Chapter VII: 367 (3)

In Verona,[391] women might, under a will, share equally with their brothers; but _ab intestato_, they had only their dower. In Pisa, testate succession was regulated in accordance with the Roman law: _de ultimis voluntatibus pen legem romanum iudicetur_. The lawful share, however, was fixed on almost the same scale as by Longobard law; and, as provided by that law, one child might be favoured more than the rest. As regards intestate succession, male heirs had, as always, marked preference. Failing descendants in the male line, females inherited, but even in the succession to maternal estate, male descendants had priority when there were no surviving daughters.[392] This rule prevails in all statute books, not excluding the "Consuetudini" of Naples, of Amalfi, and of Sorrento, although in these cities the influence of the Longobard law was much less felt.[393] The real object of these regulations is clearly expressed in the statutes themselves. In the statutes of Mantua it is thus set forth: "Ut familiarum dignitas, nomen et ordo serventur, et bona morientium in eorum agnatos et posteros transmittantur, per quos nomina generis conservantur, statuimus et ordinamus,"[394] &c.

It would seem that in Ravenna the prolonged continuance of the Byzantine rule had the effect of suppressing this preference of the agnates, and that there the Novel of Justinian was in force. The same was the case at Osimo. Adoption was of rare occurrence; legitimated children were postponed to legitimate; natural children who, under the influence of the Longobard law, had been favoured in earlier statutes, were afterwards neglected, in consequence of the growing ascendancy of Canon and Roman law. The whole statutory law of succession is so dominated by the political conception which, so far from losing, is constantly gaining ground, that the disposing power of the testator--always extremely restricted--can only arrive at a result slightly more equitable and natural, but never attains to absolute freedom of decision in the Roman sense of the word. In this, as in every branch of civil law, the Florentine Statute Book, like all the others, does not present us with a complete treatise, but only with fragments, the statutes making constant reference to the Roman law.

No woman succeeds _ab intestato_ to her sons or daughters, when there are direct descendants or ascendants even in the third degree; and uncle, brother, sister, son, or grandson of a brother are preferred to her. Though excluded from succession, she can nevertheless claim alimony from those who by law exclude her. If there be no such relatives, she inherits _ab intestato_ one-fourth of her son's estate, provided it does not amount to more than five hundred _lire_. In any case, she only receives money, not real property. If there is no money, she will be entitled to the price of the lands forming her inheritance. The same provisions apply when a grandmother, great-grandmother, or descendants in the maternal line succeed _ab intestato_.

A woman could not succeed _ab intestato_ to a brother leaving children, grandchildren, or brothers; but when thus excluded from the succession, she was still entitled to alimony. She could not succeed even to her father; but was entitled to receive her dowry from the agnates, and could meanwhile, even if a widow, claim alimony from them.[395]

It is plain from all these provisions that the woman's rights of succession were very limited; but she was always insured of the wherewithal to live. We find, indeed, from the Florentine statutes, that while the preference given to the agnates increases as time goes on, so too the woman's rights to alimony increase. The statute of 1355 concedes to her the usufruct of the paternal inheritance, on failure of male issue, while under the same circumstances, later statutes deny her this right, allowing her alimony instead.[396] Speaking of aliment, and of those bound to supply it, the statute of 1324 says: "Si filius, nepos vel pronepos facultatis abundarent,"[397] so that they can _commode subvenire_, &c.; and the statute of 1355 imposes the same obligation, with the same conditions.[398] But the printed statute of 1415 is far more explicit; the father, mother, grandfather, grandmother, great-grandfather, and great-grandmother are all entitled to alimony, and the Podestà is bound to enforce the law. The female inherits _ab intestato_ from her mother or other female ascendants, but only on failure of male issue. Uterine brothers, being of the female line, cannot succeed one another should there be relations of the deceased in the male line as far as the fourth degree,[399] these being preferred to the mother and relations in the female line. The Florentine statute goes on to declare that the wife is to be preferred to the public treasury, _uxor mariti defuncti præferatur fisco_; showing how little the woman's rights were considered, when an express enactment was needed to prevent the revenue authorities from depriving her of her husband's estate. Natural children were also preferred to the treasury, which only succeeded on failure of relations as far as the fourth degree. Relations, however, could succeed to bastards, as though these had been legitimate.[400] It should be added that Florentine custom did not allow natural children to be left without some means of support, or without provision for their education, as is shown by many still existing wills. In the case of males, the father generally tried to obtain employment for them; in the case of females, to find them husbands, and he recommended them to the care of his legitimate heirs.

