Page 219 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
subsidiary source of law. Hence, Roman-Dutch jurists grasped back at it when local custom or statutory law did not provide a solution to the legal question in point, which was often the case. In Friesland, however, the opposite was true. Roman law in its medieval clothing was the primary source of law, unless statutory law had explicitly ruled out its application.2 The Frisian scholars' consequent claim that they applied Roman law 'purer and plainer than in whatever part, province or state of the Christian world'3 therefore promises insights into how that pure Roman law was conceived by early modern minds. As its approach bears significance for the study of pandectist scholarship at the eve of the modern codification process, Frisian-law deserves particular attention.
The present chapter examines both doctrinal and practical sources of Roman-Dutch law and Roman-Frisian law.4 Regarding the former, the alleged difference between writers who in legal literature are counted among the Dutch humanists, also called the Dutch school of elegant jurisprudence, on the one hand, and the allegedly more mos Italicus inclined scholars, on the other, are not taken into account. Reading of secondary literature on the matter reveals that scholars are not that easily categorised.5 The exploration of legal humanists already demonstrated that even these scholars eclectically made use of all legal sources they could lay their hands on, no matter whether the sources were medieval or from Antiquity. The same applies to Dutch scholars, who tended to keep themselves occupied with both textual criticism and the restoration of ancient law texts, pronouncing judgements or commenting on positive law in the medieval Bartolist tradition. Bijnkershoek, for instance, not only wrote 'elegant' books but also worked at the Supreme Court of Holland, Zeeland and West-Friesland, where the mos Italicus tradition strongly held sway.6 Hence, his personal notes taken as a judge of the Supreme Court provide a treasure grove for the practical dimension of this chapter.
5.1.1 Legal practice - sources
Besides Bijnkershoek's Observationes tumultuariae other sources of legal practice feature in this chapter. To facilitate further reading, this section provides a short overview of the sources used to gain insight into early modern legal practice of the Courts of the various Dutch provinces.
First of all, the city of The Hague was home to the Hoge Raad (Supreme Court), the highest appellate court for the provinces of Holland, Zeeland and West-Friesland.7 The other sovereign Dutch Provinces Friesland, Groningen, Overijssel, Gelderland and Utrecht
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Huber, Rechts-geleertheyt, vol. 1, 1.2, no. 47, p. 8: 'Staende bij ons vast desen regel: wat niet blijkt verandert te zijn bij het Friesche regt, blijft soo, als het bij de Roomse wetten is vastgesteld'; De Jong, 'Cur Frisii dicant opbinden?', p. 146.
Huber, Rechts-geleertheyt, vol. 1, 1.2, no. 47, p. 8: 'Dat het Roomsche recht hier suiverder en platter onderhouden wort, als in eenig deel, landt of staet van de Christene wereld'.
Brom acknowledges that the aedilician and civil remedies merge into one. However, he does not examine the underlying process. Brom, Urteilsbegründungen, p. 186.
Van den Bergh, Elegante Schule, passim.
His 'elegant' work are the Observationes iuris Romani. His more down-to-earth practical work can be gleaned from his Observationes tumultuariae.
For an account of its coming into being see Blécourt, 'Geboorte van den Hoogen Raad', pp. 428-459. 211