PRESENTED TO THE LIBRARY 
 
 BY 
 
 Walter S . Johnson K.C. Esq. 
 
 
 LAW LIBRARY 
 
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 UNIVERSITY 
 
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 ?/alter S. Johnson K. C. Esq. 
 
 388 St. James St., W. 
 
 Montreal, Canada. 
 
 My dear Mr. Johnson: 
 
 Thank you for your kind words about my 
 
 newly issued Conflict of Laws. Unfortunately I know more bad 
 points about it than you are likely to discover. 
 
 I am very glad to hear that you are going on with your 
 Conflict of Laws at Quebec. Professor Head, then of Dalhousie, 
 
 wrot & in my seminar a monograph on foreign 
 
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 PRESENTED TO THE LIBRARY 
 
Unfortunately X know moi*i 
 
 X> eu3 
 
 now of Minnesota, wrote in my seminar a monograph on foreign 
 Judgments in the Law of Canada. I hope it will be printed 
 in time to give help to you. It was a most excellent work. 
 
 ery truly yours , 
 
 hi, 
 
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 A 
 
 
BARTOLUS 
 
 ON THE 
 
 CONFLICT OF LAWS 
 
 TRANSLATED INTO ENGLISH 
 
 BY 
 
 JOSEPH HENRY BEALE 
 
 ROYALL PROFESSOR OF LAW 
 IN HARVARD UNIVERSITY 
 
 CAMBRIDGE 
 
 HARVARD UNIVERSITY PRESS 
 
 LONDON: HUMPHREY MILFORD 
 OXrORD UNIVERSITY PRESS 
 
 *9H 
 
TO THE 
 
 UNIVERSITY OF PERUGIA 
 
 WHERE THE SEED OF LEGAL KNOWLEDGE WAS 
 SOWN IN THE MIND OF BARTOLUS, AND 
 BROUGHT FORTH FRUIT AN 
 HUNDRED-FOLD 
 
BARTOLUS 
 
 ON THE CONFLICT OF LAWS 
 
 INTRODUCTION 
 
 B ARTOLUS of Sassoferrato is the 
 most imposing figure among the 
 lawyers of the middle ages. To 
 him, in particular, is ascribed the first and 
 standard statement of the doctrines of 
 the Conflict of Laws. For although his 
 predecessors had thought and written on 
 the subject, and his own work professes to 
 be based throughout on previous authority, 
 his text is the starting point and the cited 
 authority for all subsequent work on the 
 subject for five hundred years. “The 
 reign of Bartolus was long at the bar and 
 in legal science. Some called him the 
 father of law, others the lamp of law. They 
 [9l 
 
BARTOLUS 
 
 said that the substance of truth was found 
 in his works and that advocates and 
 judges could do no better than to follow 
 his opinions.” 1 
 
 In the course of five hundred years the 
 simple principles which Bartolus laid down 
 became strangely warped and distorted. 
 The various schools of statutists in Italy, 
 France, and the Netherlands drew singular 
 conclusions from his expressed opinions 
 and ascribed these conclusions too often 
 to Bartolus himself . 2 Through Dumoulin, 
 Voet, and Huber these new conclusions 
 became the basis of much modern specu- 
 lation, through the work of Story, Mancini, 
 and Foelix. 
 
 These facts must be the excuse for pub- 
 lishing, on the six hundredth anniversary 
 of his birth, a translation of his treatise on 
 the Conflict of Laws. The translator can 
 
 1 i Laurent, Droit Civil International, 299. 
 
 4 1 Laine, Introduction au droit international 
 prive, 131. 
 
 [ 10 ] 
 
CONFLICT OF LAWS 
 
 urge as a qualification neither an adequate 
 command of the Latin language, knowledge 
 of medieval law, nor English style; but 
 those better qualified have unfortunately 
 neglected the work. The translation has 
 purposely been made freely, with the hope 
 of making the work in that way clearer to 
 American lawyers. Those references which 
 deal with questions of the Conflict of 
 Laws have been extended and translated, 
 since only thus can the work of Bartolus 
 himself be separated from that of his pred- 
 ecessors. Extracts from a short “Life of 
 Bartolus,” by Savigny, follow. 1 
 
 Bartolus was born in Sassoferrato, a 
 town in the Duchy of Urbino, in 1314. 
 His family name, Severi, was after his 
 death changed to Alfani. At the age of 
 fourteen years he began to study law at 
 Perugia, under Cinus, and continued there 
 several years; he afterwards studied at 
 
 1 Geschichte des romischen Rechts, vi. 137-184. 
 
 [ 11 1 
 
BARTOLUS 
 
 Bologna, under the celebrated professors 
 Buttrigarius, Rainerius, Oldradus, and Bel- 
 visio, and received the doctor’s degree in 
 1334. The succeeding five years were 
 passed in study, and he then became an 
 assistant judge at Todi and at Pisa. He 
 began to teach at Pisa in 1339 an ^ at 
 Perugia in 1343, and his great reputation 
 began with his teaching at Perugia. His 
 most famous pupils were Baldus and 
 Angelus de Ubaldis, both born in Perugia. 
 He became free of the city of Perugia, at 
 the petition of the university, in 1348. 
 In 1355 he was ambassador at the court 
 of the Emperor Charles IV, then at Pisa, 
 and received many favors from the Em- 
 peror. He died at Perugia in July, 1357, 
 in his forty-fourth year, and was buried in 
 the church of St. Francis; on his tomb is 
 found the simple but all-sufficient epitaph: 
 Ossa Bartoli. The fame of Bartolus, con- 
 tinues Savigny, surpasses that of every 
 [12] 
 
CONFLICT OF LAWS 
 
 jurist of the middle ages; a fact all the 
 more remarkable because he died at an 
 age when many celebrated jurists are just 
 beginning to be known. 
 
 Bartolus was married to the Lady 
 Pellina Bovarelli and left at his death two 
 sons, Franciscus and Aloysius, and four 
 daughters, Sancta, Paula, Francisca, and 
 Nella. His will, which is preserved, shows 
 the returns for scholarship in the middle 
 ages to have been ample. To charity and 
 to relatives outside his family he left one 
 hundred thirty-five pounds and one hun- 
 dred florins in gold. To each of his daugh- 
 ters he gave a dowry of four hundred fifty 
 florins in gold. To his wife and daughters 
 he left in money, beyond their dowries, 
 two hundred twenty florins. The residue 
 he left to his two sons. 
 
 Nearly three hundred years after his 
 birth (in the year 1590) he had living nu- 
 merous descendants in the eighth and ninth 
 
 [ 13 1 
 
BARTOLUS 
 
 generations. In the male line in the eighth 
 generation a biographer enumerates nine- 
 teen males. 
 
 His work on the Conflict of Laws com- 
 prises a portion of his Commentary on the 
 Code (Super Primam et Secundam Partem 
 Codicis Commentaria). This was printed 
 often and early. Hain notes an undated 
 edition, without imprint (2539); Ries- 
 singer, 1471 (2540); Vindelimus, 1471 
 
 (2541); Gerretzem, Venice, 1476 (2542; 
 British Museum 500 k. 1); Jenson, Venice, 
 1478 (2543; B. M. 5205 c. B. M. has also 
 the Jenson edition with 1477 imprint, 
 5205 i. 4); Mantheu, Venice-Cologne, 1480 
 (2544); Mauser, Venice, 1482 (2545); 
 
 Pachel, Milan, 1483 (2554; Bodl. has 
 
 1484); Zanis, Venice, i486 (2552); Tore- 
 san, Venice, 1488 (2546); Pachel, Milan, 
 1490(2547; B. M. 5306 h); Anon., Naples, 
 1491 (2548); Catarensis, Venice, 1490 
 
 (2553); Toresan, Venice, 1492 (2549; 
 
 [ 14] 
 
CONFLICT OF LAWS 
 
 B. M. 5205 h); de Tortis, Venice, 1493 
 (2550); de Tortis, Venice, 1499 (2551). 
 
 In the sixteenth century notices have 
 been found of the following editions : Lyons, 
 1518, 1521, 1549, 1550, 1563; Venice, 
 1570; Turin, 1574; Basle, 1592. A col- 
 lected edition of Bartolus’ works was pub- 
 lished in Venice, 1588, 1590, 1602-3, 1615. 
 The sections upon the Conflict of Laws 
 were reprinted in the Appendix to Guth- 
 rie’s “Savigny’s Conflict of Laws,” 2d 
 ed., 1880; from which edition, corrected 
 in a few instances from the edition of 
 1602, the present translation has been 
 made. 
 
BARTOLUS, COMMENTARY UPON 
 JUSTINIAN’S CODE 
 
 DE SUMMA TRINITATI 
 gloss QUOD SI BONONIENSIS 1 
 
 I 
 
 N OW let us come to the gloss which 
 says “if a Bolognian makes a 
 contract at Modena, he shall be 
 judged by the statute of Modena.” As to 
 this, two things are to be noticed: first, 
 whether a statute extends beyond its terri- 
 tory to those not subject; second, whether 
 the effect of a statute extends beyond the 
 territory of the legislator. And first, I ask, 
 what about contracts? Suppose a contract 
 celebrated by a foreigner in this city: a con- 
 test arises, and suit is brought in the place 
 where the contract was made: of what 
 
 1 Code I. 4, gloss. 
 
 [ 17 1 
 
BARTOLUS 
 
 place should the statutes be observed or 
 looked at? Since these questions are much 
 discussed, let us omit other distinctions, 
 and examine the questions more fully than 
 the doctors have done. We either speak of 
 statute or custom with respect to the form 
 of the contract itself, or the suit on it, or 
 with respect to jurisdiction over the perform- 
 ance provided for in the contract itself. 
 
