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What has been said will put in a clear light the extraordinary importance accorded to the University and the professors of Bologna in connection with their labours in annotating and interpreting the Corpus iuris so as to make it intelligible to all, and an instrument for instructing and training all those who sought to follow the legal profession, whether as notaries, judges, Podestàs, or captains of the people. That these teachers possessed a very slender knowledge of history is seen from their writings. Their merit lay in the intelligent exposition of a system of law which had never become extinct. It was a precept of theirs that "as the unskilled rider must hold on by the pommel, so the judge should stick to the gloss." In this way the school of Bologna became, as it were, the depository of an universal law which was looked upon as almost sacred. Thither popes sent their decretals, emperors their edicts for registry or revision. The Emperor was, however, regarded as the living source of legislation, as alone entitled to add new laws to the Roman. Any one speaking evil of the Emperor met with condign punishment. Any one who questioned his universal authority was declared heretical by the jurists themselves. This authority belonged to him as lord of all nations, and was transmitted to him from the Roman Empire as its rightful heir. It was natural, therefore, that to determine the extent and limits of this authority, recourse should again be had to the professors of Bologna, the veritable depositaries of the Roman law, who accordingly acquired a constantly increasing importance. The ratio scripta was what was always called for; and the communes, even while avowing their determination to preserve their ancient liberties undiminished, never forgot to profess their willingness to leave the Emperor all the veteres justitias which belonged to him, and which they declared themselves desirous to respect. The only question was to ascertain what these were, and hence fresh occasion to consult the professors of Bologna.

Before the great contest between the Lombards and Frederic Barbarossa, a genuine judicial trial was held, ending with the condemnation of the Milanese, who were declared rebels, adstipulantibus judicibus et primis de Italia. At Roncaglia, Frederic exercised judicial and legislative authority, with the assistance of four professors from Bologna, who maintained the Emperor's rights, not from any hostility to their own country, but because, as professors of Roman law, they were the natural champions of the Holy Roman Empire. Nor did the communes themselves raise any objection to these claims. After Frederic's defeat they continued to draw up their statutes, laws, and public instruments in his name. Even as late as the fifteenth century, we find that notaries still gave validity to public documents by making them run in the name of the Empire. At the peace of Constance the power to appoint magistrates, civil and criminal, consuls, Podestà, and notaries, was expressly reserved to the Emperor, whose prerogative in such matters, as well as of deciding causes of serious importance on final appeal, was fully recognised. If, in fact, the Milanese paid little regard to the Emperor's authority, his right was not questioned. The Lombards acknowledged themselves his lawful subjects, though they afterwards chose to act as if free and independent.

When Henry VII. came to Italy, in Dante's time, he too, brought the Italian cities to trial, pronounced sentence on them, exacted fines on men and money, and cited King Robert of Naples to appear before him. At that time many must have deemed these proceedings farcical; but they were echoes of a bygone age, of a past which even Alighieri's immortal genius thought to recall to life, as his letters and his book, "De Monarchia," serve to show. The Church, it is true, constantly withstood the Empire, but during the whole of the Middle Ages the Emperor's political and juridical authority was never called in question, was invariably recognised.

While the continual struggle between Church and Empire, communes and feudal lords, Guelphs and Ghibellines, was being waged, the statutes were framed. In these were recorded, not only new customs written down as they were formed, but also all the old customs that had been modified by the new. Although the jurists of Bologna thought it no concern of theirs to study a system of law, which being in common use was then well known, and which had its source in that Roman jurisprudence which engaged their attention through their whole lives, for us it is certainly a study of grave importance, as a means of accurately estimating the value and character of this communal life in the Middle Ages. We may have very long to wait before we can completely solve the problem. Nevertheless we may make a beginning by examining the various statutes, comparing them with one another, and also comparing the different forms which each of them received at different stages of drafting, in order to discern the evolution of the new law, to ascertain and understand the principle which governs it.

X.

