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.
[Illustration: 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.
[Illustration: 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.
[Illustration: 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.
XI.
Coming now to a particular examination of the statutory provisions
which most nearly concern the subject in hand, we shall direct our
attention more especially to the Florentine statutes which, for us,
have a twofold importance. We have undertaken this study as an aid to
the clearer comprehension of certain political reforms in Florence,
which are only to be explained by the social conditions of the
Republic. In this study of the Florentine Commune it is necessary to
bear in mind that in no other Commune was aristocracy so radically
destroyed and democracy so thoroughly triumphant. Every trace of
feudalism, every foreign element disappears from its statute book,
which consequently, in spite of perennial alterations, preserves a
uniform and consistent character, and tends always towards the scope
that it finally attains. Other statute books, on the contrary, are no
less copiously altered; but the alterations are due to less permanent
causes, to elements most extraneous to the life of the Commune, and
which therefore make it still more difficult to understand what are
the true principles moulding the laws and determining their historical
character.
If we begin by examining the paternal authority as set forth in the
statutes, we at once perceive the uncertainty that prevails in this
legislation. At first we find the Longobard _mundium_, but this
gradually takes the shape of the Roman _patria potestas_, as regulated
by Justinian's legislation, which finally prevails, although never
absolutely. In the various provisions of the statutes, which, even on
this point, are always defective, we sometimes find the son placed
under a stricter subjection than by Roman law, while at other times,
the Longobard law predominating, he enjoys the greatest independence.
Generally there are special political or commercial reasons at the
root of this illogical inconsistency. By the Roman statutes the son
is entitled to appear in criminal cases, without permission from his
father, who is not held liable for crimes committed by his son. The
son, however, may be punished by his parents at their discretion. The
natural children of magnates are in an inferior position, both civilly
and politically, to sons born in wedlock, inasmuch as they are never
eligible to any public office.[379] According to the Pesaro statutes,
a son may dispose by will of all his earnings, provided he leaves the
obligatory usufruct to his father; but sons marrying without their
father's consent may be disinherited.[380] When a son is condemned
to pay a fine, the father must give him his share of the inheritance
wherewith to pay it. Should a father beat his sons or grandsons or
their wives, _in nihilo puniatur, nisi pro enormi delicto_.[381] In
Lucca, a son who is eighteen years of age, may contract a loan, even
without his father's leave. But a father may send his son, whether
emancipated or under tutelage, to prison if he has dissipated his
private means or led an evil life. The magistrates must execute the
father's decision without calling for proofs.[382] A son may thus be
arbitrarily confined to the house, fettered and imprisoned by his
father, who is only bound to supply him with the necessaries of life.
The same rule obtains with regard to other descendants. If in all
this great variety of laws we try to discover any one characteristic
peculiar to the statutes, we must seek it in the _unitas personæ_
between father and son, which is often carried to a great length. This,
too, is a result of the general conception of the family recognised
by the statutes. In Urbino and elsewhere the father may be punished
for the son, the master for the servant.[383] As to the liabilities
of commerce, these are shared, not only by father and son, but by
the whole body of the relations, as we find was the case in Genoa,
Florence, and many of the principal trading cities. In Florence, the
father, grandfather, and great-grandfather incur the same liability
for a descendant (even if under guardianship) who engages in trade,
as though they stood surety for him. To escape this responsibility
they must make a public and formal disclaimer of liability.[384] Thus,
if an unemancipated son is agent or factor of a company or house of
business, the father is responsible for him, unless he has given
the parties legal notice to the contrary. For the same reason the
emancipation of the son must be publicly performed and communicated to
the Society of Merchants.[385] When a daughter marries, she ceases to
be subject to the paternal authority, and can no longer be held in any
way responsible for her father, either as regards civil obligations or
criminal, should the father have evaded punishment by flight.
In Florence, the woman is under the perpetual protection of the
_Mondualdo_. The term was still retained in the eighteenth century, but
under the statutes the _mundio_ soon becomes almost identical with the
Roman tutelage; as time goes on it gradually falls into disuse, but the
rights of women are never made equal with those of men. In respect of
marriage the intermixture of different legal systems is most marked.
Professor Gans has noted how the Pisans, finding that the Roman law
forbade a woman to re-marry within a year from her husband's death,
that the Canon law (interpreting the apostle's words as an unqualified
permission) contained no such prohibition, and that the Longobard law
forbade re-marriage only for thirty days, fixed by their statutes the
prohibited period at six months. But this rough compromise neither met
the object intended by the Roman law, namely, that a second marriage
should not take place during the pregnancy which might possibly result
from the first, nor conceded the liberty allowed by the Canon law and
the Longobard. More commonly, however, the union of different laws
is brought about by the gradual transformation of one into another.
