The Politics of Law in Late Medieval and Renaissance Italy 9781442686021

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THE POLITICS OF LAW IN LATE MEDIEVAL AND RENAISSANCE ITALY

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Lauro Martines in 1971

The Politics of Law in Late Medieval and Renaissance Italy Essays in Honour of Lauro Martines

Edited by Lawrin Armstrong and Julius Kirshner

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

© University of Toronto Press Incorporated 2011 Toronto Buffalo London www.utppublishing.com Printed in Canada ISBN 978-1-4426-4075-7 (cloth)

Printed on acid-free, 100% post-consumer recycled paper with vegetable-based inks. Toronto Studies in Medieval Law Library and Archives Canada Cataloguing in Publication The politics of law in late medieval and Renaissance Italy : essays in honour of Lauro Martines / edited by Lawrin Armstrong and Julius Kirshner. (Toronto studies in medieval law) Includes bibliographical references and index. ISBN 978-1-4426-4075-7 1. Law—Italy—Florence—History. 2. Law—Political aspects—Italy— Florence—History. 3. Lawyers—Italy—Florence—History. 4. Martines, Lauro. Lawyers and statecraft in Renaissance Florence. I. Armstrong, Lawrin D. (Lawrin David) II. Kirshner, Julius III. Martines, Lauro IV. Series: Toronto studies in medieval law KKH5601.15.P64 2011

349.45'5109031

C2010-907471-8

University of Toronto Press gratefully acknowledges the financial assistance of the Centre for Medieval Studies, University of Toronto, and the Lila Wallace– Reader’s Digest Publication Fund of the Villa I Tatti Harvard University Center for Italian Renaissance Studies, Florence, in the publication of this book. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council.

University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

Contents

Abbreviations

vii

Foreword and Acknowledgments

ix

The Composition of Lawyers and Statecraft

3

LAURO MARTINES

A Critical Appreciation of Lauro Martines’s Lawyers and Statecraft in Renaissance Florence 7 JULIUS KIRSHNER

Consilium sapientum: Lawmen and the Italian Popular Communes

40

SARA MENZINGER

From Rule of Law to Emergency Rule in Renaissance Florence

55

MORITZ ISENMANN

Paolo di Castro as Consultant: Applying and Interpreting Florence’s Statutes 77 SUSANNE LEPSIUS

An ‘Oracle of the Law’: Tommaso Salvetti and His Adnotationes ad statuta florentina 106 LORENZO TANZINI

Lawyers and Housecraft in Renaissance Florence: The Politics of Private Consilia 124 THOMAS KUEHN

vi

Contents

Baldus de Ubaldis on Conspiracy and Laesa Maiestas in Late Trecento Florence 141 ROBERT FREDONA

Laesa Maiestas in Renaissance Lucca OSVALDO CAVALLAR

Afterword

184

LAWRIN ARMSTRONG

Contributors

191

Bibliography

195

Index

223

161

Abbreviations

ASF ASP ASPi ASS BAV BCFL BCG BFG BG BML BMV BNC BNF BR BSR BUPi C. c. Capitano cons. CP CR D. Esecutore Fam. Inst.

Archivio di Stato di Firenze Archivio di Stato di Perugia Archivio di Stato di Pistoia Archivio di Stato di Siena Biblioteca Apostolica Vaticana Biblioteca Capitolare Feliniana, Lucca Biblioteca del Circolo Giuridico (Siena) Biblioteca della Facoltà di Giurisprudenza dell’Università di Firenze Biblioteca Guarnacci (Volterra) Biblioteca Medicea Laurenziana di Firenze Biblioteca Marciana di Venezia Biblioteca Nazionale Centrale di Firenze Bibliothèque Nationale de France Biblioteca Riccardiana (Florence) Biblioteca del Senato della Repubblica (Rome) Biblioteca Universitaria di Pisa Codex Iustiniani capitulum Atti del capitano del popolo consilium, consilia Consulte e pratiche Capitoli registri Digesta Iustiniani Atti dell’esecutore degli Ordinamenti di Giustizia Familiares Institutiones Iustiniani

viii

Abbreviations

LF Libri fabarum Magl. (fondo) Magliabechiano Missive Signori, missive (Prima cancelleria) Panciatichi. (fondo) Panciatichiano pr. principium PR Provvisioni registri q. quaestio Statuti Statuti del comune di Firenze Vat. lat. (fondo) Vaticano latino

Foreword and Acknowledgments

This volume was conceived by the editors in April 2007 to mark the fortieth anniversary of the publication of Lauro Martines’s Lawyers and Statecraft in Renaissance Florence (Princeton 1968). Immediately recognized as a masterpiece of archival history, Martines’s book broke with traditional approaches to both Florentine and legal history and opened up avenues of research that have been extensively explored by scholars in the last four decades. Our objective was to assemble a representative selection of historians from Europe, North America, and Asia whose own work reflects and develops the dominant themes of Lawyers and Statecraft: the political and social functions of medieval and Renaissance jurists, their relationship to the city-state, and their mediating role in the interpretation of communal statutory norms and private law. We organized three sessions at the 2008 meeting of the Renaissance Society of America in Chicago, where draft versions of seven of the eight essays that follow were read and discussed; an eighth essay was solicited by the editors in 2008. We are now pleased to present the studies, revised in the light of comments by colleagues and by Lauro Martines himself, who participated in the RSA sessions and has graciously contributed an introductory chapter on the conception of Lawyers and Statecraft. We trust that collectively they represent at once a critical comment on and a tribute to a pioneering contribution to the historiography of Florence and late medieval law. The Politics of Law in Late Medieval and Renaissance Italy is also the inaugural volume of the Toronto Studies in Medieval Law series, an initiative of the Centre for Medieval Studies, University of Toronto, and the University of Toronto Press. The goal of the series is to provide a venue for the publication of monographs and thematic essay collections on aspects of the ius commune, the complementary systems of Roman and

x

Foreword and Acknowledgments

canon law that formed the ‘common law’ of medieval and early modern Europe. The chronological frame of the series is the era from Justinian to the Council of Trent, but the editors anticipate that the bulk of the volumes will focus on the period between Gratian and the rise of humanistic jurisprudence. All volumes will be in English, and it is our hope that in this way innovative European and English-language scholarship on the ius commune will reach a broader audience than more technical and specialized publications can. The editors are pleased to acknowledge the assistance of several agencies and individuals who made the publication of this volume possible. Thanks are due to the Istituto Italiano di Cultura di Chicago and the Centre for Medieval Studies, University of Toronto, for their collaboration in organizing the 2008 Renaissance Society of America sessions. We are also grateful to the Centre for Medieval Studies and to the Lila Wallace–Reader’s Digest Publication Fund of the Villa I Tatti Harvard University Center for Italian Renaissance Studies in Florence for subsidies that underwrote the copyediting and publication of The Politics of Law in Late Medieval and Renaissance Italy. We are particularly indebted to Steven LaRue and to John St James of UTP for their meticulous copyediting of a complex manuscript, to Lydia G. Cochrane for help with Italian translations, and to Suzanne Rancourt, Senior Humanities Acquisitions Editor, University of Toronto Press, for her warm encouragement of the series and this volume. Lawrin Armstrong and Julius Kirshner Toronto and Chicago, October 2009

THE POLITICS OF LAW IN LATE MEDIEVAL AND RENAISSANCE ITALY

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The Composition of Lawyers and Statecraft LAURO MARTINES

About fifty years ago, as I was working on my doctoral thesis, ‘The Social World of the Florentine Humanists,’ in Florence’s Archivio di Stato (ASF), I began to notice the chronic recurrence of the terms dominus and messer in my stream of documentation. Always placed before certain names, the two titles were used interchangeably for knights and doctors of law, and they turned up again and again in government and domestic papers: diplomatic reports, legislation, political discussion at the summit of government (the consulte e pratiche), tax returns, office lists, and electoral records (tratte), as well as chronicles, family diaries, and private correspondence. Because inquiry into groups provides a gateway to the study of history, the prominence of two well-defined cohorts – the one honorary (knights) and the other professional ( jurists) – attracted my attention at once, especially because I was already engaged in doing a social X-ray of the humanists as a group. Knowing something about the order of knights from Gaetano Salvemini’s book La dignità cavalleresca, I saw nothing in the subject – for me, at any rate – to warrant a new study of knights in Florence, where knighthood was little more than a proud, honorary dignity. But the jurists were something else. With their doctorates from Bologna, Florence, Pisa, Perugia, Pavia, and other places, they offered substance and a distinct challenge. I was curious about them from the very start. Who were they exactly? Why were they so prominent in government circles? Like knights, they were accorded pride of place in the city. Why? What in particular did they bring to politics and government that other men did not? That is, for what kinds of business and in what circumstances were they most likely to be employed? Did they carry a measure of political and social weight apart from their legal learning; something, say, that

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concerned their education? What about their schooling, studies, family backgrounds, social standing, and finances? These questions tumbled out easily, but my larger aim, right from the beginning, was to lodge Florence’s learned lawyers in a world that would include the different social classes, the professions, trade, money, and political power. And if the shadow of something Marxist fell over this approach, then so much the better for Marxism. I could think of no better way to take hold or make sense of an intriguing group of men. In effect, I was interested in them as agents and actors in a rich social and political context. It occurred to me that without such a context, their legal training could have no historical significance and almost no meaning. Curiously, the historian who supervised my doctoral dissertation at Harvard University, Myron P. Gilmore, had published a monograph in 1941, Argument from Roman Law in Political Thought, 1200–1600, that obviously concerned an aspect of legal history. But he and I never even mentioned the subject, and I did not read his monograph until long after I had started working on Lawyers and Statecraft. When I arrived at Harvard in 1954 with a plan to work on the humanists and having already done research in the ASF, I found that Professor Gilmore knew nothing about the Archivio or about its riches. He was, however, immensely welcoming and keenly interested to find out about it, and he turned out to be a wise magister regens in giving me free rein to deal with the Florentine humanists as I saw fit. By 1959, with my dissertation largely complete, I knew that I would be working next on Florentine lawyers, and I began research on them in Florence in the summer of 1960. Over the next seven years, how did I go about putting Lawyers and Statecraft together? I was not aware of ever having to strain over this aspect of things. Just as my original questions concerning the cohort of lawyers had come to mind easily, so, too, did the architecture of the book, as Julius Kirshner has called it, because the same questions led to its design. The task of identifying the group – hence, of getting a take on the profession itself – was my necessary point of departure. This meant that, first of all, I had to deal with the guild of giudici e notai ( jurisconsults and public notaries), a ‘corporation’ with immense political authority in its own right because it was one of Florence’s seven major guilds. Any lawyer who proposed to have a regular practice in the city was careful to seek matriculation in this prestigious body, one of whose essential functions was to examine the credentials of legists and notaries matriculated in the guild and to certify or challenge their professional identities. I decided,