The whole life of the Commune is embraced in the statutes: the election and functions of political magistrates; public, civil, criminal, administrative, and commercial law. Public law is the subject most fully dealt with; while, for reasons already explained, civil law is left very incomplete. Nevertheless the statutes handle, with more or less detail, such matters as personal status, dowers, contracts, judicial procedure, succession, wills, rights arising in respect of contiguous lands or houses, and, above all, the family. They aim at a simple and summary procedure, free from chicanery, whereby causes may be settled fairly and promptly; but from defective drafting, from admitting a running commentary, altogether out of place in legal enactments, and from leaving too much to the discretion of the judge, they generally lead to a contrary result. It is indeed astonishing to observe how, during those centuries in which a splendid literature was growing up, when the most unpretentious writings offer us an example of good style, and when judges, notaries, and professors of law had the imperishable model of the Corpus iuris constantly before their eyes, the statutes should have been written in a form so illiterate that we may often pronounce it barbarous, and always involved and confused. The statutes constitute a legislation based upon custom, mutable, popular, still uncertain of itself, which, taking its birth in the midst of civil wars, always retained their likeness, and never arrived at classical elegances, which in any case would have been made impossible by the scholastic jargon that still prevailed in our Universities and among our jurists. Petrarch's animadversions, directed chiefly against the obscure phraseology of the professors of law in his time, were fully justified. The classical revival which sought to introduce a purer and more elegant latinity had to make a beginning outside, and often in opposition to the Universities. It spread far and wide during the fifteenth century, but always retained a literary and philosophical rather than a juridical character.

Notwithstanding the greatness of its merits and aims, the Italian Commune has in it something of the transitory and mediæval; it constantly indicates a period of change. It is the germ from which, at a later time, modern society is to issue, but the birth cannot be accomplished until the germ itself is destroyed; consequently it always remained in a state of incessant transformation. Sprung from the conjunction of two different societies, the Roman and Germanic, it derived from the former the general idea of the State, from the latter individual liberty, local activity, and the force of special associations. The problem it had to solve, and that constitutes its essential life and history, lies precisely in its ceaseless efforts to harmonise those two elements which long remained not only separate but often opposed. Until complete fusion was effected by the destruction of the Commune itself, the contest continued to be waged, and was accompanied by inevitable disorder. In the Commune, government and public policy have an importance unknown to barbaric society, but the Commune still wears the character of a powerful assemblage of small associations rather than of a single society, or of a State in the true and strict sense of the word. Life indeed courses more swiftly through these numberless groups, and is quickened by their activity. Social vigour is chiefly to be looked for in family cliques, and in the Companies of the Arts and Trades, of the Nobles and of the Burghers, all of whom have laws, statutes, magistrates, and tribunals of their own. Hence arises an extraordinary interlacing of ordinances, of conflicting passions, of diverging or clashing interests. True individual liberty, true equality before the law is not yet understood; but the individual is trained and protected by the association to which he belongs, which lends him a certain degree of strength, and secures him an increasing share of freedom. These subsidiary groups, however, unlike those which we have already met with in the Germanic societies, cannot be separated, but must live together in the State, outside of which there is no reason for their existence. The infinite multiplication of these groups, their jealousies and continual jarrings and collisions, made the Republic all the more indispensable to them, all the more the object of their hopes and love. Every one of these merchant-citizens was ready to give his life for this Republic, on which, both in peace and in war, his own welfare and that of the various associations depended. The heads and leading members of these associations were privileged to sit in the Councils of the State, governed it as masters, and found it their only sure defence against the countless rivals with whom each of them had to contend. Individual and general interests thus worked in concert, and the fragmentary power divided among so many hands, was nevertheless able to guard the liberty of all, at a time when no true conception of the State or of general equality had yet arisen. Still, it is easy to imagine how ill-arranged and inconclusive must have been the legislation of republics thus divided and subdivided, in which at every step some new special statute or tribunal was encountered. And this at a time when judicial and political power were so strangely intermixed, that whoever had a share in the one necessarily shared in the other.

The dominant feature in all the civil enactments of the statutes seems to be a jealousy of neighbouring communes, and a fear lest, as a result of marriage, property should be withdrawn from the city, the society, or the family. To guard against this, both law and custom provided so efficaciously, that even in a Republic as democratic as that of Florence, wherein every vestige of aristocracy was destroyed, and the Ciompi obtained the upper hand, we find landed property so strictly tied up that there are families who, to this day, own the same estates which were held by their ancestors in the fourteenth century. The necessity for keeping families, associations, and party-circles intimately united, and making each member of them bound for the rest, is so strikingly apparent, that it is these political and social considerations which determine the tendency of the civil law, and often impede its natural development. So that even here, notwithstanding the weakness of the State, we again recognise the old Latin tradition, which always accords an excessive importance to political considerations, and consequently a preponderating influence to public over private law. The Italian statutes, therefore, can only be explained and understood in connection with the history of the communes, which they illustrate in their turn. And this is another reason why the professors of Bologna, accustomed to the philosophical character of Justinian's legislation, and unfamiliar with the methods of historical exposition, so long neglected the statutes.