The Pisan statutes, for instance, regulate marriage almost entirely
according to the Roman Code. To the dower (_dos_) brought by the wife,
and the donation (_donatio propter nuptias_, called also _antefactum_)
given by the husband, they join other gifts, to which they give the
name "_corredo_," which, on the dissolution of the marriage, belong to
the wife: should they then be found to have been consumed or made away
with, she would be entitled to two-thirds of their value. As a rule
Pisan husbands and wives hold their property entirely separate, so that
marriage seems sometimes to involve a hostile relation, rather than a
community of interests.[386]
Certain statutes admit the _dos_ and _donatio propter nuptias_ together
with the _meta_ and the Longobard donation. The Florentine statute
speaks of a dowry, of a donation that must be equal to one half of
the dowry--provided this does not exceed the sum of fifty _lire_--and
of an augmentation. Failing sons, grandsons, or grandsons of sons,
the wife, at her husband's death, recovered possession of her dowry,
with the donation and augmentation; otherwise she had her dowry alone,
and whatever her husband might leave her by will. If the husband died
before receiving the dowry, the wife took the promised donation,
limited however to one-eighth of her husband's estate, over which, to
the extent of her dower, she had a preferential mortgage. Nor had the
wife's consent to the sale or alienation of her husband's property the
effect of releasing her right to the subjects so sold or alienated.
This regulation, however, only comes into force from the year
1388.[387] This date, which is given in the printed Florentine statute
of 1415, shows that the dotal system and the separation of property
had by this time made great progress, a fact farther confirmed by the
statutes.
The wife could not maintain her right to her husband's property
(_defendere bona viri_) against her husband's creditors at large,
but only against those who were liable for the restitution of the
dower. Dotal property, of which no valuation had been made, might be
claimed by her as against any creditor, and if her husband fell into
difficulties, she could always demand restitution of her dower.[388]
Property acquired or inherited by the wife during the husband's life,
belonged to her; but she could not alienate it without the consent of
the husband, who was also entitled to the usufruct. On the decease of
the husband, whatever remained of the usufruct might be claimed by the
wife, or, if she too were dead, by the children.
XII.
The dotal system and separation of conjugal property are not only
recognised in all the statutes,[389] but are often enacted in an
exaggerated form, as seems to be the case in the statutes of Pisa. Thus
gifts between husband and wife are forbidden, sometimes even gifts from
them to strangers, where there is ground to suspect that these are
meant to disguise a gift between the spouses. Zealous precautions to
hinder property being withdrawn from the family, still more from the
city, are universal. In Urbino, for instance, no alien could inherit
_ab intestato_, without first pledging his word to reside within the
city or territory.[390] At Pesaro a similar pledge was exacted from
any alien who sought a bride in that city; he had also to obtain the
consent of the Podestà.
In Verona,[391] women might, under a will, share equally with their
brothers; but _ab intestato_, they had only their dower. In Pisa,
testate succession was regulated in accordance with the Roman law:
_de ultimis voluntatibus pen legem romanum iudicetur_. The lawful
share, however, was fixed on almost the same scale as by Longobard
law; and, as provided by that law, one child might be favoured more
than the rest. As regards intestate succession, male heirs had, as
always, marked preference. Failing descendants in the male line,
females inherited, but even in the succession to maternal estate, male
descendants had priority when there were no surviving daughters.[392]
This rule prevails in all statute books, not excluding the
"Consuetudini" of Naples, of Amalfi, and of Sorrento, although in these
cities the influence of the Longobard law was much less felt.[393]
The real object of these regulations is clearly expressed in the
statutes themselves. In the statutes of Mantua it is thus set forth:
"Ut familiarum dignitas, nomen et ordo serventur, et bona morientium
in eorum agnatos et posteros transmittantur, per quos nomina generis
conservantur, statuimus et ordinamus,"[394] &c.
It would seem that in Ravenna the prolonged continuance of the
Byzantine rule had the effect of suppressing this preference of
the agnates, and that there the Novel of Justinian was in force.
The same was the case at Osimo. Adoption was of rare occurrence;
legitimated children were postponed to legitimate; natural children
who, under the influence of the Longobard law, had been favoured in
earlier statutes, were afterwards neglected, in consequence of the
growing ascendancy of Canon and Roman law. The whole statutory law of
succession is so dominated by the political conception which, so far
from losing, is constantly gaining ground, that the disposing power of
the testator--always extremely restricted--can only arrive at a result
slightly more equitable and natural, but never attains to absolute
freedom of decision in the Roman sense of the word. In this, as in
every branch of civil law, the Florentine Statute Book, like all the
others, does not present us with a complete treatise, but only with
fragments, the statutes making constant reference to the Roman law.