The Composition of Lawyers and Statecraft

5

therefore, to outline the history of the guild, to describe its workings, and to present a broad picture of its activities. In the process of doing this, I was also getting at the profession itself. The next section, chapter 3, required a little more reflection and imagination because I was proceeding from a venture in social history – in a slice of the book called ‘Society’ – out to more specific queries about the education of lawyers, their fees, the most common types of problematic judicial cases, and a sampling of distinguished individual careers in law and politics. Aiming, however, to provide a realistic milieu, I chose to begin this chapter with a social and class analysis of all the lawyers who turned up in guild and other records, ranging over the period from 1380 to 1530 and totalling more than 160 men. Having done this, the objective of the rest of the book, as I saw it, lay in confronting the central questions that I had originally raised: for what sorts of problems in government and statecraft, and in what situations or circumstances, were lawyers considered to be most valuable and indeed vital? Here, in the replies, is where we would find them most often at work. As answers began to surface in my research, I soon realized that when lawyers were distinctively engaged in government activity, their work fell into four different spheres: (1) they were engaged in resolving jurisdictional and administrative conflict within the perimeters of internal or domestic government, (2) they were handling disputes in relations between Florence and its subject territories, (3) they were negotiating Florence’s troubled relations with the church, for clergy and clerical courts were not subject to the temporal power of the Florentine commune, and (4) they were dealing with conflict or agreement in Florence’s relations with other states. These were the four areas, along with the attendant problems, that frequently called for the learning and input of jurists. My treatment of the four went into four different chapters. The nature and sweep of the analysis in those four chapters, however, turned out to be so detailed and close to the bone, as it were, that I was constantly forced to look away from the larger, all-encompassing picture. And what was that? It was the whole business of Florence’s sovereignty, a point that had to be taken for granted. It was the reality of Florence as a state, as a legal and constitutional entity that was also nagged, however, by the puzzle of a questionable sovereignty. In short, all the professional work done by lawyers for ‘the people and commune of Florence’ was grounded, one way or another, in a comprehensive, overarching legality.

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It became clear that the four chapters would require an introduction. This was the job of chapter 4, ‘Legal Aspects of Sovereignty and Magistracy in Florence,’ which provides a framework for the details of chapters 5 to 8. But chapter 4 did not come out of the original questions. It was born at a later stage, out of the need to provide the reader with an idea of the conceptual underpinnings in the political work of Florentine lawyers. Turning to the concluding chapters, I should say at once that they were not, like chapter 4, an afterthought. The material for these chapters had been gradually emerging over the course of my labours. In carrying out commissions for the government of Florence, lawyers frequently generated implicit questions about the power of the state. This certainly had a lot to do with their grounding in Roman law. Accordingly, I came to feel that I should conclude Lawyers and Statecraft by taking on the question of what we mean by the notion of ‘state’ in the context of Renaissance Europe. Here again, however, I needed an introduction, and this became one of the aims of chapter 9, where I deal with the problem of the links between lawyers and oligarchy, the form that political power took in Florence. It only remains to say that looking back to the 1960s now, remembering my lack of legal training and my second-hand familiarity with the books of the Roman law, I see what a frightful innocent I was. The one extenuating excuse for my brashness then is that we did not yet have a body of work of the sort that historians such as Julius Kirshner, Osvaldo Cavallar, Thomas Kuehn, Sara Menzinger, Lawrin Armstrong, and others would go on to produce. I can but thrill to think that in the study of late-medieval and Renaissance Italy, Lawyers and Statecraft had something to do with the development of a new kind of historical writing on the legal profession, above all in scholarship on the actual working opinions and arguments (consilia) of lawyers.

A Critical Appreciation of Lauro Martines’s Lawyers and Statecraft in Renaissance Florence1 JULIUS KIRSHNER

In his widely acclaimed, field-shaping, multidisciplinary debut volume The Social World of the Florentine Humanists (1963), Lauro Martines observes: The fact that the Republic honored its lawyers with leading political dignities was not by accident. By reason of his forensic training, knowledge of the law, or now and then his preparation in the medieval rhetorical tradition, the lawyer was the man best equipped to engage in public debate. The fifteenth century was, accordingly, the great age of political distinction for the Florentine lawyer. He was continually found in the three places which denoted maximum political stature: namely, in the executive deliberations, in the debates of the legislative councils, and in the diplomatic service.2

Not one iota of evidence for these bold observations is furnished, save a footnote informing the curious reader that ‘these observations on the lawyer will be developed in a planned future work. They are based on my researches in the State Archives of Florence.’3 Later, we learn that he had begun taking notes for this study in 1956. Unlike countless scholars, myself included, who have made proprietary claims to topics or materials, overconfidently announcing a forthcoming publication, Martines not only promised a future work, but actually delivered it five years later with the publication of Lawyers and Statecraft in Renaissance Florence in early 1968. In an admiring

1 I wish to thank Osvaldo Cavallar, Robert Fredona, and Thomas Kuehn for their valuable criticisms of an earlier version of my essay. 2 Martines, Social World, 249–50. 3 Ibid., 250 n. 38.

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review of Lawyers and Statecraft, the British historian Denys Hay marvelled enviously at the author’s perseverance and courage and ironically at ‘the enlightened policy of American learned foundations and universities who in part made such a feat possible. O si sic omnes.’4 The continuities between the earlier book on Florentine humanists and the latter on Florentine lawyers are conspicuous. Regarding method, Martines eschewed what he perceived as the suffocating approaches taken by historians of ideas, who portray humanists as disembodied oracles of wisdom, or by legal historians, who portray medieval jurists as disinterested architects of an enclosed system of substantive and procedural law. With a polemical edge, he steered clear of hermeneutic, conceptual, and genealogical approaches. For Martines, these approaches, regnant at the time, neglected the historically specific sociopolitical settings in which the legacy of Greco-Roman philosophy, literature, and law was clothed in thoroughly new cultural forms and redirected towards new ideological ends. Erudite studies exclusively focused on the protean ideas and socalled classic texts of a few notable humanists or academic jurists confined to self-sufficient intellectual domains were hobbled by missing the larger microhistorical picture.5 I am not in any way suggesting that Martines took a crude Marxist approach, advocating that humanist and legal ideas be read as ‘ghosts of the social system.’6 He was, however, advocating an approach that makes visible the interdependence of the writings, the professional conduct, and the social and political rank of his protagonists. ‘The danger of treating ideas in a social void,’ as he would later explain, ‘is that we blind ourselves to the processes that veil the presence of social interests or self-images in ideas.’7 The analytical spotlight was, therefore, on humanists and lawyers as social classes (ceti ) and their associations with, or membership in, the pre-eminent families and groups of Florentine society and politics. His approach was unapologetically instrumentalist, aimed at recovering and analysing the specific roles that Florentine humanists and lawyers performed in the arena of public affairs, as office-holders, advisers, and teachers, who adroitly employed their rhetorical and forensic talents on behalf of the republic in its dealings with territorial dependents and foreign powers. 4 Hay, review of Lawyers and Statecraft, 576. 5 For legal-history examples, see Englemann, Die Wiedergeburt; Fiorelli, La tortura; and Carlyle and Carlyle, History. 6 Martines, Power and Imagination, 285. 7 Ibid.

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Both books were immediately recognized as tours de force of scholarship enabled by years of research in Florence that resulted in Martines’s intimate knowledge of republican Florence’s unparalleled archival and manuscript sources; namely, public and private correspondence, notarial documents, guild records, statutory compilations and daily legislation, the minutes of the Signoria, legal opinions (consilia), fiscal and tax records ( prestanze, estimi, and Catasti ), diplomatic exchanges, and family account books and memoirs (ricordanze and libri di famiglia).8 Formerly exotic and the preserve of local scholars, these raw materials are now familiar to all students of Italian Renaissance political and social history, even to upper-level undergraduates in the United States thanks to the publications of Gene Brucker, an eminent American historian of Renaissance Florence and Italy, who first introduced Martines to the city’s archival riches.9 The books are also distinct in three respects. First, Social World focuses on high-flying Florentine humanists and original thinkers, including Coluccio Salutati, Leonardo Bruni, Poggio Bracciolini, Matteo Palmieri, and Giannozzo Manetti. Lawyers and Statecraft centres on 194 Florentine lawyers, the overwhelming majority of whom were unremarkable practitioners who have understandably tumbled into the world of historical obscurity. As Martines notes, ‘With two or three exceptions, Florentine lawyers were not outstanding theorists. When they taught law, they taught accepted theory. So, at least, do we infer from the fact that they never produced their own school of jurisprudence, as did the doctors at Bologna and Perugia.’10 It is undeniable that the reputation of the University of Florence as a centre of legal studies was stoked by the city’s ability to recruit eminent non-Florentine jurist-professors, such as Baldus and Angelus de Ubaldis of Perugia (both †1400), Paolo di Castro (†1441), Antonio Roselli of Arezzo (†1466), and Bartolomeo Sozzini of Siena (†1507).11 However, we find the same policies of professorial recruitment followed at the Universities of Bologna and Perugia, whose earlier innovative prowess in civil and canon law had wilted by the fifteenth century. Among the outstanding Florentine jurists were the patrician Lorenzo Ridolfi (†1443), a lay canonist, diplomat, and politically savvy government lawyer and the author of oft-cited tracts on usury and the morality 8 See Brucker, review of Lawyers and Statecraft; Ullmann, review of Lawyers and Statecraft; and Rubinstein, review of Lawyers and Statecraft. 9 Brucker, Two Memoirs of Renaissance Florence and Society of Renaissance Florence. 10 Lawyers and Statecraft, 302. In-text page references hereafter are to this work. 11 Bargagli, Bartolomeo Sozzini.

