the invariable reply has been that in addition to political motives of a more general nature, it must be kept in mind that the plutocracy now risen to power had first attained wealth by doing its chief business with Rome. Sienna, Arezzo, and Volterra being on the road and closer to Rome, were doomed to defeat in any competition with Florence.
Then, as soon as the Republic had secured its hold on Roman affairs and the Lombard trade, we saw its irresistible need of access to the sea, and that a war of extermination with Pisa had become altogether inevitable. To suppose that this prolonged, constantly renewed and sanguinary conflict was solely caused by a blind instinctive hatred of Pisa, when other and more serious reasons were so plainly existent, would be to deny the evidence of facts. From beginning to end it was simply the clash of violently opposed interests. The Pisans were perfectly aware that to yield a free passage to the power already commanding the chief trade in the interior of Italy—the power that, without having as yet a single galley afloat, had already made its way to all the harbours of the East—the power so persistently struggling for absolute supremacy in Tuscany—could only lead to their own lasting subjection. Therefore they resisted to the utmost of their strength. Their resources were undoubtedly great, and as many other Italians were equally hostile to the supremacy of Florence, the latter could never have succeeded in reducing the Pisans, had it not constantly employed the shrewdest devices in addition to its efforts in the field. In fact there is no better proof of the political ability of the Florentines than their mode of conducting this war and the means they employed to attain the object that, throughout the whole course of their history, had been their chief and invariable aim. We find them steadfast in their friendship to Lucca, and always prompt to succour that city at all costs, because Lucca was never well disposed to the Pisans, and might prove a most useful ally in any campaign against them. So, too, we always find Florence on good terms with Genoa, and avoiding every risk of giving offence to a power that was Pisa's natural rival on the seas. Indeed, the Florentines always did their best to foster that rivalry, inasmuch as without an ally strong enough to assist them by crushing Pisa's power by sea, they could never hope to overthrow it by land. And at last the Pisans were defeated by the Genoese in the naval battle of Meloria (August 6, 1284). From that day the conquest of Pisa by the Florentines, although still to be long contested, was a foregone conclusion, and from that moment also their friendship for the Genoese began to lose warmth. While desiring assistance in overcoming Pisa, they wished to avoid aggrandising the power of a Ghibelline republic, already very mighty on the sea. Accordingly, after having so furiously attacked and enfeebled Pisa, we find them aiding that state to withstand the Genoese, until the moment came when the latter having abandoned the idea of conquering Pisa, they could successfully undertake its conquest on their own account.
With equal sagacity they pursued the same course in the years during which they were menaced by the powerful Dukes of Milan who sought to become masters of all Italy, and also when threatened from the south by the enmity of King Ladislaus of Naples. The art of stirring division among their foes, of supporting the weaker party against overbearing neighbours, of constantly contriving to rouse half Italy against every potentate risen to sufficient strength to be a terror to their own Republic, was the invariable means by which Florence maintained her independence in the midst of States who were losing their liberty, and in the midst of the numerous and formidable foes pressing about her on all sides. And this successful policy was the work of the greater guilds, or rather of the prosperous trading class (popolani grassi).
These mercantile aristocrats ruled the Republic with so much energy and zeal, precisely because the aggrandisement of Florence conduced at the same time to the increase of their own wealth and commerce. Thus a city whose population was seldom more than 100,000, and often shrank far below that number, and whose narrow territory was surrounded by so many enemies, was enabled to become a State feared by the rest of Italy, and respected throughout Europe. These Florentine merchants were so jealous of their liberty as to deem no sacrifice too vast for its preservation, and were neither bewildered nor daunted by any danger, even when their trade was at stake. In fact, although so obstinately Guelph, and connected with Rome by so many commercial interests and ties, we find them ready to combat the Pope himself, when he made attacks on their liberty, and see them giving the name of the Eight Saints to the magistrates charged to conduct the campaign against Gregory XI. (1376). In the like manner we find them carrying on a war with the Visconti of Milan at a yearly cost of millions of florins, without the resources of the Republic being exhausted, or the courage of its rulers worn out.
Nevertheless, it would be an error to suppose that the domination of the greater guilds was assured and uncontested in the interior, at least, of the city. On the day when the scheme was first mooted, in the Calimala court, of placing these guilds at the head of the government, they speedily recognised that the possibility of success was solely owed to the fact of their having fought and conquered the nobles with the help of the lesser arts. Hence, on the one hand, they had to face their natural and inveterate foes, the survivors of the feudal order, and on the other the lesser guilds coveting a share in the government which they had helped to establish. Thus the Republic comprised three classes of citizens and three separate parties. It is true that the greater guilds constituted by far the stronger of the three factions, but the others might become, if united, a very formidable opposition. And their union was no impossible contingency.