 (§ 14). In the first case the law of the 
 place of contracting governs. 1 
 
 (§ 15). In the second case, the question 
 either concerns matters which pertain to 
 the form of action, and then the law of the 
 forum governs ; 2 or it concerns the merits 
 of the litigation itself : either matters which 
 arise out of the contract itself, at the time 
 it is made, or matters which arise ex post 
 facto, out of negligence or delay in per- 
 formance. 
 
CONFLICT OF LAWS 
 
 (§ 1 6). In the former case, the law of 
 the place of contract governs; 1 by which 
 I understand the place where the contract 
 is made, not the place of performance; for 
 though a sale of land is to be carried out 
 where the land is, yet the law of the place 
 of making the contract of sale governs. 
 And this is the opinion of Dinus. 2 
 
 (§ 17). This doctrine does not apply in 
 the case of dowry, for a reason stated in 
 the text. 3 
 
 (§18). In the case where the dispute 
 arises out of negligence or delay in per- 
 formance, either performance is fixed in a 
 certain place: or several places in the alter- 
 native, so that there is an election for the 
 performance; or in no place, because the 
 promise was made without condition. On 
 
 1 Dig. xxi. 2. 6. 
 
 2 [Dinus (f 1298), professor of law at Bologna, 
 teacher of Cinus, who in turn was teacher of 
 Bartolus. The passage referred to is his com- 
 mentary on Dig. xliv. 7. 21.] 
 
 3 Dig. v. I. 65. 
 
 1 19 1 
 
BARTOLUS 
 
 the first supposition, the custom in the 
 place in which the performance is fixed 
 governs; on the second and third supposi- 
 tions, the place where payment is sought 
 governs, because the negligence or delay 
 happened at that place. 1 
 
 (§ 19). By what has been said many 
 questions may be solved. There is a 
 statute at Assisi, where a contract of 
 dowry and marriage is celebrated, that if 
 the wife dies without children, the man 
 shall enjoy the third part of the dowry. 
 But in this city of Perugia, from which the 
 husband comes, there is a statute that the 
 husband shall enjoy half. Which governs? 
 Certainly the statute of the husband’s 
 domicile. 2 Another example: there is a 
 statute here that the right of suing for 
 a debt is prescribed in ten years. Now a 
 Florentine borrowed one hundred in the 
 
 1 Dig. xii. 1. 22; xiii. 3. 4; and especially xxii. 1. 
 I in prin ., with the gloss to the word contractum. 
 
 2 Dig. v. 1. 65. 
 
CONFLICT OF LAWS 
 
 Roman court under contract to return it 
 in the city of Perugia. Certainly if he did 
 nothing for ten years the statute here will 
 apply because the negligence was a viola- 
 tion of our statute; but this seems contra 
 to the gloss , 1 where it seems to be said that 
 not the place of the contract but of the 
 judgment governs. Certainly that gloss is 
 wrong. 
 
 (§ 20). But here William 2 solves the 
 problem in this way. We are either speak- 
 ing of where the contract treats of matters 
 of common concern according to the con- 
 tract of the defendant and by provision of 
 the contracting parties, and then the place 
 of the contract governs ; 3 but in those 
 things which come unexpectedly, as when 
 they happen in connection with the perform- 
 
 1 Dig. xiii. 4. 2. 
 
 2 [William of Cuneo (f 1348), professor of law 
 at Toulouse and at Orleans, author of Commen- 
 taries on the Digest and the Code.] 
 
 3 Dig. xxi. 2. 6. 
 
 [ 21 ] 
 
BARTOLUS 
 
 ance of the contract, then the place of the 
 judgment governs . 1 So he says, but his 
 words have not the savor of truth. For the 
 rule of law is that the custom of the place 
 where the contract is made governs . 2 
 
 Let me say briefly this: either one wishes 
 to seek restitution for a breach happening 
 in the contract itself at the time of con- 
 tracting, when we look to the place of con- 
 tracting, or from a breach happening after 
 the contracting from other circumstances 
 such as delay, and we look at the place 
 where the delay happened, as appears from 
 the foregoing. And so if it were in the 
 place of the judgment we look at the place 
 of the judgment, and in that case that gloss 
 may tell the truth, otherwise it is false. 
 
 1 Dig. xlvi. 3. 98. 
 
 2 Dig. 1 . 17. 34. 
 
 [22] 
 
II 
 
 S ECOND, I ask what about delicts. 
 If a foreigner does a wrong here 
 shall he be punished according to the 
 statutes of this city? This question is 
 touched by Cinus . 1 Let us put it broadly: 
 either what he did in this city is wrong by 
 the common law; then he is punished ac- 
 cording to the statutes or custom of this 
 city , 2 as Dinus and James of Arena 3 and 
 all say: or it was not a wrong by the 
 common law, and then either the foreigner 
 
 1 [Cinus de Pistoia (1270-1336), professor of law 
 at Trevisa, Siena, Perugia, F and Florence; teacher 
 of Bartolus, Dante, and Petrarch; author of Lec- 
 tures on the Digest and on the Code.] See also 
 Code 8. S3 (52). 1. 
 
 2 Code 3. 15 and Auth.; Dig. xlvii. n. 9; De- 
 cretal 5. 39. 21 and gloss. Code 3. 24. 1 is not 
 opposed to this; see the annotations of Cinus. 
 
 3 [Jacobus de Arena, professor of law at Padua, 
 Naples, Reggio, and Siena; author of Lecturae or 
 Additiones to the gloss.] 
 
 [ 23 ] 
 
BARTOLUS 
 
 had lived so long in the city that he really 
 ought to know the statute, and then it is 
 the same case ; 1 or he had not lived there 
 long, and then the act was either commonly 
 prohibited by all cities (as, for instance, 
 that he should not carry grain outside the 
 territory without license from the gov- 
 ernment, which is commonly prohibited 
 throughout all Italy) and in that case he 
 should not allege ignorance as a total 
 excuse : 2 or it is not so generally pro- 
 hibited, and then he is not held unless he 
 knew of it . 3 And there is now a text for 
 this , 4 where an ignorant man is not held 
 unless his ignorance was gross and supine. 
 
 1 Code 3. 15. 2 and note in the last gloss. 
 
 * Dig. xxxix. 4. 16. § 5. 
 
 * Dig. 1 . 9. 6. 
 
 4 Sext. x. 2. 2 ( ut animarum ) and gloss. 
 
 [24] 
 
Ill 
 
 T HIRDLY, I ask what in the case 
 of a will? Suppose there is a 
 statute or custom at Venice that 
 a will shall be valid before two or three 
 witnesses. A foreigner makes a will there. 
 Is it valid? On this general question first, 
 we must see whether the custom or statute 
 is valid; second, if it is valid whether it 
 applies in the case of a foreigner. 
 
 [The discussion of the validity of the 
 custom in §§ 22, 23 is omitted.] (§ 24). 
 As to the second point, whether such a 
 custom extends to a foreigner: James of 
 Arena decided that it did not. 1 Further- 
 more, he said, though it be granted to the 
 country people that they may make a will 
 before five witnesses, nevertheless this is 
 not allowed to anybody who happens to 
 
 1 Code 6. 23. 9; Dig. xlix. 14. 32. 
 
 [ 25 ] 
 
BARTOLUS 
 
 be in the country ; 1 and besides, as a 
 statute is called the law proper to a city 
 it does not extend to strangers . 2 But it 
 seems to me we should say either the 
 statute affects the persons of citizens and 
 does not extend to foreigners ; 3 or the 
 statute speaks simply and indefinitely, 
 and applies to foreigners there making 
 wills . 4 5 6 For as to those things which are 
 of voluntary jurisdiction, a statute binds 
 foreigners . 8 Besides, it is so in contracts, 
 as we have said above; therefore, etc . 7 
 
 1 Dig. xxix. 7- 8. 
 
 2 Dig. i. i. 9- . • 
 
 3 So I understand Code 6. 23. 3* 1® connection 
 
 with Dig. xxix. 7. 8. § 1. 
 
 4 Code 6. 32. 2. . T . . . , tv 
 
 5 Code 8. 48. 1 ; for this I cite in especial Dig. 
 
 xxix. 1 ult. 
 
 6 Dig. xxi. 2. 6. _ . 
 
 7 I say this, notwithstanding Code 6. 23. 9, 
 because I understand it according to the distinction 
 indicated; and Dig. xlix. 14. 32, because it speaks 
 about hostages, who are not Roman citizens and 
 have no capacity to make a will (Dig. xxviii. X. 11), 
 
 and it is therefore necessary for them to accept the 
 toga and become citizens, and then make a will 
 
 [26] 
 
CONFLICT OF LAWS 
 
 We now come to the question whether 
 such a will extends to goods which are 
 elsewhere, where there is no such custom. 
 But as to this, doubt is raised whether, if 
 the statute disposes with regard to a person 
 (as, what son of a family can make a will) ; 
 and if a foreign son of a family makes a 
 will in that city, the will is valid. I say 
 no, because statutes cannot legitimate a 
 person not subject to them, nor can they 
 make any disposition about such a person . * 1 
 And this, notwithstanding what has been 
 said above about form. For the form 
 of an act pertains to the jurisdiction of 
 the city in whose territory it is done; so 
 it varies according to the difference in 
 places ; 2 but wherever there is a differ- 
 ence of person, a statute cannot dispose, 
 except about a person subject to it. 
 
 according to the custom of their locality, as above 
 shown. 
 
