In all matters, even such as purchases or sales, great importance was assigned to the condition of the persons concerned. In some cases, where land was to be sold, the law required that it should be sold to a neighbour; commoners, however, were not compelled to sell to magnates.[408] Similarly no one might buy, sell, or acquire the usufruct of lands held in common, or any piece of land or house touching another man's wall, without according the joint-owner, associate, or neighbour the right of pre-emption.[409]
In case of a dispute between relations or associates, qui consortes sint de eadem stirpe, per lineam masculinam usque ad infinitum,[410] the judge was bound, at the request of one of the parties concerned, to leave the matter to the decision of arbiters chosen by the parties themselves; but no plebeian could act as arbiter between nobles.[411] In reviving a law of much earlier date, the statute of 1355 informs us that arbiters were therein mentioned, as blood-relations.[412] Whence it may be inferred that similar compromises began to be customary, at a very remote period, between relations and associates who voluntarily selected arbiters from their own group. Down to the year 1324, the custom had been sanctioned by law; at a later time it lost its primitive character of a voluntary and domestic agreement, and assumed the shape of a regular legal trial.
XIV.
If we now compare the Florentine Statute Book with those of other Italian cities, we shall find it marked by various distinguishing characteristics, chiefly resulting from the fact that in it democratic freedom was carried to the farthest point obtainable during the Middle Ages. Not only had every feudal privilege gradually disappeared from it, but the great nobles had ended by finding themselves in a position inferior to that of the commonalty. Florence, as we have already seen, was one of the first Italian cities to abolish serfdom in her outlying territory by the law of 1289.[413] And although her rural population was always treated much worse than the inhabitants of the city, it nevertheless enjoyed far better conditions than prevailed in a great number of communes. We have proof of this in the contract of Mezzeria, which makes the cultivator of the soil an actual partner with the proprietor, and which still remains a great monument of civilisation and the cynosure of modern economists who have never been able to devise any better system.[414]
The freedom and strength of associations, the extraordinary ease with which any one might participate in the government of the Commune, all contributed to the triumph of democracy on the widest basis. Another general characteristic to be noted, not only in the Florentine, but in almost all the Italian statutes, is the constant endeavour to shake off the intervention of the ecclesiastical authority, which labours with incredible obstinacy to maintain its privileges undiminished, and even seeks to increase them; but which, nevertheless, finds them gradually reduced almost to zero. The statute of 1415 ordains that "no person, university, or church, no religious or clerical house shall presume to question the jurisdiction of the Commune under pretence of 'benefice' or privilege, and that any one who opposes this enactment shall be imprisoned until he renounce such privilege.[415] No excommunication nor interdict shall hinder or diminish the action of the magistrates or the effect of their decrees.[416] Every man may freely exercise his rights over all Church property derived from secular sources."[417]
XV.
Turning now to a general view of the Italian statutes, we must remark that although the history of statutory law presents many difficulties, owing to the infinite number of different provisions to be found in it, the diversity of these provisions is chiefly due to accidental and temporary causes, extraneous to the natural and spontaneous development of the law itself, which, examined apart and with reference to its essential characteristics, presents a striking uniformity. It may, however, be noted that in the republics of Northern Italy the Longobard law is far more predominant; while in those of Central and Southern Italy Roman law obtains an early and rapid ascendancy, and, subject to the changes which have been indicated, ends by dominating at all points. This progress becomes more apparent from year to year, so that even in examining the statutes, the very same conflict of antagonistic elements which we have already noted, throughout the entire history of the communes and of Italian civilisation, is brought before our eyes in civil wars, in sanguinary struggles between Guelphs and Ghibellines, in art, in literature, in all things. It is true that the statutes only treat of juridical ideas and enactments; but these seem to strive with the same ardour, and to aim at the same ends, as the men whom they control.
Towards the close of the fourteenth century Italian commerce began to make enormous advance, and this gave a new impetus to Italian legislation. In fact, we find a series of enactments enabling all mercantile affairs to be transacted with much greater celerity, avoiding legal quibbles, releasing merchant's credits from mortgage or sequestration, and severely punishing all frauds and fraudulent bankruptcies. In a word, we clearly discern the inchoation of the modern commercial code with which these enactments are frequently in unison.
But in all these laws we always recognise the consequences of commerce being divided and split into a multitude of separate associations with statutes of their own, judges of their own, and an exuberance of vitality. At the same time, we recognise that the central authority, though aware that its natural rights are threatened and usurped on all sides, continues to exert its influence, without method, indeed, or uniformity, but not without vigour, and occasionally even with violence. At one moment it seems to be vanquished; at another it comes forth victorious. The entire history of the Commune demonstrates a constant tendency to harmonise all these distinct and often jarring elements—political, social, and legislative—but this problem it never succeeds in solving, and ends by relapsing into despotism. A true conception of social unity was wanting; the idea of a due distribution of authority was still unknown, either in real life or in theory; accordingly whoever happened to have a share in the executive authority, also assumed, as necessarily connected with it, a share not only in judicial, but likewise in administrative and legislative functions. Wherefore it seemed that the only way to preserve liberty was to parcel out the government among an infinity of hands, and so to contrive that parties, associations, cliques (consorterie), families, and quarters of the town should each and severally serve as checks upon all the others. In this process of division and subdivision all the elements afterwards constituting modern society were prepared, but the State, in its true sense, was never discovered. Without ballast to steady her, the ship of the Commune, driven hither and thither in a ceaseless storm and buffeted by winds from all quarters, could neither find anchorage nor keep a settled course. No clear and certain conception was ever reached of that law which, by limiting and defining the amount of liberty guaranteed to each individual, secures freedom to all.