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seem to mean that in the Court of Heaven confession and repentance blunt the sword of justice. The justice of heaven seems unjust to man, says Beatrice,* but that ought to be an incentive to faith rather than to heresy. Twice the theory of a patto between God and man appears; the vow is such a compact, it is offered by man's free will, and is the victim in the sacrifice ;t the patto with Noah is suggested to men by a double rainbow, and so is bilateral. I The Latin line,
Non decimas quæ sunt pauperum Dei,ß
is the statement of part of a legal truth, but into the vexed question of a tripartite or quadripartite division of tithe Dante does not enter.
(5.) Penology.—Dante does not fully distinguish crime from sin. A crime with him is a crime because it is a breach of the law of God. That it is also a breach of the law of the State is simply a coincidence.ll For instance, in one passage he groups crimes and moral offences together as deserving the same punishment. I His treatment of crimes and punishments is very instructive as a guide to the sentiment of the period.** It is useless to classify the crimes in extenso, as almost every possible variety of crime is mentioned. Some of the more interesting are those which follow.
Affaturare,tt arti,ff magiche frode.pg The importance
* Par. iv., 67.
Par. xii., 17.
|| This is quite in accordance with the stage of law described by Sir H. Maine, in which the distinction between sin, tort, and crime has not yet been drawn. (Ancient Law, c. x.)
- Inf. xi., 58.
* É pela penalidade que melhor se caracterisa o direito de um povo (Braga, Poesia do Direito, Oporto, 1865, p. 145). tt Inf. xi., 58. ** Inf. xx., 86.
$ $. Id., 117
attached to these shews that Dante was no more in advance of his age in the matter of witchcraft than was Sir Matthew Hale, nearly four centuries later.
Alchimia is regarded as a crime probably because by it a coiner was enabled to transmute metals and so defraud the State.* It so became practically equivalent in heinousness to debasement of metal, the crime for which Adamo of Brescia suffered when he struck
Falsità (falsification) seems to have been as common an offence as coining, and falsatori suffered a punishment of their own. I The falsità seems to have been of several kinds. Like alchimia it included coinings and the making of a false die (conio).||. It also included the making of false weights and measures, when the doga was not safe and there were some whu blushed at the word staio.** False entries in public registers fell within falsità,tt and so did the double fraud of Gianni Schicchi, who first personated Simon Donati, and then made a will in the name of the latter and duly executed it (dando al testamento norma), all for the miserable bribe of the lady of the herd (la donna della torma). If It is worth noticing that falsità, in Dante, though from the frequent mention of it evidently a crime of importance, both financially and politically, was not at
* Inf. xxix., 119, 137.
| Inf. XXX., 90. I Inf. xxix., 57. The coiner is called monetiere in Inf. xxx., 124. § Par. xix., 119.
|| Inf. xxx., 115; Par. xix., 141 (from which it appears that even royalty could commit the offence). The verb coniare is used in Inf. xxx., III. Moneta sanza conio comes in the famous attack on Boniface VIII. in Par. xxix., 127
** Par. xvi., 105. Purg. xii., 105. tt Purg. xii., 105.
If Inf. XXX., 40.
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 fiere) and with plunder and robbery, and the offenders are placed in the first circle.t The distinction made between homicide and murder is familiar to the historical student of English law, but the technical distinction made by Bracton between homicidium and murdrumf 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.
Tradimento is used in two senses: (I) 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. I 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 muove 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.
| Id., 39.
I 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.,"
** Par. vi., 31.
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. I
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.Ş
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, 1 and Adamo of Brescia for coining; wrapping in lead and casting into a furnace, the penalty inflicted for treason by Frederic 11.ft These instances are sufficient to shew that the “ Divina Commedia"
was not entirely the felicis vita speculum that Filippo Villani called it. Characteristic or exemplary punishments, as Bentham called them, were not unknown to Dante. If 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.Sg Another instance is
Purg. iii., 127 + Cod. ix., 8, 6. The same procedure was known in Scotland. Purg. XXX., 108.
§ De Mon. ii., 13. || Inf. xxxii., 65.
4 Inf. xxix., I10. ** Inf. xxx., 61.
tt Inf. xxiii., 66. II 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. 111. 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 Quæstio 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. 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., 10. 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 infinitum. Accordingly the supreme judge must be in the last resort monarch or imperator. Therefore monarchy is necessary to the world, I which is ordered
* Inf. xxiii., 118. f"His reasoning is throughout closely syllogistic; he is alternately the jurist, the theologian, the scholastic metaphysician.” (Bryce,“ Holy Roman Empire,"c., XV.
# This view has legal authority. Et forte si quis diceret dominum imperatorem non esse dominum et monarcham totius orbis esset hæreticus, quia diceret contra determinationem ecclesiæ et textum sancti evangelii dum dicit, “ Exivit edictum a Cæsare Augusto ut describetur universus orbis” (Bartolus on Dig. xlviii., I, 24). The canonists of course excepted the donation of Constantine, ubi enim principatus sacerdotum et Christianæ religionis caput ab Imperatore Cælesti constitutum est, justum non est ut illic imperator terrenus habeat potestatem (Decretum, dist. xcvi., c. 14). Compare the forlorn hope of Petrarch, nulla prorsus apud nos dubitatio relinquitur monarchiam esse optimam relegendis reparandisque viribus Italis (Epist. Fam. ii., 7).