But the progressive changes in the Roman family are not yet at an end. To the numberless causes for change already in existence another is added, when Christianity finds its way into the Empire, into literature and law, and subverts all things. According to the law of Christ, man and woman are equal; father and mother have equal rights and duties in respect of their children, for whose advantage all things must be ordered; whereas, by the old law, the rights of the children were subordinated to the interests of the family. A new element is now introduced into Roman law which further changes its character, already much modified by Greek philosophy and by Byzantine despotism. The Canon law accepts the principles of the Roman, recognises the wife's absolute interest in her marriage portion, and rejects the pretensions of the husband. Woman remains excluded from every office which the ancients deemed proper to man; she cannot enter into obligations for others, nor arbitrate, nor lay an accusation, nor bear witness in court; her evidence has no legal effect. On the other hand, Roman law tends inexorably to democratic equality, natural equity, and to the absolute predominance of the State. The public authority deprives domestic authority of its last remnant of power; it may almost be said that the family, as a body-politic, disappears, to be reconstituted on the footing of reciprocal affection. The final seal to these alterations was imposed by the famous law of succession (Nov. 118 and 127) enacted by Justinian in the years 543 and 547, which, suppressing every privilege of sex and agnation, fixes rights according to the degree of relationship, and makes them reciprocal. It moreover enlarges the amount of the legitim, and ordains that the dowry of the wife should be met by a donatio propter nuptias of equal value from the husband, and that, in the interest of the children, both should be inalienable. Even with the consent of his wife, the husband cannot sell the dowry; he may only administer it, and there must be complete reciprocity. The wife is not only the owner of the dowry, she has besides a general charge over her husband's property for its restitution, with a right of action to enforce it as against all his other creditors. In inheriting from their children the mother has equal right with the father, and she is now qualified to be their guardian. Even the Senatus-consultum Velleianum, which forbade women to incur obligations on behalf of others, is modified with the same scope. Justinian, indeed, from his desire to protect the property of the woman against all danger, is strenuously opposed to her incurring obligations on behalf of her husband; but he is much more indulgent in respect to obligations undertaken on behalf of a stranger. These, if incurred for manifestly good cause, are valid if renewed after two years. Thus modified, the Senatus-consultum Velleianum is treated with respect throughout the Middle Ages. Reciprocal equality is now achieved, but the ancient unity of the family is dissolved; the compact and iron nucleus of Roman society is broken to fragments by the continual and increasing action of the State. In all her institutions, Rome has succeeded in arriving at democracy and equality, but at the cost of complete individual liberty, and by sacrificing the development of special associations and of local life to the unity of the State. How to conciliate these two elements without destroying the one in the interest of the other will be the problem of a new era and a new civilisation.
However highly we may rate the amazing and indisputable greatness of the labours of Imperial legislators and juris-consults collected in the Corpus iuris in the time of Justinian, it is nevertheless certain that the ancient and primitive character of Roman law has been profoundly changed by it, and that the despotism of the State, always prevalent in Rome, has been enormously increased. It is for this reason that Tocqueville, and others with him, go so far as to maintain that the great diffusion of the Justinian law among the Latin races has more than once proved hurtful to political freedom. To many, such an assertion may seem absurd; but granting that there is a close bond of connection between private and public law, and that the final changes in Roman law were introduced by the action of the growing despotism of the State, the opinion advanced by the French writer is not without its value.
V.
