Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

68 Legal History in the Making
From the 1530s onward, many jurists in the Humanist camp criticized one
or another detail in the scheme of the Institutes and proposed their own
'improvements' on that structure - one jettisoned 'persons', another traded
'actions' for extra-judicial 'acts', a third put 'things' ahead of 'persons' to
reflect the order in which God created them. 36 The most influential of the new
systematizers, Hugues Doneau, retained the basic terminology but reshuffled
the topics and reinterpreted the structure of the Institutes as a way of dividing
subjective 'rights': first our rights to our own 'persons' and limitations on those
rights; next rights in regard to things, distinguishing between what is properly
ours and what is merely owed to us; finally actions, the means of obtaining
our rights. 37 He did not hesitate to shuffle the topics of Justinian's Institutes
slightly to fit his new view of the relation of 'persons', 'things' and 'actions'.
Co well took no notice of any criticisms, adaptations or reinterpretations
of Justinian's order when he composed his Institutions, though in several
titles he found too little English law or too much. The reason for Cowell's
conservatism in this regard is probably that he regarded himself as a
'Bartolist' of the old school, opposed to the Humanist camp. 38 He found
the Humanists helpful in their comparative researches, and quoted them
freely, but ultimately, like Bartolus in the fourteenth century, he followed
the 'legal order' ordained by Justinian. 39
It is likely that Cowell planned his Institutions as part of a larger effort
to improve the learning and practice of English law. He followed it two
years later with his English law dictionary, The Interpreter, subtitled The
36 Johann Apel did not see the need for a separate category of 'persons' any more than of 'times'
or 'places'. He brought the whole of the law under the heads dominium and obligatio, the former
subsuming actions in rem and the latter actions in personam. H.F. Jolowicz, 'Obligatio and Actio',
Law Quart. Rev., Ixviii (1952), 472; P. Stein, "The Fate of the Institutional System', Huldigungsbundel
Paul van Warmelo (Pretoria, 1984), 220. Fransois Connan kept 'persons' and 'things', but replaced
'actions' with human 'acts', including contracts, marriage and testaments, but excluding any separate
treatment of judicial proceedings, Fell, Origins of Legislative Sovereignty, ii (Boston, Mass., 1983),
6; V. Piano Mortari, 'La sistematica come ideale umanistico dell'opera di Francesco Connano', La
storia del diritto nel quadro delle scienze storiche (Florence, 1966), 527-28 and n. 13; C. Bergfeld,
Franciscus Connanus (1508-1551) (Cologne, 1968), 45-46. Pierre Gr6goire of Toulouse considered
that 'things' should come before 'persons' as they had at the creation, and joined Connan (and Nicolas
Vigelius) in expanding 'actions' to human 'acts', P. Gregoire, Syntagma Juris universi (1582); N. Vigelius,
Digesta juris civilis (1568); A.P.T. Eyssel, Doneau: sa vie et ses ouvrages (Dijon, 1860), 200-1 and
n. 143; Kelley, 'Gaius Noster', 636; A. Campbell, The Structure of Stair's Institutions (Glasgow, 1954),
18-19.
37 H. Doneau, Commentarii de iure civili (1595-97); Eyssel, Doneau, 218-60; Stein, 'Fate of
the Institutional System', 221; E. Andersen, The Renaissance of Legal Science after the Middle Ages:
The German Historical School no Bird Phoenix (Copenhagen, 1974), 115-19. Doneau's rights to
'persons' included life, bodily integrity, liberty and reputation.
38 Levack, Civil Lawyers, 134, 138.
39 Andersen, Renaissance of Legal Science. Cowell also followed the older tradition in allocating
obligations to the third part of Justinian's Institutes, the actions. See, e.g., H.F. Jolowicz, Roman
Foundations of Modern Law (Oxford, 1957), 63.