Page images
PDF

Florence regarded as treason as was coining in England by the Statute of Treasons of Edward III.

Omicidio* is grouped by Dante with malicious murder (che mal flare) and with plunder and robtery, and the offenders are placed in the first circle.'l' The distinction made between homicide and murder is familiar to the historical student of English law, but the technical distinction made by Bracton between homicidinm and mnrdrnmt was not one known to Italian jurists. Omicidio no doubt means slaying of a human being where there was some culpa present, though not amounting to malice aforethought. Malizia and malizioso are used, but apparently. only in a general sense.§ I

Tmdimento is used in two senses: (1) Fraud practised on one who trusts the guilty person;|| (2) treason against either the temporal or spiritual head of the Commonwealth. judas Iscariot and Brutus and Cassius are punished in the same way, for their crime was the same.1T Treason against the Emperor is the worst of all treason, for it is in the nature of sacrilege; it is the daring, which in Dante’s

words,
Si mnove contra il sacrosanto segno.* “

Punishment in the period of the “ Divine Commedia ” was in its most savage stage, and was inflicted partly by the State, partly as a matter of private vengeance, as in the starving of Ugolino and his sons in the Tower of Famine. In one or two places Dante shews himself in advance of

* The abstract term is not used, only the concrete plural Omicide, Inf. xi., 37.

f ld., 39.

l Bracton, 134b: “The word murder is never used to differentiate two degrees of homicidal guilt, it merely means that the slayer has not been caught, and that Englishry has not been presented" (Maitland, “Pleas of the Crown for the County of Gloucester, 5 Hen. III.,” p. xxx.).

§ They occur in juxtaposition in Inf. xxii., 107, rro.

1| Inf. xi., 53 (see above). 1,‘ Inf. xxxiv., 6r—67. ’* Par. vi., 31.

[ocr errors]

his age. He deprecates the exhumation of Manfred's corpse as an act of useless vengeance," as barbarous as the Roman procedure in trial for treason after death.t He holds that punishment should be proportioned to the crime,

Perchè sia colpa e duol d'una misura..!

Punishment inflicted as private vengeance is not punishment
at all, it must be inflicted by one having jurisdiction.
Whence it was left for Pilate, and not for Herod or
Caiaphas, to inflict punishment on Christ. §
Among other punishments named by Dante are
beheading; # burning alive, to which Dante himself was
actually condemned, and which Gripolino of Arezzo suffered
for alchemy," and Adamo of Brescia for coining; *
wrapping in lead and casting into a furnace, the penalty
inflicted for treason by Frederic II.ft. These instances are
sufficient to shew that the “Divina Commedia ” was not
entirely the felicis vitae speculum that Filippo Villani called
it. Characteristic or exemplary punishments, as Bentham
called them, were not unknown to Dante.tt An example is
Bertram dal Bornio, who carries his head separated from
his body, a guisa di lanterna, because he separated father
and son by his mischievous counsel.$$ Another instance is

* Purg. iii., 127.
+ Cod. ix., 8, 6. The same procedure was known in Scotland.

[ocr errors]

# See Bentham, “Principles of the Penal Code,” pt. iii., c. vii.; “Principles of Morals and Legislation,” c. xv.; Braga, p. 113; Ortolan, Les Pénalités, p. 1 II. The last writer makes a special point of l'idée d'analogie in Dante's punishments, and gives illustrative instances from old codes, such as that of Frederic II, for the Two Sicilies and the Carolina of Charles V. Rivarol (Étude sur Dante) takes the same view: Chaque supplice est pris dans la nature du crime qu'il punit.

§§ Inf. xxviii., 122.

Caiaphas crucified, condign punishment for the counsel given to the Pharisees, which led to the crucifixion.*

As to the remaining works, the subject-matter of the Vita Nuova and the Quaestio de Aqua et Terra does not afford much scope for the lawyer, the Convito, the De Vulgari Eloquio, and the Epistles contain scattered allusions, while the De Monarchia is permeated with law, it is a treatise on political philosophy by a constitutional lawyer, the object being to prove, chiefly by deductive reasoning, that jus soli and jus poli are distinct.1' Such being the case, it is difficult to make extracts, as the whole work might be cited in illustration of Dante’s legal powers. As far as can be done, some of the more interesting and important passages of the work will be summarised, and afterwards the same course will be attempted for the interesting, if less important, phrases from the other prose works.

De Monarchia.—The necessity of a- supreme judge is argued in i., I0. Wherever there is a suit, there must be a judgment. The judge must be superior in jurisdiction to the litigants, and must be a monarch or not. If the latter, there must still be some one superior to him, and so on ad infinitnm. Accordingly the supreme judge must be in the last resort a monarch or imperator. Therefore monarchy is necessary to the world,I which is ordered

" Inf. xxiii., 118.