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of Florence’s public finance (Monte Comune);12 Nello da San Gimignano (†1430), a lawyer with ‘a peninsula-wide reputation and large following of clients,’ allied with the Medici, and author of an influential manual on legal banishment (De bannitis) completed around 1424;13 and the patrician Francesco Guicciardini (†1540), a highly successful legal practitioner and polymath whose fame today rests on his achievements as a statesman, historian, and political thinker and the poignant engagement with his contemporary, Niccolò Machiavelli.14 The second difference between Social World and Lawyers and Statecraft is that the latter ventures beyond the city’s walls to compare the public roles of jurists in republican Florence – albeit a less-than-perfect republic governed by an oligarchy – to those lawyers in the duchy of Milan under Visconti and Sforza rule.15 Lawyers and Statecraft’s concluding and stimulating chapter, entitled ‘Florence and Milan: Toward the Modern State?’ later appeared in an Italian anthology of historical studies analysing the demise of communal government and the genesis of the Renaissance state.16 The third distinction between the two books is that Social World drew on decades of previous research devoted to individual Renaissance humanists and their works. In contrast, the protagonists of Lawyers and Statecraft and the works they produced, with some exceptions, had been ignored by historians of Florence and late medieval law. Lawyers and Statecraft was obviously not written in a vacuum. Acknowledgment was made of the author’s debt to the classic studies by Francesco Ercole, Ernst Kantorowicz, Francesco Calasso, Walter Ullmann, and Gaines Post on the formulations of power, state, and sovereignty in the lectures and glosses of medieval jurists,17 and to C.N.S Woolf’s book on the tremendously influential public-law doctrines of Bartolus of Sassoferrato (†1357), the leading

12 On Ridolfi, see Armstrong, Usury and Public Debt. 13 Martines, Lawyers and Statecraft, 499. 14 See Cavallar, Francesco Guiccardini giurista; Cavallar, ‘Lo “stare fermo a bottega”’; Cavallar, ‘Persuadere qui iurisperitiam’; and the essays on Guicciardini by Carta, Cavallar, Kirshner, and Quaglioni in Pasquini and Prodi, Bologna nell’età di Carlo, 109–96. 15 Storti Storchi, ‘Giudici e giuristi’; Conetti, ‘Baldo e la politica viscontea’; Cengarle, Immagine di potere; Covini, La balanza drita. 16 Chittolini, ed., La crisi degli ordinamenti, 215–25. 17 Ercole, Da Bartolo all’Althusio and Dal comune al principato; Post, Studies; Calasso, I glossatori; Ullmann, ‘The Development of the Medieval Idea of Sovereignty’ and ‘De Bartoli sententia.’

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civilian jurist of the late Middle Ages.18 But Lawyers and Statecraft departs from these earlier studies in its methods and aims. Lawyers and Statecraft is divided into three parts. The first (‘The Profession’) presents a pioneering analysis of the organization and administration of the Guild of Lawyers and Notaries (Arte dei Giudici e Notai), its matriculation patterns, and the professional education and training of its members. As Brucker wrote, ‘This is the first serious attempt in Italian historiography to treat lawyers and notaries as professional castes and to study them in the context of their societies.’19 In 1338, before the demographic cataclysm wrought by the plague in 1348, the guild had 66 lawyers and 880 notaries (between the city and countryside);20 in the fifteenth century the number of lawyers enrolled in the guild had fallen to around twentyfive, while the number of notaries had levelled off at around four hundred. Despite their diminished numbers, the lawyers played a leading role in the guild’s administration, and from the early fifteenth century onward, representation of lawyers in the city’s topmost executive magistracy, the Signoria, measurably eclipsed that of notaries. The outsized representation of lawyers in the highest reaches of power reflected the advantageous political and social positions of their families, their education and professional training, and the patina of nobility and the valuable legal privileges accorded holders of the doctoral degree. A lawyer’s lucrative fees and salaries were only partially dependent on his experience and forensic skills or on his mastery of the ius commune (an amalgam of Roman, canon, and feudal law with interpretations that was the heart of continental legal education and practice into the eighteenth century) and the ius proprium (a municipality’s own corpus of statutes and legislation).21

18 19 20 21

Woolf, Bartolus of Sassoferrato. Brucker, review of Lawyers and Statecraft, 478–9. Sznura, ‘Per la storia del notariato.’ For recent studies of the medieval ius commune – an equivocal concept (often referring to Roman law, sometimes to canon law, sometimes to Roman and canon law, and sometimes to municipal law) – and its historiography, see Bellomo, Common Legal Past; Grossi, L’ordine giuridico; and Caravale, Alle origini. The recent spate of books and articles on the medieval ius commune by Italian and Spanish historians of law can be read as a rejoinder to the call for the creation of a new European ius commune by European jurists and law professors; see Zimmermann, ‘Civil Code and Civil Law’; Faure, Smits, and Schneider, eds, Towards a European ius commune. Pierre Legrand (‘A Diabolical Idea’) has levelled a devastating and thoroughly convincing critique of the movement for a new European ius commune. In L’ordine giuridico, Grossi accents the historical uniqueness and irreproducibility of the medieval ius commune.

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Far more vital was the gravitational force of social networking and political connections that attracted private clients and government business and resulted in appointments to public office and sought-after professorships at the University of Florence. In mid-fifteenth-century Florence, prominent lawyers tended to be patrician, wealthy, and found in positions of power in the major magistracies. ‘Not only their legal understanding but also their practical experience at the top level of politics and diplomacy,’ Martines states, ‘far transcended that of notaries’ (172). Martines’s glowing assessment of the socio-professional status of Florence’s lawyers is convincing, and, save for Venice, his model applies to late medieval and Renaissance Italy as a whole. His unflattering treatment of the paralegal notarial profession is less compelling, especially in view of their contributions to Florentine culture as teachers in the second half of the thirteenth and early fourteenth centuries. It was through the notaries, Najemy stresses, ‘that Roman politics, history, law, rhetoric, and moral philosophy became the bedrock of the education and culture of the popolo [politically eligible non-elite citizens comprising the commercial classes, artisans and salaried workers].’22 Martines acknowledges that notaries ‘were indispensable to the state, to the great families, to the property-owning sector of the populace, and to merchants,’ but ‘they were often criticized for being venal and dishonest’ (48). A prime example of the crooked notary was ser Cepparello, who appears in the very first story of Boccaccio’s Decameron (1, nov. 1) and who delights in producing fraudulent documents and giving false testimony. Martines’s treatment reflects the stream of complaints lodged against notarial incompetence and malfeasance reported in the guild’s records. The almost total omission of similar complaints against errant lawyers may be due to the extensive gaps in the guild’s records, but, given the notorious impenetrability of ius commune jurisprudence, it is probably related to the inability of lay clients to assess the quality of a For Grossi, a staunch legal pluralist, it is an error to equate the ius commune with a prefabricated amalgam of Justinian’s Corpus iuris and the fundamental texts and papal decrees that would eventually constitute the Corpus iuris canonici. Instead, he argues that the ius commune was a metalegal concept that referred to a diversity of legal sources, unwritten as well as written, and lacked the modern principle of a hierarchy of sources. Operationally, the ius commune took the form of the interpretatio doctorum animated by the free play of experience and common religious values rather than by formal rationality. Grossi tends to identify agency with volition rather than reason and experience with subjective consciousness derived from direct participation in customary practices rather than knowledge gained from such participation. 22 Najemy, History of Florence, 46.

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lawyer’s performance. It is not obvious that practising lawyers, at least in the eyes of their contemporaries, were deemed more honest and competent than notaries. Lawyers, as is well known, were maligned throughout our period by their professional rivals (physicians, theologians, and teachers of the liberal arts) for their venality, trickery, citation-mongering, and even stupidity.23 Deep into the early modern period, novelle and plays gave voice to illiterate, yet cunning, defendants who outwitted and defeated supposedly learned lawyers and judges. Beginning with Petrarch, humanist critics of the legal profession dismissed as portentous rubbish the ius commune’s ideal of dispassionate jurists promoting higher norms of justice and truth. In Greek and Roman times, the study and practice of law was a noble pursuit nourished by the liberal arts and serving universal norms, whereas in his day, Petrarch lamented, the legal profession was in decline.24 ‘Pettifogging lawyers’ shunned justice for the ignoble pursuit of profit, associated with the lesser mechanical arts, and replaced the intellectual pleasure of ancient legal eloquence with ‘loquacious ignorance.’25 For Leonardo Bruni, appointed chancellor of Florence in 1427, and like-minded critics, city laws were arbitrary in principle and dysfunctional in practice. How else can one explain the absurdity that what was legal in Florence one year was illegal the next year, and what was legal in Florence was illegal in Ferrara.26 For Poggio Bracciolini, who was Florentine chancellor from 1453 until his death in 1457, the irrational conflicts arising from the ad hocism of city statutes were exacerbated by the very methods of casuistry perfected by ius commune jurists to resolve such conflicts. An ideal legal order was found only in minimalist Venice, where judicial decisions and enforcement of the republic’s laws conformed not to the cumbersome body of variable opinions of ius commune jurists but to the universal norm of equity and the faculty of reason.27 Franco Sacchetti (†1400), a prolific writer with an insider’s appreciation of Florence’s rough-and-tumble politics and scornful of dimwitted lawyers spouting learned law, admonished a Florentine youth planning to study law at the University of Bologna that

23 Brundage, ‘Vultures, Whores and Hypocrites,’ in Medieval Origins, 477–87. 24 Gilli, La noblesse du droit; Kuehn, ‘Renaissance consilium.’ 25 For Petrarch’s invective, see his Fam. XX, 4 in ‘Letters on Familiar Matters’ in Letters on Familiar Matters; see also Lupinetti, Francesco Petrarca. 26 See Leonardo Bruni’s letter to Niccolò Strozzi (1431/4) in which he assailed legal studies; trans. J. Hankins in Bruni et al., Humanism of Leonardo Bruni, 251–3. 27 Krantz, ‘Between Bruni and Machiavelli.’

