Chapter VII · 367 THE FAMILY AND THE STATE IN ITALIAN COMMUNES.368 (continued 2)

XI.

Coming now to a particular examination of the statutory provisions which most nearly concern the subject in hand, we shall direct our attention more especially to the Florentine statutes which, for us, have a twofold importance. We have undertaken this study as an aid to the clearer comprehension of certain political reforms in Florence, which are only to be explained by the social conditions of the Republic. In this study of the Florentine Commune it is necessary to bear in mind that in no other Commune was aristocracy so radically destroyed and democracy so thoroughly triumphant. Every trace of feudalism, every foreign element disappears from its statute book, which consequently, in spite of perennial alterations, preserves a uniform and consistent character, and tends always towards the scope that it finally attains. Other statute books, on the contrary, are no less copiously altered; but the alterations are due to less permanent causes, to elements most extraneous to the life of the Commune, and which therefore make it still more difficult to understand what are the true principles moulding the laws and determining their historical character.

If we begin by examining the paternal authority as set forth in the statutes, we at once perceive the uncertainty that prevails in this legislation. At first we find the Longobard mundium, but this gradually takes the shape of the Roman patria potestas, as regulated by Justinian's legislation, which finally prevails, although never absolutely. In the various provisions of the statutes, which, even on this point, are always defective, we sometimes find the son placed under a stricter subjection than by Roman law, while at other times, the Longobard law predominating, he enjoys the greatest independence. Generally there are special political or commercial reasons at the root of this illogical inconsistency. By the Roman statutes the son is entitled to appear in criminal cases, without permission from his father, who is not held liable for crimes committed by his son. The son, however, may be punished by his parents at their discretion. The natural children of magnates are in an inferior position, both civilly and politically, to sons born in wedlock, inasmuch as they are never eligible to any public office.379 According to the Pesaro statutes, a son may dispose by will of all his earnings, provided he leaves the obligatory usufruct to his father; but sons marrying without their father's consent may be disinherited.380 When a son is condemned to pay a fine, the father must give him his share of the inheritance wherewith to pay it. Should a father beat his sons or grandsons or their wives, in nihilo puniatur, nisi pro enormi delicto.381 In Lucca, a son who is eighteen years of age, may contract a loan, even without his father's leave. But a father may send his son, whether emancipated or under tutelage, to prison if he has dissipated his private means or led an evil life. The magistrates must execute the father's decision without calling for proofs.382 A son may thus be arbitrarily confined to the house, fettered and imprisoned by his father, who is only bound to supply him with the necessaries of life. The same rule obtains with regard to other descendants. If in all this great variety of laws we try to discover any one characteristic peculiar to the statutes, we must seek it in the unitas personæ between father and son, which is often carried to a great length. This, too, is a result of the general conception of the family recognised by the statutes. In Urbino and elsewhere the father may be punished for the son, the master for the servant.383 As to the liabilities of commerce, these are shared, not only by father and son, but by the whole body of the relations, as we find was the case in Genoa, Florence, and many of the principal trading cities. In Florence, the father, grandfather, and great-grandfather incur the same liability for a descendant (even if under guardianship) who engages in trade, as though they stood surety for him. To escape this responsibility they must make a public and formal disclaimer of liability.384 Thus, if an unemancipated son is agent or factor of a company or house of business, the father is responsible for him, unless he has given the parties legal notice to the contrary. For the same reason the emancipation of the son must be publicly performed and communicated to the Society of Merchants.385 When a daughter marries, she ceases to be subject to the paternal authority, and can no longer be held in any way responsible for her father, either as regards civil obligations or criminal, should the father have evaded punishment by flight.

In Florence, the woman is under the perpetual protection of the Mondualdo. The term was still retained in the eighteenth century, but under the statutes the mundio soon becomes almost identical with the Roman tutelage; as time goes on it gradually falls into disuse, but the rights of women are never made equal with those of men. In respect of marriage the intermixture of different legal systems is most marked. Professor Gans has noted how the Pisans, finding that the Roman law forbade a woman to re-marry within a year from her husband's death, that the Canon law (interpreting the apostle's words as an unqualified permission) contained no such prohibition, and that the Longobard law forbade re-marriage only for thirty days, fixed by their statutes the prohibited period at six months. But this rough compromise neither met the object intended by the Roman law, namely, that a second marriage should not take place during the pregnancy which might possibly result from the first, nor conceded the liberty allowed by the Canon law and the Longobard. More commonly, however, the union of different laws is brought about by the gradual transformation of one into another. The Pisan statutes, for instance, regulate marriage almost entirely according to the Roman Code. To the dower (dos) brought by the wife, and the donation (donatio propter nuptias, called also antefactum) given by the husband, they join other gifts, to which they give the name "corredo," which, on the dissolution of the marriage, belong to the wife: should they then be found to have been consumed or made away with, she would be entitled to two-thirds of their value. As a rule Pisan husbands and wives hold their property entirely separate, so that marriage seems sometimes to involve a hostile relation, rather than a community of interests.386

