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

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

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

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

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

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

VI.

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

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

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

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

VII.

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

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

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

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

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

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

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

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

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

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

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

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

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

VIII.

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

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

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

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.

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.

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.