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DANTE AS A JURIST.
Constantine to Sylveste For had no authority to ority to accept.7 No ce deputed to him ;t be be to part (scindere the De would be rent. The han law, and it is not
contrary to human lat
. Coy the Empire. Every udge who acts under it, risdiction and not the diction which compre urisdiction; it is ther: eror. Therefore the iction of the Empire ot make law (iii, 11). horising the Roman by God, or must be
Dante. But if the en either by Divine it cannot be given
religious, cannot be a true philosopher when he loves wisdom not for herself but for gain. The theory of interpretation in ii., 1, is Dante's own, but is probably based on legal writings.* iv., 4, reminds of the argument of the De Monarchia, the Emperor is universal governor and what he says is law to all.t Law is written reasons and is necessary because men do not know or obey equity (equità). Whence it is written at the beginning of the Digestum Vetusg that written reason is the art of good and equity (iv., 9). il The allotment of riches does not depend on distributive justice, for they come by pure fortune or by fortune aided by reason, as by testament or mutual succession, or by fortune the helper of reason. It is to the bad rather than the good that inheritance falls by legatum or caducum (iv., II). The object of both canon and civil reason is to rectify the avarice which grows by accumulation of wealth. This is manifest from the beginning of their writings (iv., 12). T The mind may be infirm. Of this infirmity the law speaks when it says in the Infortiatum** that in him who makes a testament soundness of mind and not soundness of body
the discussion of e last book, s still en the dictum in and most of the
* It appears again, but with some difference, in Epist. X., 7.
+ Cf. Ulpian's statement, quod principi placuit legis habet vigorem (Dig. i., 4, 1).
I Ragione often means, law or a body of law in the Convito, e.g., in Canonica and Civile Ragione below, and in this meaning is probably based on S. Thomas' definition, Lex æterna nihil est quam summa ratio divinæ sapientiæ (Summa, i, 2, qu. 93, art. 1). Ratio is the keynote of the Aquinian philosophy. Compare Coke's famous saying, “ The common law itself is nothing but reason (Co. Litt., 97b).
§ In Dante's time the old division of the Digest into Vetus, Infortiatum, and Novum was the accepted one. It lasted up to the seventeenth century.
|| A free rendering of Celsus' ars boni et æqui (Dig. I, 1, pr.).
I Probably an allusion to Ulpian's rule, Furis præcepta sunt hæc; honeste vivere, alterum non lædere, suum cuique tribuere (Dig. i., 1, 10, 1.). ** Dig. xxiv., 3—xxxviii.
ator of the profits to
See, for instance
, In Roman law the di potestatem som
it stands are in zat legal justice
is required at the date of making the testament (iv., 15).* It is written in reason, and by a rule of reason it is held that in those things which are manifest of themselves there is no need of proof (iv., 19).f Reason wills that before the age of twenty-five a man cannot do certain things without a curator of full age. The law commands that the person of the father should always appear to his sons sacred and honourable. I If the father die, the son ought to be guided by the father's last will; if the father die intestate, the son ought to be guided by him to whom the law commits authority (iv., 24). Loyalty is the following of the law, and the young man ought to obey the law and take delight in such obedience. Long continued usage is law (iv., 26).Ş In iv., 27, a curious distinction—not very easy to observe in practice—is drawn between the advice for which a lawyer may charge and that for which he may not charge. Messer lo legista is warned that he ought only to charge for advice which has reference to his art, not for that which proceeds solely from good sense or prudence. The whole gain he may not keep, even when he is entitled to charge, for he must give one-tenth to God, that is, the poor. In the same chapter Dante claims justice as the particular virtue of age. It is right for an old man to be just that his judgments and authority may be a light and a law to others. The allusion in iv., 29, to Manfredi da Vico, " who is now called Prætor and Prefect,” serves to
* A free translation of Labeo in Dig. xxviii., 1, 2, in eo qui testatur ejus temporis quo testamentum facit integritas mentis non corporis sanitas exigenda est.
† No such principle appears totidem verbis in the Corpus Juris, but there are texts which approach it, e.g., Dig. xxxvi., 3, 14, I ; xl., 12, 27, 1. (Cf., in the Canon law, evidentia patrati sceleris non indiget clamore accusatoris, Decretals V., I, 9.)
I Obsequium to parents is enjoined by Dig. i., 16, 9, 3.
§ Diuturna consuetudo pro jure et lege in his quæ non ex scripto descendunt observari solet, Dig. i., 3, 33.
testament (iv., 15 e of reason it is held t of themselves there son wills that before ot do certain thing 2 commands that the
appear to his sons r die, the son ought ll; if the father die by him to whom the elty is the following to obey the law and - continued usageli
stinction—not very etween the advice
for which he may that he ought only
to his art, not for ense or prudence when he is entitled
remind the reader of the continuity of Roman names of offices and institutions in medieval Italy. The tribunate of Rienzi is another example. The gridario of ihe provincial governor was, no doubt, an imitation of the edict of the præses, and decurions survived as local magistrates until modern times.