The husband succeeded to his wife's dowry, failing children or other near descendants. Of her extra-dotal property he was entitled to one-third, and the wife could not dispose of her dowry either by will or donation, so as to exclude her husband or children.[401]

XIII.

Besides the law of succession, there is another branch of the Italian statutes in which the action of the political idea upon civil law is equally apparent, namely, that which treats of rights between neighbours, and of the obligations _in solidum_ attaching not only to the members of families, but likewise to the members of sects and associations. We have already observed that these are carried so far as to make one member responsible for another's debts, and even for his delicts: this is a law to which we shall have more than once to return and give our attention. When real property is sold, we find that the agnates and cognates have always a preferential right of purchase. In the March of Ancona, the blood-relations of a prisoner condemned to death may be compelled to purchase his estate.[402] At Bologna, relations are often made legally responsible for one another, and, by the rules of the corporations of merchants in that city, the brothers of any bankrupt, who have lived in community with him within a month before his failure, are held responsible for his debts--even if they have separated from him since that time.[403]

According to the Florentine statute, the creditor of any Commune or of any _Universitas_ (corporation) might proceed against it, _sicut procedi potest contra alias singulares personas debitrices, in persona_. This was carried so far, that it was permissible to proceed against every individual member of the association, and even to have him arrested, _liceat ipsi creditori capi et detinere omnes et singulares personas dicti Communis vel Universitatis, quousque fuerit integre satisfactum_.[404] If landed property had been laid waste or houses burnt, the proprietor was entitled to compensation from the author of the deed; from his associates (_consorti_), were he a noble, or from his relations, even to the fourth degree, if a commoner. Nay more, the injured person might also proceed against the Commune, University, or district (_plebatum_) in which the crime had been committed; he was at liberty to follow any of these modes of redress, and if unsuccessful in one to try another.[405] The statute prescribed the form of procedure and the terms of the sentence.[406] The Commune, University, or district was thus compelled to be always ready to raise the alarm, when similar acts were perpetrated, and to pursue and arrest the criminal, since, in case of failure, they were held responsible.[407]

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.

The political life of communes, moreover, was always confined within the walls of the dominant cities, since not only the outlying territory was excluded from it, but likewise all towns that had been annexed or conquered. Every form of representative government was as yet unknown. All who enjoyed political rights entered, each in his turn, the Councils of the Republic, and sooner or later nearly all rose to power. This made it necessary that the States should have very circumscribed borders, as otherwise it would have been impossible to govern them at all. The French Revolution, by achieving for the first time, in behalf of the nation at large, what the Italian communes had effected for the cities, was able to proclaim the civil and political equality of all who formed part of the nation, and who were in consequence to be recognised as citizens. From that time democracy became the predominant characteristic of modern societies which, by means of representative institutions, have found it possible to secure freedom, even in large states, reconciling the unity and vigorous action of the central government with personal independence and with local liberty and activity. But the Commune always wavered between the opposing elements of which it was made up and which it never succeeded in fusing into a true political organism.

The history of our republics may, in fact, be summed up in an account of the varying predominance of one or other of the great associations of which they were composed. In Florence, we have, first of all, the conflict of nobles and commons which is maintained with changing fortunes. When the fraternities (_consorterie_) of the leading magnates obtained such ascendancy as to menace popular liberties and destroy the social balance, notable reforms were made in the statutes; the Commune was completely transformed, and by means of the Ordinances of Justice (of which we shall soon have to speak), the nobles were overthrown and their associations broken up. But as these associations were an integral part of the State, their downfall was followed by a phase of rapid corruption and decay. To the passions and interests of caste succeeded personal ambitions, hatreds and passions of a still more dangerous character. Families began to be at strife; men who were at once powerful and ambitious, came to the front; and Corso Donati, or some other like him, would have soon become master and tyrant of the Republic, save for the fact that a mighty people, enriched by the speedy gains of an extended commerce, devoted to freedom and opposed to the nobility, had first to be disarmed. Thus to the supremacy of the leagues of the magnates succeeded the predominance of the Greater Guilds, between whom and the Lesser Guilds a struggle was entered upon in the course of which the latter obtained, in their turn, a share of power. At a later period, the populace, represented by the plebeian Ciompi, comes to the front, and threatens the utter dissolution of the old social form of the Republic. Then new personal ambitions, more fatal to freedom because more fortunate, occupy the scene. The struggle between the Albizzi, Pitti, and Medici terminates in the triumph of the last-named family in the person of Cosimo the Elder, who slew the Republic. Yet nothing of all this should cause us much surprise. For if we bear in mind the beginnings of the Commune and the elements out of which it was constituted, we may readily see that all that happened was, in the main, unavoidably bound to occur.