Chapter VII · 367 THE FAMILY AND THE STATE IN ITALIAN COMMUNES.368

CHAPTER VII.367 THE FAMILY AND THE STATE IN ITALIAN COMMUNES.368

I.369

IT is certain that no real national history of Italy can be written until the statutes and laws of our communes have been published, studied, and thoroughly investigated by the light not merely of historical but of legal research. The necessity for such investigation was first proclaimed by the learned Savigny, subsequently recognised by many Italian scholars, but has never yet been entirely satisfied. An accurate study of those old laws and statutes would make us acquainted with the public law of the communes, and place before our eyes a clear and exact picture of their political institutions which have been hitherto very imperfectly understood. Moreover, what is certainly of no less importance—it would enlarge our knowledge of our ancient private law, to which many learned authorities, among others Francesco Forti, attribute the origin of modern jurisprudence, and the germs of many jural provisions, afterwards accepted by us as novelties derived from the French Code.

Public and private law have far more affinity than is generally supposed, and each conduces to the plainer and more exact comprehension of the other. Society and the State have both their birth in the family, reacting upon and modifying it in turn. No student therefore who seeks to discover the true key to political institutions developing themselves in a country spontaneously, should neglect the constitution of the family wherein are to be found the earliest beginnings of civil law, with which political law also is more or less connected. Cases, it is true, frequently occur of one people adopting the civil law of another, without altering its own political institutions; while in other instances both are imposed simultaneously by a superior foreign force. This has led many to question the reality of the connection which in fact subsists between them. But these cases have nothing to do with that natural and spontaneous development of law of which we are now speaking. In this development, politics and jurisprudence, the State and the family, are found to be closely interconnected.

In the course of Florentine history we often see political revolutions break out suddenly and apparently without warning; but on closer examination we perceive them to be the result of deep social changes which have been maturing for a long time, and although imperceptible at first, afterwards assuming such proportions as to become suddenly visible to all eyes and productive of political reforms. Thus it happens that private law, which always accompanies social movements and changes with them, not unfrequently enables us to trace the sources and unfold the true tendency and inexorable necessity of revolutions, even before they come to pass. Accordingly, the habitual neglect of this particular study in connection with the history of Italy has proved a serious defect. No one at the present day would venture to write the political history of Rome without giving attention to the Roman jurisprudence. Nevertheless, we have written the history of our republics over and over again, without bestowing a thought on their civil and penal legislation.

It is true that the investigation required presents very great difficulties, inasmuch as our history was subject, during the Middle Ages, to a series of changes, always rapid and always different. The number of our republics is infinite. Every province of Italy, every fragment of Italian territory is divided and subdivided into communes, every one of which has a distinct history, and political institutions which are constantly changing. This perpetual mutation is faithfully reflected in the statutes of the Commune. On the margins of these statutes we find alterations and corrections registered from year to year, and formulated, not unfrequently, after the streets of the city had begun to run with blood. When annotations and corrections reach a certain number, the statutes are drafted anew, and of these re-drafts also many copies are still extant. It was the duty of the officials in charge of the statutes (statutari) to enter from time to time such farther modifications as were afterwards approved of in the Councils of the People. Hence it sometimes happens that on referring to the statutes of a given year, we may find the duties of some chief magistrate of the Republic set forth in their text with the most minute detail, whereas if we look to the notes it will appear that these duties have already been changed. If we next consult the remodelled statute it will be found that the magistracy itself no longer exists. How is it possible, therefore, to give any idea of the political form of a municipality fashioned in such wise? This can only be done by gleaning from the mass of the statutes the history of the constitution through all its successive changes of form. In a word, we must recognise that, instead of being confronted by a system crystallised, fixed and immutable, we are watching a living organism develop under our eyes in obedience to a settled law. This law alone is uniform, and it is this we must endeavour to trace, since it alone can solve the mystery and supply exact ideas. Turning from public law to private legislation, our difficulties rather increase than diminish. For, in perusing this, by no means less important portion of the statutes, we come upon a confused medley of legal systems differing from and often opposed to one another. When we meet with such terms as meta and mundium, wergild and morgengab, dos and tutela, testamentary succession and succession by agreement, we recognise that Longobard law, Roman law, feudal law, and canon law are all present, and perceive that they are blended in constantly varying proportions. These diverse legal systems act and react one upon the other, producing reciprocal changes. Into the Roman law, provisions are constantly filtering which indubitably belong to the Longobard law, while the latter in its turn is profoundly modified ("mutilated and castrated," as Gans expresses it) by the Roman law. How are we to explain this congeries of different laws? Is there any new and original principle that assimilates the heterogeneous elements and constitutes a new law? If so, what is it? This is the knotty problem which Savigny encouraged us to attack, but which we have hitherto failed to unravel. But although the question remains unsolved, its importance is now universally acknowledged; it has been carefully studied, and many treatises, including some of the highest value, have been published on the subject. Accordingly certain observations may at last be offered to the public.

The constitution of the family and its relation with the State are, as it were, the chief centre round which all fresh researches must revolve, and these form the subject of this short and summary essay. As a preliminary step towards the solution of the problem, an accurate investigation is required of the various forms that the family assumed under the various systems of law which succeeded one another in Italy, in order to ascertain how it was that from the combination of those various forms, another and widely different one should have resulted. The first question therefore that presents itself has reference to the condition of the Roman law and the Roman family at the time of the barbarian invasion. As regards the Italian communes, it is only natural that the Roman jurisprudence should strike the deepest and strongest root in their social system, and that the history of our laws should originally find in it their first beginning. Here, however, we are forced to enter on a digression which, although seemingly apart from the point, will presently help us to a clearer understanding of the new society in course of development. With regard to this digression it should also be said that so much learning and research have been directed to the study of Roman law, that we are able to arrive at certain trustworthy conclusions which, by affording evidence of the close connection between the Roman family, and the political society derived from it, will show us what path to take in pursuit of the same connection in the history of Italy.

II.

Every student of the Pandects knows that the words "Roman law" denote the outcome of long preliminary labours, and the ultimate form of a jurisprudence which cannot be rightly understood without analysing all the historical elements employed in preparing and building it up. Treated in this way, the history of Roman law becomes, as it were, instantly transformed into a history of many different legislations following one another at intervals. From the Twelve Tables down to Justinian, this law never halts for an hour in its constant course of development. Even during the Middle Ages, when the compilations made at Constantinople were studied with religious zeal by expounders and commentators whose sole object was to faithfully reproduce and diffuse this law, even thus, in the hands of those interpreters, influenced by the altered spirit of the times and by new social developments, it underwent changes of which they were not themselves conscious. It is not until the fifteenth century that this historic development can be said to have ceased among us, and Roman law become mainly a subject of learned research. It is at this time that a new and modern system of jurisprudence first reveals itself to history, endowed with a separate life, and with a form of its own, though borrowing much from the Roman law, which in consequence continues to be of the utmost value to us, and still deserves our most assiduous attention, although for a very different purpose from that with which it was studied during the Middle Ages. Our object is now to familiarise ourselves with an immortal monument of ancient wisdom, to shape our legal education by it, to be helped by it to a clearer understanding of our own codes, and to contemplate it in its successive manifestations, while we search for its regulating law. It is in fact the discovery of this law that has at once thrown a new light upon the whole history of Roman jurisprudence, which we perceive to have been always and unceasingly governed by it, and thus forced to assume a character so constant and continuous through all its various transformations, that what had before seemed to be a series of distinct legislations takes an entirely new aspect, making us spectators, as it were, of the evolution of a single idea, the progressive development of a work of Nature.

All this continuous progress or evolution was the result of two forces, of two different elements. The true, primitive law of Rome was the special law of the Quirites, of which we find the remains in the Twelve Tables: a severe and restricted law abounding in formulas which had to be sacredly observed, and its administration was entrusted to a small number of citizens who alone were acquainted with its rules, whose authority was sanctioned by religion. The smallest mistake of form made void the most just decree, and where the law omitted to define the formula to be observed, no valid action could be brought. When the due formula, making the contract binding, had once been pronounced, no proof of mistake or fraud could annul it. "Uti lingua nuncupassit ita ius esto." A slave to forms, the judge could not listen to the voice of morality or rectitude; the most just complaint failed to move him, unless supported by a text of law. The defendant dared not stir a step without the continual guidance of the legislator, inasmuch as every juridical formula was sacred and inviolable; and as the science of law was monopolised by the College of Pontiffs, the most aristocratic and conservative body in Rome, it became a kind of occult science. It was this very character, however, apparently so restricted and pedantic, that gave its great force to the law in Rome. For law, being now freed for the first time from every extraneous element belonging to morals and good faith, became firm and inexorable. Any one who had the law in his favour was safe to see it promptly carried out. History affords no example elsewhere of legal sanction and redress being applied so swiftly and surely as in Rome. In Athens, indeed, where the laws were more philosophical, and the popular conscience gave judgment, investigating motives, despising formulas, and looking only to substantial justice, caprice often prevailed, and law never attained the iron strength and tenacity of the Roman jurisprudence.