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his education would be a waste of time ( perduto il tempo). He would be much better off learning how to wield power, which, when buttressed by wealth, is the ultimate arbiter of right and wrong (nov. XL).28 Is there any reason to think that notaries were less competent than lawyers? Were they more prone to commit errors in drafting documents than lawyers were in composing opinions, treatises, and commentaries? So far, no scholar has tried to compute a comparative error rate between notaries and lawyers. It is true that notarial documents were rife with unintentional, minor errors of commission and omission (e.g., names, dates, and places) that were in fact easily rectified upon petition of the person who commissioned the document to the Guild of Lawyers and Notaries. It is also the case that judges in Florence rejected flawed legal opinions submitted to the court and that lawyers themselves had no compunction about ridiculing the substantively and rhetorically feeble arguments of their legal brethren. Martines appreciates that ‘the state had a permanent fund of administrative competence in the notary. As a result, the most skilful and wellconnected notaries were in constant demand’ (170). In reality, not only were notaries a mainstay of the administration of government, they were also indispensable to lawyers and to the daily operation of the legal system. Notaries prepared almost all the paperwork for lawyers conducting litigation, assisted as intermediaries between lawyers and their clients, acted as bona fide representatives for clients in myriad legal circumstances, prepared and maintained court records, interrogated witnesses, and so on. The vast majority of legal writings in the late Middle Ages and Renaissance circulated in copies prepared by professional notaries and other scribes. Family matters, commercial relations, and public affairs were all predicated on the presumed reliability and probative value of documents drawn up and attested to by public notaries.29 Florence bereft of learned ius commune lawyers is, I believe, retrospectively imaginable, even if far-fetched. All the same, it is inconceivable that the capital city, let alone the moving parts of the Florentine territorial state, could have functioned as well as it did without a staff of notaries. They made possible the private and public archives that constituted Florence’s institutional memory. In summary, after accepting Florence’s 28 For this tale, see Sacchetti, Il trecentonovelle, 109–10. 29 Mayer, Felix et inclitus notarius; Bartoli Langeli, Notai. For Florence, see D’Addario, Il notaio nella civiltà fiorentina. On notaries in legal proceedings, see Lepsius, ‘Kontrolle von Amtsträgern.’

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lawyers’ demonstrable professional superiority, we should bear in mind that the contributions made by notaries to Florentine statecraft – namely, the art of managing the republic’s domestic and foreign affairs – were indispensable, and that the working relationship between lawyers and notaries was necessarily symbiotic. In actuality, as Martines illustrates in the second part of the book (‘Government and Statecraft’), during the fifteenth century administrative and judicial officials, high and low, increasingly came to rely on the expertise and trouble-shooting skills of Florence’s lawyers. The reliance on legal expertise is most evident in the proceedings of the consultative councils (consulte) and select committees ( pratiche) convened by the city’s priors. In these meetings, lawyers summoned together with other elite citizens were asked to give advice and recommendations on policies and legislation relating to a variety of conventional issues: public finance, taxation of the clergy, electoral procedures, revision of the city’s statutes, banishment and confiscation of property, reprisals, relations with subject communities in the territorial state, the diocesan church and papacy, and other city states and principalities. Legal expertise was especially valuable in the preparation, interpretation, and execution of diplomatic documents and treaties. Lawyers were also consulted on disputes generated by competing magistracies and courts with overlapping jurisdictions as well as those generated by the absence of a clear separation of judicial, executive, and legislative functions. In Martines’s telling, ‘one of the key functions of lawyers in Florentine public life was to help solve the puzzles of jurisdiction created by an intricate parcelling out of authority and by a mobile system of office-holding’ (169). These puzzles became exponentially more demanding from the late fourteenth century onward with the proliferation of new executive offices vested with extraordinary judicial powers, in particular, the Otto di Guardia (Eight for Security), established in 1378, and shortterm plenipotentiary magistracies called balìe.30 Their rhetorical and forensic skills and their ceremonial rank as knights made doctors of law ideally suited to undertake diplomatic missions and serve as resident ambassadors. In the fifteenth century, roughly half of Florence’s embassies to the papal curia were entrusted to lawyers. They also served as rectors and podestà in Florentine Tuscany, gaining

30 On these developments, see Zorzi, ‘Judicial System’ and ‘Ordinamenti e politiche giudiziarie.’ On balìe, see Molho, ‘Florentine Oligarchy’; Rubinstein, Government of Florence.

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administrative experience that informed their opinions (consilia). Inside Florence, lawyers were appointed to new judicial and quasi-judicial magistracies, including the Otto di Guardia, Ufficiali dell’Onestà (Officials of Decency), tasked with the enforcement of the laws against sodomy and prostitution, and the Conservatori delle Leggi (Defenders of the Laws), instituted to review the suitability and qualifications of office-holders and to enforce the laws regulating admission to office. Alpha lawyers such as Filippo Corsini (†1421), Lorenzo Ridolfi, and Domenico Martelli (†1476) were imposing public figures respected for their shrewd judgments, and they exerted clout as members of the Signoria and the Dieci di Balìa (Ten on War). Because in any year only twenty-five lawyers were practising in Florence, ‘it is clear that they provided the city with a percentage of statesmen out of all proportion to their actual numbers’ (206). Complementing their executive and diplomatic roles, lawyers were asked by the communal courts and public officials in Florence to submit opinions called consilia sapientum in disputes defying swift and certain resolution. Ideally, consilia sapientum were vehicles of impartiality and formalistic objectivity, untainted by personal bias and the favouring of either party, and aimed at resolutions accepted as true ( pro veritate).31 So important was this impartial dispute-resolution function that in 1357 the government established the office of the sapientes communis – government lawyers with the duty of responding to requests for consilia from executive officials with and without judicial powers and from the traditional judicial magistracies (podestà, Capitano del Popolo, Esecutore degli Ordinamenti di Giustizia, Giudice degli Appelli ) staffed by foreigners. Consilia sapientum requested by the traditional courts of the podestà and capitano were explicitly binding on the presiding judge and determined his sentence. In contrast, consilia sapientum requested by the Signoria, balìe, and other executive magistracies were not binding, though they carried persuasive authority. Not infrequently, before implementing particular legislation, especially regarding tax levies, executive officials asked jurists to submit consilia tantamount to declaratory judgments on whether their acts complied with ius commune standards of legality.32 It is difficult, without contextual documentation from archival sources, to conclusively determine whether a particular opinion was designed to be impartial and neutral ( pro veritate) or written in defence of a client’s

31 Ascheri, ‘Le fonti e la flessibilità.’ 32 Kirshner, ‘Consilia as Authority.’

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interests ( pro parte).33 It is even more difficult to measure the frequency with which and under what circumstances consilia contributed to, let alone directly shaped, administrative adjudication and relief. In circumstances of what today would fall under the rubric of administrative law in Europe and the United States – for example, when individuals lodged complaints that they had been punished, fined, or taxed wrongfully – officials ordinarily relied on the consilia they requested to settle routine cases.34 In non-routine cases – especially ones in which law and political imperatives intersected, including crimes against the government and disputes between Florence and the localities within its dominion – we have concrete examples of officials ignoring the consilia they requested, which, rather than providing legal cover, exposed the shortcomings of the government’s position.35 The application of Florence’s compilations of statutes (Statuta of 1355 and 1415) and legislation ( provvisioni, riformagioni), owing to semantic and syntactic ambiguities, inconsistent terminology, and obsolete and conflicting laws, presented a constant challenge to officials charged with enforcing local laws.36 In dealing with the challenge of dispelling statutory uncertainties, jurists resorted to a set of metarules.37 One rule involved restricting a law’s scope by appealing to its alleged purpose (mens, ratio, voluntas legislatoris). Another rule was to use the subsidiary applicability of the ius commune to fill gaps in Florentine law arising from unforeseeable and uncontrollable circumstances and events. The interplay of the ius commune and ius proprium has long been a central issue for historians of law. Historians viewing the relationship through the lens of legalism dwell on the ius commune as a bulwark of universal higher norms against malversation and political oppression.38 Conversely, historians viewing the relationship through the lens of power politics dwell on the ius proprium as a legitimate expression of the supervening

33 On Francesco Guicciardini and the consilia pro parte he prepared for his clients, see Cavallar, Francesco Guicciardini giurista. 34 Kirshner, ‘Baldo degli Ubaldi’s Contribution’; Tanzini, Il govereno delle leggi, 155–277. 35 Fabbri, ‘Odium Catasti,’ and the chapters by Fredona and Tanzini in this volume. 36 On the Florentine statutes, see Tanzini, Statuti e legislazione and Il governo delle leggi. 37 Sbriccoli, L’intepretazione dello statuo; Maclean, Interpretation; Müller, ‘Signorolus de Homodeis.’ 38 Cortese, La norma giuridica; Stern, ‘Politics of Law’; Cavallar, ‘Regulating Arms’; Kirshner, ‘Bartolo of Sassoferrato’s De tyranno.’

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authority of autonomous states.39 For Martines, the clash between the ius commune and ius proprium, most notably in the area of private law, was mainly complementary.40 As he points out, ‘Florentine statutory law took for granted many of the principles of Roman law, especially in matters regarding property, contracts, rebellion, the position of the father, and aspects of civil status’ (92). Moreover, Florentine lawyers normally applied the ius commune to fill gaps and remedy other deficiencies in the statutes of the communities subject to its territorial jurisdiction. Without proficiency in Florentine law, how did jurist-consultors go about the adjudication of disputes centring on the application of the city’s statutes? The University of Florence, like other universities, did not offer courses in local law, nor were lawyers planning to work in the city required to pass an examination testing their proficiency in Florentine law. University chairs in the public law (ius nostrum) of cities and territorial states were inaugurated in Italy only in the eighteenth century.41 As might be expected, in any period one finds Florentine lawyers, such as Alessandro Bencivenni (†1423) and Tommaso Salvetti (†1472), who were genuine experts on the city’s laws. The majority of Florentine lawyers, however, gradually acquired their knowledge of local law as practitioners. The main requirement for practising law in Florence, as in other towns, was proof of having earned a doctoral degree from a faculty of jurisprudence authorized by imperial or papal charter. The portable doctoral degree alone certified a lawyer’s knowledge of Roman and canon law. In the jurisprudential culture of the late Middle Ages, mastery of grammar, logic, rhetoric, and moral philosophy as well as a thorough comprehension of the fundamental axioms underlying Roman and canon law ( propria principia) far outweighed proficiency in local law.42 Recall that university lectures were devoted to the logical exegesis of basic Roman and canon law texts (libri legales), revered as prescriptive sources of law that students were expected to memorize and recall with clarity of expression and precision (elegantia).43 Beyond its practical functions, memoria

39 Martino, Dottrine di giuristi; Chittolini, ‘Statuti’; Dondarini, Varanini, and Venticelli, eds, Signori; Fubini, ‘La rivendicazione.’ 40 See Tanzini’s confirming observations in Il governo delle leggi, 212–13. 41 Birocchi, ‘L’insegnamento’; Renzo Villata, ‘Tra ius nostrum e ius commune’; De Benedictis, ‘Amore per la patria.’ 42 Errera, Il concetto. See also Lange and Kriechbaum, Römisches Recht im Mittelalter, 264ff. 43 Hoeflich and Grabher, ‘Establishment of Normative Legal Texts.’