The difference, in fact, between the greater and lesser guilds was not merely one of degree as regarded their respective wealth and power; what divided them was the diversity of interests urging them to pursue an opposite policy. The wool-dresser or silk merchant was always ready to sacrifice his last florin, provided the Republic could gain possession of Leghorn or Porto Pisano. Accordingly he invariably kept a strict watch on the policy of Lucca and Genoa, to prevent them from making friendly advances to the Pisans. The Florentine banker was anxious that his Republic should always possess skilful ambassadors and consuls, able to supply full details of all that occurred in Rome, Antwerp, or Caffa, and impede the Siennese, Genoese, Venetians, and Lombards from gaining too much influence in those cities. Where any question of this kind was concerned the members of the greater guilds were always disposed to promote hostilities, no matter how prolonged, expensive, or dangerous, and to subject both themselves and the State to unlimited sacrifices. But financial and political interests weighed little with the blacksmiths, masons, carpenters, and other members of the fourteen lesser guilds, which nevertheless formed so considerable a part of the Florentine population. It mattered far more to them that Florence should be inhabited by rich and splendid gentry; that sumptuous palaces, villas, and monumental churches should have to be built; that there should be a continual increase of luxury and good living among the citizens of rank and wealth, by whom they earned their subsistence. Warfare, on the contrary, put a check upon luxury, and the greater guilds were always issuing decrees against it, precisely on account of the exigences of the wars they so constantly had on hand. Hence the poorer classes detested the opulent burghers, whom they had helped to raise to power, who had subsequently excluded them, as well as the nobles, from the government, and who, while accumulating untold millions, often lived in the city on a footing of Spartan frugality; the men daily promulgating new edicts against female luxury in dress; forbidding the use of gold and silver ornaments, prohibiting all lavish expenditure for entertainments or wedding banquets, even going so far as to limit the number and choice of viands, and exclude gold and silver plate from festive tables; but who, nevertheless, were always very ready to squander millions in attacks on the Pisans, the King of Naples, the Visconti of Milan, or even for a church, or an additional consul at Caffa or Pera. This difference of temper generated party hatred. Nor should it be omitted that some of the bitterest outcries against the greater guilds came from the women of Florence, who, being naturally opposed to warfare, and addicted to extravagance, objected to the vexatious restrictions imposed by law, while yet contriving to evade them with indescribable ingenuity.365
It is very easy to realise how good an opportunity this afforded the nobles of gaining the favour of the populace by stirring these germs of discord. They exercised no trade, lived on their revenues, but spent freely and lavishly in Florence. Accordingly, whenever engaged in fresh attempts to seize the government, or preserve their remaining share in it, they always allied themselves with the mob that lived—or at least believed itself to live—solely at their expense, and roused its resentment against the popolani grassi—or well-to-do burghers—by dwelling on the fact that whereas all the guilds were equally engaged in trade and commerce, a considerable number of them had no share in the power exclusively monopolised by the rest. The democratic spirit was far too lively in Florence for these devices to assure the safety of the nobles, much less their return to power; but they had the effect of stirring the masses to a burning and irresistible thirst for power, and of awakening revolutionary passions in the mob. Thus, at the moment of finally losing their old supremacy in the city, the nobles achieved the revenge of bequeathing to Florence a prolonged inheritance of strife that kept the Republic divided, and hastened its fall.
In fact, when at last the lesser guilds obtained a share in the government, they were never at one with the greater trades. Their hostility was continually shown in all councils, tribunals, and public gatherings; and they sometimes resorted to the perilous means of inflaming the worst passions of the mob which, as usual, served as a ready tool for ambitious aims. In this way a spirit of anarchy was unloosed, leading first to the revolt of the Ciompi, then to the necessity of seeking a protector for the Republic, and finally to the rule of the Medici. But before arriving at these extremities, there were two centuries of struggle, during which Florentine affairs were almost invariably in the hands of the burghers. On several occasions the reins of power seemed to have slipped from their grasp, but they always managed to retain enough influence to secure the election of magistrates of their own choice. In this way victory was restored to them, and they again took possession of the government. When, on the other hand, the triumph of anarchy made it requisite to seek a protector, and this protector, summoned to the defence of the Republic, sided with the malcontents and tried to establish a tyranny, the burghers then contrived to unite every faction in the interest of their common freedom and reinstate the Republican government, thus giving it a fresh lease of life. By dint of incredible sagacity, daring, and steadfastness, they managed to struggle on amid a thousand dangers, both within and without the walls. Although plunged in perpetual conflict with those who desired peace and claimed ever wider rights; although surrounded by most powerful external foes now attempting to destroy their trade, now their Republic, their energy and patriotism never wearied, never failed to be on the alert. It was a feverish time of unceasing stress and strain, and freedom, though always on the verge of annihilation, was kept alive for two centuries in the midst of communities where it was perishing. And even as the burghers had managed to create all sorts of financial combinations for the increase of trade and multiplication of wealth, so they showed inexhaustible ingenuity in devising new schemes and institutions to prolong the life of their Republic.