 1 Dig. xxvi. 5. 1 in fin . ; xxvi. 1. 10 and note. 
 
 2 Dig. xxii. 5. 3; xxix. 3. 2. § 7. 
 
BARTOLUS 
 
 But the opposite of what has been said 
 is found in the Code , 1 2 where a person not 
 subject is legitimated according to the 
 form of a statute. I answer, that statute 
 does not legitimate the person directly, 
 because it cannot; but it gives the form 
 and solemnity for creating legitimation 
 there, as for instance that emancipation 
 shall be made there before such a court. 
 When, therefore, it has to do with form, it 
 extends to foreigners. And so I say, if a 
 statute provides for restraining a person, 
 as for instance, a statute says a man cannot 
 make his wife an heir; certainly if a for- 
 eigner makes a will here it does not prevent 
 him making his wife an heir for the said 
 reasons. This is held in the Speculum. Juris } 
 
 1 Code 8. 49. 1. 
 
 2 [Gulielmus Durantis (1237-96), professor of 
 law at Modena, wrote the Speculum Juris, a prac- 
 tical treatise on the Roman law, which was so 
 celebrated that he was known as “Speculator.” 
 The passage referred to is Speculum Juris (ed. 1602), 
 pt. ii, p. 785; tit. de sen., qualiter, ver. item pone.] 
 
 [28] 
 
IV 
 
 F OURTH, I ask what about those 
 things which are neither contracts 
 nor delicts nor last wills? Suppose 
 one has a house here, and it is a question 
 whether he can raise it higher. Briefly, 
 when there is a question of any right grow- 
 ing out of a thing itself, the custom or 
 statute of the place where the thing is 
 should be observed. 1 
 
 (§ 28). I ask whether statutes and cus- 
 toms of the laity bind the clergy? [This 
 portion of the text, containing §§ 28-31, 
 is omitted in this translation.] 
 
 1 Code 8. 10. 3; Dig. viii. 4. 13. § 1. 
 
 [29] 
 
V 
 
 S IXTH, we must see whether statutes 
 or customs may extend their effect 
 outside the territory; which must be 
 examined by many lines of questions; be- 
 cause some statutes are prohibitive not by 
 reason of a penalty but by reason of some 
 solemnity; some are permissive; some pro- 
 hibitive. About the first class I say this: 
 such statutes are either prohibitive by 
 reason of the solemnity required for some 
 act, as where the statute says that a will or 
 instrument shall not be made except before 
 two notaries or some other solemnity; 
 then such a statute does not extend beyond 
 the territory of the legislator, because in 
 matters of form we always look to the 
 place where the thing is done, as has been 
 said above both about contracts and 
 about last wills. Or the statute is pro- 
 [30] 
 
CONFLICT OF LAWS 
 
 hibitive in rem, and with respect to a 
 thing, as where it prohibits the title of 
 property to be passed between husband 
 and wife. Then wherever a disposition of 
 such a thing is made it is not valid, because 
 such a provision affects the thing and 
 prevents the title passing . 1 Or the statute 
 is prohibitive in personam; and then it 
 either contains a favorable prohibition, as 
 for instance, in order that young persons 
 shall not be deceived in the making of 
 wills it is provided that one under fifteen 
 years old cannot make a will; or suppose 
 the statute is that a man cannot make 
 a legacy to his wife, or the opposite, and 
 this is done lest by reason of their mutual 
 love they may despoil or deceive one 
 another; then such a prohibition includes 
 a citizen of that city wherever he is. 
 Similarly, it is understood generally in the 
 
 1 Inst. 2. 8; Dig. xxii. 5. 1; Code 5. 13. 15; 
 Code 6. 3. 3; Code 8. 10. 3. 
 
BARTOLUS 
 
 case of one who is interdicted in dealing 
 with his goods. For such an interdic- 
 tion, which is favorable, so that his goods 
 shall not be wasted, extends its effect 
 wherever the goods are. 1 For the same 
 reason the special interdiction for a par- 
 ticular act is the equivalent of an inter- 
 diction general and special. 2 (§33)- W 
 on the other hand the statute contains a 
 burdensome prohibition, then it does not 
 extend beyond the territory of the legis- 
 lator. 3 And so I say that a statute pro- 
 viding that a daughter as a woman shall 
 not succeed, since it is prohibitive and 
 burdensome, 4 5 does not extend to goods 
 situated elsewhere. 6 
 
 1 Dig. xlv. i. 6; xxvii. io. io. 
 
 2 Dig. xlix. 17. 11 ; xxvi. 7. 51. 
 
 8 Dig. iii. I. 9. 
 
 4 Code 6. 28. 4. 
 
 5 On this distinction between prohibitions which 
 are rational, favorable, or burdensome see Sext. 5. 
 11. 26. 
 
 [ 32 1 
 

 VI 
 
 S EVENTH, I ask about permissive 
 statutes, about which two things 
 are to be said, first, whether a 
 permissive act may be done outside the 
 territory of the permitting law; and sec- 
 ond, if it is exercised in the very way 
 or place which the law permits, whether 
 it takes effect outside the territory? And 
 these two things we treat together; for 
 always a statute allows and permits what 
 it does not reasonably forbid, excepting 
 those things in which a privilege is spe- 
 cially granted; for instance, by the statute 
 of a city one is made a notary; can he 
 execute an instrument outside the terri- 
 tory of that city? About this Speculator 
 treats . * 1 My own opinion is that instru- 
 
 1 Speculum Juris (ed. 1602), pt. ii, p. 662; tit. 
 de instr., § restat, ver. quid de his. 
 
 1 33 1 
 
BARTOLUS 
 
 ments cannot be made outside the terri- 
 tory ; and so of similar things that may 
 be done within the territory. (§ 35)* * 
 For acts which pertain to voluntary juris- 
 diction when allowed to an inferior by the 
 prince, cannot be exercised outside the 
 territory . 1 (§ 36 ). Yet I suppose that 
 instruments executed by such a notary 
 within his territory have force everywhere 
 outside the territory. So an emancipation 
 executed before one who has jurisdiction 
 by the local law has force everywhere ; 2 
 and this is so because it is rather a matter 
 of form than of substance. 
 
 Sometimes statutes are permissive in that 
 they allow what is already permitted by 
 the common law, but they remove out of 
 the way some requirement of the common 
 law. And this happens in many ways. 
 
 1 Dig. i. 16. 2, which is noteworthy on this point; 
 Sext. 2. 2. 1 in fin. 
 
 * Code 8. 49. I. 
 
 [ 34 ] 
 
CONFLICT OF LAWS 
 
 Sometimes a requirement of form is abol- 
 ished. Suppose seven witnesses are re- 
 quired by law for a will, and the statute 
 provides that four shall be enough; this 
 statute is certainly valid. And if it is a 
 question whether a will made in the terri- 
 tory shall be observed as to the testator’s 
 goods outside the territory, this question 
 is treated by several authors, for instance 
 by Hubert of Bobis 1 and other ancient 
 Ultramontanes, whose opinions Specula- 
 tor cites , 2 but their conclusion is not clear. 
 Afterwards came James of Ravenna , 3 
 who said that the heir should have the 
 goods within the territory, but the goods 
 which are outside the territory those should 
 
 1 [Ubertus de Bobio, professor at Parma in 1227, 
 then at Vercelli and at Modena. One of the later 
 glossators.] 
 
 2 Speculum Juris (ed. 1602), pt. ii, p. 679; tit. de 
 instr. edit., § compendiose, ver. quid si. 
 
 3 [Jacobus de Ravanis (f 1296); by birth a 
 Frenchman, professor at Toulouse, 1274; “the first 
 jurist who applied the forms of dialectic to the science 
 of law.” His works are lost.] 
 
 [ 35 3 
 
BARTOLUS 
 
 have who take upon intestacy . 1 It is no 
 objection that he would thus die in part 
 testate and in part intestate , 2 because 
 difference of custom would cause it, as, in 
 the case cited, difference of patrimony . 3 
 And of the same opinion was Cinus once; 
 afterwards came William of Cuneo, who 
 said the will was good without distinction, 
 and extended to the goods everywhere, 
 even outside the territory. This he proved, 
 first, because the statute operates upon 
 the will itself, and if that was valid from 
 the beginning, the effect extends from the 
 will itself to all the goods by consequence; 
 and though the statute cannot dispose of 
 the goods directly, yet it may by conse- 
 quence . 4 Furthermore, as a proper action 
 may be instituted elsewhere, where the 
 land lies, so a disposition may be made 
 
 1 Dig. xxvi. 5. 27; xxvi. 7. 47. 
 
 2 Dig. 1 . 17. 17. 
 
 3 Dig. i. 7. 22. 
 
 4 Dig. xxvi. 4. 3. § 1; Inst. I. 17. 
 
 [36] 
 
CONFLICT OF LAWS 
 
 elsewhere, where the res is . 1 Besides, an 
 act before one judge has force before an- 
 other . 2 Moreover, in his opinion this very 
 case is covered by the Code ; 3 if a will is 
 made before a judge, where a minor form 
 is required, then the inheritance may pass; 
 and this transfer has effect everywhere. 
 And of this opinion afterwards was Cinus, 
 and made an addition in his lecture, though 
 he did not recite his opinion in full. Doctor 
 William of Cuneo and Doctor James 
 Buttrigarius 4 held the same . 5 This opin- 
 ion pleases me, for the aforesaid reasons, 
 except the first reason of William, which 
 displeases me, as I will now explain. For 
 confirmation of the aforesaid I cite the 
 Code de testamentis , 6 where a will made in 
 
 1 Code 7. 33. 12. 
 
 2 Code 2. 1. 2; 7. 62. 15 and 19; 6. 23. 31. 
 
 3 Code 6. 23. 19. 
 
 4 [Jacobus Buttrigarius (f 1348), teacher of 
 Bartolus; author of Lectures on the Digest and the 
 Code.] 
 
 s Code 6. 23. 9; 6. 32. 2. 
 