No woman succeeds _ab intestato_ to her sons or daughters, when there
are direct descendants or ascendants even in the third degree; and
uncle, brother, sister, son, or grandson of a brother are preferred
to her. Though excluded from succession, she can nevertheless claim
alimony from those who by law exclude her. If there be no such
relatives, she inherits _ab intestato_ one-fourth of her son's estate,
provided it does not amount to more than five hundred _lire_. In any
case, she only receives money, not real property. If there is no money,
she will be entitled to the price of the lands forming her inheritance.
The same provisions apply when a grandmother, great-grandmother, or
descendants in the maternal line succeed _ab intestato_.
A woman could not succeed _ab intestato_ to a brother leaving children,
grandchildren, or brothers; but when thus excluded from the succession,
she was still entitled to alimony. She could not succeed even to her
father; but was entitled to receive her dowry from the agnates, and
could meanwhile, even if a widow, claim alimony from them.[395]
It is plain from all these provisions that the woman's rights of
succession were very limited; but she was always insured of the
wherewithal to live. We find, indeed, from the Florentine statutes,
that while the preference given to the agnates increases as time goes
on, so too the woman's rights to alimony increase. The statute of 1355
concedes to her the usufruct of the paternal inheritance, on failure
of male issue, while under the same circumstances, later statutes
deny her this right, allowing her alimony instead.[396] Speaking of
aliment, and of those bound to supply it, the statute of 1324 says:
"Si filius, nepos vel pronepos facultatis abundarent,"[397] so that
they can _commode subvenire_, &c.; and the statute of 1355 imposes
the same obligation, with the same conditions.[398] But the printed
statute of 1415 is far more explicit; the father, mother, grandfather,
grandmother, great-grandfather, and great-grandmother are all entitled
to alimony, and the Podestà is bound to enforce the law. The female
inherits _ab intestato_ from her mother or other female ascendants,
but only on failure of male issue. Uterine brothers, being of the
female line, cannot succeed one another should there be relations of
the deceased in the male line as far as the fourth degree,[399] these
being preferred to the mother and relations in the female line. The
Florentine statute goes on to declare that the wife is to be preferred
to the public treasury, _uxor mariti defuncti præferatur fisco_;
showing how little the woman's rights were considered, when an express
enactment was needed to prevent the revenue authorities from depriving
her of her husband's estate. Natural children were also preferred to
the treasury, which only succeeded on failure of relations as far as
the fourth degree. Relations, however, could succeed to bastards,
as though these had been legitimate.[400] It should be added that
Florentine custom did not allow natural children to be left without
some means of support, or without provision for their education, as is
shown by many still existing wills. In the case of males, the father
generally tried to obtain employment for them; in the case of females,
to find them husbands, and he recommended them to the care of his
legitimate heirs.
The husband succeeded to his wife's dowry, failing children or other
near descendants. Of her extra-dotal property he was entitled to
one-third, and the wife could not dispose of her dowry either by will
or donation, so as to exclude her husband or children.[401]
XIII.
Besides the law of succession, there is another branch of the Italian
statutes in which the action of the political idea upon civil law
is equally apparent, namely, that which treats of rights between
neighbours, and of the obligations _in solidum_ attaching not only
to the members of families, but likewise to the members of sects and
associations. We have already observed that these are carried so far
as to make one member responsible for another's debts, and even for
his delicts: this is a law to which we shall have more than once to
return and give our attention. When real property is sold, we find that
the agnates and cognates have always a preferential right of purchase.
