In fact, Savigny himself examines and recognises the full importance of the various sources of pre-Justinian law diffused in the Middle Ages. The code of Theodosius (438) which then possessed great authority, and the edict drawn up by order of Theodoric the Ostrogoth (500), were direct compilations of the old Roman Jurisprudence.
If in these compilations we turn our attention to the constitution of the family, more particularly as regards succession, we find it exactly as it was before the law was interwoven with the Imperial edicts.[373] The Breviary of Alaric ("Lex Romana Visigothorum") and the so-called Papian code ("Lex Romana Burgundioram"), both posterior to the year 500, are likewise compilations of pre-Justinian law, and are found to be diffused in several provinces of the Empire. The often-mentioned "Lex Romana Utiniensis, seu Curiensis," which seems to be ninth century rimpasto of Alaric's Breviary for the use of Italians in lands previously under Longobard rule, also shows the same characteristics. It is true that, according to the hypothesis of Savigny, the Breviary of Alaric must have been in use among the Franks and brought by them to Italy after the expulsion of the Longobards. In this case we should find the old law to have been in force among us only before and after the period of the Longobards; while during their oppressive rule we should discover no certain trace of it. But it is very difficult to suppose that the ancient law, based as it was upon custom, should have died out precisely when custom might have preserved it, or that Roman law should at that time have assumed the literary Justinian form and afterwards have returned to a form more primitive. Had the legislation of Justinian in its genuine form been once accepted, it must have continued to gain ground with the advance of civilisation and under the less severe rule of the Franks, whose mode of life approached much nearer to that of the Latins. The fact is, that throughout the Middle Ages we meet with pre-Justinian legal forms, more or less modified, even among the laws of the Longobards.[374] As to the remark that the earliest Italian commentators, the glossators, directed their studies to the Pandects and the whole of the Corpus iuris—this only shows that on the revival of the communes and of letters they turned, as was natural, to the most authoritative and literary source of jurisprudence. From that time, in fact, no other is looked for.[375]
THE TOMB OF THEODORIC, RAVENNA.
[To face page 384.
It should also be remembered that, when the Greeks came into Italy to combat the Goths, they found the ancient Roman customary laws in force and sanctioned by the edict of Theodoric; that the Goths were definitely vanquished in 553; that in 568 the Greek domination was followed by that of the Longobards; that the latter confined their rivals to Southern Italy, whence they were afterwards expelled by the Normans. There, in the south, the corrupt Byzantine despotism proved no less fatal than the oppression of the barbarians, and was perhaps the prime cause of the many disasters and prolonged neglect into which those provinces afterwards fell. But was it possible for a dominion so brief and troubled to diffuse the law of Justinian in Italy with such effect as not only to make it universally accepted, but also so thoroughly incorporated with customary law, that it could survive even when its binding legal effect was no longer recognised by the barbarians?
Such an hypothesis will seem even less tenable as regards everything relating to the family and to succession, if we reflect that the reforms introduced into this branch of the law by Justinian at Constantinople in no way corresponded to the conditions in which Italy then stood. Notwithstanding the diffusion of Greek philosophy among us, the spirit of Byzantium was by no means identical with that of Rome, and there was still less identity in their social conditions. In Constantinople Oriental despotism corrupted, nay, suffocated society by excess of luxury and over-refinement of culture; the State assuming everything to itself, imparted a new character to the laws. In Italy, on the other hand, society, no less corrupt, had become disintegrated, and was already falling to pieces; the ancient unity and strength of the State were continually diminishing and losing strength, and less and less resistance was opposed to the assaults of the barbarians. At Constantinople the State was omnipotent, while in Italy its vigour was on the wane. Among us, accordingly women and all who were weak were naturally driven to seek refuge in private associations, and above all in the bosom of the family. And if the natural force of events had power to urge in any direction, and determine any new tendency, it certainly could not have aimed at enfeebling the family bond by subjecting it to the authority of a tottering State, but must rather have sought to strengthen it as the only possible safeguard amid the dangers that were threatening on every side. This, in fact, is the course always followed in barbaric societies, where, the State being powerless, the care of the weak and the punishment of injuries are entrusted to the kinsmen. In short, both the disordered condition of Latin society and the example of the barbarians themselves combined to offer grave obstacles to the diffusion of Justinian's laws, more especially when the old Roman customs were seen to be better suited to the new and increasing needs of society, and useful for the reconstruction, on a firmer basis, of the old family system, now become more essential than before to the common welfare. No other way was left for beginning anew the social task and advancing afterwards to new methods and institutions. Nor need we attach much importance to the constitution of the year 534, knowing how wide is the difference between the promulgation of a law (especially when it is passed by a short-lived and feeble Government in a society that is lapsing into disorder) and its actual enforcement and incorporation with custom. Even under the Roman Republic, or under the Empire, old laws did not at once disappear when new ones were proclaimed. Even in modern societies we may note how tenaciously ancient customs continue to be observed when they are more in harmony with the character and requirements of the people.
The principles of the Napoleonic code were proclaimed in our Southern provinces during the French domination and afterwards confirmed by subsequent legislation; and according to that code, every patrimony was bound to be divided equally among the children. Nevertheless, in the two Calabrias and many other Southern provinces, property is still kept undivided in the family, since, by common consent, only one of the sons marries, the others remaining single. For the same reason, the smallest possible sum is assigned to the daughters; nor do all of them marry, some being persuaded or forced to take the veil. Social progress alone will slowly give real effect to the principles of equality sanctioned by the codes.
Everything therefore points to the conclusion that Roman law survived among us to the downfall of the Western Empire, preserving by usage many of the forms that had belonged to it before the compilation of the Corpus iuris. While in this state it came into contact with the Germanic code, and thereupon began the series of mutual alterations, from which the Italian family emerged, reconstituted in a totally new way, and together with it the Commune. It was a slow transformation, during which Latin ideas and traditions steadily gained ground, and gradually fused or destroyed the barbarian laws and institutions. When communal liberties were finally proclaimed, a new culture was inaugurated, and with it a new epoch in the history of Roman law. The university of Bologna became the centre for the diffusion and study of the Pandects, and the Corpus iuris became speedily regarded as the primary and perennial source of common law in our country. The tradition, according to which the Pandects of Amalfi, carried off by the Pisans, were by them discovered and made known for the first time to the Western world, dates this event about the year 1135, that is to say in the same age that witnessed the rise of the communes, and in which, as related by another tradition, Guarnerius founded the Bolognese school at the request of Countess Matilda.[376] Thus our conclusions are supported alike by history, legend, and logic.