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.