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was universally prized as a defining characteristic of a literate and prudent man. Students were also introduced to the authoritative glosses and commentaries produced by academic jurists explicating these texts. These glosses and commentaries, in tandem with a few practitioner’s manuals, consilia, and quaestiones disputatae, supplied jurists with the communis opinio doctorum: the views held by a majority of leading doctors of law on a multitude of private- and public-law questions that could, and often did, control the final outcome of a case.44 Students also learned from their professors procedures of interpretation, in particular the art of analogical reasoning (ars arguendi a simili ), which were honed in academic disputations and would eventually be brought into play in real-world disputes. As Francesco Zabarella – who received his doctorate in Roman and canon law in 1385 from the University of Florence and subsequently taught there for five years – posited, ‘In every field, it is necessary to memorize in order to understand. But this applies to law more than it does to any other field, because in law whatever you assert must be supported by some kind of authority derived from the text, the gloss, or a reason grounded in law.’45 Zabarella’s view was rooted in a professional consensus that formally correct opinions arrived at through apodictic syllogisms must be firmly grounded in ‘the text’ – that is, the principles and rules found in Roman and canon law with their standard glosses. This consensus was behind the requirement in the Florentine statutes that ‘every iudex consultor was bound under oath to resolve the case, allege [Roman and canon] laws, as well as provide conclusive and unequivocal reasons for justifying his resolution.’46 ‘Conclusive and unequivocal reasons’ meant that jurist-consultors were bound to use a pro et contra format that included the presentation and overt refutation of opposing

44 Caron, ‘La communis sententia doctorum’; Cavina, ‘Carlo Ruini.’ By the sixteenth century, the number of such communes opiniones numbered in the thousands. See Gabrielus, Communes conclusiones. 45 The passage is from Zabarella’s De modo docendi et discendi, BAV, Vat. lat. 2258, fol. 367v, collated with Munich, Bayerische Staatsbibliotehek, Clm 14134, fol. 150v. ‘Quamvis autem in quacumque facultate ad intelligenda eius documenta sit opus memoria, tamen maxime in iure, in quo, que dicuntur, probare oportet auctoritate aliqua textus vel glosarum vel racione in ipso iure fundata.’ The translation as well as the edition upon which it is based were prepared by Osvaldo Cavallar and myself for our forthcoming anthology of ius commune texts. 46 Kirshner, ‘Consilia as Authority,’ 112. For an overview, see Dolezalek, ‘Precedenti giudiziali.’

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arguments before they provided the norms, texts, and reasoning warranting their resolutions. Tacit refutations and one-sided opinions were unacceptable, at variance with the norm of transparent impartiality and legibility. Operating within these discursive and institutional parameters, it was unnecessary for jurist-consultors to clutter their minds with the minutiae of local law. Copies of local statutes, not surprisingly, are rarely found in the inventories of lawyer’s libraries.47 The requests of judges and city officials for consilia were usually accompanied by a dossier containing complete or partial copies of pertinent documents and statutes along with the specific questions of law and fact they wanted answered. Equipped with analogy-serving passages drawn from Roman and canon law and supported by references to ius commune authorities, all held together by syllogistic inevitability, jurist-consultors nimbly traversed the minefield of statutory indeterminacy to fashion determinate case outcomes that enabled judges and public officials to apply the city’s laws expeditiously. In Florence, sealed and signed copies of consilia were deposited with the Guild of Lawyers and Notaries, where they were could be consulted by its members. This depository of consilia, once numbering in the thousands, approximated a living body of local case law. Nowadays, case law refers to judicial decisions, originating in courts of law, that furnish precedentsetting rules and principles that are then followed in future cases. A source of law equal to that of statutes and codes, case law is a standard feature of common-law jurisdictions (United States, United Kingdom), whereas statutes and codified law are privileged in civil-law jurisdictions (Italy, Spain, Germany). To avoid anachronism, let us be absolutely clear: a system of precedent by which decisions and opinions of higher courts are controlling in subsequent cases involving analogous circumstances did not exist in the Middle Ages or in Renaissance Italy.48 Consilia possessed normative authority, but they were never considered to be sources of law, by either jurists or lawmakers. That said, the statutory interpretations of jurist-consultors in fifteenthcentury Florence drew on earlier consilia, a practice evident in the glosses and commentaries on the Statuta of 1415, Florence’s chief source of law in our period. Bencivenni’s and Salvetti’s glosses and commentaries are honeycombed with citations of consilia as well as of Roman and canon law,

47 See, for example, Martines, ‘Career and Library’; Maffei and Maffei, Angelo Gambiglioni, 189–98. 48 Kirshner, ‘Consilia as Authority.’

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illustrating how Florentine jurist-consultors in live cases had already construed individual words, clauses, and sentences of a relevant statute.49 The Statuta’s viability and applicability to changing circumstances was due in large measure to the updating interpretations of Florence’s jurist-consultors. At the close of the fifteenth century, sections of the Statuta of 1415 had become seriously outdated, yet only seldom did they undergo the cleansing revisions necessary for eliminating obsolete laws and the amending additions necessary for taking into account the mass of microlegislation (provvisioni), political and social realignments, and institutional innovations marking the republic’s history after 1415.50 Although there were recurring proposals during the fifteenth century for a new redaction of the Statuta, the redaction, probably for political reasons, was never undertaken.51 Incredibly, a printed edition of the Statuta, without any revisions, appeared only in the eighteenth century.52 Far from being subservient to formalism and legalism, according to Martines, the interpretive procedures of Florentine jurists proved to be elastic, allowing jurists discretionary leeway to tailor their interpretations and solutions to specific extratextual circumstances and exigencies. Beyond practical accommodation, discretionary leeway allowed jurists, whenever they wished, to produce consilia aligned with their sociopolitical preferences and loyalties. The overriding historical question for Martines is whether Florentine jurists took advantage of their leeway to produce opinions and statutory reconstructions that not only abetted the expansion of executive power and authority but also ‘helped to pave the way for absolute government’ (402). ‘Up to about 1434 [the inception of the Medici regime (reggimento)],’ he asserts, ‘they revealed no obvious inclination to strengthen the hand of the executive’ (402). After 1434, they made decisive and enduring contributions to ‘the concentration of power in the executive sector of government,’ aided and facilitated ‘the executive’s invasion of the judicial realm,’ and furnished the legal rationales for the Medici balìe, which ‘weakened the old legislature’ (402). ‘They worked,’ above

49 For Bencivenni’s and Salvetti’s commentaries, see Tanzini, ‘An “Oracle of the Law”: Tommaso Salvetti and His Adnotationes ad statuta florentina,’ in this volume. 50 An example of ‘cleansing’ occurred in 1477 with reform of the statutes regulating inheritance; see Kuehn, Heirs, 74–81. 51 Fubini, ‘Il regime di Cosimo de’ Medici,’ 74–6. 52 The circumstances surrounding printed editions of city statutes are discussed by Storti Storchi, ‘Edizioni di Statuti,’ and Savelli, Repertorio, 146ff.

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all, ‘to make possible a political system which occupied that intermediate stage in the transition from commune to principality’ (403). The last assertion provides the theme for the final section of Martines’s book, provocatively entitled ‘The State,’ which continues to attract considerable readership among historians of law and political thought. Drawing on the consilia of Florentine lawyers,53 Martines analyses their vigorous support for an executive with plenary powers, which, he maintains, was consistent with the lawyers’ political predilections and a conservative professional ethos primed to defend legally constituted political authority and the status quo against reform. More fundamentally, he argues that the lawyers had no option but to support oligarchic regimes, because the concepts and practices of political parties and loyal opposition – which provide legitimate space for one political party to oppose another without opposing the constitution or the form of government and its fundamental laws – had not yet emerged in late medieval or Renaissance Italy. Political dissent was not for the faint of heart. Banishment and confiscation of one’s property – and worse punishments – awaited those who opposed and sought to topple the regimes in power.54 In this political landscape, there was no incentive for Florentine lawyers to oppose a regime with which they had mutually reinforcing relationships. The sliver of lawyers who did predictably suffered political decapitation. The theme of political opposition, which absorbed Aristotle in his Politics and Bartolus of Sassoferrato in his tracts On Guelphs and Ghibellines and On the Tyrant, was the subject of Martines’s incisive essay ‘Political Conflict in the Italian City-States,’ published in Government and Opposition (1968). A staple of early modern European historiography in the mid-twentieth century was that the modern state, or at least some of the institutions associated with the modern state, crystallized around 1500.55 Martines, as many Renaissance scholars in the 1950s and 1960s did, subscribed to Francesco Ercole’s seductive teleological formula ‘from commune to principality’ (Dal comune al principato [1929]) to mark the progression from the self-governing

53 Perhaps for the sake of convenience, Martines cites only consilia found in manuscripts. Numerous consilia dealing with Florence and its territorial subjects are also extant in early printed editions, for example, those of Paolo di Castro, Francesco Accolti (†1488), Bartolomeo Sozzini, and Filippo Decio (†1535). 54 Ricciardelli, Politics of Exclusion; Brown, ‘Insiders and Outsiders’; Shaw, Politics of Exile. 55 F. Chabod, ‘Y a-t-il un état de la Renaissance?’ For an overview, see Isaacs, ‘Twentieth Century Italian Historiography.’

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citizen communes of the Middle Ages to the protomodern princely states of the Italian Renaissance, culminating, for Ercole, in the Italian fascist state of the 1920s under the yoke of that most futuristic of princes, Mussolini. For Martines, the modern state refers, in part, to ‘a sovereign juridical order, tending to claim exclusive jurisdiction and to be, by means of its legislative activity, the sole source of law. Adopting unitary and centralizing mechanisms, it puts an end to particularism. Its constitutional organization inclines to accord with the theory of the separation of powers – legislative, judicial, and executive’ (470). Yet this notional model, he readily concedes, did not actually materialize in some parts of Europe until the late nineteenth century and even later, and it certainly does not accord with the political configurations and institutional arrangements of Renaissance Florence and Milan. Wending one’s way through the thicket of usages of status and stato, one searches in vain for the characteristics of modern post-patrimonial states delineated by Max Weber, in particular the transpersonal notion of a people bound together into one body politic occupying a well-defined territory within which it factually exercises exclusive and continuous jurisdiction over all persons and things and control of all legitimate means of force.56 Semantic analyses of stato and status underscore the fact that the terms were inherently ambiguous and used indiscriminately in fourteenth- and fifteenth-century Florence. They referred, inter alia, to the city’s welfare (status civitatis), the political and administrative machinery of government itself, or the ruling group or leader in command of the government but distinct from the people ( populus), commune (commune), city (civitas), or republic (respublica) of Florence.57 In the duchy of Milan, the terms were also synonymous with dominium, the city’s and the duke’s jurisdiction over the communities and lands within its territory.58 Wisely, Martines refrains from touting Florentine lawyers as far-sighted political thinkers and philosophers who espoused an embryonic doctrine of the state (Staatslehre) and a theory of state law (Staatsrechtswissenschaft) resembling the abstract elaborations and rarefied theories of European legal scholars writing in the nineteenth and early twentieth centuries.59

56 My understanding of the varied concepts of state postulated by European thinkers has profited from Dyson, State Tradition, and Chittolini, Molho, and Schiera, eds, Origini dello stato. 57 Rubinstein, ‘Notes’; Marongiu, ‘La parola stato’; Tenenti, Stato; Skinner, ‘The State.’ 58 Bueno de Mesquita, ‘Sforza Prince.’ On the multiple meanings of dominium in Venice, see Grubb, Firstborn of Venice, 16–23. 59 Stolleis, Public Law, 419ff.