But with changing times, all things changed in Rome. This jurisprudence revered as sacred, but described by Vico as made up of formulas and phrases, was well adapted to a rude and primitive people. Ideas had greatly altered in the days of Cicero, who in his speech pro Murena severely satirises a science which, in his eyes, had become ridiculous: "res enim sunt parvæ, prope in singulis literis atque interpunctionibus occupatæ." He looked upon the whole thing as a fraud designed by the priests to secure themselves a monopoly. Was he in the right or the wrong? Vico, in examining a similar question, showed that Cicero was mistaken on this score. Cicero and his contemporaries, he said, lived in too cultivated an age to comprehend rude and primitive jurisprudence; they could not grasp its true significance, but formed their judgment of the ancient laws according to the ideas and principles of their own times. This view, which was first broached in the Scienza Nuova, was afterwards accepted by many other writers; and it is now placed beyond a doubt that the primitive Roman law was not the artifice of a learned few, but was a spontaneous and necessary growth among the people with whom it had its origin. At first, custom, clearly distinguished from the law formulated and written, tempered its rigid severity. Good faith and equity, disregarded and rejected by the law, found their sanction in custom, were administered by a separate tribunal, and were always respected, inasmuch as the sentence pronounced by the officiating magistrate was morally, though not legally, binding, and was therefore of great efficacy as the genuine expression of public opinion. The sentence of condemnation could not be carried out by force; but it made the condemned man infamous, and, as a last resort, the magistrate could cite the accused before the people, as the supreme legislator and judge.

But at a later date customs grew corrupt, and no longer sufficed to protect public good faith and morality, which were driven to seek asylum and sanction in the law, and so began gradually to modify its primitive character. Substance now prevailed over form, equity over the ancient text of the law, the intention of the contracting parties over words uttered by mistake; the law became more moral as customs grew more degraded. This transformation, though very gradual at the beginning, was afterward, accelerated by the new conditions of the Republics in which a change took place not unlike that occurring in the history of jurisprudence, towards the beginning of the seventeenth century. At that time the various European States, with their various systems of law, having contracted new relations with one another, came to recognise the necessity of establishing some fixed rules by which all should be bound, and thus, under the auspices of Hugh Grotius, the so-called School of Natural Law was built up. The same occurred in Rome, if not in the science, at any rate in the practice of law. As the dominion of the Republic became extended in Italy, its relations increased with neighbouring nations, among whom the more philosophical and less severe laws and principles of the Greek jurisprudence prevailed. It was impossible to impose upon all these nations, without modification, the rigid law of the Roman patriciate. Accordingly a new system of law, of a simpler character and wider reach, took shape and rapidly grew. This was named the jus gentium, to distinguish it from the other, the jus civile. "Jus gentium est quod naturalis ratio inter omnes homines constituit." This system, however, was not deduced from philosophic theories concerning human nature, as was the, appropriately styled, natural law of the eighteenth century; it originated in the practical needs of the Romans and their new relations with other Italian peoples: it was fostered by the principles of Greek jurisprudence that had been transplanted into Southern Italy; it met the new requirements of the Romans themselves; and taking the place that custom had previously filled in the Roman courts, grew side by side with the law of the Patricians with which it long maintained its union.

There were thus two systems of law in force in Rome; and we accordingly find on the one hand judges and courts faithful to the ancient formalism, on the other, judges and courts taking cognizance of equity and good faith, and almost discharging the duties of the Censor. The continuous onward progress of the jus gentium, the reciprocal action of the two legal systems ultimately fusing them into one, wherein the old Roman formation gradually lost its rigidity, and equity, becoming incorporated with the civil law, began to assume a more definite and regular form, were all consequences of the principle which dominates the life and history of the Roman law, and may even be said to constitute it. For it has been moulded and diffused through the world, inheriting from the old Quirites its frame of iron; from contact with other races and from such germs as it could assimilate of Greek civilisation, its more comprehensive and human spirit. Assuming thus a character at once exact and philosophical, it seemed as though destined to become, from its superiority, the universal jurisprudence, the indispensable foundation, as it were, of all future legislation. This union of legal systems was effected by the Prætor. He it was who represented both the modern spirit and the ancient, enlarging the old law with the defences of equity which he strengthened by submitting it to the trammels of a formal procedure. This in substance was what took place with regard to customs, letters, and everything else. The fusion of Greek civilisation with the Roman constitutes the history of the ancient world.

III.

As is natural, we also meet with the same phenomena in the history of the family, from which the civil law is to a great extent derived. In fact, whoever contemplates the primitive Roman family, at once recognises it as the basis upon which the future juridical and political greatness of Rome was erected. The family is sacred; the father is absolute master of the goods, the liberty and the life both of his wife and of his children. He is priest, judge, supreme arbiter: wife, children, and grandchildren form with him a single joint society, one legal entity of which he is the representative. The woman may be bartered away, killed, or sold in execution; freed by marriage from the despotic control of her father, she at once falls under that of her husband; her legal incapacity lasts through her whole life. But primitive customs so temper this harsh law that we find no other people of antiquity so observant of the sanctity of family, or showing so much respect to woman. Matrimony is styled "consortium omnis vitæ, divini et humani iuris communicatio." Divorce on the part of the husband (repudium) is not forbidden by law, but any man who repudiates his wife is dishonoured by the Censor, excommunicated by the priest, and for a period of five centuries few cases of repudiation are recorded. In ancient Greece some traces of oriental polygamy are still discernible, but in Italy monogamy is coeval with Rome itself. Natural children, as such, never rank as members of the family, but they may be legitimated. Adoption is a solemn act, the moral propriety of which is referred to the decision of the pontifex, as the guardian of the sanctity of the family, and is thus submitted to the popular sanction. The woman is never seen in places of public resort, nor does she attend popular gathering; but within doors she is domina, and the husband addresses her by that title. The Atrium is the centre and sanctuary of the house. Here relations, friends, and strangers meet together; here stand the domestic hearth, the altar dedicated to the Lares, and all those objects which the family holds sacred: the nuptial coach, the ancestral likenesses moulded in wax from the faces of the dead, the matron's rock and spindle, the chest containing the household records and monies. All these possessions are entrusted to the care and superintendence of the mother of the family, who, together with her husband, sacrifices to the gods and assists him in the management of the common patrimony: she directs all domestic work, and watches over the education of her children. In the annals and legends of Rome the name of some heroine, such as Virginia or Lucretia, is indissolubly linked with the chief glories of the Eternal City. It is not so in Greece. In instituting and sanctifying the family, the Romans laid the foundation-stone of the Capitol. But to maintain this primitive nucleus of Roman society firm and compact, the law must always watch with vigilance and multiply its ordinances. The property of the family must be kept together as strictly as possible and for the longest possible time. The father is its sole master and arbiter; but on his death the patrimony is equally divided between sons and daughters. The unity of the family must also be guarded and defended by the law, since there is serious danger that a woman marrying may carry away from the family an interest in the family property. She is accordingly subjected by the law to a perpetual tutelage which prevents her from disposing at will of her own property. On the death of her father the woman comes under the tutelage of the agnati. In Cicero's day, when as Vico has noted, the true significance of primitive Roman law had been lost, lawyers believed that this tutelage of women had been established on account of the weakness of the sex, propter sexus infirmitatem. But Gaius refers to this opinion as a plausible and prevalent error, and maintains that the restriction was instituted in the interest of the agnati, so that the woman, whose presumptive heirs they were, should have no power to alienate, diminish, or otherwise defraud them of their inheritance.370

So long as the woman remained under the tutelage of her father, inasmuch as she had not yet inherited, the law allowed her to incur legal obligations. The danger for the family began when, on her father's death, she became an heir. It was from that precise moment, accordingly, that she came under the tutelage of her own heirs the agnati, and could no longer bind herself without their consent. This tutelage, therefore, became not merely a duty on the part of the agnati, but was also a right and privilege. Where the agnate was a minor, of weak mind, or otherwise incapacitated, he did not forfeit this right, but it had to be exercised by a third party. The tutor fixed the dowry to be given with the woman on her marriage; but the remainder of her patrimony had to be preserved intact, that it might return afterwards to the agnati. No woman could make a will, that she might not have it in her power to defraud the family. On passing in manus viri, the woman underwent a capitis diminutio. She entered another family, as it were, loco filiæ, and her new relations became her lawful heirs. Under these circumstances the law permitted her to make a testamentary disposition, whereby, notwithstanding her new relationships, she might restore her patrimony to her own original family.

