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.