 1 37 1 
 
 6 Code 6. 23. 31. 
 
BARTOLUS 
 
 the country before five witnesses has its 
 effect everywhere, although the stricter 
 form may be required in another place. 
 Furthermore, a will made in the army takes 
 effect everywhere, and the custom of the 
 region is looked to with regard to the form 
 of any act about which a question is raised , 1 
 and so I should hold. But William’s first 
 reason does not please me. What is not 
 directly permitted is to be sure some- 
 times permitted by way of consequence; 
 that is, when that which is not permitted 
 directly is a necessary consequence of the 
 antecedents, otherwise not . 2 But if the 
 will is valid, it does not necessarily follow 
 that it should pass all the goods. Reason: 
 because by force of law one may die testate 
 in part and intestate in part, as in the case 
 of a soldier . 3 
 
 1 Dig. xxv. 4. i. 
 
 2 Dig. xxxiv. 3. 29; iii. 2. 4. § 2; note by Dinus 
 to Dig. xxvi. 8. 1. 
 
 3 Dig. xxix. 1. 3 and 41; Code 5 - 9 - 1 and note. 
 
 [ 38 ] 
 
CONFLICT OF LAWS 
 
 (§ 38). But sometimes permissive stat- 
 utes are found which remove a limita- 
 tion of personal quality. For instance, a 
 statute provides that a minor son ( filius 
 iamiliae), or some other person forbidden 
 by law, may make a will; or it is provided 
 in a statute that a bastard may be made 
 heir — things which are forbidden at com- 
 mon law. Suppose, for the present, that 
 such statutes are valid; I will speak of that 
 elsewhere; I shall not now speak of their 
 validity. (§ 39). The question is, whether 
 such a person may be made heir outside 
 the territory, and take up the inheritance. 
 I say no. Since this is the legislation of 
 some power inferior to the sovereign, its 
 force cannot extend beyond the jurisdic- 
 tion of the legislating power, though it 
 relates to a voluntary act. 1 On this point 
 see the Code and the modifying Novel, 2 
 
 1 Dig. i. 16. 2. 
 
 2 Code 5. 27. 8; Nov. 89. c. 4. 
 
 I 39l 
 
BARTOLUS 
 
 where the legitimation of a son which is by 
 grant of a city court has no force except 
 between the applicant father and son, not 
 as to the grandfather, nor inter alios. So 
 in the case in point, a legitimacy created by 
 the statute of a city has no force except in 
 the legitimating city. 
 
 (§40). But a strong and constantly 
 recurring doubt rises as follows. One 
 thus legitimated makes a will in that city, 
 or is made heir there, and undertakes the 
 inheritance; is such a will valid, or does 
 the inheritance so undertaken extend to 
 goods which are in another city? And it 
 is said that they do, according to what has 
 been said about statutory provisions as to 
 mere form. 
 
 (§41). Moreover, to the same effect is 
 the provision of the Code about emancipa- 
 tion, 1 for the emancipation there created 
 has force everywhere; as is said above 
 
 1 Code 8. 49. x. 
 
 [40I 
 
CONFLICT OF LAWS 
 
 about the person of a notary. Furthermore, 
 execution will be ordered by a judge in 
 one territory, even upon goods situated 
 there, of the unexecuted judgment of a 
 foreign judge . 1 So this will, which is a 
 quasi judgment , 2 extends to goods there 
 placed . 3 Furthermore, “simple disposi- 
 tion” cannot be understood, except of 
 goods which are in the territory of the dis- 
 poser . 4 * For this the expression seems to 
 be the passage in the canon , 6 where it is 
 said that legitimacy created by the Pope 
 does not extend to things which are not of 
 his jurisdiction, as to inheritance and other 
 temporalities, which are in the Emperor’s 
 jurisdiction, where note also the gloss of 
 William and modern doctors. 
 
 1 Dig. v. i. 45; Code 3. 1. 13. § 3. 
 
 2 Dig. xxviii. i. i. 
 
 3 But see, to the contrary, that it does not ex- 
 tend, Dig. xxvi. 5. 27; xxvii. I. io. §4. 
 
 4 Dig. xlii. 5. 12. §1; Auth. quib . mo. nat. effi. 
 
 sui , § filium , where the legitimation is understood 
 
 to be strictly made. 6 Decretal 4. 17. 13. 
 
 [41 ] 
 
BARTOLUS 
 
 I answer to the contrary. For a pro- 
 vision about the form of an act is a different 
 thing from the legitimation of a person for 
 an act. Reason: because when there is a 
 difference of place, different reasons exist 
 for different results. For in the case of a 
 military will fewer witnesses are required, 
 since by reason of military occupation so 
 many men cannot be had, and therefore in 
 that case provision is made for a smaller 
 number of witnesses. It may be, too, that 
 in one city there are more legal men than 
 in another, and therefore the statutes are 
 different. That reason of form, therefore, 
 has force outside as well as in the city with 
 respect to the will. So the law has pro- 
 vided that so far as form is concerned its 
 effect is recognized everywhere. For there 
 is no prejudice here to another city, for 
 that act could be done anywhere, though 
 not in that form. But a provision about 
 legitimating a person for doing an 
 
 [42] 
 
 act is 
 
CONFLICT OF LAWS 
 
 not of this kind; so I cannot legitimate 
 except in so far as I am myself the dis- 
 posing power; nor has my act force out- 
 side my territory, because it would cause 
 prejudice to another . 1 And this is true, 
 notwithstanding the provisions of the Code 
 about emancipation, and what has been 
 said above about notaries; because there 
 the statute does not directly make pro- 
 vision for an act, but for the form of an 
 act. For the statute does not emancipate 
 the son, for that would empower him 
 abroad, but the father emancipates the son, 
 using the form provided by the statute. 
 So in case of the notary; for he takes no 
 part in the disposition itself, but in solem- 
 nizing an act done by another, wherefore 
 there is the same reason so often stated 
 as to form. This is true notwithstanding 
 what has often been said about a judgment; 
 for there the judge disposes about a right 
 
 1 Code 8. 49. 1. 
 
 [43 1 
 
BARTOLUS 
 
 already vested and created, a right which 
 follows the person everywhere; therefore 
 execution is allowed by another judge. 
 But when a judge acts de novo by creating 
 a right within the territory, then it has no 
 force outside the territory, as has been 
 proved above. 
 
 (§ 42). But doubt may be raised on 
 some such question as this. It is the custom 
 of England that the eldest son succeeds 
 to all the goods. Now one having goods 
 in England and in Italy dies; the question 
 is, what law governs. James of Ravenna 
 and William of Cuneo hold that as to goods 
 in England judgment is given according 
 to the custom of that place; while as to 
 those in Italy, they are distributed at 
 common law, and divided between the 
 brothers. 1 Though a certain form is given 
 for goods situated there, it does not extend 
 everywhere. 2 Cinus holds the same here. 
 
 1 Dig. xxvi. 5. 27. 2 Code 10. 1. 4; Dig. 1 . 1. 24. 
 
CONFLICT OF LAWS 
 
 Others say that the place where the in- 
 heritance vests should be looked to, just 
 as if a contract were made there , 1 since 
 in contracts we look to the place of con- 
 tracting . 2 
 
 It seems to me that the words of the 
 statute or of the custom are diligently to 
 be examined. For either the provision is 
 made about a res, as by these words: The 
 goods of decedents shall go to the first- 
 born, and then I should adjudicate as to 
 all the goods according to the custom or 
 statute at the place where the things are 
 situated; for the law affects the things 
 themselves, whether they are possessed by 
 a citizen or a stranger : 3 or else the words 
 of the statute or of the custom make pro- 
 vision about a person, as by these words: 
 The first-born shall be heir; and then either 
 
 1 Dig. xlii. 4. 3. 
 
 2 Dig. xxi. 2. 6.; 1 . 17. 34. 
 
 3 Dig. 1. 4. 6; Code 8. 10. 3. 
 
 [4Sl 
 
BARTOLUS 
 
 such decedent was not an Englishman, 
 though he had possessions there, in which 
 case such a statute does not affect him and 
 his sons, because a provision about persons 
 does not affect foreigners, as was said 
 above: or such decedent was English; 
 
 and then the first-born succeeds to the 
 goods which are in England, and to the 
 others he succeeds at common law, ac- 
 cording to what the said doctors say; 
 because either this is said to be a statute 
 which deprives the younger sons, in which 
 case, since it is odious, it does not affect 
 goods situated abroad, as was proved 
 above, or you call the statute permissive 
 in removing an obstacle so that the younger 
 sons may not interfere with the elder, 
 and that is the same, as has been said 
 above. * 1 (§43). Nor am I satisfied with 
 the opinion of those who look at the law 
 
 1 On this point, that one should examine whether 
 a provision is in rent or in personam , see Dig. xviii. 
 
 I. 81. 
 
 [46] 
 
CONFLICT OF LAWS 
 
 of the place of taking up the inheritance; 
 for taking up the inheritance cannot be 
 of importance except on the question of 
 how far the inheritance is delayed . 1 But 
 it is not delayed, except in the way indi- 
 cated, that is, where no one takes it up, 
 etc. But contracts extend as far as the 
 will of the contracting party goes; which 
 is presumed to have been according to the 
 custom of the place where the thing is done, 
 as has bee n said above; therefore, etc. 
 
 1 Dig. v. 4. 3.; xxix. 2. 10 and 75. 
 
 [ 47 ] 
 
VII 
 
 E IGHTH, about punitory statutes. 
 This is to be investigated along 
 many lines of question. First, 
 whether they may extend their force ex- 
 pressly outside the territory? To which I 
 say, that sometimes either the delinquent 
 or he against whom the crime is committed 
 outside the territory is a foreigner; then 
 the rule is that the statute, though it ex- 
 pressly forbids the act, does not extend to 
 those persons who are outside the territory, 
 etc ., 1 because the statutes are the peculiar 
 right of the city . 2 This rule fails in cities 
 confederated and bound together; as if a 
 statute of Perugia provided that a delin- 
 quent at Assisi might be punished here . 3 
 
 1 Dig. ii. I. 20. 
 
 2 Dig. i. 1.9. 
 
 3 Dig. xlix. 14. 7 in fin . 
 
 [48] 
 
CONFLICT OF LAWS 
 
 The same is true, I suppose, for the same 
 reason, if the state in whose territory the 
 crime was committed had consented to the 
 making of the statute. 
 