When the woman was under the manus of her husband, she was emancipated from the paternal authority and from the tutelage of her agnates. The displeasure thereby caused to her own family was so great that, before long, marriage by simple consent was resorted to, according to which the woman became personally subject to her husband's authority, but he had no right of manus over her, and consequently no power over her property. In this way the woman remained under the power of her father or of the agnates, and at the same time came under the authority of her husband, an arrangement that inevitably led to many collisions, and hastened the advent of the most radical change in the Roman family—the complete independence of woman. But, before reaching this point, disputes were for a long time kept in check and efficaciously remedied by the mediating influence of a most important institution—the domestic tribunal. This family council, regulated by usage, not law, was composed of agnates, cognates, relations, and sometimes also of friends. It presided at espousals and at the assumption of the toga virilis; it protected orphans; it aided the head of the family in adjudicating and in awarding punishment, and acted as a restraint on his authority. By law, the father could act even without the co-operation of the Council; but by doing so, he exposed himself to being publicly blamed and noted with ignominy by the Censor, who, if necessary, might accuse him before the people. The marriageable maiden was subject to and protected by this Council.

Becoming a wife by that form of marriage which brought her in manus viri, she left her own family to become member of another; but if not married under that form, she still remained subject to the family Council, in which her husband was now included.

IV.

In the age of Cæsar, the Roman family is no longer what it was at first. Laws, usages, ideas, all are changed; and everything is moving onward to a still more radical transformation. The jus gentium seems to have become identical with the more rigorous jus civile. The fideicommissum has almost the force of a testament in solemn form, and has become part, as it were, of the jus civile; verbal contract, the ancient stipulatio, once so hampered by formulas, is grown so flexible as to resemble a contract under the jus gentium. But the greatest change of all has taken place in the family. The domestic hearth is no longer the household sanctuary. The Atrium is transformed into an open courtyard, enlivened with flowers and limpid fountains, ornamented with gilded busts and statues, often of an obscene character. Sacrifices are no longer offered there to the gods amid the stillness and purity of domestic and religious affection; it now serves the enriched and corrupt patrician as a place of reception for his numerous friends and clients. The family of former days, once almost a State within the State, is now dissolved, and, as it were, swallowed up by the political power. The agnates no longer cleave together, the domestic tribunal has either lost its strength or has entirely disappeared. Paternal authority, though less absolute, is more oppressive, being no longer in harmony with the changed customs. If a father disinherits his son, the judge cancels the will. Should he refuse consent to his son's marriage, the State compels him to grant it; should he punish his son with death, the emperor sends him into exile; he cannot ill-use even his slaves without being punished by the law, for the law has grown moral as manners become more corrupt. By gradual degrees woman escapes from tutelage, and from manus, and ultimately attains her independence. But the more she is emancipated from her family and relations, the greater becomes her subjection to the State. In her new independence she incurs new disabilities, no longer resulting from her position as daughter or wife, but from the fact of her sex, disabilities no longer imposed in the interest of the family, but created as a protection for her infirmity. This explains how it was that the lawyers of later days were mistaken as to the significance of the old law touching the tutela of woman. The wife's dowry is guaranteed to her more and more strictly, until it finally becomes her almost inseparable property. It must neither be alienated nor diminished. On her becoming a widow, being divorced, or returning to the paternal roof, she remains absolute mistress of it. A husband who surprises his wife in adultery can no longer—hiding his dishonour within his own walls—judge and put her to death with the consent of the domestic tribunal. He must now leave the State to avenge his wrongs, and must resort to the courts, even though seeking only minor penalties. Divorce has become a public act of not unfrequent occurrence. The woman, in short, is no longer under her husband's manus, no longer subject to the patria potestas, no longer under the tutelage of the agnati: she is protected by the State. When the law still requires her to have a tutor or procurator, she can choose a stranger who becomes her servant rather than her master. Eventually even this last shadow of subjection disappears. Absolutely her own mistress, the woman may now hold property, increase her fortune, make her will, lose her virtue; but her dowry, guaranteed and kept intact by law, remains hers to the end of her life.

Nevertheless, as regards succession, the woman's rights are not yet the same as the man's. It is true, that should her father die intestate, she takes an equal share with her brothers of the inheritance; but in all other cases of intestacy the nearest female agnate stands after the most distant male. The woman cannot now do any legal act for others, though this had not been forbidden previously; she cannot be a witness; she cannot stand security for the debts of others. The Senatus-consultum Velleianum lays it down as a fixed rule, which, to a certain extent, has remained in force to our own days—that the woman must not undertake any obligation on behalf of others. She may alienate her possessions in others' favour, may incur a direct obligation, contract a debt, and transfer the money to others; but she cannot bind herself to pay another's debt, nor guarantee its payment. In the legislator's opinion, the infirmity of her sex leaves her enough intelligence to escape danger in assuming direct obligations, or by alienating her property, but not enough to guard her from lightly undertaking remote and indirect liabilities which are often no less serious.

But the progressive changes in the Roman family are not yet at an end. To the numberless causes for change already in existence another is added, when Christianity finds its way into the Empire, into literature and law, and subverts all things. According to the law of Christ, man and woman are equal; father and mother have equal rights and duties in respect of their children, for whose advantage all things must be ordered; whereas, by the old law, the rights of the children were subordinated to the interests of the family. A new element is now introduced into Roman law which further changes its character, already much modified by Greek philosophy and by Byzantine despotism. The Canon law accepts the principles of the Roman, recognises the wife's absolute interest in her marriage portion, and rejects the pretensions of the husband. Woman remains excluded from every office which the ancients deemed proper to man; she cannot enter into obligations for others, nor arbitrate, nor lay an accusation, nor bear witness in court; her evidence has no legal effect. On the other hand, Roman law tends inexorably to democratic equality, natural equity, and to the absolute predominance of the State. The public authority deprives domestic authority of its last remnant of power; it may almost be said that the family, as a body-politic, disappears, to be reconstituted on the footing of reciprocal affection. The final seal to these alterations was imposed by the famous law of succession (Nov. 118 and 127) enacted by Justinian in the years 543 and 547, which, suppressing every privilege of sex and agnation, fixes rights according to the degree of relationship, and makes them reciprocal. It moreover enlarges the amount of the legitim, and ordains that the dowry of the wife should be met by a donatio propter nuptias of equal value from the husband, and that, in the interest of the children, both should be inalienable. Even with the consent of his wife, the husband cannot sell the dowry; he may only administer it, and there must be complete reciprocity. The wife is not only the owner of the dowry, she has besides a general charge over her husband's property for its restitution, with a right of action to enforce it as against all his other creditors. In inheriting from their children the mother has equal right with the father, and she is now qualified to be their guardian. Even the Senatus-consultum Velleianum, which forbade women to incur obligations on behalf of others, is modified with the same scope. Justinian, indeed, from his desire to protect the property of the woman against all danger, is strenuously opposed to her incurring obligations on behalf of her husband; but he is much more indulgent in respect to obligations undertaken on behalf of a stranger. These, if incurred for manifestly good cause, are valid if renewed after two years. Thus modified, the Senatus-consultum Velleianum is treated with respect throughout the Middle Ages. Reciprocal equality is now achieved, but the ancient unity of the family is dissolved; the compact and iron nucleus of Roman society is broken to fragments by the continual and increasing action of the State. In all her institutions, Rome has succeeded in arriving at democracy and equality, but at the cost of complete individual liberty, and by sacrificing the development of special associations and of local life to the unity of the State. How to conciliate these two elements without destroying the one in the interest of the other will be the problem of a new era and a new civilisation.

However highly we may rate the amazing and indisputable greatness of the labours of Imperial legislators and juris-consults collected in the Corpus iuris in the time of Justinian, it is nevertheless certain that the ancient and primitive character of Roman law has been profoundly changed by it, and that the despotism of the State, always prevalent in Rome, has been enormously increased. It is for this reason that Tocqueville, and others with him, go so far as to maintain that the great diffusion of the Justinian law among the Latin races has more than once proved hurtful to political freedom. To many, such an assertion may seem absurd; but granting that there is a close bond of connection between private and public law, and that the final changes in Roman law were introduced by the action of the growing despotism of the State, the opinion advanced by the French writer is not without its value.

V.

