Canon law undoubtedly plays a part in the history and formation of the communes that should not be overlooked, though by no means corresponding with the greatness of the political, social, and religious influence of the Church. Made up of fragments from the writings of the Fathers, ordinances of ecclesiastical councils, papal decretals, and with a large admixture of Roman law, it appeals also to the authority of reason and of Holy Writ. It thus declared itself favourable to natural equity, as opposed to legal sophistry, tempered the harshness of barbaric laws, protected the weak, upheld the sanctity of the family, and aided the triumph of the Roman law over that of the Longobards. But it also sought to subordinate the civil power to the ecclesiastical; it added to the number of exceptional tribunals; it favoured inquisitorial jurisdiction, torture, and trial by ordeal. Moreover, its constant tendency to encroach on the field of civil law found an open door in the oath which every magistrate, the Podestà included, had to take, with the prescribed formula: "saving conscience" (salva la coscienza) expressed or understood. As it rested with the clergy to determine cases of conscience, so also it was for them to decide on the validity of oaths. This naturally fostered the diffusion of canon law. The exclusion of natural children from succession and the suppression of divorce are not a little due to the operation of this law. Its action is to be seen plainly enough in the statutes, but still more clearly in the struggle between the civil authority and the ecclesiastical, wherein the latter endeavours to maintain its inviolable privileges, its exceptional tribunals, its supremacy even in causes civil and political.
IX.
In the statutes therefore, we find four different legislations, contending, as it were, with one another: the Longobard, the Roman, the Feudal and the Canon law. These, however, may almost be reduced to two, seeing that feudal law is Germanic, and canon law, in so far as it affects the statutes, is mainly Roman. So that here again we are met by the old hostility between Germans and Latins. The two races are opposed, as also their institutions, laws, and ideas; their minds seem to challenge one another wherever they meet, whether in the field of letters, politics, or art. Yet each has need of the other, and both must disappear to make way for a new social system and a more comprehensive spirit which, resulting from the fusion of two warring elements, will remain sole victor in this prolonged contest. In Italy, however, the Latin strain always predominates, as we see even in the statutes, wherein Roman law forms the keystone of the whole juridical structure.
EMPEROR JUSTINIAN.
(From a Mosaic, Ravenna.)
[To face page 403.
The earliest compilation of the statutes dates from the very time when a knowledge of the Corpus iuris begins to be diffused throughout Italy from the University of Bologna. From that time forth the legislation of Justinian was regarded as an epitome of juridical philosophy, as the law par excellence, and is recognised by all our Republics as the common law, the law to be applied whenever the statutes are silent. For this reason that part of the statutes which relates to the civil law is very much less developed than the political part; and for this reason those teachers whose studies have been directed chiefly to civil jurisprudence occupy themselves much more with Roman, canon, feudal, and Longobard law than with the law of the statutes. These they examined, especially at first, rather as a result of the study of the Roman law, than as deserving careful attention on their own account; they regarded them as the written expression of popular custom to which no great scientific value could be attached, as something outside the one legal system which alone merited universal admiration.
A long period elapsed before writers on law began to apply their minds to the consideration of the statutes, the great importance of which has been only completely recognised in our day. Venice is perhaps the only Commune in which it was customary, in the absence of statutory provisions, to appeal to natural reason: whence Bartolo's remark that the Venetian magistrate gave judgment manu regia et arbitrio suo.[377] But even in Venice such decisions must always have been inspired or guided by a knowledge and admiration of the Roman law.