 Sometimes a foreigner offends a citizen 
 beyond the territory of the city, and a 
 statute provides that the foreigner should 
 be punished here; would this be valid? 
 It has been held so, just as a layman offend- 
 ing a clerk is tried in the ecclesiastical 
 court. 1 (§ 45). Moreover, by reason of 
 the place in which a crime is committed, 
 everyone is subject to that jurisdiction, 
 even a stranger. 2 But if the crime is com- 
 mitted in a place subject to the city, upon 
 the person of its citizens, therefore, etc. 
 But those reasons do not cover this case. 
 In the case put of the offense against a 
 clerk, the reason is that he commits sacri- 
 lege, which is an ecclesiastical crime, and 
 
 1 Code X. 3. 2; Auth. item nulla; Decretal 2. 2. 8. 
 
 2 Dig. i. 18. 3; Code 3. 15. 1 and Auth. qua in prov. 
 
 [ 49 1 
 
BARTOLUS 
 
 therefore pertains to the church. And 
 that phrase which runs, by reason of the 
 place, etc., I understand to mean, by rea- 
 son of an immovable thing, like territory, 
 not of a movable or self-moving thing. 
 State the rule thus, therefore; such a stat- 
 ute is not valid, because a city cannot 
 legislate beyond its territory upon persons 
 not subject to it. 
 
 There is an exception in the case of 
 thieves from a wreck, who may be punished 
 by the judge of the person offended; and 
 so, when such a crime pertains to persons 
 of its jurisdiction a statute may be made 
 against such delinquents outside the terri- 
 tory , * 1 though the opinion of Cinus is con- 
 trary. Another exception is in the case 
 of federated cities, as I have said before. 
 Another exception, where my fellow citi- 
 zen offends and the judge of the place does 
 
 1 Dig. xlvii. 9. 7 and gloss; though Cinus would 
 not hold this in his comment on Auth. qua in prov. 
 
 I So] 
 
CONFLICT OF LAWS 
 
 not punish the offense (either because he 
 will not, or because he cannot), then a 
 statute against the offending citizen may- 
 be made outside the territory. 1 
 
 Sometimes a citizen commits an offense 
 outside the territory; and a statute ex- 
 pressly- applies to such an offense com- 
 mitted outside. I suppose such a statute is 
 valid, because by reason of origin he may 
 be punished for a crime committed any- 
 where; 2 therefore since such an offense 
 is within the jurisdiction, a statute about 
 it may be made. 3 
 
 (§ 4 6). In addition to the cases consid- 
 ered, this doubt may be raised. Suppose 
 the army of one state is occupying the 
 territory of another and one foreigner kills 
 another there; may he be punished by the 
 
 1 Code i. 9. 14 with gloss, and our master, 23. 
 q. 2c. For this I cite Innocent, Decretal 2. 2. 14, 
 where he expressly holds the statute valid. 
 
 2 Code 3. 15. 1. 
 
 3 Dig. 1. 9. 6 and particularly Code 4. 42. 2 and 
 Code 4. 63. 4. 
 
 [Si] 
 
BARTOLUS 
 
 Power of the former state? It seems not, 
 though expressly so provided by statute, 
 as has often been said. Custom observes 
 the contrary rule. It is thus proved. 
 Territory is so called from terrifying. 1 
 But while the army of this state is there, 
 terrifies and coerces that place, properly an 
 offense there committed may be punished 
 by the sovereign, although committed in 
 that territory; as Nicolas Matarellus and 
 James Buttrigarius held. 
 
 (§47). Likewise I ask what if it were 
 not expressly provided in the statute, but 
 the statute spoke simply, would it extend 
 beyond the territory? For this investiga- 
 tion I put the question previously exam- 
 ined. It is provided by the statute of the 
 city of Perugia that the Power may inquire 
 of any homicide whatever, or proceed by 
 accusation or by inquisition. It is pro- 
 vided in another statute that a certain 
 
 1 Dig. 1 . 16. 239. § 8. 
 
 [52] 
 
CONFLICT OF LAWS 
 
 penalty shall be imposed for homicide. 
 It happens that a Perusian kills outside 
 the territory; the question is whether the 
 Power of this city may inquire and punish 
 according to the form of the statute, or 
 only at common law. This question was 
 put by Odofredus 1 and decided that there 
 can be no proceeding by inquisition, nor 
 can the delinquent be punished according 
 to the form of the statute, but only at 
 common law; whose opinion Albertus of 
 Gandino 2 puts in the end of his book. 
 Afterwards Doctor Cinus disputed the 
 question in the city of Siena, and deter- 
 mined to the contrary, touching on the 
 principles of Odofredus, though no mention 
 of them was made; therefore I recite his 
 disputation here, omitting many unneces- 
 sary things : 
 
 1 [Odofredus (f 1265), author of Commentaries 
 on the Digest and Code.] 
 
 * [Albertus of Gandino (probably thirteenth cen- 
 tury), author of Quaestiones statutorum.] 
 
 [S 3 ] 
 
BARTOLUS 
 
 It is certain that at common law a de- 
 linquent may be punished at the place of 
 his domicile or origin for an offense com- 
 mitted elsewhere . 1 With this premise let 
 us see whether one may proceed by way of 
 accusation only, that is, at common law, 
 or by way of inquisition by the municipal 
 law. And it seems that it is only by accu- 
 sation. For at common law inquisition is 
 made for public vengeance 2 and not under- 
 taken for punishing delicts . 3 But the injury 
 seems not to be done except in the place 
 where one committed the delict, not in 
 the place of his origin . 4 5 Therefore the 
 judge of origin should not proceed or in- 
 quire. Besides, the rulers of a state are 
 called the fathers of their subjects , 6 but 
 a foreigner harmed outside the territory 
 
 1 Code 3. 15. 1; Dig. xlviii. 22. 7. §§9. 13. 
 
 8 Nov. xvii. 4. 2. 
 
 8 Auth. lxxxvi. c. 3, de armis , § sancimus. 
 
 * Dig. ii. 1. 7 and 9. 
 
 5 Auth. lxxxvi. 3, de armis, § sancimus; Auth. 
 viii. 8, ut judices, § cos antem. 
 
 [ 54 1 
 
CONFLICT OF LAWS 
 
 is not subject to the judge of the offender’s 
 country of origin, who therefore is not as a 
 father to him and cannot properly proceed 
 concerning an injury done him. On the 
 other hand, since he may proceed because 
 he has jurisdiction at common law, as 
 has often been said, therefore he may use 
 that jurisdiction with the statutory quality 
 added that he may proceed by inquisition . 1 
 Besides, this is proved by reason of the 
 city’s especial interest. For it is for the 
 interest of the republic to have good sub- 
 jects . 2 But men are made good by im- 
 posing penalties on them for delicts ; 3 
 and that is expressly given as the reason 
 for public discipline for them . 4 Therefore 
 the interest of a Power is to punish its 
 subjects, and so the statute extends to 
 
 1 Dig. ix. 4. 4. § 4. 
 
 2 Dig. i. 6. 1. § 2 and Auth. viii, praef. § 1, ut 
 jud., § cogitatio. 
 
 8 Dig. i. 1. 1. 1. 
 
 4 Dig. xxxix. 4. 9. § 5. 
 
BARTOLUS 
 
 them. And moreover, for the same reason, 
 it seems that the procedure should be 
 either by accusation or by inquisition; 
 for an inquisition takes effect in place of 
 the accusation . 1 Moreover, suppose Titius 
 beyond the territory violated the Code 
 about Bishops and Clerks , 2 it is certain 
 that the judge by reason of origin may 
 inquire; and so in the case in point. 
 Moreover, the statute speaks generally; 
 therefore, etc . 3 For these reasons Cinus 
 decided that a judge may rightly proceed 
 by inquisition and denunciation, as well 
 as by accusation; and I will presently say 
 whether this is correct. 
 
 But about another point, that is, con- 
 demnation, it seems first that he should 
 be punished by the law of the place 
 where he offended . 4 Contracts and delicts 
 
 1 Dig. ix. 2. 32. 
 
 2 Code 1. 3. 10. 
 
 3 Dig. xxxvii. 5- § 1 . 
 
 4 Code 3. 24. 1. 
 
 [56] 
 
CONFLICT OF LAWS 
 
 have been regarded as equivalent , 1 but 
 in contracts the place of the contract is 
 looked at , 2 as has been proved above; 
 therefore, etc. Moreover, it has been said 
 above, near the beginning of this tract, 
 that the place of the delict ought to be 
 looked at: therefore, etc . 3 On the other 
 side, that he may be punished according 
 to the law of his own city, it is proved 
 thus: the law and the judgment are of 
 equal power . 4 * But he may bind his 
 subject by his judgment: therefore by his 
 law. Moreover, if anyone commits a 
 crime in a church, which it is evident is 
 not of the secular jurisdiction, neverthe- 
 less he may be punished by the secular 
 judge by his law . 6 Besides, this is ex- 
 pressly approved by the Code 6 where the 
 
 1 Dig. v. i. 20 and 57. 
 
 2 Dig. xxi. 2. 6. 
 
 8 Sext. 1. 2. 2, ut animarum. 
 
 4 Dig. xl. 1. 9. 
 
 6 Code 9. 9. 1, Auth. si quis. 
 
 6 Code 4. 42. 2. 
 
 [ 57 1 
 
BARTOLUS 
 
 subject is bound even outside the territory. 
 From which Cinus determined that a citi- 
 zen may be punished in his own city ac- 
 cording to the law of his city. If it is 
 asked how could the effect of a statute 
 extend beyond the territory, he himself 
 answers : I confess that it cannot create 
 a new substantial obligation outside the 
 territory, but it may well add a new qual- 
 ity to that delict which is of common law, 
 which is affected more easily than a new 
 substantial change is made. 1 And this 
 notwithstanding the Canon ut animarum, 
 because that decision proceeded from error 
 of the canonists, or is peculiar to the 
 judgment of excommunication. This is 
 the effect of their words. 2 
 