However that may be, it is undeniable that the family, as we now find it constituted, or, more correctly speaking, weakened, by the Justinian law has not the qualities which would enable it, in the ages of barbarism now at hand, to withstand the violent onset of the advancing Germanic peoples, much less to be the nucleus and germ from which the new society of the Italian Commune may take birth. In fact, in the statutes we find the family constituted on a very different footing. Agnation has recovered its ascendancy. The woman is under a new species of guardianship; and although the dotal system is rigorously observed, there are innumerable regulations designed to keep family property together, or make it revert to the family, so as to preserve the domestic patrimony intact. Here an important question arises, namely, whether this new constitution of the family, which stands in close relation with the public law of the communes, is a return to the pre-Justinian law, or derived from Germanic institutions and the Longobard law, in which we find, in fact, precedence accorded to agnate kin and a more stable family organisation? Italian writers, the earlier writers more especially, adhered for the most part to the former theory, while the majority of German authors, who have recently found disciples even among ourselves, adopt the second view. Thus, on either side we find theories propounded as to the constitution of the Italian family in the Middle Ages, analogous to those concerning the origin of the communes.371

The persistence of Roman law in the Middle Ages, even when the condition of the Italians was most wretched, and when all things seemed to be subject to the law of the Longobard, was maintained with marvellous learning and acumen in the immortal work of Savigny. But, in truth, though public law and penal law might readily be altered under the rule of the conqueror, there was little likelihood that the civil law which, for so many centuries, had filtered into the usages and into the very blood of the Romans, which had regulated the manifold relations of a civilised people and satisfied its countless requirements, should perish utterly beneath the sword of barbarians unconscious of those requirements and not always able to comprehend those relations. Matters of which they were to a great extent ignorant, or as to which they were indifferent, must often have been passed over without notice in the laws framed by the barbarians, or have evaded their action. Various provisions, therefore, of the Roman law—those, for instance, relating to marriage, to succession, and to contract—must often have continued to be applied by the Italians in conformity with ancient usage. This will be more readily understood if we reflect that while the Roman law had become the law of all in those countries in which the Roman conquest had taken deep root, the laws of the barbarians, on the contrary, according to Teutonic usage, always presented a personal character—that is to say, extended only to the people with whom they originated, and were not easily communicated to others. In fact, when, as a consequence of successive invasions, different Germanic tribes, whether independent of each other or in subjection one to another, came together in the same country, each of them continued to be governed by its own peculiar laws. The Romans, on the contrary, regarding their law as universal in character, communicated it to, and imposed it upon all. It was almost the first germ of the greatness and the civilisation of Rome, and for that reason its diffusion was considered the most sacred of duties by this sovereign people. Thus it was that, even under the harshest barbaric oppression, the Roman law continued to be the private law of the Italians in all those cases, and they were not few, in which the German laws failed to notice it, and neither abrogated it directly nor substituted another in its place.

But the presence of two diverse legislations, the one imposed by force, the other preserved by custom, the radical change of conditions occasioned by the destruction of the old Roman State and the formation of a new society, could not fail to originate a new life, a new history for the Italian law. In the statute books of our communes we find Roman and Longobard law confronted and almost contending, each modified in turn by the action of the other. But under which of the many forms through which it has passed is the Roman law found among us at the moment when it seemed on the point of being overcome by the Germanic law? Was it in the literary and philosophic form given to it by Justinian, or was it in the pre-Justinian form, which, while less systematic, was also less altered by Byzantine ideas, and more in accordance with usage? Savigny roundly asserts that the Pandects on their completion were at once sent into Italy, and that immediately after the power of the Goths had been shattered by the Greeks Justinian hastened to issue the Constitution (534), whereby legal effect was given to them in the land. In consequence of this, he continues, the Pandects were then to be met with in every corner of Italy, where they were at once received with favour, inasmuch as the Justinian law was specially adapted to the requirements of the land. This, he goes on to say, likewise explains why it was that all the earliest Italian commentators or glossators devoted themselves exclusively to the study of the Corpus iuris. The reader, however, may easily discover that, on this head, Savigny has pushed his inferences too far. More than once, indeed, he is compelled to put a false interpretation on documents that they may not contradict his theories; and more than once the documents themselves seem to warn him that, even in the Middle Ages, vestiges of a pre-Justinian law are to be traced; but he persists still more resolutely in considering all this to be only a survival of antiquated forms. Many new documents have recently been published, and the question again presents itself, always with the same urgency.

As a German writer, well versed in the subject, has recently observed, everything tends to show that the history of Roman law in the Middle Ages should be divided into two entirely distinct periods.372 During the first it endured by force of custom, and accordingly many pre-Justinian formulas survived with it; in the second and much later period the Justinian law prevailed, promoted still further by the literary study of the Pandects undertaken by the Bolognese professors; it was only then that the most ancient formulas wholly disappeared. This view is supported by documentary evidence and harmonises with the character of the times and with the requirements of society, and is confirmed by our old writers and our literary traditions.

SUPPOSED PALACE OF THEODORIC, IN RAVENNA.

[To face page 383.

In fact, Savigny himself examines and recognises the full importance of the various sources of pre-Justinian law diffused in the Middle Ages. The code of Theodosius (438) which then possessed great authority, and the edict drawn up by order of Theodoric the Ostrogoth (500), were direct compilations of the old Roman Jurisprudence.

If in these compilations we turn our attention to the constitution of the family, more particularly as regards succession, we find it exactly as it was before the law was interwoven with the Imperial edicts.373 The Breviary of Alaric ("Lex Romana Visigothorum") and the so-called Papian code ("Lex Romana Burgundioram"), both posterior to the year 500, are likewise compilations of pre-Justinian law, and are found to be diffused in several provinces of the Empire. The often-mentioned "Lex Romana Utiniensis, seu Curiensis," which seems to be ninth century rimpasto of Alaric's Breviary for the use of Italians in lands previously under Longobard rule, also shows the same characteristics. It is true that, according to the hypothesis of Savigny, the Breviary of Alaric must have been in use among the Franks and brought by them to Italy after the expulsion of the Longobards. In this case we should find the old law to have been in force among us only before and after the period of the Longobards; while during their oppressive rule we should discover no certain trace of it. But it is very difficult to suppose that the ancient law, based as it was upon custom, should have died out precisely when custom might have preserved it, or that Roman law should at that time have assumed the literary Justinian form and afterwards have returned to a form more primitive. Had the legislation of Justinian in its genuine form been once accepted, it must have continued to gain ground with the advance of civilisation and under the less severe rule of the Franks, whose mode of life approached much nearer to that of the Latins. The fact is, that throughout the Middle Ages we meet with pre-Justinian legal forms, more or less modified, even among the laws of the Longobards.374 As to the remark that the earliest Italian commentators, the glossators, directed their studies to the Pandects and the whole of the Corpus iuris—this only shows that on the revival of the communes and of letters they turned, as was natural, to the most authoritative and literary source of jurisprudence. From that time, in fact, no other is looked for.375

THE TOMB OF THEODORIC, RAVENNA.

[To face page 384.

It should also be remembered that, when the Greeks came into Italy to combat the Goths, they found the ancient Roman customary laws in force and sanctioned by the edict of Theodoric; that the Goths were definitely vanquished in 553; that in 568 the Greek domination was followed by that of the Longobards; that the latter confined their rivals to Southern Italy, whence they were afterwards expelled by the Normans. There, in the south, the corrupt Byzantine despotism proved no less fatal than the oppression of the barbarians, and was perhaps the prime cause of the many disasters and prolonged neglect into which those provinces afterwards fell. But was it possible for a dominion so brief and troubled to diffuse the law of Justinian in Italy with such effect as not only to make it universally accepted, but also so thoroughly incorporated with customary law, that it could survive even when its binding legal effect was no longer recognised by the barbarians?

Such an hypothesis will seem even less tenable as regards everything relating to the family and to succession, if we reflect that the reforms introduced into this branch of the law by Justinian at Constantinople in no way corresponded to the conditions in which Italy then stood. Notwithstanding the diffusion of Greek philosophy among us, the spirit of Byzantium was by no means identical with that of Rome, and there was still less identity in their social conditions. In Constantinople Oriental despotism corrupted, nay, suffocated society by excess of luxury and over-refinement of culture; the State assuming everything to itself, imparted a new character to the laws. In Italy, on the other hand, society, no less corrupt, had become disintegrated, and was already falling to pieces; the ancient unity and strength of the State were continually diminishing and losing strength, and less and less resistance was opposed to the assaults of the barbarians. At Constantinople the State was omnipotent, while in Italy its vigour was on the wane. Among us, accordingly women and all who were weak were naturally driven to seek refuge in private associations, and above all in the bosom of the family. And if the natural force of events had power to urge in any direction, and determine any new tendency, it certainly could not have aimed at enfeebling the family bond by subjecting it to the authority of a tottering State, but must rather have sought to strengthen it as the only possible safeguard amid the dangers that were threatening on every side. This, in fact, is the course always followed in barbaric societies, where, the State being powerless, the care of the weak and the punishment of injuries are entrusted to the kinsmen. In short, both the disordered condition of Latin society and the example of the barbarians themselves combined to offer grave obstacles to the diffusion of Justinian's laws, more especially when the old Roman customs were seen to be better suited to the new and increasing needs of society, and useful for the reconstruction, on a firmer basis, of the old family system, now become more essential than before to the common welfare. No other way was left for beginning anew the social task and advancing afterwards to new methods and institutions. Nor need we attach much importance to the constitution of the year 534, knowing how wide is the difference between the promulgation of a law (especially when it is passed by a short-lived and feeble Government in a society that is lapsing into disorder) and its actual enforcement and incorporation with custom. Even under the Roman Republic, or under the Empire, old laws did not at once disappear when new ones were proclaimed. Even in modern societies we may note how tenaciously ancient customs continue to be observed when they are more in harmony with the character and requirements of the people.