In the March of Ancona, the blood-relations of a prisoner condemned
to death may be compelled to purchase his estate.[402] At Bologna,
relations are often made legally responsible for one another, and, by
the rules of the corporations of merchants in that city, the brothers
of any bankrupt, who have lived in community with him within a month
before his failure, are held responsible for his debts--even if they
have separated from him since that time.[403]
According to the Florentine statute, the creditor of any Commune
or of any _Universitas_ (corporation) might proceed against it,
_sicut procedi potest contra alias singulares personas debitrices,
in persona_. This was carried so far, that it was permissible to
proceed against every individual member of the association, and even
to have him arrested, _liceat ipsi creditori capi et detinere omnes
et singulares personas dicti Communis vel Universitatis, quousque
fuerit integre satisfactum_.[404] If landed property had been laid
waste or houses burnt, the proprietor was entitled to compensation
from the author of the deed; from his associates (_consorti_), were
he a noble, or from his relations, even to the fourth degree, if a
commoner. Nay more, the injured person might also proceed against the
Commune, University, or district (_plebatum_) in which the crime had
been committed; he was at liberty to follow any of these modes of
redress, and if unsuccessful in one to try another.[405] The statute
prescribed the form of procedure and the terms of the sentence.[406]
The Commune, University, or district was thus compelled to be always
ready to raise the alarm, when similar acts were perpetrated, and to
pursue and arrest the criminal, since, in case of failure, they were
held responsible.[407]
In all matters, even such as purchases or sales, great importance
was assigned to the condition of the persons concerned. In some
cases, where land was to be sold, the law required that it should
be sold to a neighbour; commoners, however, were not compelled to
sell to magnates.[408] Similarly no one might buy, sell, or acquire
the usufruct of lands held in common, or any piece of land or house
touching another man's wall, without according the joint-owner,
associate, or neighbour the right of pre-emption.[409]
In case of a dispute between relations or associates, _qui consortes
sint de eadem stirpe, per lineam masculinam usque ad infinitum_,[410]
the judge was bound, at the request of one of the parties concerned,
to leave the matter to the decision of arbiters chosen by the parties
themselves; but no plebeian could act as arbiter between nobles.[411]
In reviving a law of much earlier date, the statute of 1355 informs us
that arbiters were therein mentioned, as blood-relations.[412] Whence
it may be inferred that similar compromises began to be customary, at
a very remote period, between relations and associates who voluntarily
selected arbiters from their own group. Down to the year 1324,
the custom had been sanctioned by law; at a later time it lost its
primitive character of a voluntary and domestic agreement, and assumed
the shape of a regular legal trial.
XIV.
If we now compare the Florentine Statute Book with those of other
Italian cities, we shall find it marked by various distinguishing
characteristics, chiefly resulting from the fact that in it democratic
freedom was carried to the farthest point obtainable during the Middle
Ages. Not only had every feudal privilege gradually disappeared from
it, but the great nobles had ended by finding themselves in a position
inferior to that of the commonalty. Florence, as we have already
seen, was one of the first Italian cities to abolish serfdom in her
outlying territory by the law of 1289.[413] And although her rural
population was always treated much worse than the inhabitants of the
city, it nevertheless enjoyed far better conditions than prevailed in
a great number of communes. We have proof of this in the contract of
_Mezzeria_, which makes the cultivator of the soil an actual partner
with the proprietor, and which still remains a great monument of
civilisation and the cynosure of modern economists who have never been
able to devise any better system.[414]
The freedom and strength of associations, the extraordinary ease with
which any one might participate in the government of the Commune, all
contributed to the triumph of democracy on the widest basis. Another
general characteristic to be noted, not only in the Florentine, but in
almost all the Italian statutes, is the constant endeavour to shake off
the intervention of the ecclesiastical authority, which labours with
incredible obstinacy to maintain its privileges undiminished, and even
seeks to increase them; but which, nevertheless, finds them gradually
reduced almost to zero. The statute of 1415 ordains that "no person,
university, or church, no religious or clerical house shall presume to
question the jurisdiction of the Commune under pretence of 'benefice'
or privilege, and that any one who opposes this enactment shall be
imprisoned until he renounce such privilege.[415] No excommunication
nor interdict shall hinder or diminish the action of the magistrates
or the effect of their decrees.[416] Every man may freely exercise his
rights over all Church property derived from secular sources."[417]
XV.
Turning now to a general view of the Italian statutes, we must remark
that although the history of statutory law presents many difficulties,
owing to the infinite number of different provisions to be found in
it, the diversity of these provisions is chiefly due to accidental and
temporary causes, extraneous to the natural and spontaneous development
of the law itself, which, examined apart and with reference to its
essential characteristics, presents a striking uniformity. It may,
however, be noted that in the republics of Northern Italy the Longobard
law is far more predominant; while in those of Central and Southern
Italy Roman law obtains an early and rapid ascendancy, and, subject
to the changes which have been indicated, ends by dominating at all
points. This progress becomes more apparent from year to year, so that
even in examining the statutes, the very same conflict of antagonistic
elements which we have already noted, throughout the entire history of
the communes and of Italian civilisation, is brought before our eyes in
civil wars, in sanguinary struggles between Guelphs and Ghibellines, in
art, in literature, in all things. It is true that the statutes only
treat of juridical ideas and enactments; but these seem to strive with
the same ardour, and to aim at the same ends, as the men whom they
control.