1- “ Hisreasoning isthroughout closely syllogistic; he is alternately the jurist, the theologian, the scholastic metaphysician.” (Bryce, “ Holy Roman Empire,” c., xv.

I This view has legal authority. Et forte si quis dieerct dominum imfieratorem non esse dominum et monarchmn totius orbis esset hwreticus, quia diceret contra determinationem ecclesicz et textum sancti ewmgelii dum dicit, “ Exivit edictum a Caesare Augusto ut describetur unioersus 0rbis"’ (Bartolus on Dig. xlviii., 1, 24). The canonists of course excepted the donation of Constantine, ubi enim principatus sncerdotum et Christianaz religionis caput ab Impemlore Coclesti constitutum est, justum non est ut illic imfierator terremcs habent potestatem

(Decretum, dist. xcvi., c. I4). _Compare the forlorn hope of Petrarch, nulla

prorsu: apud nos dubitatio relinquitur monarchiam esse optimum relegendis reparandisque viribus I talis (Epist. Fam. ii., 7).

best when justice is paramount. Of justice the monarch is the purest embodiment. He is so because he has nothing to covet, therefore the opposition between covetousness and justice," insisted on by Aristotle,f cannot affect him (i., II). Laws are made to suit the State, not the State to suit the laws; the legislature is ordained for law-abiding citizens, not they for it (i., 12). Municipal laws must be supplemented where deficient by énietzeta.' Different States must be regulated by different laws. Law is the directory rule of life—est enim lex regula directiva vita. Such a rule must be imposed in the last resort by one person, and the government of one is more advantageous to the human race, and therefore more acceptable to God than the government of many (i., 14)." The second of the three disputed points in i., 2, is whether the Romans acquired empire de jure or not. The whole of book ii. is occupied with the proof of the affirmative. All law, as far as it is good, exists first in the mind of God, and is willed by God. Therefore law in the world is the likeness of the Divine will—jus in rebus nihil est quam similitudo divina voluntatis—and whether a thing exists de jure or not depends on its consonance or dissonance with the Divine will (ii., 2). The fifth chapter is full of law. Dante begins with the axiom that the end of law is the good of the State, a thoroughly Benthamite view." Law

* Covetousness is the corrupter and hinderer of justice, i., 13.

+ Eth. v., 1, 8. it Pol. iii., 16, 17. § Eth. v., 10.

|| Paraphrased from S. Thomas, lex aeterna nihil aluid est quam summa ratio divinae sapientiae, secundum quod est directiva omnium actuum et motionum (Summa, i., 2, qu. 93, art. 1).

* This is a prose version of Par. xvi., 71 :—

E molte volte taglia
Pii e meglio una che le cinque spade.

** “The public good ought to be the object of the legislator,” are the opening words of Bentham’s “Principles of Legislation.”

is defined as the real and personal proportion of man to man, which, if preserved, preserves society; if corrupt, corrupts it—jns est realis et personalis hominis ad homineni proportio qnw servata hominum servat societatem et corrupta corrnmpit. The Digest does not define, but only describes, law.* Every law must intend the common good. This is in accordance with Cicero, semper ad utilitatern reipublicce leges interpretandae snntrt Seneca, too, says that law is the bond of society.I The Romans intended the good of the State; therefore they intended the end of law. The sixth chapter still further develops this argument by a syllogism in this form. Everyone who intends the end of law proceeds legally; the Roman people in subduing the world intends the end of law; therefore the Roman people in subduing the world proceeds legally. Consequently it attains de jnre the imperial dignity (ii., 6). In forming a corporation the power of exercising corporate functions is considered, for law does not extend beyond possibility. Natural order cannot be preserved without law, for the foundation of law is inseparably annexed to order. Order must therefore be preserved de jnre. The Roman people was by nature ordained to rule, therefore came to empire de jnre (ii., 7).§ Chapters viii.—xi. deal with the argument from the trial by battle, one kind of Divine judgment (judicium Dei),|| an argument to a

“ He probably alludes to the text in Digest i., I, pr., adopted by Ulpian from Celsus,jus est ars bani et nequi. This is also alluded to in Convito, iv., 5.

1' De Invent., i., 38.

I The citation is not from Seneca, Liber dc Qualuor Virtutibus, as supposed by Dante, but is, on Witte’s authority, from Martinus Dumiensis, Bishop of Braga (d. 580). (See E. Moore, “ Studies in Dante," p. 290.)

§ lmperium sine fine dedi, said Virgil, more than thirteen centuries before Dante.

|| jfudicium also signified the ordeal. In the statutes attributed to William the Conqueror (included in Stubbs' Select Charters), it is contrasted with the trial by battle, aut judicio ferri aut duello.

« PreviousContinue »