The principles of the Napoleonic code were proclaimed in our Southern provinces during the French domination and afterwards confirmed by subsequent legislation; and according to that code, every patrimony was bound to be divided equally among the children. Nevertheless, in the two Calabrias and many other Southern provinces, property is still kept undivided in the family, since, by common consent, only one of the sons marries, the others remaining single. For the same reason, the smallest possible sum is assigned to the daughters; nor do all of them marry, some being persuaded or forced to take the veil. Social progress alone will slowly give real effect to the principles of equality sanctioned by the codes.

Everything therefore points to the conclusion that Roman law survived among us to the downfall of the Western Empire, preserving by usage many of the forms that had belonged to it before the compilation of the Corpus iuris. While in this state it came into contact with the Germanic code, and thereupon began the series of mutual alterations, from which the Italian family emerged, reconstituted in a totally new way, and together with it the Commune. It was a slow transformation, during which Latin ideas and traditions steadily gained ground, and gradually fused or destroyed the barbarian laws and institutions. When communal liberties were finally proclaimed, a new culture was inaugurated, and with it a new epoch in the history of Roman law. The university of Bologna became the centre for the diffusion and study of the Pandects, and the Corpus iuris became speedily regarded as the primary and perennial source of common law in our country. The tradition, according to which the Pandects of Amalfi, carried off by the Pisans, were by them discovered and made known for the first time to the Western world, dates this event about the year 1135, that is to say in the same age that witnessed the rise of the communes, and in which, as related by another tradition, Guarnerius founded the Bolognese school at the request of Countess Matilda.376 Thus our conclusions are supported alike by history, legend, and logic.

VI.

In Italy, therefore, at the beginning of the Middle Ages, the family accorded a preference to the agnates, and, in consequence of the continuous weakening of the State, was obliged to seek in itself for increased strength. The inroads of the barbarians brought with them a different constitution of the family, but this could effect no great change in our own family system until the Longobards had firmly established their dominion over us. There then began a great change in the social condition of Italy, which was forcibly compelled to assume a form more or less barbaric. Hence it concerns us to study the Longobard family system, that we may see how far and in what way it could thus alter ours.

ANCIENT SHRINE, RAVENNA.

[To face page 388.

Like every other barbaric society, that of the Longobards was founded upon force; in time of war it was compactly united under a king; during peace it split into groups, from want of vigour in the central authority, and from the excessive independence of subordinate chiefs. Hardly had barbarian kingdoms begun to be erected in the West with a certain degree of stability, than we find them subdividing into marquisates, dukedoms, separate groups, and at a later period into feudal holdings. If we look to the primitive conditions of these barbarians before they come among us, we find them scattered over the country, without any city properly so-called, and with no true conception of the State, which for them seems to consist in a confederation of secondary groups. The social unity of the barbarians is to be found in the villages or even in the tribes, which are societies originally derived perhaps from a single family. Everywhere the State assumes family forms. The social strength of the Germans is more manifest in the lesser groups, and consequently in the family. We ought not to be surprised, therefore, at finding the family constituted more solidly with them than among the Latins, who now, for many centuries, had been altering and modifying it under the growing pressure of State control.

Originally the barbarian family had been, like the Roman, an association consecrated by religion. A tutelary goddess presided over the domestic hearth; the father was priest and protector of the family. In Rome the control was in the hand of a single person, who ruled with an iron authority, but in Germany this authority was shared by all male members of the family fit to bear arms. At Rome the family was an absolute monarchy, its senior members being always regarded as the most powerful; but in Germany it more resembled a Republic, consisting of all the adult male members, except such as were disqualified by bodily infirmity. The family council aided the Roman father and tempered his rigid despotism; whereas in Germany the council predominated and assumed to itself the chief share of the family power. The Roman father could rupture every domestic tie at his will; he could remove his son from the family, sell him, or put him to death. The German son, on the contrary, when able to bear arms and fight by his father's side, might, if he chose, separate himself from his original family and join another tribe. Among the Germans bodily strength, property held in common, and natural ties of blood constituted the family; in Rome it was the conception of the family in itself that dominated over everything and made it authoritative and sacred. In Rome the individual was merged in the State, the son in the father; whereas, among the Germanic tribes, individual liberty was much greater, and if to us the State has the appearance of a confederation, the family seems a society of more independent members united by mutual agreement. Punishments, transgressions, property, all were in common; if any member of the family suffered wrong, it was the kinsmen's part to avenge him and obtain retribution. For sales and donations, as well as for acts of revenge, the consent of every member was required, inasmuch as the property belonged to the whole family, and ought to stay with it: whence the inutility of testamentary dispositions, which were in fact unknown to the barbarians. Property was sacred; it constituted the family, conferred social rights and obligations, and rested chiefly in the hands of the males. In this family, and in this society founded wholly on force, the woman, being incapable of bearing arms, was committed, like all other weaklings, to the defence and protection of her armed kinsmen, and so came under their perpetual guardianship (mundium, munt, manus). This tutelage being established on account of the weakness and infirmity of the sex, could never come to an end, as it might in Rome, where it had been constituted wholly in the interest of the family. But the Germanic woman, although oppressed, liable to be deprived of her property, to be sold, or made a slave, was under a power which, being divided among many, was feebler and less despotic than the Roman domestic rule. She was a dependent member of the family, but the authority of her father, brothers, or sons was shared by all her other kinsmen. Hence it was easy for the woman to find a protector. Her incapacity by reason of her infirmity did not entail incapacity in the eye of the law. She could appear in court, choose some one to represent her there; she could own property; she could inherit, although taking a less share than would have come to her had she been a man. The man listened to her advice, and treated her with religious respect; but it was the respect due to her weaker sex, not as in Rome, where respect was offered to the mother, to the wife, to the sacred character which was the foundation at once of the Roman family and of Roman greatness.

Longobard law, essentially Germanic, prevailed long in Italy, where plain traces of its survival are to be recognised as late as the fourteenth century. Under the stronger influence of the Roman jurisprudence it very soon lost its native rudeness and originality. As to this change, Gans, in his "History of the Law of Succession," has observed: "The fact that after the historical redaction of this law, another and systematic compilation of it was made, should prove to us how it was that the more confused, but at the same time more natural, spontaneous, and vigorous character of the Germanic law must necessarily have been altered, and as it were crystallised into a form that rather belongs to the Roman." It was precisely this form that so greatly promoted its diffusion among us.

VII.

With the Longobards, as with all the Germanic nations, woman was never released from tutelage (mundium), never became her own mistress (selbmundia). The man who desired to make her his wife must first of all pay the price of the mundium or guardianship which the marriage would give him over her; next he must bind himself to make good the meta, a species of dowry noticed by Tacitus when he remarks that, among the Germans, the husband brought the dower to the wife, instead of the wife bringing it to the husband. To the meta, also known afterwards under the name of dotalitium, dos, sponsalicium, &c., there was added the faderfium, which the father might, if he chose, give to his daughter. On the morning of the day after the wedding the husband presented his bride with a gift (morgengab), attended, according to a very questionable interpretation, as the price of her virginity. When Longobard customs came to be affected by the growing influence of the Roman law, the amount of the meta and of the morgengab was restricted. In the age of the communes, the faderfium, now transformed into a dower, was also limited by law. The meta, faderfium, and morgengab belonged to the wife, who could require them to be given up to her on her husband's death. But by a peculiarity of the Germanic law, retained in its entirety even by the Longobards, the Roman regulation, which made the dower the separate and independent property of the wife [even during her husband's lifetime], was never accepted. The only property owned absolutely and exclusively by the woman was what was given her by the husband. The Germanic law favoured the principle of common ownership. As to this, Gans observes:—"It is not necessary with us, as with the Romans, that a woman should have separate property of her own in order to assert her juridical personality, and prove her equality with her husband. She possesses what her husband possesses, and her equality rests on the mutual affection which makes all differences disappear." In the ordeal by combat the husband represented the wife, since she was under the protection of his sword; if she were taken in adultery he might put her to death. All her possessions, movable or immovable, including even nuptial gifts made to her by friends, became the property of her husband, who had only to provide against the contingency of the marriage being dissolved by death: whence the necessity of the meta and the donatium.

If the wife died without issue, everything went to the husband; on the husband's death, the wife was entitled to receive the meta and morgengab (donation). For anything more she was entirely dependent on the generosity of her husband, who, at a later period, was permitted to leave her the half, and, eventually, the whole usufruct of his possessions.

While the marriage laws of the Longobards and the Romans differed thus widely, their laws relating to guardianship were also different. The mundium of the Longobards, as we have seen, is not to be confounded with the tutela to which the Roman woman was subjected. Originating in the incapacity to bear arms, it was of limited duration in the case of males, and ceased with their incapacity. At first the limit was fixed at the age of twelve, at a later period of eighteen years. But for the woman, who could never become capable of bearing arms, it was perpetual. From the mundium of her father, she passed, on marriage, under that of her husband; and on the death of her father, if then a widow, under the mundium of her own son, or of the agnates, who were also her heirs.