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For Martines, the inner meaning of the Florentine stato is best understood in terms of a cultural and linguistic dynamic of individual possessiveness manifestly at odds with Weberian modernity and a concept of the state as a public trust. The practically minded Florentine citizen reflexively handled the state as he would merchandise: something tangible that was understood to be inseparable from those who held it. ‘This is why Florentine memoirs, letters and chronicles of the fifteenth century, and reflections on politics in Machiavelli’s time, speak of “having,” “holding,” “occupying,” “taking,” “acquiring,” “drawing to oneself,” or “losing” the state (lo stato)’ (390). For the restricted circle of citizens who formed Florence’s elite of cittadini più principali, contact with power was personal, immediate, and sensory, similar to the visceral attachment to political power experienced in twentieth-century Chicago, where Martines grew up. More recently, Paolo Grossi, among Europe’s premier historians of law, has pronounced that medieval civilization was ‘stateless’ and that the misplaced quest to find the origins of the modern state in ius commune doctrines blinds us to the prepolitical legal and social forms of medieval civilization, a world, he asserts, that is markedly different from that of the legislative absolutism of centralized modern European states.60 Grossi’s ius commune, striking for its antistatist and historicist polemic and its affinities with English common law, fits comfortably with the current antiteleological trends in the scholarship of the Italian territorial states. Having shed the state-centred, top-down paradigm of the Florentine territorial state, current scholarship, initiated in 1970 with Giorgio Chittolini’s invigorating and productive reconceptualization of Italian regional states, affirms the ways in which Florence’s relations with its dependents were decentred and adaptive and textured by negotiation, informal contacts, and ‘the formation of networks of mutual interest.’61

60 L’ordine giuridico, 47: ‘L’assenza dello Stato dal grande processo di formazione della civiltà medievale non è un artificio verbale, tanto meno per chi osservi attento la sfera del sociale e del giuridico; essa appare, anzi, una chiave interpretativa di grande significato per lo storico del diritto, il primo prezioso strumento di comprensione per capire al diritto medievale il “segreto” della sua fisionomia più riposta, per individuare la pietra angolare di tutto il suo edificio.’ See also his ‘Un diritto senza Stato’ and ‘Il sistema giuridico medievale.’ Grossi’s insistent characterization of medieval civilization as stateless, a characterization that is sovereignly indifferent to the endless variety of social, economic, political, and legal practices documented and studied by historians of medieval Italy, has been sharply criticised by Ascheri, ‘Un ordine giuridico,’ and Conte, ‘Droit médiéval.’ 61 Chittolini, ed., La crisi delle libertà comunali; for the quote, Salvadori, ‘Florentines and the Communities,’ 208; Connell and Zorzi, eds, Florentine Tuscany; Kuehn,

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The antiteleolgical-cum-antistatist paradigm is at the core of current research on the territorial states of Venice and the duchy of Milan.62 Absent a concept of an unlimited and indivisible sovereignty that was later theorized by Bodin, Hobbes, and other early modern thinkers and coupled with a theory of the all-encompassing superiority of state law,63 what formulations of superior authority and overlordship did the city’s lawyers employ in adjudicating disputes between Florence and its subject communities? The juridical formulations rationalizing the superior political and legal authority of Florence (civitas superior) derived from Bartolus, the ius commune’s foremost representative. The formulations civitas quae superiorem non recognoscit (the city that does not recognize a superior) and civitas sibi princeps (the city is an emperor unto itself)64 expressed the claim that within its territorial state, Florence’s jurisdiction corresponded de facto to the emperor’s jurisdiction within his own empire.65 On that basis, Florence as a civitas superior possessed wide-ranging powers to regulate the lives and property of its territorial subjects – the ability to enact laws, levy taxes, regulate trade, and administer criminal justice within its territorial jurisdiction. Florence also claimed that the statutes of the communities within its territory were not valid unless approved by the civitas superior. Insofar as Renaissance Florence can be considered retrospectively a ‘sovereign state,’ it was so in the light of Bartolus’s formulations on jurisdictional sovereignty, which, via legal fiction and metaphor, elevated the civitas superior to the rank of princeps.66 In Martines’s own words:

62 63 64

65

66

‘Antropologia giuridica’; Tanzini, Alle origini, 194–5; Zorzi, ‘Pistoia e il suo territorio’; Mannori, ‘Effetto domino’; Mannori, ed., Comunità; Bicchierai, Ai confini della repubblica, 349ff. For an incisive overview, Fasano Guarini, ‘État moderne.’ Zamperetti, ‘Magistrature’; Gamberini, ‘Principe.’ For an overview of the recent scholarship, see Varanini, ‘Governi principeschi.’ Stolleis, ed., Staatsdenker; Costa, Civitas. Woolf, Bartolus of Sassoferrato, 153–60. For an early instance of such usage in Florence, see Paulus de Castro, Consilia (Venice, 1581), vol. 3, cons. 118, fol. 60v, no. 1: ‘Sed populus florentinus, qui non recognoscit superiorem, locum principis obtinet, ut notat Bartolus in 1. Ambitiosa, de decr. ab or. fa. (D. 50. 9. 4).’ For the scholarly debate over the meaning and historical significance of Bartolus’s formulations, see Canning, Political Thought, 115ff.; Ryan, ‘Bartolus of Sassoferrato’; Maiolo, Medieval Sovereignty, 231ff. The premodernity of concepts of territorial sovereignty postulated by Bartolus and his pupil Baldus, the leading Italian jurist in the second half of the fourteenth century, is put into relief by Canning, ‘Ideas of State,’ 14: ‘There are clearly differences of emphasis between Bartolus and Baldus, but they agree on the argument from fact accepting territorially sovereign cities within this framework of a hierarchy of sovereignty. In

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Julius Kirshner There was no law, no legitimacy in the Florentine dominion save by the authority of the Florentine state, which had drawn to itself, in fact under the seal of its lawyers, the powers of the princeps of Roman law. Florence made law for all subjects in the dominion: its touch raised local practice, custom, and preference to the level of law. The state thus was creative; out of the fullness of its being, it brought forth the law and legitimated all local custom, which otherwise remained a body of arbitrary norms, whatever its theoretical status in natural law. (419)

I agree with Martines that ‘in the course of the fifteenth century Florentine lawyers learned to use the Bartolist formulas of sovereignty with greater freedom and aggressiveness’ (417). From a critical legal theory perspective, these formulas were also used ‘to apologize for and mystify the exercise of power so that it seems to be just, impartial, and worthy of respect, whether or not that is so.’67 Meanwhile, Florentine lawyers insistently pressed into service Bartolus’s authoritative pronouncements and those of his teacher, Cino da Pistoia (†1336), and star pupil, Baldus de Ubaldis, to emphasize that Florence’s territorial overlordship did not empower its officials to unilaterally disregard mutual agreements and pacts made with its territorial subjects, to suspend privileges and immunities granted to individuals and corporate institutions, or to disavow its legal obligations arising specifically from Florentine laws or generally from the operation of entrenched ius commune principles.68 There was also a presumption that the Florentine government had a responsibility to provide affirmative relief to citizens and subjects harmed by official acts that were subsequently construed to be unlawful.69 Outside Florence, jurists modern terms, the external sovereignty of such cities would appear to be impaired, with the result that true sovereignty would seem to be denied them. Yet the cities’ nonrecognition of a superior, and their legal identification with the emperor in Bartolus’ case, and their replacement of him in Baldus’, suggest that the attribution of sovereignty to them is reasonable. It is however a late medieval form of sovereignty within its overall hierarchical structure. As we have noted, the question of the precise nature of these independent cities’ sovereignty clearly relates to the question of whether they may truly be termed states. One would suggest that Bartolus and Baldus do consider them to be states located in a peculiarly medieval way in the hierarchy of sovereignty: that is to say their form of statehood matches their form of sovereignty. In this respect neither jurist has in mind a modern idea of the state.’ 67 Balkin, ‘Critical Legal Theory Today,’ 64. 68 On the theme of a state ruled by law, see the suggestive essay by Mayali, ‘De la juris auctoritas.’ 69 Tanzini, Il governo delle leggi, 155ff.

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invoked the authority of Cino, Bartolus, and Baldus to prevent political expediency from degenerating into illegality and to hold officials accountable for their illegal acts.70 The city’s lawyers understood perfectly well that even though Florence was a civitas superior, as a matter of strict law, it did not share the full powers of the emperor.71 They steadfastly refused, for instance, to attribute to the civitas superior the quality of maiestas, that sacred dignity and supreme authority that belonged to the Roman emperor. Florentine citizens could be prosecuted for plotting to overthrow their government or assembling a mob and taking up arms against the government, but not for the capital offence of crimen laesae maiestatis, loosely translated as ‘high treason,’ which was a crime that could be committed only against the person and majesty of the emperor and the princes to whom he formally delegated imperial powers.72 Similarly, the city’s lawyers resisted attributing to Florence plenititudo potestatis (fullness of power) – the supreme legal and political power claimed by the emperor, pope, and secular princes such as the Visconti and Sforza of Milan and the Scaligeri of Verona, which arguably placed these rulers above the law.73 That Florence’s lawyers made consequential contributions to the conceptual foundations of the city’s territorial state – what recently has been termed Jurisdiktionsstaat / stato giurisdizionale74 – is incontestable, but they are now regarded by historians as less power-revering and professionally more independent than originally portrayed in Lawyers and Statecraft.75 Lawyers and Statecraft’s ambitious investigation into the varied roles played by Florentine lawyers as a socio-professional collectivity in public affairs was received with enthusiasm by historians of law and of the Italian Renaissance. The sheer scope of Martines’s study dwarfed Hyde’s competent yet brief discussion of the presence of judges and doctors of

70 Russo, ‘Consulta’; Colorni, L’eguaglianza, 32–93; Quaglioni, I limiti della sovranità, 68ff; De Benedictis, ‘Il diritto di resistere’; Cavallar, ‘Francesco Guicciardini’; Kirshner, ‘Bartolo of Sassoferrato’s De tyranno’; Pennington, ‘ Was Baldus an Absolutist?’; Gentile, ‘Bartolo in pratica’; Crescenzi, ‘Il problema del potere’; Caravale, Alle origini, 44ff. Outside Italy: Isenmann, ‘Recht’ and ‘Funktionen und Leistungen.’ 71 With regard to Genoa as princeps, see Savelli, Repertorio, 123ff. 72 Cavallar, ‘Il tiranno,’ 299ff.; Fredona, ‘Baldus de Ubaldis on Conspiracy and Treason and Laesa Maiestas in Late Trecento Florence,’ in this volume. 73 J. Black, ‘Visconti’; Conetti, ‘Baldo e la politica viscontea.’ 74 Montorzi, Giustizia in contado. 75 Cavallar, ‘Francesco Guicciardini’; J. Black, ‘Constitutional Ambitions’; Lepsius, ‘Paolo di Castro as Consultant,’ in this volume. For Venice: Viggiano, Governanti e governati.

