From the fusion of these two different societies that modern society is to arise in which the action of the one is seldom dissociated from that of the other, and it becomes impossible to ascribe the result exclusively to either.
VIII.
But while the co-existing and contending laws of the Romans and Longobards are the two juridical elements most plainly to be recognised in the Italian statutes, there are others also claiming remembrance, and among these the feudal and the Canon law must be noticed. Feudalism is one of the most important institutions in the history of the Middle Ages; it is the first form that society assumes on emerging from the chaos of barbarism, and it is stamped with a character essentially Germanic. With it, property and the family take a new and peculiar shape. We may pronounce it to be the first and chief political and social manifestation of Germanic individualism. The barbarian tribe had a natural tendency to split into small groups, into families solely united by the bond of common danger. During invasions the tribe transformed itself into an armed band, left behind all weak or incapable members, accepted recruits even from neighbouring tribes, and being under the command of one chief, was forced by the exigencies of war to be firmly and compactly united. The attacks previously made on them by the Romans had, for like reasons, the effect of creating among the barbarians certain strong and powerful kingdoms by the union of different tribes; but these never lasted long, since as soon as peace was restored they began anew to fall apart and dissolve. Scarcely had the barbarians begun to settle themselves in the West, than their incapacity to establish the unity of a State was made clearly manifest. The moment peace was declared the leaders of the various armed bands proceeded to divide the conquered territory. They then separated, and their king, or supreme chief, remained, as it were, isolated, and with very scant authority. Every leader tried to possess himself of some stronghold where he might rule as an absolute lord, barely acknowledging his dependence on the king. In the fief thus created, ownership and sovereignty became confused, but were both considered to be held (per beneficium) as of favour from a more powerful lord, subject to certain burthens and obligations. Originally a temporary grant, the benefice or fief only became hereditary at a later time. At first it could be resumed by the donor; it reverted to him on the death of the feudatory, that it might be transmitted by a new grant to the feudatory's heirs; it then gradually, by use, abuse, or special act of concession, became an hereditary estate. Eventually all property, possession, or ownership came to be held, during the Middle Ages, on feudal tenure. The want of vigour in the supreme political power obliged the weak to seek protection elsewhere. Many independent landowners voluntarily accepted the position of vassals; while, on the other hand, the obstacles encountered by the great lords in enforcing their authority over wide territories compelled them to cede part of their land in benefice to lesser vassals. In this way the State, the Church, all things assumed a feudal form. This system was completely established in the eleventh century, when the communes arose in Italy to combat and overthrow it.
In a fortified castle it was natural that the ties of the family should become continually stronger: a fortress must suffice for itself. It was, as it were, the independent world of the lord who dwelt in it, and divided his time between perilous adventures and domestic life. All historians have noted that feudalism produced increased respect, affection, and chivalrous regard for woman, and made man more resolute and energetic. Save in times of war, the baron was almost absolute and independent lord of his small realm, wherein all were his subjects. From him his vassals received the posts of seneschal, count of the palace, equerry, and the like, which offices, being granted in a form more or less feudal to persons of noble birth, had a tendency to become hereditary. A numerous retinue somewhat relieved the loneliness of the castle. The sons of subordinate nobles frequented the court of their liege lord, to be trained to polite manners and the arts of chivalry, and finally to receive the sword from his hands and be proclaimed knights. All this gave prestige to the castle, and secured the fidelity of the vassals to their lord, while at the same time it flattered the pride of the inferior nobility.
The Longobard feudal law is found to have points of connection with the laws of Rome which, though very different in spirit, are often called to its aid. Often, however, they are found to be in opposition. There can be no doubt that the Roman law manifests in Italy its persistent action on the feudal law. The fief, as is well known, not being absolute independent property, but only a limited and conditional grant, cannot, from its nature, be subject to the hereditary principle. On the contrary, the right of the heir must be recognised anew in his person, since, as we have seen, he does not derive it from any right in his predecessor. And this continued to be the practice even after custom had begun to make the tenure hereditary. According to feudal law, the successor was not then considered to represent the person whose heir he was; the original grant was renewed in his behalf. Moreover, when a fief has once become hereditary, the whole family has a right to it, not derived from the will of the last holder at his death, but already existent during his life. It is therefore necessary to establish an order of succession to determine which member of the family shall be preferred, and this order of succession begins to be borrowed from the Roman code. Although differing from the true and correct order of succession, it is gradually confounded with it, and finally alters and dissolves the fief. Thus the Roman law penetrates and modifies the feudal.
CHURCH OF SAN VITALE, RAVENNA.
[To face page 401.
From the very nature of a fief, female descendants cannot inherit, and the male descendants of deceased sons succeed equally with surviving sons. Nevertheless there are certain fiefs which, having been originally bestowed upon females, must, in default of heirs male, naturally pass to females; but as soon as the male line is established, male heirs have the preference. Ascendants cannot succeed, because succession is determined, not by relationship, but by the original grant; accordingly the reversion falls, not to the ascendant, but to the original granter of the fief. Collaterals of the last holder, unless descendants of the first, are not entitled to succeed; nor can brothers, as such, succeed, unless their father has held the fief. Nor can husband and wife succeed to each other. But under the growing influence of common law all these primitive characteristics likewise disappear. Feudal law has little importance in the Italian statutes; but the political and social importance of feudalism in the history of our communes is immense. It represents a society distinguished by laws and usages of its own, and that appeals to the Emperor, whose judgments and judges it always prefers to the laws and magistrates of the Republic which it despises, and would fain ignore. The Republic in consequence looks on the nobility as a foe to be destroyed, but this it can only effect after sanguinary struggles in the course of which it will be itself profoundly changed.