 (§ 48). Now it seems to me the words 
 of the statute should be more diligently 
 
 1 Dig. ix. 4. 4. § 3. 
 
 2 The foregoing is taken from the words of Dig. 
 ii. I. 20. 
 
 [S8] 
 
CONFLICT OF LAWS 
 
 examined. For it either provides expressly 
 for that which the citizen does even out- 
 side the territory, and then he may be 
 proceeded against and punished outside 
 the territory ; * 1 or it speaks narrowly of 
 that which is within the territory, and 
 then it does not extend to those things 
 which are done outside ; 2 or the statute 
 speaks simply, and that is the question 
 under discussion, and I shall speak of that 
 case. Either it is a question of form of 
 proceeding; then it is possible to proceed 
 according to the statute of the city where 
 the suit is instituted, because statutes 
 with respect to process or the institution 
 of litigation extend to every suit which is 
 brought in that city, although the cause 
 of action is something done outside the 
 city , 3 as has been said above with regard 
 
 1 Dig. iv. 42. 2. 
 
 8 Dig. xxiv. 3. 64. § 9. 
 
 8 Dig. xxii. 5. 3; xxix. 3. 2 in fin.; Code 1. 3. 25 
 in fin. 
 
 1 59 ] 
 
BARTOLUS 
 
 to contracts; 1 and so on the first point 
 one must hold the opinion of Cinus, that 
 procedure may be by inquisition: or you 
 are asking about the form of punishment; 
 then he is punished either at common law 
 or according to the statute of the place 
 where he committed the wrong, because 
 statutes which have to do with the sub- 
 stance of the suit do not extend to those 
 things which happened outside the terri- 
 tory, but the place where the thing is 
 situated should be looked to, as has been 
 said above, both about contracts and 
 about delicts, and this is the case in the 
 Canon ut animarum ; 2 and in this I hold 
 the opinion of Odofredus and Albertus 
 of Gandino. (§49). So let the judge be 
 cautious when he forms the inquisition 
 that he say at the end of the inquisition: 
 “upon these things all and singular I 
 
 1 Code 9. 4. 1. 
 
 2 Sext. 1. 2. 2 ut animarum , § 1; Dig. xlii. 5. 12. 
 
 § 1. 
 
CONFLICT OF LAWS 
 
 intend to proceed and inquire according 
 to the form of the statutes of this city, 
 and to punish the guilty, and condemn 
 according to the form of law.” And so in 
 procedure he refers himself to the statute 
 and in condemning to the common law. 
 
VIII 
 
 F INALLY I ask about the effect of 
 a judgment for punishment, whether 
 its effect extends beyond the terri- 
 tory of the judge. And omitting all cita- 
 tions I state what I think; distinguishing 
 into different heads, for sometimes pun- 
 ishment is sought with regard to person, 
 sometimes with regard to property. In 
 the first case either the punishment im- 
 posed respects interdiction for a certain 
 place, and then it does not extend beyond 
 the territory of the interdict by the power 
 of the judgment, though it does extend to 
 some places by consequence and disposi- 
 tion of law ; 1 or it does not respect an 
 interdiction of a certain place, but of a 
 certain kind, and then it does not extend 
 beyond the territory . 2 But when it does 
 
 1 Dig. xlviii. 22. 7. §§ 1. 10. 2 Dig. iii. I. 9. 
 
 [62] 
 
CONFLICT OF LAWS 
 
 not principally respect interdiction of place 
 or of kind, but diminution of status, as 
 when one is rendered infamous, then his 
 status is regarded as diminished, or he is 
 enslaved as a penalty, and then too his 
 status is diminished . 1 And in the first 
 case the penalty imposed here has its 
 effect everywhere ; 2 so much more, I say, 
 in the case of those who are enslaved 
 as a penalty by judgment; for in them 
 diminution of status is effected, though 
 solely by way of punishment . 3 If then 
 it is owing to the kind of punishment, I 
 do not care whether such penalty is im- 
 posed by the form of a statute or by com- 
 mon law . 4 And according to this I suppose 
 that that mother who was here condemned 
 to fire, and afterwards was received by her 
 
 1 Dig. 1 . 13. 5. §§ 1. 3. 
 
 2 Dig. iii. I. 9. 
 
 3 Dig. iii. 1. 29; Dig. xlviii. 19. 14; Code 5. 
 16. 24. 
 
 4 See Dig. iii. 2. 22 and notes. 
 
 [63] 
 
BARTOLUS 
 
 family, at once became a slave as punish- 
 ment, even according to the law to-day . 1 
 For it should not affect the case after 
 judgment: and so wherever she is I say 
 that she is slave by punishment, nor can 
 she make a will or contract or do other 
 such things. And I say the same thing 
 in the case of excommunication, because 
 excommunication is decreed everywhere . 2 
 For those penalties which respect diminu- 
 tion of status are inflicted upon the person 
 and follow the person as leprosy does the 
 leper . 3 
 
 In the second case, when the punish- 
 ment is with respect to goods, suppose one 
 is condemned in the city to forfeiture of 
 goods; he has some goods elsewhere: are 
 they forfeited? William of Cuneo touches 
 
 1 Dig. xlviii. 19. 29 and notes; Code 5. 16. 24 and 
 Auth. there; but to-day see Nov. xxii. 8. 
 
 2 Decretal 1. 6. 43. q. 5. 
 
 8 Dig. xlviii. 19. 3 in prin., with gloss fi. p. 
 
 socio. 
 
 [64] 
 

 CONFLICT OF LAWS 
 
 this , 1 2 and holds that each city should 
 have the goods situated in its territory; 
 for the goods are regarded as bona va- 
 cantia? and those taking from the in- 
 testate are cut out. Therefore when a 
 city has the character of the fiscus, the 
 goods so far as they are in the territory 
 fall to it . 3 To this effect is the Code 
 about Bishops and Clerks , 4 * where the 
 church has part of the goods, and the 
 court, the fiscus, or the patron has part . 6 
 Others say, as Nicolas Matarellus 6 in his 
 disputation says: either the judge who 
 
 forfeited the goods has jurisdiction by 
 common law and imposes a penalty ac- 
 cording to the process of common law, or 
 
 1 Also Dig. iv. 5. 2. 
 
 2 Code 10. 10. 1. 
 
 3 Dig. vii. 2. 3. 
 
 4 Code 1. 3. 20. 
 
 6 Dig. 1. 15. 4. §2; xxvi. 5. 27; xxvii. 1. 30. 
 § I. And see Code 10. 19. 10; 10. 10. 2. 
 
 6 [Nicolas Matarellus, professor at Modena, 
 1279, and later at Padua, abridged the works of 
 Odofredus.] 
 
 [65 ] 
 
BARTOLUS 
 
 he has his jurisdiction and power to punish 
 by a municipal law or some such thing. 
 In the first case such a punishment extends 
 to the property wherever situated, but 
 incorporation into the fiscus is made by 
 that officer in whose territory the goods 
 are situated ; 1 as when there are several 
 guardians of the same infant having his 
 property in different cities or provinces, 
 and one of them in one province is entitled 
 to the possession of the goods which are 
 in another , 2 so here several officers in 
 different provinces represent one fiscus. 
 In the second case, when one thing or the 
 other comes from the municipal law, then 
 the forfeiture does not extend to goods 
 which are not subjected to that jurisdic- 
 tion . 3 It seems to me that one should 
 say on this question that a city cannot 
 
 1 Dig. xlii. i. 15. §1; xlii. 5. 12. § 1 and note; 
 Code 10. 10. 2 and 5. 
 
 2 Dig. xxvi. 7. 39. § 3. 
 
 3 Code 5. 34. 5. 
 
 [ 66 ] 
 
CONFLICT OF LAWS 
 
 isk 
 
 »?• 
 
 id 
 
 nit 
 
 x, 
 
 (d 
 
 it 
 
 in 
 
 }, 
 
 it 
 
 j 
 
 d 
 
 it 
 
 forfeit goods to itself on account of a delict 
 at common law , 1 and a city at common 
 law does not have mere imperium and 
 cognizance of the more serious crimes . 2 
 Therefore those cities of Italy which exer- 
 cise that jurisdiction and forfeit goods to 
 themselves do this either by reason of 
 privilege conferred on them by the prince 
 or by ancient custom which has the force 
 of a constituted privilege ; 3 and so the 
 cities which now have a fiscal chamber 
 may be called procurators of the fiscus for 
 their own interest in the city. For by 
 grant they use the fiscal power for their 
 own interest. (§ 51)- With this premise 
 I give my opinion as follows on the pre- 
 ceding question. Either the jurisdictions 
 are separate, but the fiscal purse is one in 
 effect in the two places, or they are separate 
 
 1 Code 10. 10. 1. 
 
 2 Code 1. 55 * S* . . , 
 
 * Dig. xliii. 20. 3. §4; xxxix. 3. 1 m fin.; 
 xv. 1. §§ 1 de depens. 
 
 [67] 
 
 Auth. 
 