However that may be, it is undeniable that the family, as we now find it constituted, or, more correctly speaking, weakened, by the Justinian law has not the qualities which would enable it, in the ages of barbarism now at hand, to withstand the violent onset of the advancing Germanic peoples, much less to be the nucleus and germ from which the new society of the Italian Commune may take birth. In fact, in the statutes we find the family constituted on a very different footing. Agnation has recovered its ascendancy. The woman is under a new species of guardianship; and although the dotal system is rigorously observed, there are innumerable regulations designed to keep family property together, or make it revert to the family, so as to preserve the domestic patrimony intact. Here an important question arises, namely, whether this new constitution of the family, which stands in close relation with the public law of the communes, is a return to the pre-Justinian law, or derived from Germanic institutions and the Longobard law, in which we find, in fact, precedence accorded to agnate kin and a more stable family organisation? Italian writers, the earlier writers more especially, adhered for the most part to the former theory, while the majority of German authors, who have recently found disciples even among ourselves, adopt the second view. Thus, on either side we find theories propounded as to the constitution of the Italian family in the Middle Ages, analogous to those concerning the origin of the communes.[371]
The persistence of Roman law in the Middle Ages, even when the condition of the Italians was most wretched, and when all things seemed to be subject to the law of the Longobard, was maintained with marvellous learning and acumen in the immortal work of Savigny. But, in truth, though public law and penal law might readily be altered under the rule of the conqueror, there was little likelihood that the civil law which, for so many centuries, had filtered into the usages and into the very blood of the Romans, which had regulated the manifold relations of a civilised people and satisfied its countless requirements, should perish utterly beneath the sword of barbarians unconscious of those requirements and not always able to comprehend those relations. Matters of which they were to a great extent ignorant, or as to which they were indifferent, must often have been passed over without notice in the laws framed by the barbarians, or have evaded their action. Various provisions, therefore, of the Roman law—those, for instance, relating to marriage, to succession, and to contract—must often have continued to be applied by the Italians in conformity with ancient usage. This will be more readily understood if we reflect that while the Roman law had become the law of all in those countries in which the Roman conquest had taken deep root, the laws of the barbarians, on the contrary, according to Teutonic usage, always presented a personal character—that is to say, extended only to the people with whom they originated, and were not easily communicated to others. In fact, when, as a consequence of successive invasions, different Germanic tribes, whether independent of each other or in subjection one to another, came together in the same country, each of them continued to be governed by its own peculiar laws. The Romans, on the contrary, regarding their law as universal in character, communicated it to, and imposed it upon all. It was almost the first germ of the greatness and the civilisation of Rome, and for that reason its diffusion was considered the most sacred of duties by this sovereign people. Thus it was that, even under the harshest barbaric oppression, the Roman law continued to be the private law of the Italians in all those cases, and they were not few, in which the German laws failed to notice it, and neither abrogated it directly nor substituted another in its place.
But the presence of two diverse legislations, the one imposed by force, the other preserved by custom, the radical change of conditions occasioned by the destruction of the old Roman State and the formation of a new society, could not fail to originate a new life, a new history for the Italian law. In the statute books of our communes we find Roman and Longobard law confronted and almost contending, each modified in turn by the action of the other. But under which of the many forms through which it has passed is the Roman law found among us at the moment when it seemed on the point of being overcome by the Germanic law? Was it in the literary and philosophic form given to it by Justinian, or was it in the pre-Justinian form, which, while less systematic, was also less altered by Byzantine ideas, and more in accordance with usage? Savigny roundly asserts that the Pandects on their completion were at once sent into Italy, and that immediately after the power of the Goths had been shattered by the Greeks Justinian hastened to issue the Constitution (534), whereby legal effect was given to them in the land. In consequence of this, he continues, the Pandects were then to be met with in every corner of Italy, where they were at once received with favour, inasmuch as the Justinian law was specially adapted to the requirements of the land. This, he goes on to say, likewise explains why it was that all the earliest Italian commentators or glossators devoted themselves exclusively to the study of the Corpus iuris. The reader, however, may easily discover that, on this head, Savigny has pushed his inferences too far. More than once, indeed, he is compelled to put a false interpretation on documents that they may not contradict his theories; and more than once the documents themselves seem to warn him that, even in the Middle Ages, vestiges of a pre-Justinian law are to be traced; but he persists still more resolutely in considering all this to be only a survival of antiquated forms. Many new documents have recently been published, and the question again presents itself, always with the same urgency.
As a German writer, well versed in the subject, has recently observed, everything tends to show that the history of Roman law in the Middle Ages should be divided into two entirely distinct periods.[372] During the first it endured by force of custom, and accordingly many pre-Justinian formulas survived with it; in the second and much later period the Justinian law prevailed, promoted still further by the literary study of the Pandects undertaken by the Bolognese professors; it was only then that the most ancient formulas wholly disappeared. This view is supported by documentary evidence and harmonises with the character of the times and with the requirements of society, and is confirmed by our old writers and our literary traditions.
SUPPOSED PALACE OF THEODORIC, IN RAVENNA.
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