In default of other guardians she was protected by the Curtis Regia. But in every case, whether under father, husband, son, agnates, or Curtis Regia, the mundium was identical in character, having for its object the protection of the weak. This could not be said of the Roman tutela, which had its origin in the Roman conception of the family. The tutela of the Roman father over his children lasted all his life; but he could divest himself of it. The mundium of the Longobard father lasted while his children were incapable of bearing arms, and, as a logical consequence, ceased when the incapacity terminated. While it cannot be positively asserted that emancipation was unknown to the Longobards, it may be believed, from the tendency of their law, to have been of rare occurrence. When the Roman woman was subjected to the potestas of her father, the manus of her husband, the tutela of the agnates, there were three kinds of guardianship very different from each other, corresponding with the difference in the domestic relations of those who exercised the right. No one of them had anything in common with the mundium.

The Longobard father had the right to sell his sons; he represented them in courts of law; whatever they acquired was his. But, as we have already shown, his authority was tempered by the family council, in which the brothers of the mother—the children's natural protectress—had much to say.

The Longobard family law has marked peculiarities in regard to succession as well as to marriage. And first, it should be noted that the disposal of property by will was recognised by the Longobards. This seems contrary to the usage of the Germanic tribes, among whom wills were unknown, but may be referred to the modifying action of the Roman on the Longobard law.

The fact, however, that with the Longobards donations and wills were irrevocable, indicates a Germanic character, or rather the trace of it, for the main feature of the Roman will consisted in its revocability. Of the essential principles of the Roman Testamenti factio the Longobards were ignorant. Legitimate children came first in the order of inheritance, and with them came natural children also, the latter—though not in strictness forming part of the family—being admitted to succeed along with the former, though taking a less share. They might, however, be put on an equal footing by being legitimated. At a later period this essentially Germanic peculiarity of the laws of succession was done away with by the action of the Roman and Canon laws, which exclude natural children. Originally, by the Longobard law, a legitimate child took two-thirds of the inheritance, leaving one-third only to the natural children. If there were two legitimate children, the natural children took only a fifth; if three, a seventh.

It was forbidden to leave more than the prescribed share to natural children, and no child could be disinherited without just and manifest cause. The reasons for disinheriting a child were borrowed from the Roman code. It was allowable, however, to favour one son more than the rest.

The preference accorded to males over females is a point of much importance, and is another of the special characteristics of the Longobard law. When the testator had one son and one or more unmarried daughters he was obliged to leave a fourth of the inheritance to the latter, but when there were several sons the daughters only received a seventh part. Married daughters had no right to any share in the inheritance, but had to be content with what they had received on the day of their marriage, and could claim nothing more. Failing male issue, daughters were next heirs, and whether married or single inherited as though they were males. Another peculiarity of Longobard law was the great favour shown to daughters or sisters of the testator domiciled in his house—in capillo. A brother is excluded in favour of a daughter or niece—a remarkable instance of this strange and singular preference accorded to females. We likewise find that unmarried daughters and sisters inherit on equal terms when living under the parental or fraternal roof.

We have already noticed that the statutes of the Italian communes accord, as does also the Longobard law, a decided preference to agnates over cognates, and that this circumstance has given rise to keen discussion. Many persons, indeed, insist on detecting in this preference an absolutely Germanic characteristic transfused into the statutes from the Longobard law. But we have seen that through the greater part of its history the Roman law also gave a preference to the agnates, and that it was only at a very late period that it lost this feature, which was still to some extent retained in Italy at the time of the barbarian invasions. That the preference of the agnates was not borrowed by the statutes from the Longobard law will be even more conclusively shown if we consider the manifest differences which prevail on this very point between the Germanic and the Italian laws; and bear in mind the important fact that the preference continued to increase in strength, at the very time when the action and influence of the Roman law are increasingly apparent in the statutes. In truth, the more closely we examine the matter, the more we are compelled to recognise that it was political reasons altogether peculiar to the Italian communes and to Italian society in the Middle Ages that led to this preference of the agnates. But even here the reciprocal action of the one law upon the other is clearly traceable, for we can perceive that the succession of the agnates, under the Longobard law, has itself been modified by the Roman, which has made it careless of the nature of the property of which the inheritance consists; whereas it is the peculiar and constant characteristic of the Germanic law that such succession should be ruled according both to the degree of kinship and the nature of the inheritance.

In conclusion, it may be said generally that with the Longobards the ties of blood predominate; that in their family there is greater individual freedom, and the family itself is much less affected by the action of the State. With the Romans, on the contrary, the conception of the family is stronger than the ties of blood; the unity of the family depends at first on an absolute paternal despotism, afterwards destroyed by the authority of the State, which to a great extent assumes its place.

From this time the State is predominant in all things; it reduces the family to fragments, and aims at the complete equality of all without having the strength to consolidate a society in which neither individual liberty, local activity, nor free associations were allowed sufficient scope for their development. Yet all these were absolutely necessary for the preservation of a huge social structure made up of distinct races, and consequently destitute of the national character and unity which the Republic and the Empire had imposed. It was precisely these new elements that were introduced among us by the barbarians. And thus it was that two peoples, two forms of family and society, I might almost say two ideas, two wholly different types of society were brought together, of which the one had become the necessary complement of the other. From their forests the Germans brought individual freedom, personal independence, the force of small associations; the Latins had already discovered the unity of the State, the wider and more organic conception of society, and the political idea of the family which we shall see hereafter triumphing in the Commune.

From the fusion of these two different societies that modern society is to arise in which the action of the one is seldom dissociated from that of the other, and it becomes impossible to ascribe the result exclusively to either.

VIII.

But while the co-existing and contending laws of the Romans and Longobards are the two juridical elements most plainly to be recognised in the Italian statutes, there are others also claiming remembrance, and among these the feudal and the Canon law must be noticed. Feudalism is one of the most important institutions in the history of the Middle Ages; it is the first form that society assumes on emerging from the chaos of barbarism, and it is stamped with a character essentially Germanic. With it, property and the family take a new and peculiar shape. We may pronounce it to be the first and chief political and social manifestation of Germanic individualism. The barbarian tribe had a natural tendency to split into small groups, into families solely united by the bond of common danger. During invasions the tribe transformed itself into an armed band, left behind all weak or incapable members, accepted recruits even from neighbouring tribes, and being under the command of one chief, was forced by the exigencies of war to be firmly and compactly united. The attacks previously made on them by the Romans had, for like reasons, the effect of creating among the barbarians certain strong and powerful kingdoms by the union of different tribes; but these never lasted long, since as soon as peace was restored they began anew to fall apart and dissolve. Scarcely had the barbarians begun to settle themselves in the West, than their incapacity to establish the unity of a State was made clearly manifest. The moment peace was declared the leaders of the various armed bands proceeded to divide the conquered territory. They then separated, and their king, or supreme chief, remained, as it were, isolated, and with very scant authority. Every leader tried to possess himself of some stronghold where he might rule as an absolute lord, barely acknowledging his dependence on the king. In the fief thus created, ownership and sovereignty became confused, but were both considered to be held (per beneficium) as of favour from a more powerful lord, subject to certain burthens and obligations. Originally a temporary grant, the benefice or fief only became hereditary at a later time. At first it could be resumed by the donor; it reverted to him on the death of the feudatory, that it might be transmitted by a new grant to the feudatory's heirs; it then gradually, by use, abuse, or special act of concession, became an hereditary estate. Eventually all property, possession, or ownership came to be held, during the Middle Ages, on feudal tenure. The want of vigour in the supreme political power obliged the weak to seek protection elsewhere. Many independent landowners voluntarily accepted the position of vassals; while, on the other hand, the obstacles encountered by the great lords in enforcing their authority over wide territories compelled them to cede part of their land in benefice to lesser vassals. In this way the State, the Church, all things assumed a feudal form. This system was completely established in the eleventh century, when the communes arose in Italy to combat and overthrow it.

In a fortified castle it was natural that the ties of the family should become continually stronger: a fortress must suffice for itself. It was, as it were, the independent world of the lord who dwelt in it, and divided his time between perilous adventures and domestic life. All historians have noted that feudalism produced increased respect, affection, and chivalrous regard for woman, and made man more resolute and energetic. Save in times of war, the baron was almost absolute and independent lord of his small realm, wherein all were his subjects. From him his vassals received the posts of seneschal, count of the palace, equerry, and the like, which offices, being granted in a form more or less feudal to persons of noble birth, had a tendency to become hereditary. A numerous retinue somewhat relieved the loneliness of the castle. The sons of subordinate nobles frequented the court of their liege lord, to be trained to polite manners and the arts of chivalry, and finally to receive the sword from his hands and be proclaimed knights. All this gave prestige to the castle, and secured the fidelity of the vassals to their lord, while at the same time it flattered the pride of the inferior nobility.