De Vulgari Eloquio.—There is little opportunity for displaying knowledge of law in a work on philology, though one or two passages of some legal interest occur.* The phrases curia regis and curialitas in i., 18, remind the English lawyer of the King's Bench and tenancy by the curtesy,t but it is scarcely necessary to say that Dante does not use them in their English technical senses, but to signify the King's Court in its social aspect and the courtliness or cortesia that one expects to find there. The only direct allusion to law seems to be in i., 16, legem secundum quam dicitur civis bonus et malus. Cino da Pistoia (Cinus Pistoriensis or de Pistorio) is alluded to several times, but as the poet and not as the lawyer. Lines of his are cited in ii., 2, 5, and 6.
Epistles.—The 4th is addressed to Cino, Exulenti Pistoriensi exul Florentinus exul, but contains nothing of legal interest. In the other epistles are found one or two legal phrases rather than arguments, e.g., qui civilia jura temeraria voluptate truncaverunt (i., 2), civium profana litigiaš (ib.), vos instituit in heredes (ii., 2), § vinculo legis (v., 7),|| legum sanctiones (vi., 2), 1 nescio quid
* As they also do in the work of Dante's imitator, Alunno, Le Richezze della Lingua Volgare (Venice, 1543).
+ In England a tenant by the curtesy is generally said to hold per legem Angliæ, but in Scotland the term curialitas Scotiæ is used, (Co. Litt., 30a).
Perhaps used only in a general sense, as in De Mon., iii., 3. § The preposition is not usual in the classical jurists, in whom heredes instituere is the common form.
|| Juris vinculum and obligationis vinculum occur in the Corpus Juris, but apparently not legis vinculum.
4 Used in Dig. xlviii., 19, 41.
Speculum,* Innocentium,t et Ostiensemf declamant (viii., 7). The only approach to a legal argument is in vi., 2, that public rights are not affected by prescription, (publica jura cum sola temporis terminatione finiri et nullius præscriptionis calculo fore obnoxia). English lawyers will be reminded of the common law maxim, Nullum tempus occurrit regi.Ş
Bibliography.—The literature on this branch of Dante learning is not copious, and the works, as far as the writer has been able to obtain access to them, deal almost entirely with philosophical generalities. The only work dealing directly with the question seems to be Dante Giureconsulto, by Vicenzo Lomonaco, of which an abstract is given by Ferrazzi,ll but the writer has not been able to meet with the original, or to discover the date. Ferrazzi also mentions a letter of Nicolò Tommaseo to Lomonaco. Other monographs more or less connected with the subject will be found in other parts of Ferrazzi. They are by Francesco Carrara, Giambattista Zoppi, J. F. H. Abegg, and others.** Colomb de Batines gives only two references: (1), a note in Scolari's Raggionamentott; (2) Atti dell'Accademia Italiana,
Speculum and Speculor are used in their ordinary sense in ix., 4. The allusion is to the Speculum Juris of Durante or Durandus (d. 1246), which was one of the numerous specula written cn the subjects of Law, Theology, and Philosophy. Other eminent Canonists who wrote specula were Johannes Andreæ (Speculum de Treuga et Pace), and Peter of Blois (Speculum Juris Canonici). (See an Obiter Dictum on the subject, L.M. and R., vol. xx., p. 281.)
† Probably the Compilatio Tertia of Innocent III., much of it incorporated into the Decretals by Gregory IX.
I Enrico da Susa (see above).
$ Just as the English maxim is too wide for the modern law, so the law as laid down by Dante must be taken subject to certain exceptions. Still what he says may be illustrated by the rules of Roman law, that there could be no usucapio against the fiscus, and no prescription against taxes (Cod. vii,, 39, 6)
|| Manuale Dantesco, i., 52.
He also mentions (without acknowledging that the information appears in Scolari's note) that the portrait of Dante is put among Illustriuin Jurisconsultorum Imagines.t Biagi in his continuation of Colomb de Batines, under the head of Dante Giureconsulto, I alludes to a controversy which appears to have arisen on the subject, beginning with a work by Niccolini.Ş Other works are those of Ortolan, already mentioned,!l and G. de Marinis de Raffaele. I Marinis's views are largely affected by the influence of Beccaria and his school; and in what has been said on the question of punishment the writer is much indebted to him. But his instances are often anything but convincing, and he suffers from the not unusual failing of attributing to Dante views of which he was probably entirely innocent. Shortly put, his theory is that according to Dante punishment to be justified must fulfil certain conditions. It must be (1) analogous and proportioned, (2) confined to the offender, (3) reformative, (4) deterrent, (5) equal, (6) reparable, (7) prompt, (8) legal, (9) inflicted by proper authority. These are no doubt excellent conditions, but to attribute them all to a Florentine writing in the fourteenth century is perhaps rather a strong measure.
* p. 568.
I Dante Alighieri Autore d' una Teorica della Pena Superiore ai Tempi che apparve (Bari, 1884).