Even Giannone, in his "Storia Civile del Regno di Napoli" (bk. iii. paragraph v.), says that Justinian's works met with no favour among us. "They found no acceptance either in Italy or in our provinces, nor could they be planted and strike deep roots here, as on foreign soil; on the contrary, the ancient books of the juris-consults were retained, and the code of Theodosius lost neither its reputation nor its authority."
Here it may be well to remark that the persistence of the Roman law in Italy during the Middle Ages, maintained by Savigny, but combated by others, is now admitted on all hands.
[372] Dr. J. Ficker, "Forschungen zur Reichs und Rechtgeschicte Italiens," 4 vols. Innsbruck, 1868–74.
[373] Gans, while accepting the ideas of Savigny as to the diffusion of the Justinian law in Italy, also takes this view, which is in accordance with his own theory that the new forms of the Italian law were derived from the laws of the Longobards.
[374] Baudi de Vesme, in his notes on the Longobard laws, repeatedly remarks: "Theodosiani juris vestigia hic agnoscere mihi vedetur." Del Giudice has recently proved that certain passages are taken from the Justinian law and others from the Theodosian code.
[375] This discussion may now be considered superfluous, it being generally acknowledged at the present day, that even subsequently to Justinian's constitution, the Theodosian code continued in force. In this way the Justinian and pre-Justinian forms had a contemporaneous existence, only the Pandects were longer neglected.
[376] According to Savigny, the school of Guarnerius was already flourishing in 1113–18. It is now well ascertained that this school was preceded by others adhering far less closely to Justinian forms.
[377] The ancient statute of Giacomo Tiepolo, of which the MS. is extant in the Archives of the Frari, in Venice, and which has been frequently printed, concludes its first prologue with these words: "Et se alguna fiada occorresse cosse che per quelli statuti non fossero ordinade, perchè l'è de plui i facti che li statuti, s'el occorresse question stranie, et in quele alcuna cossa simela se trovasse, de simel cosse a simele è da proceder. Aver, secondo la consuetudine approvada, oltremente, se al tuto sia diverso, over si facta consuetudine non se trovase, despona i nostri iudexi come zusto et raxionevole a la so providentia apparèrà, habiendo Dio avanti i ochi de la soa mente, si fatamente che, al di del zudixio, de la streta examination davanti el tremante (tremendo) Iudexe render possa degna raxione."
[378] Many examples to this effect will be found in the volumes of "Provvisioni" in the Florence Archives.
[379] "Statuta Romæ," Romæ, 1519, ii. 110, 111, and iii. 17.