The Longobard feudal law is found to have points of connection with the laws of Rome which, though very different in spirit, are often called to its aid. Often, however, they are found to be in opposition. There can be no doubt that the Roman law manifests in Italy its persistent action on the feudal law. The fief, as is well known, not being absolute independent property, but only a limited and conditional grant, cannot, from its nature, be subject to the hereditary principle. On the contrary, the right of the heir must be recognised anew in his person, since, as we have seen, he does not derive it from any right in his predecessor. And this continued to be the practice even after custom had begun to make the tenure hereditary. According to feudal law, the successor was not then considered to represent the person whose heir he was; the original grant was renewed in his behalf. Moreover, when a fief has once become hereditary, the whole family has a right to it, not derived from the will of the last holder at his death, but already existent during his life. It is therefore necessary to establish an order of succession to determine which member of the family shall be preferred, and this order of succession begins to be borrowed from the Roman code. Although differing from the true and correct order of succession, it is gradually confounded with it, and finally alters and dissolves the fief. Thus the Roman law penetrates and modifies the feudal.

CHURCH OF SAN VITALE, RAVENNA.

[To face page 401.

From the very nature of a fief, female descendants cannot inherit, and the male descendants of deceased sons succeed equally with surviving sons. Nevertheless there are certain fiefs which, having been originally bestowed upon females, must, in default of heirs male, naturally pass to females; but as soon as the male line is established, male heirs have the preference. Ascendants cannot succeed, because succession is determined, not by relationship, but by the original grant; accordingly the reversion falls, not to the ascendant, but to the original granter of the fief. Collaterals of the last holder, unless descendants of the first, are not entitled to succeed; nor can brothers, as such, succeed, unless their father has held the fief. Nor can husband and wife succeed to each other. But under the growing influence of common law all these primitive characteristics likewise disappear. Feudal law has little importance in the Italian statutes; but the political and social importance of feudalism in the history of our communes is immense. It represents a society distinguished by laws and usages of its own, and that appeals to the Emperor, whose judgments and judges it always prefers to the laws and magistrates of the Republic which it despises, and would fain ignore. The Republic in consequence looks on the nobility as a foe to be destroyed, but this it can only effect after sanguinary struggles in the course of which it will be itself profoundly changed.

Canon law undoubtedly plays a part in the history and formation of the communes that should not be overlooked, though by no means corresponding with the greatness of the political, social, and religious influence of the Church. Made up of fragments from the writings of the Fathers, ordinances of ecclesiastical councils, papal decretals, and with a large admixture of Roman law, it appeals also to the authority of reason and of Holy Writ. It thus declared itself favourable to natural equity, as opposed to legal sophistry, tempered the harshness of barbaric laws, protected the weak, upheld the sanctity of the family, and aided the triumph of the Roman law over that of the Longobards. But it also sought to subordinate the civil power to the ecclesiastical; it added to the number of exceptional tribunals; it favoured inquisitorial jurisdiction, torture, and trial by ordeal. Moreover, its constant tendency to encroach on the field of civil law found an open door in the oath which every magistrate, the Podestà included, had to take, with the prescribed formula: "saving conscience" (salva la coscienza) expressed or understood. As it rested with the clergy to determine cases of conscience, so also it was for them to decide on the validity of oaths. This naturally fostered the diffusion of canon law. The exclusion of natural children from succession and the suppression of divorce are not a little due to the operation of this law. Its action is to be seen plainly enough in the statutes, but still more clearly in the struggle between the civil authority and the ecclesiastical, wherein the latter endeavours to maintain its inviolable privileges, its exceptional tribunals, its supremacy even in causes civil and political.

IX.

In the statutes therefore, we find four different legislations, contending, as it were, with one another: the Longobard, the Roman, the Feudal and the Canon law. These, however, may almost be reduced to two, seeing that feudal law is Germanic, and canon law, in so far as it affects the statutes, is mainly Roman. So that here again we are met by the old hostility between Germans and Latins. The two races are opposed, as also their institutions, laws, and ideas; their minds seem to challenge one another wherever they meet, whether in the field of letters, politics, or art. Yet each has need of the other, and both must disappear to make way for a new social system and a more comprehensive spirit which, resulting from the fusion of two warring elements, will remain sole victor in this prolonged contest. In Italy, however, the Latin strain always predominates, as we see even in the statutes, wherein Roman law forms the keystone of the whole juridical structure.

EMPEROR JUSTINIAN.

(From a Mosaic, Ravenna.)

[To face page 403.

The earliest compilation of the statutes dates from the very time when a knowledge of the Corpus iuris begins to be diffused throughout Italy from the University of Bologna. From that time forth the legislation of Justinian was regarded as an epitome of juridical philosophy, as the law par excellence, and is recognised by all our Republics as the common law, the law to be applied whenever the statutes are silent. For this reason that part of the statutes which relates to the civil law is very much less developed than the political part; and for this reason those teachers whose studies have been directed chiefly to civil jurisprudence occupy themselves much more with Roman, canon, feudal, and Longobard law than with the law of the statutes. These they examined, especially at first, rather as a result of the study of the Roman law, than as deserving careful attention on their own account; they regarded them as the written expression of popular custom to which no great scientific value could be attached, as something outside the one legal system which alone merited universal admiration.

A long period elapsed before writers on law began to apply their minds to the consideration of the statutes, the great importance of which has been only completely recognised in our day. Venice is perhaps the only Commune in which it was customary, in the absence of statutory provisions, to appeal to natural reason: whence Bartolo's remark that the Venetian magistrate gave judgment manu regia et arbitrio suo.377 But even in Venice such decisions must always have been inspired or guided by a knowledge and admiration of the Roman law.

EMPRESS THEODORA AND COURT, RAVENNA.

[To face page 404.

What has been said will put in a clear light the extraordinary importance accorded to the University and the professors of Bologna in connection with their labours in annotating and interpreting the Corpus iuris so as to make it intelligible to all, and an instrument for instructing and training all those who sought to follow the legal profession, whether as notaries, judges, Podestàs, or captains of the people. That these teachers possessed a very slender knowledge of history is seen from their writings. Their merit lay in the intelligent exposition of a system of law which had never become extinct. It was a precept of theirs that "as the unskilled rider must hold on by the pommel, so the judge should stick to the gloss." In this way the school of Bologna became, as it were, the depository of an universal law which was looked upon as almost sacred. Thither popes sent their decretals, emperors their edicts for registry or revision. The Emperor was, however, regarded as the living source of legislation, as alone entitled to add new laws to the Roman. Any one speaking evil of the Emperor met with condign punishment. Any one who questioned his universal authority was declared heretical by the jurists themselves. This authority belonged to him as lord of all nations, and was transmitted to him from the Roman Empire as its rightful heir. It was natural, therefore, that to determine the extent and limits of this authority, recourse should again be had to the professors of Bologna, the veritable depositaries of the Roman law, who accordingly acquired a constantly increasing importance. The ratio scripta was what was always called for; and the communes, even while avowing their determination to preserve their ancient liberties undiminished, never forgot to profess their willingness to leave the Emperor all the veteres justitias which belonged to him, and which they declared themselves desirous to respect. The only question was to ascertain what these were, and hence fresh occasion to consult the professors of Bologna.

Before the great contest between the Lombards and Frederic Barbarossa, a genuine judicial trial was held, ending with the condemnation of the Milanese, who were declared rebels, adstipulantibus judicibus et primis de Italia. At Roncaglia, Frederic exercised judicial and legislative authority, with the assistance of four professors from Bologna, who maintained the Emperor's rights, not from any hostility to their own country, but because, as professors of Roman law, they were the natural champions of the Holy Roman Empire. Nor did the communes themselves raise any objection to these claims. After Frederic's defeat they continued to draw up their statutes, laws, and public instruments in his name. Even as late as the fifteenth century, we find that notaries still gave validity to public documents by making them run in the name of the Empire. At the peace of Constance the power to appoint magistrates, civil and criminal, consuls, Podestà, and notaries, was expressly reserved to the Emperor, whose prerogative in such matters, as well as of deciding causes of serious importance on final appeal, was fully recognised. If, in fact, the Milanese paid little regard to the Emperor's authority, his right was not questioned. The Lombards acknowledged themselves his lawful subjects, though they afterwards chose to act as if free and independent.

When Henry VII. came to Italy, in Dante's time, he too, brought the Italian cities to trial, pronounced sentence on them, exacted fines on men and money, and cited King Robert of Naples to appear before him. At that time many must have deemed these proceedings farcical; but they were echoes of a bygone age, of a past which even Alighieri's immortal genius thought to recall to life, as his letters and his book, "De Monarchia," serve to show. The Church, it is true, constantly withstood the Empire, but during the whole of the Middle Ages the Emperor's political and juridical authority was never called in question, was invariably recognised.