Certain statutes admit the dos and donatio propter nuptias together with the meta and the Longobard donation. The Florentine statute speaks of a dowry, of a donation that must be equal to one half of the dowry—provided this does not exceed the sum of fifty lire—and of an augmentation. Failing sons, grandsons, or grandsons of sons, the wife, at her husband's death, recovered possession of her dowry, with the donation and augmentation; otherwise she had her dowry alone, and whatever her husband might leave her by will. If the husband died before receiving the dowry, the wife took the promised donation, limited however to one-eighth of her husband's estate, over which, to the extent of her dower, she had a preferential mortgage. Nor had the wife's consent to the sale or alienation of her husband's property the effect of releasing her right to the subjects so sold or alienated. This regulation, however, only comes into force from the year 1388.387 This date, which is given in the printed Florentine statute of 1415, shows that the dotal system and the separation of property had by this time made great progress, a fact farther confirmed by the statutes.

The wife could not maintain her right to her husband's property (defendere bona viri) against her husband's creditors at large, but only against those who were liable for the restitution of the dower. Dotal property, of which no valuation had been made, might be claimed by her as against any creditor, and if her husband fell into difficulties, she could always demand restitution of her dower.388 Property acquired or inherited by the wife during the husband's life, belonged to her; but she could not alienate it without the consent of the husband, who was also entitled to the usufruct. On the decease of the husband, whatever remained of the usufruct might be claimed by the wife, or, if she too were dead, by the children.

XII.

The dotal system and separation of conjugal property are not only recognised in all the statutes,389 but are often enacted in an exaggerated form, as seems to be the case in the statutes of Pisa. Thus gifts between husband and wife are forbidden, sometimes even gifts from them to strangers, where there is ground to suspect that these are meant to disguise a gift between the spouses. Zealous precautions to hinder property being withdrawn from the family, still more from the city, are universal. In Urbino, for instance, no alien could inherit ab intestato, without first pledging his word to reside within the city or territory.390 At Pesaro a similar pledge was exacted from any alien who sought a bride in that city; he had also to obtain the consent of the Podestà.

In Verona,391 women might, under a will, share equally with their brothers; but ab intestato, they had only their dower. In Pisa, testate succession was regulated in accordance with the Roman law: de ultimis voluntatibus pen legem romanum iudicetur. The lawful share, however, was fixed on almost the same scale as by Longobard law; and, as provided by that law, one child might be favoured more than the rest. As regards intestate succession, male heirs had, as always, marked preference. Failing descendants in the male line, females inherited, but even in the succession to maternal estate, male descendants had priority when there were no surviving daughters.392 This rule prevails in all statute books, not excluding the "Consuetudini" of Naples, of Amalfi, and of Sorrento, although in these cities the influence of the Longobard law was much less felt.393 The real object of these regulations is clearly expressed in the statutes themselves. In the statutes of Mantua it is thus set forth: "Ut familiarum dignitas, nomen et ordo serventur, et bona morientium in eorum agnatos et posteros transmittantur, per quos nomina generis conservantur, statuimus et ordinamus,"394 &c.

It would seem that in Ravenna the prolonged continuance of the Byzantine rule had the effect of suppressing this preference of the agnates, and that there the Novel of Justinian was in force. The same was the case at Osimo. Adoption was of rare occurrence; legitimated children were postponed to legitimate; natural children who, under the influence of the Longobard law, had been favoured in earlier statutes, were afterwards neglected, in consequence of the growing ascendancy of Canon and Roman law. The whole statutory law of succession is so dominated by the political conception which, so far from losing, is constantly gaining ground, that the disposing power of the testator—always extremely restricted—can only arrive at a result slightly more equitable and natural, but never attains to absolute freedom of decision in the Roman sense of the word. In this, as in every branch of civil law, the Florentine Statute Book, like all the others, does not present us with a complete treatise, but only with fragments, the statutes making constant reference to the Roman law.

