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.
ANCIENT SHRINE, RAVENNA.
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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.