While the continual struggle between Church and Empire, communes and feudal lords, Guelphs and Ghibellines, was being waged, the statutes were framed. In these were recorded, not only new customs written down as they were formed, but also all the old customs that had been modified by the new. Although the jurists of Bologna thought it no concern of theirs to study a system of law, which being in common use was then well known, and which had its source in that Roman jurisprudence which engaged their attention through their whole lives, for us it is certainly a study of grave importance, as a means of accurately estimating the value and character of this communal life in the Middle Ages. We may have very long to wait before we can completely solve the problem. Nevertheless we may make a beginning by examining the various statutes, comparing them with one another, and also comparing the different forms which each of them received at different stages of drafting, in order to discern the evolution of the new law, to ascertain and understand the principle which governs it.

X.

The whole life of the Commune is embraced in the statutes: the election and functions of political magistrates; public, civil, criminal, administrative, and commercial law. Public law is the subject most fully dealt with; while, for reasons already explained, civil law is left very incomplete. Nevertheless the statutes handle, with more or less detail, such matters as personal status, dowers, contracts, judicial procedure, succession, wills, rights arising in respect of contiguous lands or houses, and, above all, the family. They aim at a simple and summary procedure, free from chicanery, whereby causes may be settled fairly and promptly; but from defective drafting, from admitting a running commentary, altogether out of place in legal enactments, and from leaving too much to the discretion of the judge, they generally lead to a contrary result. It is indeed astonishing to observe how, during those centuries in which a splendid literature was growing up, when the most unpretentious writings offer us an example of good style, and when judges, notaries, and professors of law had the imperishable model of the Corpus iuris constantly before their eyes, the statutes should have been written in a form so illiterate that we may often pronounce it barbarous, and always involved and confused. The statutes constitute a legislation based upon custom, mutable, popular, still uncertain of itself, which, taking its birth in the midst of civil wars, always retained their likeness, and never arrived at classical elegances, which in any case would have been made impossible by the scholastic jargon that still prevailed in our Universities and among our jurists. Petrarch's animadversions, directed chiefly against the obscure phraseology of the professors of law in his time, were fully justified. The classical revival which sought to introduce a purer and more elegant latinity had to make a beginning outside, and often in opposition to the Universities. It spread far and wide during the fifteenth century, but always retained a literary and philosophical rather than a juridical character.

Notwithstanding the greatness of its merits and aims, the Italian Commune has in it something of the transitory and mediæval; it constantly indicates a period of change. It is the germ from which, at a later time, modern society is to issue, but the birth cannot be accomplished until the germ itself is destroyed; consequently it always remained in a state of incessant transformation. Sprung from the conjunction of two different societies, the Roman and Germanic, it derived from the former the general idea of the State, from the latter individual liberty, local activity, and the force of special associations. The problem it had to solve, and that constitutes its essential life and history, lies precisely in its ceaseless efforts to harmonise those two elements which long remained not only separate but often opposed. Until complete fusion was effected by the destruction of the Commune itself, the contest continued to be waged, and was accompanied by inevitable disorder. In the Commune, government and public policy have an importance unknown to barbaric society, but the Commune still wears the character of a powerful assemblage of small associations rather than of a single society, or of a State in the true and strict sense of the word. Life indeed courses more swiftly through these numberless groups, and is quickened by their activity. Social vigour is chiefly to be looked for in family cliques, and in the Companies of the Arts and Trades, of the Nobles and of the Burghers, all of whom have laws, statutes, magistrates, and tribunals of their own. Hence arises an extraordinary interlacing of ordinances, of conflicting passions, of diverging or clashing interests. True individual liberty, true equality before the law is not yet understood; but the individual is trained and protected by the association to which he belongs, which lends him a certain degree of strength, and secures him an increasing share of freedom. These subsidiary groups, however, unlike those which we have already met with in the Germanic societies, cannot be separated, but must live together in the State, outside of which there is no reason for their existence. The infinite multiplication of these groups, their jealousies and continual jarrings and collisions, made the Republic all the more indispensable to them, all the more the object of their hopes and love. Every one of these merchant-citizens was ready to give his life for this Republic, on which, both in peace and in war, his own welfare and that of the various associations depended. The heads and leading members of these associations were privileged to sit in the Councils of the State, governed it as masters, and found it their only sure defence against the countless rivals with whom each of them had to contend. Individual and general interests thus worked in concert, and the fragmentary power divided among so many hands, was nevertheless able to guard the liberty of all, at a time when no true conception of the State or of general equality had yet arisen. Still, it is easy to imagine how ill-arranged and inconclusive must have been the legislation of republics thus divided and subdivided, in which at every step some new special statute or tribunal was encountered. And this at a time when judicial and political power were so strangely intermixed, that whoever had a share in the one necessarily shared in the other.

The dominant feature in all the civil enactments of the statutes seems to be a jealousy of neighbouring communes, and a fear lest, as a result of marriage, property should be withdrawn from the city, the society, or the family. To guard against this, both law and custom provided so efficaciously, that even in a Republic as democratic as that of Florence, wherein every vestige of aristocracy was destroyed, and the Ciompi obtained the upper hand, we find landed property so strictly tied up that there are families who, to this day, own the same estates which were held by their ancestors in the fourteenth century. The necessity for keeping families, associations, and party-circles intimately united, and making each member of them bound for the rest, is so strikingly apparent, that it is these political and social considerations which determine the tendency of the civil law, and often impede its natural development. So that even here, notwithstanding the weakness of the State, we again recognise the old Latin tradition, which always accords an excessive importance to political considerations, and consequently a preponderating influence to public over private law. The Italian statutes, therefore, can only be explained and understood in connection with the history of the communes, which they illustrate in their turn. And this is another reason why the professors of Bologna, accustomed to the philosophical character of Justinian's legislation, and unfamiliar with the methods of historical exposition, so long neglected the statutes.

Also, as might be expected, the predominating action of political considerations is most clearly shown in the constitution of the family. Here the rights which flow from the Commune's conception of the family prevail over the ties of blood which by the Germanic law are much more respected. The regulations of the Roman law as to dower are fully accepted, but the dower itself is restricted to a small amount. Males have a marked precedence over females, and over descendants in the female line. But in all circumstances the woman is entitled to alimony. It is not meant that she should be rich, or should divide the domestic patrimony, and transfer it to another family, much less to another Commune; but in any event she must be assured of a suitable maintenance, according to her rank of life. She remains under the perpetual protection of the mondualdo (legal guardian), but the mundium assumes in the statutes the character of the later Roman tutela, with which it almost seems to be confounded. The woman may call upon the judge to assign her a mondualdo, and may choose him herself when she requires him for any special business. Everywhere, indeed, we see this tendency to transform Longobard institutions into Roman, so that often nothing is left to the former save the name.

Immovable property was so strictly settled that a very small part of it could be disposed of by the father at his death. No one, therefore, born of a family in easy circumstances was exposed to any anxiety as to his future. It is to be noted, however, that in our communes, all of which resembled great commercial houses, the proportion of immovable to movable property was extremely small; and that if, as regards the former, there was much security and stability, for the latter there were rapid gains, unforeseen fortunes, and sudden fluctuations of capital.

The father's authority was held in veneration, and the utmost confidence reposed in guardians of his choice; but we do not find in the statutes any great development of the patria potestas. On the contrary, as in other cities, the marked characteristic of the family is their doing everything in common. All affairs of moment are settled by the family council, by an assembly of relations. Both law and custom continue to follow this course. In the family, the party-circle, or clique, and the association, the community of interests is sometimes carried to extraordinary lengths. Not only may a father or brother be summoned to pay the debts of a son or brother, but every creditor of a consociation can sue its individual members, and one associate may be made liable even for the crimes of another. Within the circle of the family or association, disputes were settled by arbiters, whose awards had the validity of legal sentences. The trade associations, as we have already stated, had regularly constituted, special tribunals of their own. These incidents and characteristics of statutory law certainly cannot be referred to the Roman legislation, but find their explanation in the very beginnings of Italian history to which Germanic races and institutions undoubtedly contributed in no small degree. The distinctive character of the Commune remains always the same. On the one hand particular associations attain great development; on the other the action of the political power is sometimes too feeble, but at times exercises a pressure such as would seem excessive even at this day. In a society in which the State is so feeble that its very existence seems continually threatened, it is certainly strange to find it interfering so directly and extensively in the private affairs of the citizens. The emancipation of sons is to be effected with due solemnity at a full meeting of the Council of the People, in the presence of the heads of the Republic. Should a noble citizen desire to change his abode and move to another quarter of the city, the matter must be brought before the same Councils of the People and the Commune, and decided by a special Act.378 We find the chief magistrates of the Florentine commonwealth continually altering the boundaries and extent of the Quartieri or Sestieri of the city, enlarging or contracting now one and now another in order to preserve the balance which is always being threatened by parties and sects, and prevent any one quarter from winning undue predominance. A change of abode from one district of the town to another might drag a citizen into a different sect or party, and so become of political importance. All this shows more and more clearly that society had not yet found its natural and permanent basis. The manifold new and varied elements entering into its composition were being developed on all sides; but the synthetic power which unites and assimilates could never be attained by the Italian Commune.