_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.
[Illustration: 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]
[Illustration: 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.
[Illustration: 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.