.50.16.58.1 (Gaius, On the Provincial Edict, Book 24), cited in the case, reads in its
entirety: “We consider paternal freedmen to be properly called our freedmen; but we do not
correctly designate the children of such freedmen our own freedmen.” What is the relevance of
this citation to the matter at hand?
7. X 4.18.3 reads in the edition that the Rota was using at this time (Materials, p. IX–10):
“Clement III Pope to the bishop of Florence. That parents, bothers, and blood relatives of both
sexes are to be admitted to testify in cases involving the formation and dissolution of the
marriages of their [children, siblings, and blood relatives], is proven by ancient custom and the
laws. Therefore, especially parents, and if parents are lacking, the closer relatives are admitted,
because everyone tries to know his genealogy both by witnesses and documents and by the oral
tradition of his elders. Who therefore ought better to be received than those who know better,
and whose interest it is, so much so that if they are not present and do not offer their consent, the
marriage is null according to the laws? What is written, therefore, ‘a father is not received in the
case of his son, nor a son in the case of a father’, is true in criminal cases and contracts; in
marriages to be joined and dissolved, however, by the prerogative of marriage itself and because
it is a favorable thing, they are properly admitted.”
© Copyright 2011 by Charles Donahue, Jr.
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Law School of Harvard University / 2010–11
CONTINENTAL LEGAL HISTORY, QUESTION I (CONTINUED)
8. In X 2.20.22, Alexander III holds that the testimony of a mother is “suspect” where her
daughter is seeking to establish a marriage with a man who is richer and more noble than she, but
if the marriage has not yet been established (firmatum) and either mother says that the couple are
consanguine, then the marriage is not to be allowed to proceed. If, however, the marriage has
been established, it takes the testimony on oath of many witnesses to upset it. I have not checked
the commentary of Panormitanus on this decretal, but the relevance of the decretal itself to the
issue at hand is worth commenting on.
9. Similarly, I have not checked the consilia of Philippus Decius and Alexander Tartagnus that
are cited (and you don’t have to either), but the use of these authors as authorities is worth a
comment.
10. Ultimately, of course, the fundamental question is what does this case tell us about the
relationship between procedural law and substantive law in the period of the ius commune.
QUESTION II
This course has considered various types of sources of law (Roman law, canon law,
customary law), various vehicles in which those sources were contained (collections of legal
material, primitive “codes,” glosses, custumals (coutumiers), commentaries, statutes,
codifications), various “schools” of thought about the law (glossators, commentators, humanists,
national lawyers, natural lawyers, “elegant” jurisprudents, “modern” Roman lawyers) all set
against a background of the development of the nation-state and the development of political
ideas. A key question is how do these sources, vehicles, and schools interact with each other and
with the general ideas and the political and social developments in the various periods that we
examined. Using the capture of wild animals as an example, sketch out a general overview of
western legal development from the fall of Rome to the codifications of the 19th century. Note:
This question is hard, because it is difficult to make concise historical generalizations and still
get it right. Van Vechten Veder’s attempt to do so (Outline, Lecture 15, reproduced below) is, in
my view—and I hope yours—notably unsuccessful. You can do better, and that is what this
question asks you to do. It’s probably easier to do it if one has a bit more space (5 pp. as
opposed to Veder’s two paragraphs), and a specific example to hang onto.
Van Vechten Veeder,1 Foreword to J. MacDonald ed., Great Jurists of the World (CLHS 2,
1914) p. xxix:
The Glossators aimed to explain difficult passages, and their work, as collected by
Accursius in 1260, constituted the staple of legal learning for centuries. The Glossators
were animated by the belief in authority characteristic of the Middle Ages, and their work
is therefore without historical perspective; but they rendered a service of great value in
collecting and preserving the text of the great monuments of Roman law.
The post-Glossators or Bartolists, applied to the law the methods of the Schoolmen,
developing the comparatively simple methods of their predecessors into a highly artificial
system. While they contributed little of importance to the knowledge of Roman law, they
undoubtedly aided in adapting it to a later age. To Alciati and Cujas we are indebted for
the methodical presentation of Roman law as a portion of classical antiquity. By directing
their attention to the sources, and studying them in their historical perspective, they
© Copyright 2011 by Charles Donahue, Jr.
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Law School of Harvard University / 2010–11
CONTINENTAL LEGAL HISTORY, QUESTION I (CONTINUED)
contributed materially to a real understanding of the subject. The influence of Alciati and
Cujas in the direction of historical and positive jurisprudence soon gave way, however, to
the philosophical conception of natural law.
THE END
© Copyright 2011 by Charles Donahue, Jr.
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