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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).f 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., Io). 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.: 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 pana injuriam inferentis sed paena inflicta iniuriam 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 injure proprio et non per deputationem (Co. Litt., 96a).
-d *::::: * concise; "s: * manies, s: # the ser: j: the combat & that propria's s:ch as a ri: i: # were compe: by Divine #: She which atti: acquired by it': Ombat be entered: from zeal for # ed empire by Com: That beings): ing just edicts || iction (ii., 12, 1: setting out DM' ment is not sim: ting an injury, Mi diction to pI: an ordinary.j: ry. If the: judge Hewis: been an Ori'
DANTE As A JURIST. Io5
judge unless he were invested with jurisdiction over the
* 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 bona 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.
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.t No one can act in contravention of an office deputed to him; t 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., IO). Usurpation of law does. not make law (iii., II). 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,§ still contains much of interest to the lawyer, even the dictum in iii., 11, 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., Io). # 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 hon habet, Cod. iii., 1,5. § iv., 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., 11 and 27 (see below).
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DANTE AS A JURIST. Io7
religious, cannot be a true philosopher when he loves wisdom not for herself but for gain. The theory of interpretation in ii., I, 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.f Law is written reasoni and is necessary because men do not know or obey equity (equitā). Whence it is written at the beginning of the Digestum Vetus' that written reason is the art of good and equity (iv., 9). 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)." 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
* 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). | 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 aeterna nihil est quam summa ratio divinae sapientiae (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 acqui (Dig. i, 1, pr.). "I Probably an allusion to Ulpian’s rule, 9%uris pracepta sunt hac, honeste vivere, alterum non ladere, suum cuique tribuere (Dig. i., 1, 10, 1.). ** Dig. xxiv., 3—xxxviii.
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. 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).S. 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 Praetor and Prefect,” serves to
* A free translation of Labeo in Dig. xxviii., 1, 2, in eo qui testatur ejus temporis quotestamentum facit integritas mentis mon 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, 1; xl., 12, 27, 1. (Cf., in the Canon law, evidentia patrati sceleris non indiget clamore accusatoris, Decretals v., 1, 9.)
# Obscquium to parents is enjoined by Dig. i., 16, 9, 3.
§ Diuturma consuetudo pro jure et lege in his quae non ex scripto descendunt observari solet, Dig. i., 3, 33.