No woman succeeds ab intestato to her sons or daughters, when there are direct descendants or ascendants even in the third degree; and uncle, brother, sister, son, or grandson of a brother are preferred to her. Though excluded from succession, she can nevertheless claim alimony from those who by law exclude her. If there be no such relatives, she inherits ab intestato one-fourth of her son's estate, provided it does not amount to more than five hundred lire. In any case, she only receives money, not real property. If there is no money, she will be entitled to the price of the lands forming her inheritance. The same provisions apply when a grandmother, great-grandmother, or descendants in the maternal line succeed ab intestato.

A woman could not succeed ab intestato to a brother leaving children, grandchildren, or brothers; but when thus excluded from the succession, she was still entitled to alimony. She could not succeed even to her father; but was entitled to receive her dowry from the agnates, and could meanwhile, even if a widow, claim alimony from them.395

It is plain from all these provisions that the woman's rights of succession were very limited; but she was always insured of the wherewithal to live. We find, indeed, from the Florentine statutes, that while the preference given to the agnates increases as time goes on, so too the woman's rights to alimony increase. The statute of 1355 concedes to her the usufruct of the paternal inheritance, on failure of male issue, while under the same circumstances, later statutes deny her this right, allowing her alimony instead.396 Speaking of aliment, and of those bound to supply it, the statute of 1324 says: "Si filius, nepos vel pronepos facultatis abundarent,"397 so that they can commode subvenire, &c.; and the statute of 1355 imposes the same obligation, with the same conditions.398 But the printed statute of 1415 is far more explicit; the father, mother, grandfather, grandmother, great-grandfather, and great-grandmother are all entitled to alimony, and the Podestà is bound to enforce the law. The female inherits ab intestato from her mother or other female ascendants, but only on failure of male issue. Uterine brothers, being of the female line, cannot succeed one another should there be relations of the deceased in the male line as far as the fourth degree,399 these being preferred to the mother and relations in the female line. The Florentine statute goes on to declare that the wife is to be preferred to the public treasury, uxor mariti defuncti præferatur fisco; showing how little the woman's rights were considered, when an express enactment was needed to prevent the revenue authorities from depriving her of her husband's estate. Natural children were also preferred to the treasury, which only succeeded on failure of relations as far as the fourth degree. Relations, however, could succeed to bastards, as though these had been legitimate.400 It should be added that Florentine custom did not allow natural children to be left without some means of support, or without provision for their education, as is shown by many still existing wills. In the case of males, the father generally tried to obtain employment for them; in the case of females, to find them husbands, and he recommended them to the care of his legitimate heirs.

The husband succeeded to his wife's dowry, failing children or other near descendants. Of her extra-dotal property he was entitled to one-third, and the wife could not dispose of her dowry either by will or donation, so as to exclude her husband or children.401

XIII.

Besides the law of succession, there is another branch of the Italian statutes in which the action of the political idea upon civil law is equally apparent, namely, that which treats of rights between neighbours, and of the obligations in solidum attaching not only to the members of families, but likewise to the members of sects and associations. We have already observed that these are carried so far as to make one member responsible for another's debts, and even for his delicts: this is a law to which we shall have more than once to return and give our attention. When real property is sold, we find that the agnates and cognates have always a preferential right of purchase. In the March of Ancona, the blood-relations of a prisoner condemned to death may be compelled to purchase his estate.402 At Bologna, relations are often made legally responsible for one another, and, by the rules of the corporations of merchants in that city, the brothers of any bankrupt, who have lived in community with him within a month before his failure, are held responsible for his debts—even if they have separated from him since that time.403

According to the Florentine statute, the creditor of any Commune or of any Universitas (corporation) might proceed against it, sicut procedi potest contra alias singulares personas debitrices, in persona. This was carried so far, that it was permissible to proceed against every individual member of the association, and even to have him arrested, liceat ipsi creditori capi et detinere omnes et singulares personas dicti Communis vel Universitatis, quousque fuerit integre satisfactum.404 If landed property had been laid waste or houses burnt, the proprietor was entitled to compensation from the author of the deed; from his associates (consorti), were he a noble, or from his relations, even to the fourth degree, if a commoner. Nay more, the injured person might also proceed against the Commune, University, or district (plebatum) in which the crime had been committed; he was at liberty to follow any of these modes of redress, and if unsuccessful in one to try another.405 The statute prescribed the form of procedure and the terms of the sentence.406 The Commune, University, or district was thus compelled to be always ready to raise the alarm, when similar acts were perpetrated, and to pursue and arrest the criminal, since, in case of failure, they were held responsible.407