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law in the governing class of Padua (1966) and Herlihy’s observations on lawyers and notaries as professional administrators in late medieval Pistoia (1967).76 The book’s consuming focus on the political activities of lawyers and its insistence on the political character of legal discourse signalled a radical departure from traditional internalist studies focused on the careers and doctrines of individual jurists and the ius commune as a self-contained and internally consistent system of rational principles and procedures. The radicalism of Martines’s approach was not lost on Mario Sbriccoli, an Italian Marxist legal historian stirred by Antonio Gramsci’s concept of the role of organic intellectuals in paving the way for the emergence and eventual dominance of a new ruling group (classe dirigente). His substantial study, Statutory Interpretation: A Contribution to the Study of the Role of Jurists in the Communal Period, appeared one year after Lawyers and Statecraft, in 1969.77 The coincidence of these two remarkable studies – so different in approach, reasoning, and the types of evidence deployed – marks a turning point in the historiography of the political roles performed by jurists in late medieval and Renaissance Italy. Like Martines, Sbriccoli focuses on the nexus between lawyers and politics and treats lawyers as a socio-professional group deserving study for its forceful participation in the political arenas of communal Italy. However, he begins by noting that long before Martines’s lawyers had stepped onto the political stage in Renaissance Florence, their counterparts in the twelfth and thirteenth centuries had fully participated in communal politics in north and central Italy as administrators, legislators, and officials. His focus is not on the documentable political exploits of this group but on the politics of statutory interpretation. For Sbriccoli, the political vocation (l’impegno politico dei giuristi) of the jurists committed them, as a selfconscious collectivity, to defend and facilitate the general political system (il sistema politico generale) and the ideological projections, social forces, and general values through which the emerging ruling groups of the communes would maintain their hegemony. Statutory interpretation became the concrete means for realizing the marriage of force and consent. The bulk of Sbriccoli’s study is devoted to the anything-but-neutral rules of statutory interpretation devised and manipulated by jurists in defence of

76 For Bologna and Modena, see Fried’s substantial Die Enstehung, esp. 87–140 on the social status of doctors of law; for Siena, Perugia, and Bologna in the thirteenth century, Menzinger, Giuristi e politica. 77 Sbriccoli, L’interpretazione dello statuto.

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communal self-rule and liberties and the manifold interests of communal ruling classes, both of which were enshrined in municipal statutes.78 Like many Italian scholars of the sixties and seventies who took inspiration from Gramsci’s critique of Italy’s inability to develop a nation state along the lines of Great Britain or Germany, Sbriccoli views the fifteenth and sixteenth centuries as a period of regression, when cities had fallen under the sway of oligarchies, tyrants, and princes. The disease of regression infected all sectors of society, including lawyers. The jurist-advocate (giurista-avvocato), formerly a political protagonist, was transformed into a hired hand obsessed with consulting fees and building up his patrimony, intellectually depleted and satisfied with regurgitating calcified formalist objectivity in the form of communis opinio, and mired in an agrarian cultural world removed from the real centres of power, where a new science of politics was being inaugurated. In the communal period, the jurists had roundly acclaimed the autonomy of local statutes vis-à-vis the universalistic pretensions of the ius commune. In the fifteenth and sixteenth centuries, when communal autonomy and urban liberties were no longer at stake, with Italy fractured into a cluster of competing territorial states, jurists looked to the ius commune as the polestar of the legal order. The standard that statutes should be interpreted narrowly to cause the least damage to the ius comune (ut quam minus laedunt ius commune) was now widely embraced.79 Although Sbriccoli enlisted Lawyers and Statecraft in support of his own theses, his gloomy characterization of the legal profession as a docile appendage of political power in the post-communal period contrasts sharply with Martines’s keen admiration for the role played by Florentine jurists in expanding opportunities for wielding and legitimating power. The unsettling implication of Lawyers and Statecraft is that a parallel universe of obscure Florentine jurist-consultors may have contributed more to the conceptual foundations of the modern state than Machiavelli, Italy’s

78 Ibid., 49ff. As far as I can tell, Sbriccoli was consistent in reiterating his view of jurists as producers of ideology undergirding the dominance of the classe dirigente. See his Crimen laesae maiestatis; ‘Politique et interprétation juridique’; and Législation, justice et pouvoir politique. For a nuanced discussion of Gramsci’s emphasis on ‘law’s vital role as a form of ideology that generates consent in civil society’ as it relates to early fifteenth-century Florence, see Armstrong, Usury and Public Debt, 106–10. 79 Sbriccoli, L’interpretazione dello statuto, 461. On the spell cast by the paradigm of regression and decadence, see Mannori, ‘Effetto dominio,’ 60–4.

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foremost political theorist, whose ideas Martines never mentions.80 The contrasts between Martines’s and Sbriccoli’s studies, I believe, arise from different steering assumptions. Sbriccoli begins his work with an ingrained bias, transmitted in mainstream legal-history manuals, depicting Italian jurisprudence after 1400 as a pale reflection of the golden age of Italian jurisprudence, which stretched from Irnerius in the late eleventh century to Bartolus and Baldus in the fourteenth. Echoing the humanist rant against the venality of ius commune lawyers, legal historians disparaged the traffic in legal opinions of the later period, which allegedly tainted the noble enterprise of ius commune jurisprudence. And Sbriccoli, as did many historians on the left at the time, regarded the Renaissance as both a false dawn of political, cultural, and economic regeneration and a prelude to centuries of devolution and foreign occupation that only ended with Italy’s unification in 1860–1.81 Sbriccoli’s technical analysis of the intricacies of medieval statutory interpretation remains essential reading for legal historians who, ironically, study the very consilia he belittled. Meanwhile, his assertion that the function of learned jurists was inherently political and ideological has been criticized for reducing law to an epiphenomenon of politics, politics to the tacit interests of the ruling class, and historical complexity and contradiction to a pallid general system.82 Indeed, recent research on the politics of law in thirteenth-century Italy has enriched our understanding of the ethical selfhood and internalized professional constraints that enabled jurists to operate with relative professional autonomy. Forced by new political pressures to move beyond their own aristocratic class interests, the jurists functioned as honest and effective brokers during the fierce political debates and conflicts in the popolo-dominated governments that came to power around 1250. It was they who shouldered the responsibility, admittedly with only partial success, of translating into institutional 80 The implication is all the more striking in view of Von Albertini’s book (Firenze dalla repubblica), published in Italian translation in 1960, which centres on Florentine political theorists – including Machiavelli, Guicciardini, and Donato Giannotti – as principal agents of Florence’s passage from republic to principality. Rubinstein (review of Lawyers and Statecraft, 124) simultaneously recognized and downplayed the significance of the jurists’ importance as political thinkers. 81 For examples of Gramsci-inspired history, see Candeloro, Storia dell’Italia moderna; Romano and Vivanti, eds, Storia d’Italia; and Bertelli, Il potere. 82 Padoa Schioppa, ‘Sul ruolo dei giuristi’; Cavanna, ‘Il ruolo del giurista,’ 102–6. For a subtle discussion of the role jurists played in the application of city statutes, see Ascheri, ‘Il “dottore” e lo statuto.’

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practice the principles of impartiality, legality, and corrective justice that the popolo promoted as preconditions for domestic peace and commercial prosperity.83 In pointing to consilia as a superlative source for historical studies and providing references to dozens of manuscripts with consilia, Lawyers and Statecraft quickly became a starting point for research into the consulting activities of lawyers in late medieval and Renaissance Italy. Over the past forty years, historians have employed consilia to study an ever-expanding variety of subjects: kinship, inheritance, illegitimacy, property, marriage, dowries, citizenship, public finance, crime, reprisals, exile, tyranny, and so on.84 These studies, in turn, have identified significant methodological and interpretive challenges that, with the benefit of twenty-twenty hindsight, make possible a critical evaluation of Martines’s use of consilia as evidence for his central conclusion that Florentine lawyers unhesitatingly defended the plenary powers of the city’s executive magistracies and the city’s territorial overlordship. To start with, there is a problem of generalizing from fragmentary evidence. Because Martines refers to only a tiny fraction of the extant consilia adjudicating executive actions and Florence’s territorial overlordship, his non-random sample offers a limited number of positive examples that are probably one-sided, undercutting the force of his conclusions. The pride of place afforded to consilia supporting Florence’s overlordship in contrast to the downplaying of consilia upholding the counterclaims of territorial dependents likewise smacks of confirmation bias. Far from confirming a linear trend towards the modern state, a thorough exploration of the extant consilia adjudicating disputes between Florence and individual dependent communities in the period extending from 1380 to 1530, I want to suggest, would reveal a zigzag pattern (or perhaps no pattern at all) that must be studied close-up to catch the subtleties. A principal challenge facing historians, then, is to explain the reasons and circumstances 83 Menzinger, Giuristi e politica, and ‘Consilium sapientum: Lawmen and the Italian Popular Communes,’ in this volume. In the same vein, on law experts in thirteenthcentury Bologna, see Milani, L’esclusione dal comune; and Milani, ‘Giuristi,’ 638: ‘Nella fase di passaggio in cui i governi comunali cominciano a legiferare contro i propri nemici politici interni, dunque, i giuristi si rivelano un ceto che, lungi dal porre la propria scienza al servizio del potere, costruisce e custodisce una scienza da cui trae potere.’ For the popolo in Florence, see Najemy, History of Florence, 35–95. 84 Baumgärtner, ed., Consilia im späten Mittelalter; Ascheri, Baumgärtner, and Kirshner, eds, Legal Consulting; and Kuehn, ‘Lawyers and Housecraft in Renaissance Florence: The Politics of Private Consilia,’ in this volume.

