IT is certain that no real national history of Italy can be written until the statutes and laws of our communes have been published, studied, and thoroughly investigated by the light not merely of historical but of legal research. The necessity for such investigation was first proclaimed by the learned Savigny, subsequently recognised by many Italian scholars, but has never yet been entirely satisfied. An accurate study of those old laws and statutes would make us acquainted with the public law of the communes, and place before our eyes a clear and exact picture of their political institutions which have been hitherto very imperfectly understood. Moreover, what is certainly of no less importance—it would enlarge our knowledge of our ancient private law, to which many learned authorities, among others Francesco Forti, attribute the origin of modern jurisprudence, and the germs of many jural provisions, afterwards accepted by us as novelties derived from the French Code.
Public and private law have far more affinity than is generally supposed, and each conduces to the plainer and more exact comprehension of the other. Society and the State have both their birth in the family, reacting upon and modifying it in turn. No student therefore who seeks to discover the true key to political institutions developing themselves in a country spontaneously, should neglect the constitution of the family wherein are to be found the earliest beginnings of civil law, with which political law also is more or less connected. Cases, it is true, frequently occur of one people adopting the civil law of another, without altering its own political institutions; while in other instances both are imposed simultaneously by a superior foreign force. This has led many to question the reality of the connection which in fact subsists between them. But these cases have nothing to do with that natural and spontaneous development of law of which we are now speaking. In this development, politics and jurisprudence, the State and the family, are found to be closely interconnected.
In the course of Florentine history we often see political revolutions break out suddenly and apparently without warning; but on closer examination we perceive them to be the result of deep social changes which have been maturing for a long time, and although imperceptible at first, afterwards assuming such proportions as to become suddenly visible to all eyes and productive of political reforms. Thus it happens that private law, which always accompanies social movements and changes with them, not unfrequently enables us to trace the sources and unfold the true tendency and inexorable necessity of revolutions, even before they come to pass. Accordingly, the habitual neglect of this particular study in connection with the history of Italy has proved a serious defect. No one at the present day would venture to write the political history of Rome without giving attention to the Roman jurisprudence. Nevertheless, we have written the history of our republics over and over again, without bestowing a thought on their civil and penal legislation.
It is true that the investigation required presents very great difficulties, inasmuch as our history was subject, during the Middle Ages, to a series of changes, always rapid and always different. The number of our republics is infinite. Every province of Italy, every fragment of Italian territory is divided and subdivided into communes, every one of which has a distinct history, and political institutions which are constantly changing. This perpetual mutation is faithfully reflected in the statutes of the Commune. On the margins of these statutes we find alterations and corrections registered from year to year, and formulated, not unfrequently, after the streets of the city had begun to run with blood. When annotations and corrections reach a certain number, the statutes are drafted anew, and of these re-drafts also many copies are still extant. It was the duty of the officials in charge of the statutes (statutari) to enter from time to time such farther modifications as were afterwards approved of in the Councils of the People. Hence it sometimes happens that on referring to the statutes of a given year, we may find the duties of some chief magistrate of the Republic set forth in their text with the most minute detail, whereas if we look to the notes it will appear that these duties have already been changed. If we next consult the remodelled statute it will be found that the magistracy itself no longer exists. How is it possible, therefore, to give any idea of the political form of a municipality fashioned in such wise? This can only be done by gleaning from the mass of the statutes the history of the constitution through all its successive changes of form. In a word, we must recognise that, instead of being confronted by a system crystallised, fixed and immutable, we are watching a living organism develop under our eyes in obedience to a settled law. This law alone is uniform, and it is this we must endeavour to trace, since it alone can solve the mystery and supply exact ideas. Turning from public law to private legislation, our difficulties rather increase than diminish. For, in perusing this, by no means less important portion of the statutes, we come upon a confused medley of legal systems differing from and often opposed to one another. When we meet with such terms as meta and mundium, wergild and morgengab, dos and tutela, testamentary succession and succession by agreement, we recognise that Longobard law, Roman law, feudal law, and canon law are all present, and perceive that they are blended in constantly varying proportions. These diverse legal systems act and react one upon the other, producing reciprocal changes. Into the Roman law, provisions are constantly filtering which indubitably belong to the Longobard law, while the latter in its turn is profoundly modified ("mutilated and castrated," as Gans expresses it) by the Roman law. How are we to explain this congeries of different laws? Is there any new and original principle that assimilates the heterogeneous elements and constitutes a new law? If so, what is it? This is the knotty problem which Savigny encouraged us to attack, but which we have hitherto failed to unravel. But although the question remains unsolved, its importance is now universally acknowledged; it has been carefully studied, and many treatises, including some of the highest value, have been published on the subject. Accordingly certain observations may at last be offered to the public.