BARTOLUS 
 
 jurisdictions and separate fiscal purses. 
 In the first case that forfeiture may be 
 made at common law, and in that case the 
 goods in both places will be forfeited , 1 and 
 execution shall be made by the officer of 
 the place where the goods are, as has been 
 said above: thus I am of opinion that if 
 the president who represents the Roman 
 church in the Marquisate of Ancona should 
 forfeit the goods of anyone at common 
 law, they should be regarded as forfeited 
 goods which he has in the Duchy, but in 
 those goods execution should be made by 
 the procurator of the fiscus who is in the 
 Duchy. On the other hand, forfeiture may 
 be made according to the constitution or 
 special laws. Then on the one hand those 
 special laws may be in force in every place 
 where there are goods : for example, several 
 judges are deputed by a single king for 
 different territories of the kingdom, one 
 
 1 Code io. io. 2. 
 
 [ 68 ] 
 
CONFLICT OF LAWS 
 
 forfeits according to the royal constitution, 
 then all goods which are in the kingdom 
 are forfeited for the same reason and by 
 the same laws. On the other hand the 
 said special laws are not common to both 
 places. In the IVIarcjuisate there are sev- 
 eral constitutions which are not in the 
 Duchy; then such forfeiture does not ex- 
 tend to goods which are outside the place 
 to which the constitution applies . 1 
 
 In the second case, when the jurisdic- 
 tions are distinct, either the forfeiture is 
 not at common law, and then it does not 
 extend to other property, even elsewhere 
 situated, by the said laws, or it happens 
 at common law, and then it extends to 
 all goods, even situated elsewhere. Never- 
 theless each shall have the property situated 
 in its own territory, according to what 
 William of Cuneo said, which I approve: 
 
 1 Dig. ii. i. 20; Sext. 1. 2. 2 ut animarum; 
 Code 5. 34. 5; Dig. xxvi. 5 in fin. and 27. 
 
 [69] 
 
BARTOLUS 
 
 our city is called the procurator of the 
 fiscus, as has been explained above. But 
 if it be a procurator of the fiscus, the ac- 
 ceptance and incorporation of the said 
 goods into the fiscus pertains to the use of 
 the fiscus and to his office, as has been 
 said : therefore now it belongs to the fiscus 
 and to its use . 1 Nor should one distin- 
 guish whether the judge has jurisdiction, 
 but only this: whether he gives judgment 
 upon that which is permitted to him by 
 common law or in accordance with a new 
 provision of law, as I have said above. 
 
 1 To this effect see Dig. xxvi. 8. 22; Decretal 2. 
 2. 14. 
 
 [ 70 ] 
 
APPENDIX 
 
 EXTRACTS FROM THE DIGEST OF 
 JUSTINIAN 
 
 i. I. i. § i. We desire to make men good, 
 not only by putting them in fear of penalties, 
 but also by appealing to them through rewards. 
 (Monro’s tr.) 
 
 i. i. 9. All nations which are governed by 
 statutes and customs make use partly of law 
 which is peculiar to the respective nations, 
 and partly of such as is common to all man- 
 kind. Whatever law any nation has estab- 
 lished for itself is peculiar to the particular 
 state ( civitas ), and is called civil law, as being 
 the peculiar law of that state. (Monro’s tr.) 
 
 i. 18. 3. The praeses of the province has 
 a right of imperium over the men of his own 
 province only, and he has the right only while 
 he is in the province; if he leaves it he becomes 
 a private person. Sometimes he has imperium 
 even over outsiders, if they commit any active 
 offense; it is part of the instructions given by 
 
 [ 71 ] 
 
BARTOLUS 
 
 the Emperor that the governor of the province 
 shall take measures for ridding the province 
 of evil-disposed persons, and no distinction is 
 made as to the place from which such persons 
 come. (Monro’s tr.) 
 
 ii. I. 20. An officer who exercises jurisdic- 
 tion outside his local limits may be disobeyed 
 with impunity. The same rule holds where 
 he affects to exercise jurisdiction with refer- 
 ence to an amount beyond his competency. 
 (Monro’s tr.) 
 
 iii. i. 9- When a man is forbidden to move 
 on behalf of others on some ground which does 
 not entail infamy, and consequently does not 
 deprive him of the right to move on behalf of 
 others in every case, he is only disabled from 
 moving on behalf of others in the province in 
 which the magistrate who pronounced the pro- 
 hibition was praeses; the prohibition does not 
 extend to any other province, though it should 
 bear the same name. (Monro’s tr.) 
 
 v. i. 20. The correct view is that every 
 kind of obligation is to be treated like [one 
 founded on] contract, so that, wherever a 
 man incurs an obligation, it is to be held that 
 a contract was made there, though it should 
 not be a case of a debt founded on a loan. 
 (Monro’s tr.) 
 
 I. 45. A banker ought to be sued where 
 [ 72 ] 
 
APPENDIX 
 
 the contract with him was made, and no ad- 
 journment of the case should be allowed save 
 on sufficient grounds, [for example,] to allow 
 of his books being brought from a province. 
 A similar rule holds with reference to an ac- 
 tion on guardianship. Where the guardians 
 of a girl have judgment given against them 
 in the province in an action which they de- 
 fended on behalf of their ward, the curators 
 of the girl are compellable to obey the decree 
 in Rome, the fact being that the girl’s mother 
 borrowed the money in Rome, and the girl 
 was her mother’s heir. (Monro’s tr.) 
 
 v. i. 65. A woman ought to sue for her 
 dos where her husband’s home was, not where 
 the written assurance of dos was made; the 
 contract of dos is not of such a kind that 
 regard should be had to the place where the 
 assurance was executed so much as to the 
 place where the woman herself would have 
 naturally made her home in consequence of 
 the marriage. (Monro’s tr.) 
 
 viii. 4. 13. § 1. If it is understood that 
 there are stone quarries on your land, no one 
 can hew stone there . . . unless indeed there 
 is a custom existing in those quarries to the 
 effect that, should anyone desire to hew any 
 such stone, he is to be at liberty to do it, 
 if he first gives the owner of the land the 
 
 [ 73 ] 
 
BARTOLUS 
 
 customary payment in consideration thereof. 
 (Monro’s tr.) 
 
 xii. i. 22. A loan of wine was made and 
 legal proceedings were taken to recover it. 
 . . . I asked to what locality the valuation 
 should refer. He [Sabinus] replied that if it 
 had been agreed that restoration should be 
 made at some particular place, the valuation 
 should follow the price at that place; if this 
 had not been settled, it should be according 
 to the place where the action was brought. 
 (Monro’s tr.) 
 
 xiii. 3. 4. If the subject of the suit should 
 be goods of any kind which ought to have 
 been handed over on a given day, for example, 
 wine, oil or corn, then, according to Cassius, 
 the damages ought to be determined by the 
 value which they would have borne on the 
 day when the goods were to be handed over; 
 or, if no agreement was made as to the day, 
 then the value which they bore when issue 
 was joined; and a similar rule applies as to 
 place; so that an estimate should first be 
 made with reference to the place where the 
 goods were to be handed over, but, if there 
 was no agreement as to place, then the place 
 to be considered must be the one where the 
 action was brought. In fact this principle is 
 applied as to every kind of case. (Monro’s tr.) 
 
 I 74 I 
 
APPENDIX 
 
 xxi. 2. 6. If an estate is sold, the security 
 against defect in title should be given accord- 
 ing to the custom of the place where the sale 
 was made. 
 
 xxii. i. i. When a judgment of good faith 
 is reckoned up, the rate of interest is fixed by 
 the decree of the judge according to the custom 
 of the place where the contract was made; 
 but so as not to offend the law. 
 
 (The place where the contract was made 
 seems to mean, where the money was payable. 
 — Gloss of Accursius.) 
 
 xxii. 5. 3. In matters that have to do with 
 calling witnesses, it is a requisite of diligence 
 for the judge to find out the custom of the 
 province in which he sits; for if it turns out 
 that many persons are frequently summoned 
 to give testimony from another city, there 
 is no doubt that those should be summoned 
 whom the judge deems necessary in the 
 case. 
 
 xxv. 4. 1. § 15, end. The custom of the 
 place is to be regarded, and the womb should 
 be inspected and the birth of the infant ar- 
 ranged by it. 
 
 xxvi. 1. 10. A tutor out of the jurisdiction 
 may be appointed, provided it is for a ward 
 within the jurisdiction. 
 
 xxvi. 5. x in fin. The president of a province 
 
 [ 75 ] 
 
BARTOLUS 
 
 may give a tutor only to those who belong to 
 his province or have a domicile there. 
 
 xxvi. 5. 27. In case of a ward who has 
 property both at Rome and in a province, the 
 praetor may appoint a tutor for the property 
 in Rome, the president for that in the province. 
 
 xxvi. 7. 39. § 3. An heir appointed with- 
 out a substitute died before he took up the 
 inheritance, which he was to turn over to a 
 child. The inheritance was in Italy, while the 
 heir designate died in a province. I decided 
 that the tutors of the provincial property 
 should be convicted of negligence, if knowing 
 the purpose of the will they abandoned the 
 interests of the child; for if the trust in the 
 inheritance had been carried out in the prov- 
 ince, the purpose of the law would have been 
 accomplished, and the administration of the 
 property should have fallen to those who 
 received the tutorship in Italy. 
 
 xxvi. 7. 47. Tutors for Italian property 
 found, at Rome, instruments executed by pro- 
 vincial debtors, which provided that a sum of 
 money should be paid at Rome, or wherever 
 payment was demanded. I asked, where neither 
 the debtors nor any property of theirs was in 
 Italy, whether the collection of the debt belongs 
 to the tutors for Italian property? I answered 
 that if the contract were a provincial one the 
 
 [ 76 J 
 
APPENDIX 
 
 collection did not belong to them; but it was 
 their duty to give information about the in- 
 struments to the tutors to whom the adminis- 
 tration belonged. 
 
 xxviii. i. ii. Hostages cannot make a will 
 except by special permission. 
 
 xxix. i ult. The rescripts of the princes 
 show that all who are of such a condition that 
 they cannot make a will by military law, if 
 they are seized and die in hostile territory may 
 make a will as they will and can: whether 
 it be the president of the province or anyone 
 else who cannot make a will by military law. 
 
 xl. i. 9. A slave cannot be manumitted 
 who . . . has been made incapable of manu- 
 mission by the prefect or a president for some 
 delict. 
 
 xlii. 1. 15. § 1. The Emperor and his father 
 have decided that the president of a province, 
 if so ordered, shall execute a judgment given 
 at Rome. 
 
 xlii. 5. 12. § 1. He who is adjudged to 
 possess goods is so judged in that place of 
 which the jurisdiction pertains to the judge. 
 
 xlviii. 22. 7. § 1. The presidents of prov- 
 inces may banish to an island provided that 
 the island is under their jurisdiction, that is, 
 appertaining to their province; they may 
 assign the island specially and banish to it. 
 