In all matters, even such as purchases or sales, great importance was assigned to the condition of the persons concerned. In some cases, where land was to be sold, the law required that it should be sold to a neighbour; commoners, however, were not compelled to sell to magnates.408 Similarly no one might buy, sell, or acquire the usufruct of lands held in common, or any piece of land or house touching another man's wall, without according the joint-owner, associate, or neighbour the right of pre-emption.409

In case of a dispute between relations or associates, qui consortes sint de eadem stirpe, per lineam masculinam usque ad infinitum,410 the judge was bound, at the request of one of the parties concerned, to leave the matter to the decision of arbiters chosen by the parties themselves; but no plebeian could act as arbiter between nobles.411 In reviving a law of much earlier date, the statute of 1355 informs us that arbiters were therein mentioned, as blood-relations.412 Whence it may be inferred that similar compromises began to be customary, at a very remote period, between relations and associates who voluntarily selected arbiters from their own group. Down to the year 1324, the custom had been sanctioned by law; at a later time it lost its primitive character of a voluntary and domestic agreement, and assumed the shape of a regular legal trial.

XIV.

If we now compare the Florentine Statute Book with those of other Italian cities, we shall find it marked by various distinguishing characteristics, chiefly resulting from the fact that in it democratic freedom was carried to the farthest point obtainable during the Middle Ages. Not only had every feudal privilege gradually disappeared from it, but the great nobles had ended by finding themselves in a position inferior to that of the commonalty. Florence, as we have already seen, was one of the first Italian cities to abolish serfdom in her outlying territory by the law of 1289.413 And although her rural population was always treated much worse than the inhabitants of the city, it nevertheless enjoyed far better conditions than prevailed in a great number of communes. We have proof of this in the contract of Mezzeria, which makes the cultivator of the soil an actual partner with the proprietor, and which still remains a great monument of civilisation and the cynosure of modern economists who have never been able to devise any better system.414

The freedom and strength of associations, the extraordinary ease with which any one might participate in the government of the Commune, all contributed to the triumph of democracy on the widest basis. Another general characteristic to be noted, not only in the Florentine, but in almost all the Italian statutes, is the constant endeavour to shake off the intervention of the ecclesiastical authority, which labours with incredible obstinacy to maintain its privileges undiminished, and even seeks to increase them; but which, nevertheless, finds them gradually reduced almost to zero. The statute of 1415 ordains that "no person, university, or church, no religious or clerical house shall presume to question the jurisdiction of the Commune under pretence of 'benefice' or privilege, and that any one who opposes this enactment shall be imprisoned until he renounce such privilege.415 No excommunication nor interdict shall hinder or diminish the action of the magistrates or the effect of their decrees.416 Every man may freely exercise his rights over all Church property derived from secular sources."417

XV.

Turning now to a general view of the Italian statutes, we must remark that although the history of statutory law presents many difficulties, owing to the infinite number of different provisions to be found in it, the diversity of these provisions is chiefly due to accidental and temporary causes, extraneous to the natural and spontaneous development of the law itself, which, examined apart and with reference to its essential characteristics, presents a striking uniformity. It may, however, be noted that in the republics of Northern Italy the Longobard law is far more predominant; while in those of Central and Southern Italy Roman law obtains an early and rapid ascendancy, and, subject to the changes which have been indicated, ends by dominating at all points. This progress becomes more apparent from year to year, so that even in examining the statutes, the very same conflict of antagonistic elements which we have already noted, throughout the entire history of the communes and of Italian civilisation, is brought before our eyes in civil wars, in sanguinary struggles between Guelphs and Ghibellines, in art, in literature, in all things. It is true that the statutes only treat of juridical ideas and enactments; but these seem to strive with the same ardour, and to aim at the same ends, as the men whom they control.