In matters of foreign policy Florentine diplomats became so renowned for sagacity and quick-wittedness, that on certain points they enjoyed even higher repute than the famed ambassadors of Venice. The latter, in fact, with their old traditions of statecraft, pursued the invariable policy of a strong, calm and self-reliant government. Their strength was the outcome of the strength and wisdom of a republic commanding both fear and respect, and whose voice seemed to be heard in the speech of its envoys. Every Florentine ambassador exercised, on the contrary, a direct personal influence, due to his own sharpness of intellect, extraordinary knowledge of mankind, and marvellous aptitude for comprehending everything and making everything clearly understood. Undoubtedly the State acted in him and by him; but less because he served as its mouthpiece than because it had succeeded in evoking and training all his mental powers and rendering him an intelligent and independent personality. Florentine merchants, notaries, administrators, and diplomats were universally prized, and seemed at home in every corner of the globe. Hence it is said that one day Pope Boniface VIII., seeing that the ambassadors sent to him from different parts of the world were one and all Florentines, quietly remarked, "You Florentines are the fifth element in creation."
It was in the midst of these political conflicts, of this ferment of the human mind, that art and literature rose to such splendour, that the whole world was, as it were, illuminated by the radiance shed by Italian cities, and shining most brightly from Florence. The far-reaching energy of this city of commerce and trade was felt almost everywhere; but even at points where this had failed to penetrate, the genius of Florentine literature and art seems to have asserted its power and initiated modern culture in Europe.
All this, however, was carried on in the face of continual and new dangers, threatening the very life of the Republic, and sometimes only to be averted by super-human efforts. Memory instinctively carries us back to the Florence of old with its council and its Consuls, yearly taking the field united and agreed, for the purpose of abasing the nobles and clearing the highways for the march of its trade; and then, having reduced the hostile barons one by one, compelling them to live within the walls, subject to the equal pressure of republican laws;—to the times when the State could only overcome its more powerful neighbours by emancipating the slaves of the soil and granting political privileges to traders hitherto unpossessed of any such rights. On recalling those times, we easily recognise that they contained the germs of future greatness for the Commune that by dint of continual warfare succeeded in augmenting its resources in every direction. Later, however, things were radically changed, owing to many causes, and above all in consequence of the new method of warfare to which we have already alluded and which must now be more fully described.
Down to the fourteenth century republican armies were composed of foot soldiers, lightly equipped with sword, shield, and helmet, and some slight defensive armour for leg or breast. The horse were few in number and never decided the fate of a battle. All barbarian armies had been composed much on the same plan, excepting those of the Huns and Moors, who were almost always mounted, and of the Byzantines, whose cavalry had frequently defeated the Goths. Frederic Barbarossa's Italian campaigns had been chiefly carried on by infantry and withstood by the infantry of our communes, who could then turn all able-bodied citizens into soldiers at a moment's notice. But in the campaigns of Frederic II., Manfred and Charles of Anjou, a new method of war had been imported into Italy from Germany and France. The Florentines had learnt this to their cost at the battle of Montaperti, when their numerous army was routed by the charge of a few German horse. From that moment the issue of all Italian battles began to be decided by heavy cavalry or by men-at-arms. The mounted soldier was clad in steel from head to foot, although not yet, as at the close of the fifteenth century, encased, together with his steed, in such ponderous armour, that, once fallen, neither could rise from the ground without help. Armed with a very long lance, the horseman could overthrow the foot soldier before the latter could approach him with his short sword. Besides, this weapon never served to pierce the armour either of man or horse; and the arrows of the bowmen were equally useless. Accordingly, a few hundred men-at-arms pushed forward like a movable and impregnable fortress into the midst of a host of infantry sufficed to rout it in a very short time. This state of things lasted until the invention of powder and firearms produced a radical change in the condition of the Italian communes. For mounted troops required much training and great expenditure. It was not enough to maintain great arsenals, to create and train a new breed of horses, but every trooper had also to be kept in steady practice, devote his whole time to warfare, and keep two or three squires continuously drilled and employed. These squires carried all the armour and weapons and led the knight's charger, which was only used in battle. Only then, too, were knight and steed in full harness, otherwise both would have been exhausted in the hour of danger. Hence it was impossible for our republics to raise cavalry, seeing that citizens, earning their living by trade and commerce, could not forsake their daily work to acquire the art of war. Therefore, soldiering became a regular trade, and all choosing it for their career speedily began to put a price on their swords. Thus from the closing years of the thirteenth century we begin to find soldiers of various nationalities—Catalans, Burgundians, Germans, and other foreign horse—in the ranks of republican armies, and the number of these mercenaries was continually on the increase.
