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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,t cannot affect him (i., 11). 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). I Municipal laws must be supplemented where deficient by επιείκεια. 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). S
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 divinæ 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., 10. || Paraphrased from S. Thomas, lex æterna nihil aluid est quam summa ratio divinæ sapientiæ, 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 Più 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.”
DANTE AS A JURIST.
mount. Of justice this ment. He is so became ce the opposition between Hon by Aristotle,t cannot de to suit the State, egislature is ordained ik
it (i., 12). Municipal re deficient by tnian by different laws. La lex regula directiva sia. the last resort by on: more advantageons
icceptable to God than
is defined as the real and personal proportion of man to man, which, if preserved, preserves society; if corrupt, corrupts it-jus est realis et personalis hominis ad hominem proportio qua servata hominum servat societatem et corrupta corrumpit. The Digest does not define, but only describes, law.* Every law must intend the common good. This is in accordance with Cicero, semper ad utilitatem reipublicæ leges interpretanda sunt.t 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 jure 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 jure. The Roman people was by nature ordained to rule, therefore came to empire de jure (ii., 7).$ Chapters viii.-xi. deal with the argument from the trial by battle, one kind of Divine judgment (judicium Dei), li an argument to a
* He probably alludes to the text in Digest i., I, pr., adopted by Ulpian from Celsus, jus est ars boni et æqui. This is also alluded to in Convito, iv., 5.
+ De Invent., i., 38.
$ The citation is not from Seneca, Liber de Quatuor 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.)
$ Imperium sine fine dedi, said Virgil, more than thirteen centuries before Dante.
Il Fudicium 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.
modern lawyer the most curious and interesting part of the De Monarchia. The argument put concisely runs thus : The Divine judgment is sometimes manifest, sometimes secret. Among other modes in which the secret judgment may be given are the lot (sors) and the combat (certamen).* The latter is of two kinds, the combat proper (duellum) or the contest of athletes (contentio), such as a race (ii., 8). The people which prevailed when all were competitors for the empire of the world prevailed by Divine judgment. The Roman people was the only one which attained the goal in the race (ii., 9).t What is acquired by duellum is obtained de jure, provided that the combat be entered into, not from interested motives, but only from zeal for justice (ii., 10). The Roman people acquired empire by combat, therefore it acquired it de jure (ii., 11). That being so, the Roman people had the right of issuing just edicts (juste edicere), and from that follows jurisdiction (ii., 12). The thirteenth chapter is interesting as setting out Dante's theory of capacity to punish. Punishment is not simply a penalty inflicted on the person committing an injury, but a penalty inflicted by one who has jurisdiction to punish. I Hence, unless the penalty be inflicted by an ordinary judge, it is not a punishment but rather an injury. If, therefore, Christ did not suffer under an ordinary judge He was not punished, and the judge could not have been an ordinary
* He strengthens his argument by deriving certamen from certum facere. + Cf., Romanis spatium est urbis et orbis idem, Ovid, Fasti, ii., 683.
| Punitio non est simpliciter pæna injuriam inferentis sed pæna inficta injuriam inferenti ab habente jurisdictionem puniendi.
§ The judex ordinarius, or judge ordinary of ecclesiastical law, was no doubt derived from the Roman law with its marked division of cognitio into ordinaria and extra ordinem. The“ ordinary” still survives in modern English ecclesiastical terminology. The point of Dante's argument depends on the view of the Canon law that an ordinary has by virtue of his office authority to judge, Coke says he is so called quia habet ordinariam jurisdictionem in jure proprio et non per deputationem (Co. Litt., 96a).
DANTE AS A JURIST.
od interesting part of the + concisely runs dies res manifest, sometria ich the secret judga
be combat (erdana r.bat proper (duellen a
such as a race (1,6 I! were competitors ir
: by Divine judgme:
ne which attained the
acquired by duellum i ombat be entered into - from zeal for justice ed empire by combat
, · That being so, the ng just edicts Push action (ï., 12). The setting out Dante's ment is not simply a ting an injury
, but a diction to punish. an ordinary judge,
judge unless he were invested with jurisdiction over the whole human race, for Christ bore in His person the sorrows of the race which was punished in Him. Tiberius and Pilate, his deputy, would have had no jurisdiction unless the empire had existed de jure.