Towards the close of the fourteenth century Italian commerce began to make enormous advance, and this gave a new impetus to Italian legislation. In fact, we find a series of enactments enabling all mercantile affairs to be transacted with much greater celerity, avoiding legal quibbles, releasing merchant's credits from mortgage or sequestration, and severely punishing all frauds and fraudulent bankruptcies. In a word, we clearly discern the inchoation of the modern commercial code with which these enactments are frequently in unison.

But in all these laws we always recognise the consequences of commerce being divided and split into a multitude of separate associations with statutes of their own, judges of their own, and an exuberance of vitality. At the same time, we recognise that the central authority, though aware that its natural rights are threatened and usurped on all sides, continues to exert its influence, without method, indeed, or uniformity, but not without vigour, and occasionally even with violence. At one moment it seems to be vanquished; at another it comes forth victorious. The entire history of the Commune demonstrates a constant tendency to harmonise all these distinct and often jarring elements—political, social, and legislative—but this problem it never succeeds in solving, and ends by relapsing into despotism. A true conception of social unity was wanting; the idea of a due distribution of authority was still unknown, either in real life or in theory; accordingly whoever happened to have a share in the executive authority, also assumed, as necessarily connected with it, a share not only in judicial, but likewise in administrative and legislative functions. Wherefore it seemed that the only way to preserve liberty was to parcel out the government among an infinity of hands, and so to contrive that parties, associations, cliques (consorterie), families, and quarters of the town should each and severally serve as checks upon all the others. In this process of division and subdivision all the elements afterwards constituting modern society were prepared, but the State, in its true sense, was never discovered. Without ballast to steady her, the ship of the Commune, driven hither and thither in a ceaseless storm and buffeted by winds from all quarters, could neither find anchorage nor keep a settled course. No clear and certain conception was ever reached of that law which, by limiting and defining the amount of liberty guaranteed to each individual, secures freedom to all.

The political life of communes, moreover, was always confined within the walls of the dominant cities, since not only the outlying territory was excluded from it, but likewise all towns that had been annexed or conquered. Every form of representative government was as yet unknown. All who enjoyed political rights entered, each in his turn, the Councils of the Republic, and sooner or later nearly all rose to power. This made it necessary that the States should have very circumscribed borders, as otherwise it would have been impossible to govern them at all. The French Revolution, by achieving for the first time, in behalf of the nation at large, what the Italian communes had effected for the cities, was able to proclaim the civil and political equality of all who formed part of the nation, and who were in consequence to be recognised as citizens. From that time democracy became the predominant characteristic of modern societies which, by means of representative institutions, have found it possible to secure freedom, even in large states, reconciling the unity and vigorous action of the central government with personal independence and with local liberty and activity. But the Commune always wavered between the opposing elements of which it was made up and which it never succeeded in fusing into a true political organism.

The history of our republics may, in fact, be summed up in an account of the varying predominance of one or other of the great associations of which they were composed. In Florence, we have, first of all, the conflict of nobles and commons which is maintained with changing fortunes. When the fraternities (consorterie) of the leading magnates obtained such ascendancy as to menace popular liberties and destroy the social balance, notable reforms were made in the statutes; the Commune was completely transformed, and by means of the Ordinances of Justice (of which we shall soon have to speak), the nobles were overthrown and their associations broken up. But as these associations were an integral part of the State, their downfall was followed by a phase of rapid corruption and decay. To the passions and interests of caste succeeded personal ambitions, hatreds and passions of a still more dangerous character. Families began to be at strife; men who were at once powerful and ambitious, came to the front; and Corso Donati, or some other like him, would have soon become master and tyrant of the Republic, save for the fact that a mighty people, enriched by the speedy gains of an extended commerce, devoted to freedom and opposed to the nobility, had first to be disarmed. Thus to the supremacy of the leagues of the magnates succeeded the predominance of the Greater Guilds, between whom and the Lesser Guilds a struggle was entered upon in the course of which the latter obtained, in their turn, a share of power. At a later period, the populace, represented by the plebeian Ciompi, comes to the front, and threatens the utter dissolution of the old social form of the Republic. Then new personal ambitions, more fatal to freedom because more fortunate, occupy the scene. The struggle between the Albizzi, Pitti, and Medici terminates in the triumph of the last-named family in the person of Cosimo the Elder, who slew the Republic. Yet nothing of all this should cause us much surprise. For if we bear in mind the beginnings of the Commune and the elements out of which it was constituted, we may readily see that all that happened was, in the main, unavoidably bound to occur.