Towards the close of the fourteenth century Italian commerce began
to make enormous advance, and this gave a new impetus to Italian
legislation. In fact, we find a series of enactments enabling all
mercantile affairs to be transacted with much greater celerity,
avoiding legal quibbles, releasing merchant's credits from mortgage
or sequestration, and severely punishing all frauds and fraudulent
bankruptcies. In a word, we clearly discern the inchoation of the
modern commercial code with which these enactments are frequently in
unison.
But in all these laws we always recognise the consequences of commerce
being divided and split into a multitude of separate associations
with statutes of their own, judges of their own, and an exuberance of
vitality. At the same time, we recognise that the central authority,
though aware that its natural rights are threatened and usurped on
all sides, continues to exert its influence, without method, indeed,
or uniformity, but not without vigour, and occasionally even with
violence. At one moment it seems to be vanquished; at another it comes
forth victorious. The entire history of the Commune demonstrates a
constant tendency to harmonise all these distinct and often jarring
elements--political, social, and legislative--but this problem it
never succeeds in solving, and ends by relapsing into despotism.
A true conception of social unity was wanting; the idea of a due
distribution of authority was still unknown, either in real life or in
theory; accordingly whoever happened to have a share in the executive
authority, also assumed, as necessarily connected with it, a share
not only in judicial, but likewise in administrative and legislative
functions. Wherefore it seemed that the only way to preserve liberty
was to parcel out the government among an infinity of hands, and so
to contrive that parties, associations, _cliques_ (_consorterie_),
families, and quarters of the town should each and severally serve as
checks upon all the others. In this process of division and subdivision
all the elements afterwards constituting modern society were prepared,
but the State, in its true sense, was never discovered. Without
ballast to steady her, the ship of the Commune, driven hither and
thither in a ceaseless storm and buffeted by winds from all quarters,
could neither find anchorage nor keep a settled course. No clear and
certain conception was ever reached of that law which, by limiting and
defining the amount of liberty guaranteed to each individual, secures
freedom to all.
The political life of communes, moreover, was always confined within
the walls of the dominant cities, since not only the outlying territory
was excluded from it, but likewise all towns that had been annexed or
conquered. Every form of representative government was as yet unknown.
All who enjoyed political rights entered, each in his turn, the
Councils of the Republic, and sooner or later nearly all rose to power.
This made it necessary that the States should have very circumscribed
borders, as otherwise it would have been impossible to govern them at
all. The French Revolution, by achieving for the first time, in behalf
of the nation at large, what the Italian communes had effected for
the cities, was able to proclaim the civil and political equality of
all who formed part of the nation, and who were in consequence to be
recognised as citizens. From that time democracy became the predominant
characteristic of modern societies which, by means of representative
institutions, have found it possible to secure freedom, even in large
states, reconciling the unity and vigorous action of the central
government with personal independence and with local liberty and
activity. But the Commune always wavered between the opposing elements
of which it was made up and which it never succeeded in fusing into a
true political organism.
The history of our republics may, in fact, be summed up in an account
of the varying predominance of one or other of the great associations
of which they were composed. In Florence, we have, first of all, the
conflict of nobles and commons which is maintained with changing
fortunes. When the fraternities (_consorterie_) of the leading magnates
obtained such ascendancy as to menace popular liberties and destroy
the social balance, notable reforms were made in the statutes; the
Commune was completely transformed, and by means of the Ordinances
of Justice (of which we shall soon have to speak), the nobles were
overthrown and their associations broken up. But as these associations
were an integral part of the State, their downfall was followed by a
phase of rapid corruption and decay. To the passions and interests of
caste succeeded personal ambitions, hatreds and passions of a still
more dangerous character. Families began to be at strife; men who were
at once powerful and ambitious, came to the front; and Corso Donati,
or some other like him, would have soon become master and tyrant of
the Republic, save for the fact that a mighty people, enriched by the
speedy gains of an extended commerce, devoted to freedom and opposed
to the nobility, had first to be disarmed. Thus to the supremacy of
the leagues of the magnates succeeded the predominance of the Greater
Guilds, between whom and the Lesser Guilds a struggle was entered upon
in the course of which the latter obtained, in their turn, a share of
power. At a later period, the populace, represented by the plebeian
Ciompi, comes to the front, and threatens the utter dissolution of the
old social form of the Republic. Then new personal ambitions, more
fatal to freedom because more fortunate, occupy the scene. The struggle
between the Albizzi, Pitti, and Medici terminates in the triumph of
the last-named family in the person of Cosimo the Elder, who slew the
Republic. Yet nothing of all this should cause us much surprise. For
if we bear in mind the beginnings of the Commune and the elements out
of which it was constituted, we may readily see that all that happened
was, in the main, unavoidably bound to occur.