Book iii. is less directly legal in its argument than the preceding books. The writer has reached the summit of his reasoning, * that the office of Emperor is held directly of God, and not from the successor of Peter, the vicar or minister of God (iii., I). Three kinds of persons strive against the truth by litigium,t the Pope and other pastors of the Church, false sons of the Church, and Decretalists, by their Decretals derogating from the Empire (iii., 3). I A vicarius is one to whom jurisdiction is committed cum lege vel cum arbitrio,g and within the limits of his jurisdiction he can act with respect to lex or arbitrium in matters of which his principal is ignorant. This a nuntius cannot do, but he can act at the sole will of the person who sends him, and therefore by special commission may have more extensive powers than a vicarius. Anything that cannot be done by a nuntius a fortiori cannot be done by a vicarius (iii., 6).11 The successor of Peter can loose and bind, but this does not mean that he can loose or bind imperial decrees or
, therefore, judge He was not been an ordinary
from certum facerí
. asti, ii., 683. utis sed pæna inflicto
* It is perhaps hardly fanciful to regard book iii. as the Paradiso of the De Monarchia. The triple division of the great poem and the great prose work was probably not accidental.
† The word is probably used here in a general and not a technical sense, and denotes any kind of contentiousness.
See Par. ix., 133. § Arbitrium here is used in a less technical sense than it bore in Roman law, where it usually means judgment in a bonæ fidei action.
|| Vicarius and nuntius are both Roman law terms. The former seems to be applied in the classical texts only to a judicial substitute, and it appears to be in this sense that Dante uses it. The other sense in which the classical jurists employ it, of the slave of a slave, is of course beyond the scope of Dante's argument.
cal law, was no doubt on of cognitio into res in modern English lent depends on the f his office authority urisdictionem ir juro
laws (iii., 8). The donation of Constantine to Sylvester* was invalid because the Emperor had no authority to alienate, and the Church no authority to accept. No one can act in contravention of an office deputed to him ; I for the Emperor to do this would be to part (scindere) the Empire, and so the seamless robe would be rent. The foundation of the Empire is human law, and it is not permissible for the Empire to act contrary to human law. It is contrary to human law to destroy the Empire. Every jurisdiction is prior in time to the judge who acts under it, for the judge is ordained to the jurisdiction and not the converse. But the empire is a jurisdiction which comprehends in its compass all temporal jurisdiction; it is therefore prior to its judge, the Emperor. Therefore the Emperor cannot diminish the jurisdiction of the Empire (iii., 10). Usurpation of law does not make law (iii., 11). If the Church have the power of authorising the Roman Emperor, such power must be given by God, or must be derived from other sources, set out by Dante. But if the power be given by God, it must be so given either by Divine or by natural law, and it is proved that it cannot be given by either (iii., 14).
Convito.—Though it never reaches the discussion of justice which was to be the subject of the last book, s still contains much of interest to the lawyer, even the dictum in iii., II, that a lawyer, like a physician and most of the
* Inf. xix., 115. (See citation above from the Decretum.)
| Or if it do accept, it is not as possessor but as dispensator of the profits to Christ's poor (iii., 10).
# This is a well-known principle of Canon law. (See, for instance, Decretals, V., 31 & 33 ; Ayliffe's Parergon, 161, 163.) In Roman law the nearest text seems to be A judice judex delegatus judicis dandi potestatem rion habet, Cod. iii., 1, 5.
§ ivi, 27. The only allusions to justice in the treatise as it stands are in ii., 15, where he cites Aristotle as teaching (Eth. V., 2) that legal justice requires the sciences to be taught, and in iv., II and 27 (see below).