The constitution of the family and its relation with the State are, as it were, the chief centre round which all fresh researches must revolve, and these form the subject of this short and summary essay. As a preliminary step towards the solution of the problem, an accurate investigation is required of the various forms that the family assumed under the various systems of law which succeeded one another in Italy, in order to ascertain how it was that from the combination of those various forms, another and widely different one should have resulted. The first question therefore that presents itself has reference to the condition of the Roman law and the Roman family at the time of the barbarian invasion. As regards the Italian communes, it is only natural that the Roman jurisprudence should strike the deepest and strongest root in their social system, and that the history of our laws should originally find in it their first beginning. Here, however, we are forced to enter on a digression which, although seemingly apart from the point, will presently help us to a clearer understanding of the new society in course of development. With regard to this digression it should also be said that so much learning and research have been directed to the study of Roman law, that we are able to arrive at certain trustworthy conclusions which, by affording evidence of the close connection between the Roman family, and the political society derived from it, will show us what path to take in pursuit of the same connection in the history of Italy.
II.
Every student of the Pandects knows that the words "Roman law" denote the outcome of long preliminary labours, and the ultimate form of a jurisprudence which cannot be rightly understood without analysing all the historical elements employed in preparing and building it up. Treated in this way, the history of Roman law becomes, as it were, instantly transformed into a history of many different legislations following one another at intervals. From the Twelve Tables down to Justinian, this law never halts for an hour in its constant course of development. Even during the Middle Ages, when the compilations made at Constantinople were studied with religious zeal by expounders and commentators whose sole object was to faithfully reproduce and diffuse this law, even thus, in the hands of those interpreters, influenced by the altered spirit of the times and by new social developments, it underwent changes of which they were not themselves conscious. It is not until the fifteenth century that this historic development can be said to have ceased among us, and Roman law become mainly a subject of learned research. It is at this time that a new and modern system of jurisprudence first reveals itself to history, endowed with a separate life, and with a form of its own, though borrowing much from the Roman law, which in consequence continues to be of the utmost value to us, and still deserves our most assiduous attention, although for a very different purpose from that with which it was studied during the Middle Ages. Our object is now to familiarise ourselves with an immortal monument of ancient wisdom, to shape our legal education by it, to be helped by it to a clearer understanding of our own codes, and to contemplate it in its successive manifestations, while we search for its regulating law. It is in fact the discovery of this law that has at once thrown a new light upon the whole history of Roman jurisprudence, which we perceive to have been always and unceasingly governed by it, and thus forced to assume a character so constant and continuous through all its various transformations, that what had before seemed to be a series of distinct legislations takes an entirely new aspect, making us spectators, as it were, of the evolution of a single idea, the progressive development of a work of Nature.
All this continuous progress or evolution was the result of two forces, of two different elements. The true, primitive law of Rome was the special law of the Quirites, of which we find the remains in the Twelve Tables: a severe and restricted law abounding in formulas which had to be sacredly observed, and its administration was entrusted to a small number of citizens who alone were acquainted with its rules, whose authority was sanctioned by religion. The smallest mistake of form made void the most just decree, and where the law omitted to define the formula to be observed, no valid action could be brought. When the due formula, making the contract binding, had once been pronounced, no proof of mistake or fraud could annul it. "Uti lingua nuncupassit ita ius esto." A slave to forms, the judge could not listen to the voice of morality or rectitude; the most just complaint failed to move him, unless supported by a text of law. The defendant dared not stir a step without the continual guidance of the legislator, inasmuch as every juridical formula was sacred and inviolable; and as the science of law was monopolised by the College of Pontiffs, the most aristocratic and conservative body in Rome, it became a kind of occult science. It was this very character, however, apparently so restricted and pedantic, that gave its great force to the law in Rome. For law, being now freed for the first time from every extraneous element belonging to morals and good faith, became firm and inexorable. Any one who had the law in his favour was safe to see it promptly carried out. History affords no example elsewhere of legal sanction and redress being applied so swiftly and surely as in Rome. In Athens, indeed, where the laws were more philosophical, and the popular conscience gave judgment, investigating motives, despising formulas, and looking only to substantial justice, caprice often prevailed, and law never attained the iron strength and tenacity of the Roman jurisprudence.
But with changing times, all things changed in Rome. This jurisprudence revered as sacred, but described by Vico as made up of formulas and phrases, was well adapted to a rude and primitive people. Ideas had greatly altered in the days of Cicero, who in his speech pro Murena severely satirises a science which, in his eyes, had become ridiculous: "res enim sunt parvæ, prope in singulis literis atque interpunctionibus occupatæ." He looked upon the whole thing as a fraud designed by the priests to secure themselves a monopoly. Was he in the right or the wrong? Vico, in examining a similar question, showed that Cicero was mistaken on this score. Cicero and his contemporaries, he said, lived in too cultivated an age to comprehend rude and primitive jurisprudence; they could not grasp its true significance, but formed their judgment of the ancient laws according to the ideas and principles of their own times. This view, which was first broached in the Scienza Nuova, was afterwards accepted by many other writers; and it is now placed beyond a doubt that the primitive Roman law was not the artifice of a learned few, but was a spontaneous and necessary growth among the people with whom it had its origin. At first, custom, clearly distinguished from the law formulated and written, tempered its rigid severity. Good faith and equity, disregarded and rejected by the law, found their sanction in custom, were administered by a separate tribunal, and were always respected, inasmuch as the sentence pronounced by the officiating magistrate was morally, though not legally, binding, and was therefore of great efficacy as the genuine expression of public opinion. The sentence of condemnation could not be carried out by force; but it made the condemned man infamous, and, as a last resort, the magistrate could cite the accused before the people, as the supreme legislator and judge.