Gradually, also, tradesmen were obliged to recognise that they had become personally useless in the field. Accordingly, whenever the republics were threatened with attack, they no longer ventured to give battle without hiring some captain with a band of foreign horse. Italian valour rapidly lost its prestige, and "Companies of Adventure"—soon to be the cause of our direst calamities—began to be formed. Later on, it is true that when Alberico da Barbiano, Attendolo Sforza, Braccio da Montone, and others adopted the same career, they rivalled and even surpassed the foreign adventurers, who had now often to yield the palm to Italian courage. Soon, in fact, many came from afar to learn the new art of war under these Italian captains whose skill first reduced it to a science. Nevertheless, few citizens of free states were able to devote their whole life to war. It was the nobles, the exiles, the unemployed—knowing no other trade—and the subjects of petty tyrants who joined the "Companies of Adventure." And whether small bands or large, Italian or foreign, they invariably hastened the ruin of all our communes, and more especially of Florence. The continual wars in which this State was now engaged no longer served to foster the military spirit and energy of its people. Always compelled to rely on the help of foreign mercenaries, it soon lost all confidence in its own resources, the which therefore rapidly declined. A campaign simply implied some financial operation, or the levying of fresh taxes to furnish sufficient capital for the hire of one of the captains of adventure, who always closed with the highest bid. The money found, it was often enough to send it to the State's surest and most powerful ally, who undertook to complete the affair by engaging the captain best able to hire the largest number of men. So the chief thing was to know how to gain friends and excite enemies against the foe, and in this the Florentines always showed masterly skill. But these devices were no proof of military capacity. The most important personages despatched by them to the seat of war were commissioners charged to superintend the general proceedings, the administration of the army, and the political object of the campaign, and although we sometimes find these commissioners suddenly transformed into captains, taking command of the forces and deciding the fate of a battle with singular daring, their functions were always civil and diplomatic rather than military.
It is easy to foresee the final results of this method with regard to the future of the Republic, and the morals of its inhabitants. The stout burghers at the head of the government were engaged in the continual practice of cunning and craft. It was requisite to show adroitness in the council chamber; to thwart the nobles; to remain constantly on the alert to prevent the populace from growing unruly, while persuading it to furnish funds to carry on wars which were indispensable to secure the safety and prosperity of the foreign trade. Hence, still greater subtlety was needed in diplomatic negotiations to avoid being isolated, and to continually maintain the equilibrium of Italian States in the way most advantageous for the Republic. Even actual warfare being now reduced, as we have seen, to a financial operation, had come to be a fresh proof of ingenuity. There were no longer any of those vast sacrifices of citizens' blood and citizens' lives which serve towards the continued regeneration of a people, no longer any deeds of open and generous violence. And at times when the rich burghers were not absorbed in politics, they and all the rest of the citizens were devoted heart and soul to commerce, employing their leisure moments in the study of Tacitus, Virgil, or Homer, kept ready to hand under their counters. But, invariably, it was only the intelligence that was kept always in training, while the nobler faculties remained strangled and atrophied by the constant use of cunning and trickery. This was destined to lead, sooner or later, to the inevitable decay of the Republic's moral and political life, and to the decline of the highest mental culture. If the manner in which wars were planned and conducted caused fatal results, no less fatal were the ulterior consequences of victorious campaigns. For the hired troops once paid off, changed from friends into foes, and instantly sought to sell their services to some other employer. Failing to find one, and therefore receiving no pay, they dispersed in armed bands, ravaging town and country, by a species of military brigandage. Generally, it was found requisite to come to terms with them, and bribe them to keep the peace.
