IX.
In the statutes therefore, we find four different legislations, contending, as it were, with one another: the Longobard, the Roman, the Feudal and the Canon law. These, however, may almost be reduced to two, seeing that feudal law is Germanic, and canon law, in so far as it affects the statutes, is mainly Roman. So that here again we are met by the old hostility between Germans and Latins. The two races are opposed, as also their institutions, laws, and ideas; their minds seem to challenge one another wherever they meet, whether in the field of letters, politics, or art. Yet each has need of the other, and both must disappear to make way for a new social system and a more comprehensive spirit which, resulting from the fusion of two warring elements, will remain sole victor in this prolonged contest. In Italy, however, the Latin strain always predominates, as we see even in the statutes, wherein Roman law forms the keystone of the whole juridical structure.
EMPEROR JUSTINIAN.
(From a Mosaic, Ravenna.)
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The earliest compilation of the statutes dates from the very time when a knowledge of the Corpus iuris begins to be diffused throughout Italy from the University of Bologna. From that time forth the legislation of Justinian was regarded as an epitome of juridical philosophy, as the law par excellence, and is recognised by all our Republics as the common law, the law to be applied whenever the statutes are silent. For this reason that part of the statutes which relates to the civil law is very much less developed than the political part; and for this reason those teachers whose studies have been directed chiefly to civil jurisprudence occupy themselves much more with Roman, canon, feudal, and Longobard law than with the law of the statutes. These they examined, especially at first, rather as a result of the study of the Roman law, than as deserving careful attention on their own account; they regarded them as the written expression of popular custom to which no great scientific value could be attached, as something outside the one legal system which alone merited universal admiration.
A long period elapsed before writers on law began to apply their minds to the consideration of the statutes, the great importance of which has been only completely recognised in our day. Venice is perhaps the only Commune in which it was customary, in the absence of statutory provisions, to appeal to natural reason: whence Bartolo's remark that the Venetian magistrate gave judgment manu regia et arbitrio suo.[377] But even in Venice such decisions must always have been inspired or guided by a knowledge and admiration of the Roman law.
EMPRESS THEODORA AND COURT, RAVENNA.
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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, Podestà s, 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.