 [ 77 ] 
 
BARTOLUS 
 
 But if they have none they shall sentence to 
 banishment to an island, and write to the 
 Emperor, that he may name the island. But 
 they cannot banish to an island which they 
 do not have within the province and under 
 their authority. 
 
 xlviii. 22. 7. § 10. One may interdict from 
 the province which he governs but not from 
 another, and so the divine brothers [Verus and 
 M. Antoninus] have said in a rescript. Whence 
 it happened that one who was banished from 
 the province where he was domiciled could 
 dwell at his birthplace. But our Emperor 
 with his divine father provided for this. For 
 they wrote to Maecius Probus, president of the 
 province of Spain, that one might be inter- 
 dicted from the province of his birth by the 
 ruler of the province in which he was domiciled. 
 But this rescript applies in equity to nonresi- 
 dents who commit offenses within a province. 
 
 xlviii. 22. 7. § 13. If one agrees with this 
 opinion, that whoever commits a crime in a 
 province may be banished by the ruler of that 
 province, it will happen that a man so banished 
 must keep away from three provinces as well 
 as from Italy: namely, that in which he com- 
 mitted the offense, that in which he was domi- 
 ciled, and his native province. And if he is 
 found to have different native provinces, owing 
 
 [ 78 ] 
 
APPENDIX 
 
 to his own condition and that of his father or 
 relatives, we say that he is consequently ban- 
 ished from even more provinces. 
 
 1 . 15. 4. § 2. He who has an estate in 
 another city ought to declare [his property 
 for taxation] in the city in which the property 
 is; for he should pay the land tax to that city 
 in whose territory his estate lies. 
 
 1 . 16. 239. § 8. Territory is the entire 
 amount of land within the boundaries of each 
 city; which some say is so named because the 
 magistrate of a place has the right of terrifying , 
 that is, of exercising jurisdiction within those 
 boundaries. 
 
 1 . 17. 34. In stipulations and other con- 
 tracts, that should always be done which was 
 contracted; or if it is not clear what was in- 
 tended, the custom of the place in which the 
 contract was made should be followed. What 
 then if the custom of the place is not clear, 
 because usage varies? The obligation is then 
 reduced to the least onerous interpretation. 
 
 [ 79 ] 
 
EXTRACTS FROM THE CODE OF 
 JUSTINIAN 
 
 i. 3. 10: If anyone commits sacrilege by 
 breaking into churches or injuring priests and 
 ministers, or does injury to the worship or the 
 place, let his act be dealt with by the author- 
 ities of the province. 
 
 3. 15. 1. It is well known that prosecutions 
 for crimes should be instituted where they were 
 committed or initiated, or where the accused 
 are found. (Auth. qua in provincia. In what- 
 ever province one commits a delict, or is 
 guilty of money or of crimes, whether with 
 respect to lands, or boundaries, possession, 
 property, or mortgage, or any other matter, 
 there let him be subject to the law.) 
 
 3. 24. I. Whoever, being of high (though 
 not illustrious) rank rapes a virgin or invades 
 boundaries or is guilty of any other fault or 
 crime, let him be dealt with by the public law 
 within the province in which he perpetrated 
 the deed, and make no use of his proper court; 
 for guilt nullifies every honor of this sort. 
 
 5. 34. 2. It is clear law that a tutor born 
 in another state and having no domicile where 
 he is named cannot be sworn by one who has 
 [80] 
 
APPENDIX 
 
 no jurisdiction over him, whether by the presi- 
 dent of another province or by municipal 
 magistrates. 
 
 4. 42. 2. We forbid the transfer to the 
 ownership of anyone in any way whatever 
 of men of Roman race who have been made 
 eunuchs, whether in barbarian or in Roman 
 territory; and the most severe punishment is 
 to be imposed upon those who have dared to 
 do the act. . . . But we grant to all merchants 
 or others the right to buy and sell in com- 
 merce, wherever they will, eunuchs of bar- 
 barian race, who have been made outside the 
 territory subject to our jurisdiction. 
 
 8. 49 (48) • !• If the law of the city in which 
 your father emancipated you gave such juris- 
 diction to the duumvirs that even foreigners 
 might emancipate their sons, what your father 
 did is binding. 
 
 8- 53 (S 2 )- Let th e president of a prov- 
 ince, hearing a suit, decide after proof of what 
 has commonly been done in that very kind 
 of suit in the town. For both a former cus- 
 tom and the reason which led to the custom 
 are to be followed; and the president of the 
 province will take care that nothing be done 
 which is contrary to long continued custom. 
 
 9. 9. 15 Auth. But if because of the crime 
 committed he hides or leaves the province 
 
 [81] 
 
BARTOLUS 
 
 in which he offended, we command that he 
 be called by the judge with the lawful edicts, 
 and if he will not hear, that those proceedings 
 which are provided in our law be taken against 
 him. But if it is known that he is in another 
 province, we order that the judge of the prov- 
 ince in which the crime was committed use a 
 public letter to the judge of the province in 
 which he is. And he who receives the public 
 letter shall arrest him, at his own peril and of 
 his own office, and send him to the judge of the 
 province in which he offended, to be subjected 
 to the lawful punishment. 
 
 Novel. 17. 4. 2 and gloss: 
 
 [To the provincial officers] 
 
 If you find them [gl., the soldiers under your 
 charge] wrongdoers, besides every decent pun- 
 ishment you will see that they make satisfac- 
 tion from their pay for all their wrongs [gl., 
 committed in the province]. 
 
 [82] 
 
EXTRACTS FROM THE CANONS 
 
 Decretal 2. 2. 14: 
 
 You have asked the Apostolic See to explain 
 whether priests having a church in one diocese 
 and residing there but having a domicile by- 
 reason of property in another and there com- 
 mitting a wrong should be judged by him in 
 whose diocese he has the property for the 
 offense there committed; especially in cases 
 which call for deprivation of his office or bene- 
 fice? To this we answer shortly, that sentence 
 must be given against him by the bishop in 
 whose diocese he committed the offense; but 
 execution is to be by him in whose diocese he 
 holds a benefice. 
 
 Decretal 5. 39. 21 and gloss: 
 
 You ask us whether if one decrees as fol- 
 lows, whoever commits theft shall be excom- 
 municated, this general clause refers to those 
 under the jurisdiction of the excommunicator, 
 or extends generally to all though not under 
 his jurisdiction? We answer that this decree 
 binds only those subject, unless perhaps where 
 the greater and wider authority of the superior 
 gives it such force. 
 
 [83 ] 
 
BARTOLUS 
 
 Gloss. This seems wrong, because one comes 
 under his jurisdiction by reason of the offense. 
 . . . I answer that if this is to be understood 
 generally, whoever commits theft anywhere, 
 the clause refers only to subjects, as it says 
 here; since one has no jurisdiction beyond his 
 territory, and therefore the sentence does not 
 extend beyond the bounds of his jurisdiction. 
 
 Sext. i. 2. 2 gloss: 
 
 Suppose that my bishop makes a statute 
 that no clerk should bear arms under pain of 
 excommunication; a clerk who knew of the 
 statute bore arms outside the diocese, and so 
 acted against the statute; should he be sub- 
 ject to punishment? The Pontifex Romanus 
 answered no; and said that statutes made by 
 one who has limited territory do not have force 
 outside the territory and the diocese, but only 
 within the diocese. 
 
EXTRACTS FROM THE SPECULUM 
 JURIS 
 
 Book 2, Partic. 2, ver. 25 (ed. 1602, pt. ii, 
 p. 662) : 
 
 What about those [notaries] who are made by 
 a bishop, a count, or a university? Note what 
 my master [Azo] says in his Summa (ne clerici 
 vel monach. § quae sunt sub § clericis etiam, 
 ver. quid igitur et seq.) that a notary simply 
 created by one who has the power of creation 
 may use his office everywhere, just as a priest 
 once ordained may celebrate everywhere once 
 he is authorized by the license of the appoint- 
 ing power (ex. de cleri. peregri .) ; and vol- 
 untary jurisdiction is exercised everywhere. 
 (Dig. de off. procon. 1 . 1 and 2; Dig. de emancip. 
 1 . emancipati.) But if it be argued as follows: 
 I give you power to execute instruments within 
 such a diocese, or province, the power cannot 
 be exercised outside, just as an archbishop 
 cannot use his pallium, outside the province 
 committed to him: my own opinion is, that 
 even simple creation of an officer means crea- 
 tion within the territory of the creating officer. 
 [85] 
 
BARTOLUS 
 
 Book 2, Partic. 3, § 5, ver. 2 (ed. 1602, pt. ii, 
 P- 78 S): 
 
 Suppose a Fleming died at Genoa and there 
 in his will made his wife his heir. According 
 to the custom of Genoa a wife cannot succeed 
 her husband, and so the possessor of the goods 
 refuses to deliver them; but in Flanders there 
 is the contrary custom, and the woman takes. 
 Decide that the woman’s case is best in ob- 
 taining the inheritance, according to the cus- 
 tom of Flanders, where she is bound. 
 
 [ 86 ]