But the most important point to be noted at this juncture is that the conquest of fresh territory, although become an absolute necessity to the Republic, now began to be a serious danger and the source of future calamities. During the Middle Ages the Italian Commune had been a fertile cause of progress; but as its possessions outside the walls began to increase, it proved wholly powerless to convert the free city into what we call a State without working radical changes in its constitution. In fact, even in Florence, the most democratic of our communes, citizens were only to be found within the circuit of the walls. Laws were framed to ameliorate the condition of the territory outside and to abolish serfdom there, but no one contemplated endowing inhabitants of the contado with political rights. The title of citizens always remained, as it were, a privilege only granted to a minority, even of dwellers within the walls, and was never extended to the people at large. Whenever a new city was conquered and subjected to the Republic, it was governed more or less harshly; allowed to retain more or fewer local privileges; sometimes even permitted to retain a republican form of government, subject to the authority of a Podestà, captain, or commissary, and paying the taxes imposed by them; but its inhabitants never enjoyed the freedom of the City, nor were their representatives by any chance admitted to the councils or political offices of Florence. Accordingly, as the State became enlarged by fresh conquests, the cluster of citizens monopolising the government, and already very limited in number, sank to a still smaller minority compared with the ever-increasing population subject to their rule. Similarly to all other republicans of the Middle Ages, the Florentines were altogether unable to conceive the idea of a State governed with a view to the general welfare. On the contrary, the prosperity and grandeur of Florence formed the one object and aim to which every other consideration had to be subservient. Nor had the lower classes and populace, who were always clamouring for increased freedom, any different or wider views on the subject. Their ideas, indeed, being restricted in a narrower circle, were even more prejudiced, as their passions were blinder. Consequently it was considered at that time a greater calamity to be subjugated by a fellow republic than by a monarchy; inasmuch as princes brought their tyranny to bear equally on all alike, and thus, at any rate as regarded politics, the chief majority of the conquered suffered less injury. When Florence, however, by achieving the long-desired conquest of Pisa, at last became mistress of the sea, and witnessed the rapid increase of her commerce, she discovered that the annexation of a great and powerful republic, full of life and strength and possessed of so large a trade, brought her none of the advantages which might have ensued from a union of a freer kind with an equal distribution of political rights. The chief citizens of Pisa and all the wealthier families left the country, preferring to live in Lombardy, France, or even in Sicily under the Aragonese, where at least they enjoyed civil equality, rather than remain in their own city subject to the harsh and tyrannous rule of Florentine shopkeepers. The commerce and industry of Pisa, her navy, her merchant-fleet, all vanished when freedom fell; while her Studio, or university, one of the old glories of Italy, and afterwards reconstituted by the Medici, was done away with, and the city soon reduced to a state of squalid desolation. All conquered cities suffered this fate; those once of the richest and most powerful in the days of their freedom being treated with still greater harshness than the rest.366 This makes it easy to understand why, when Florence was in danger, all conquered cities in which life was not altogether extinguished invariably seized the opportunity to try to regain their independence, and always preferred a native or foreign tyrant to cowering beneath the yoke of a republic that refused to learn from experience the wisdom of changing its policy. Nor could it have effected such change without radically altering its whole constitution and manner of existence.
Thus, in accumulating riches and power, Florence was only multiplying the causes of her approaching and unavoidable decline. The Commune seemed increasingly incapable of giving birth to the modern State, and accordingly, when its chief support, commerce, began to decay, the strength of the burghers was sapped, and the oppressed multitude, now a formidable majority, speedily looked to monarchical rule for their relief. Thus the Medici were enabled to attain supremacy in the name of freedom, and with the support of people and populace. Thus, likewise, by violence, or fraud, or by both combined, the communes of Italy were all reduced to principalities; and wherever, from exceptional causes, the republican order still lingered on for a while, it was only as a shadow of its former self, and no longer rendering any of the advantages for which it had been originally designed. Populations which had failed to establish equality by means of free institutions, were now forced to learn the lesson of equality beneath the undiscriminating oppression of a despotic prince. Signories formed the necessary link of transition between the mediæval commune and the modern state. For these Signories traced a way towards the just administration and method pursued by the vast kingdoms then in course of formation on the continent of Europe, and which also remained absolute and despotic monarchies until the French revolution effected in town, country, and throughout every class that work of social emancipation which the Italian communes had so admirably initiated, but had never learnt to extend beyond the circuit of their walls.
Florence maintained a prolonged resistance, but finally shared the fate of her fellow republics.
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.
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.
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.
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.
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.