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that led Florentine lawyers to submit opposing opinions on the same and comparable disputes. To take one instructive example, Martines presents a summary description of several consilia produced by government lawyers upholding Florence’s claim to impose new gabelles, or indirect taxes, on Castiglione (Castiglion Fiorentino), a dependency acquired from Arezzo in 1384 and incorporated into Florence’s distretto (417). Under the articles of capitulation ( pactis et capitulis) formally subjecting Castiglione to Florentine rule, the Castiglionesi were required to pay the hefty salary of the Florentine podestà installed in their town plus an annual tribute payable on the feast of St John the Baptist of thirty florins in the form of a silk cloth symbolizing their status as dependents of Florence.85 To make Florentine rule more acceptable, the articles of capitulation established that Castiglionesi would henceforth be exempt from all other Florentine property and personal taxes (onera realia, personalia seu mixta) in perpetuity.86 Almost immediately, however, Florence reneged on the tax exemption, as it did with other dependencies,87 and thereafter repeatedly imposed

85 Guasti and Gherardi, I capitoli, 56–8. For Florence’s relations with Castiglion Fiorentino, I have relied on Taddei, Castiglion Fiorentino, 215ff. The connection between the growth of the public finances and state-building in Florence was put into relief by Becker in his 1966 study ‘Economic Change and the Emerging Florentine State.’ An Italian translation of Becker’s study was included in Chittolini’s anthology La crisi degli ordinamenti, 149–86. 86 The pact of capitulation is found in Bibliocteca Comunale of Castiglion Fiorentino, Statuto of Castiglion Fiorentino (1384), fols 3r–8v. The clause granting the tax exemption (5v–6r) states: ‘Item quod commune Florentie vel alius cuiuscunque status vel conditionis existat, modo aliquo ingenio vel colore, per directum vel indirectum, non imponant nec imponere possint vel debeant per inperpetuum hominibus, communi et universitati dicte terre Castilionis eiusque territorij et districtus, incolis et habitantibus ibidem, nisi esset alias subiectus communi Florentie, aliqua datia vel collectas vel onera realia, personalia seu mista, nisi solum dictum commune Castilionis; et nihil dictum commune Florentie vel alius, per directum vel indirectum apprendere possit, vel apprendat de bonis, fructibus, redditibus vel proventibus vel aliqua pecunia vel havere dicti communis Castilionis, sed libere et absque aliquo impedimento, molestia, vel contradictione alicuius remaneant, stent et sint in dispositione et administratione dicti communis Castilionis. Salvis semper omnibus et singulis contentis in precedentibus seu sequentibus capitulis.’ While not offering a diplomatic transcription, I have retained rather than emended the text’s grammatical and orthographic peculiarities. I am grateful to Gabriele Taddei for providing me with a photocopy of this manuscript. See also his discussion of the articles of capitulation in Castiglion Fiorentino, 136–7. 87 R. Black, ‘Cosimo de’ Medici and Arezzo,’ 33–4.

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both ordinary and extraordinary taxes on Castiglione.88 By the early fifteenth century, Castiglione, hammered by Florentine taxes amounting to nine hundred florins annually, fell into arrears. To pay thousands of florins in back taxes, the town was forced to borrow from Florentine bankers at interest rates ranging from 12 to 16 per cent per annum.89 When Florence sought to impose new gabelles around 1417, the Castiglionesi protested that the tax violated the founding articles of capitulation. In response, the officials in charge of collecting the gabelles requested a consilium from the government lawyer (sapiens communis) Alessandro Bencivenni to determine the legality of the gabelles provoking the Castiglionesi to protest.90 There may have been a larger strategy at play in this and similar disputes. From a functionalist perspective, one might suspect that such requests for consilia were a way of assuring local elites that Florentine rule would be guided by a reasonable interpretation of law as opposed to arbitrary will. These assurances, if persuasive, might have decreased local resistance to Florentine rule and increased the kinds of commercial activity that Florence could, in turn, tax.91 The Castiglionesi have an affirmative obligation to pay the gabelles, Bencivenni held, because of Florence’s jurisdictional sovereignty and the Castiglionesi’s inferior status as Florentine subjects. Among the ‘many reasons’ he alleged to justify his determination were these: first, such gabelles should be construed as munera realia, a tax on property that is legally justified because it is earmarked for public works. If foreigners are required to pay the gabelles in Castiglione, how much more so are the Castiglionesi, who are subjects of Florence.92 Second, the tax levy is justified 88 Taddei, Castiglion Fiorentino, 304–7, 314–21. 89 Molho, Florentine Public Finances, 40. 90 For Bencivenni’s appointment as sapiens communis, see ASF, Tratte 576, fol. 72r (9 March 1417/18). The opinion, which remains unedited, is found in a manuscript of Bencivenni’s consilia preserved in BNC, Magl. XXIX, 186, fols 46r–47r. Bencivenni wrote at least two other consilia upholding Florence’s jurisdictional superiority to impose taxes on Castiglione (ibid., fols 155r–56v, 199v–202r). Owing to space constraints, I limit my discussion to the first of the three consilia he devoted to this dispute. 91 For a fuller exploration of the logic informing this conjecture, see North and Wiengast, ‘Constitutions and Commitment.’ Thanks to Alexander Kirshner for this reference. 92 BNC, Magl., XXIX, 186, fol. 46r: ‘Quod commune et homines Castilionis teneantur solvere dictas gabellas ostenditur pluribus rationibus: quoniam huiusmodi gabelle sunt munera realia que tenentur subire etiam forenses, ut l. Munerum, § Patrimoniorum, ff. de muneribus et honoribus (D. 50. 4. 18. 21), et ibi Bartolus, et in l. Libertus, § Sola, ff. ad municipalem (D. 50. 1. 17. 5) . . . Si ergo forenses, multo magis Castilionenses.’

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by Florence’s exalted rank, ‘because the commune of Florence shines forth pre-eminent among its subjects as princeps.’93 Third, Florence’s authority to impose taxes on Castiglione derives from its exclusive jurisdiction over civil and criminal matters (merum et mixtum imperium) in its dependencies.94 Fourth, the gabelles are necessary on grounds of public utility for the protection and defence of both Castiglione and Florence and therefore are warranted. Indeed, when the Castiglionesi submitted to Florentine rule, they placed themselves and all their property under the protection, care, and dominion of Florence.95 Not surprisingly, given the pro-Florentine thrust of his opinion, Bencivenni failed to mention the qualifying proviso that Castiglione’s immunities and rights would not be prejudiced by placing itself under Florentine protection.96 These four reasons demonstrated Florence’s superioritas in fiscal matters, but did not directly answer the question of whether Florence could unilaterally withdraw (auferre) the tax immunity. Bencivenni advanced several reasons to defend the withdrawal.97 For one thing, the immunity clause employs general language, making no specific reference to ordinary and extraordinary taxes. As gabelles fall under the rubric of ordinary taxes (onera ordinaria), they are technically not covered by the immunity. For another, an immunity, even one arising from mutual agreement, is not in itself always valid with respect to taxes imposed on real property, as is the case here. The maxim that no one ought to obtain an advantage with injury or loss to another demands that the Castiglionesi pay the tax. Otherwise, Florence’s other subjects would be damaged by having to make up the revenue shortfall that would ensue unless immunity were withdrawn. 93 Ibid.: ‘Secundo, quoniam commune Florentie floret ut princeps inter suos subpositos, et ut notatur per glosssam et Bartolum in l. Hostes, de captivis (D. 49. 15. 24).’ 94 Ibid.: ‘Quod autem [Castilionenses] sint subiecti evidenter probatur. Nam commune Florentie in eos iurisdictionem exercet, eosque astringere potest, et in ipsos merum et mixtum imperium et gladii potestatem exercere valet. Igitur sunt de districtu communis eiusdem.’ 95 Ibid.: ‘sub protectione et defensione, custodia et dominio dicti communis [ Florentie] se posuerunt.’ 96 Statuto of Castiglion Fiorentino (1384), fol. 4r: ‘Item quod dicta terra Castilionis et eius cassarum et tota eius avera et seu territorium et homines eiusdem per futura tempora et deinceps in perpetuum protegantur, gubernentur et manuteneantur sub protectione, defensione et custodia dicti communis et populi dicte civitatis Florentie, ad honorem magnificentiam et statum guelfum dicte eiusque communis et populi dicte terre Castilionis: non preiudicando iuribus, libertatibus, immunitatibus et honoribus dicti communis Castilionis.’ 97 For what follows, see BNC, Magl. XXIX, 186, fols 46v–47r.

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Additionally, Florence may impose taxes when they are necessitated by a new state of affairs (quia proponuntur imposte ex novis necessitatibus reipublice), which was taken to mean that the republic is imperilled by war or its imminent threat. Necessitas had long been a standard justification in both the ius commune and local law for the introduction of new tax levies (causa impositionis) and, more generally, for enabling rulers and governments to deviate from their own laws.98 Waving the banner of utilitas publica was another conventional justification for political expediency. Florence, just like the princeps, may revoke another’s property right even when that right is sustained by natural law, for the revocation meets the test of utilitas publica in that it serves the broader public interest by promoting the republic’s welfare.99 ‘From all these reasons,’ Bencivenni determined, ‘the clear conclusion is that the commune and men of Castiglione are obligated to pay the said gabelles.’100 Bencivenni’s determination was endorsed by Filippo Corsini and Giovanni Buongirolami da Gubbio. But it did not command the assent of all Florentine jurists – the possibility of which is omitted in Martines’s discussion, which is aimed at illustrating the jurists’ contribution to an expansive conception and exertion of Florentine territorial sovereignty. Notwithstanding Florence’s jurisdictional sovereignty, the counterargument that the imposition of the gabelles credibly violated the terms of the articles of capitulation was first advanced by Niccolò Cambioni of Prato and then by Bencivenni’s contemporaries Nello da San Gimignano

98 Cortese, ‘Intorno alla causa impositionis.’ One should not confuse the medieval justificatory conception of necessitas non habet legem, which permitted an individual exception to a literal application of a legal enactment or rule while concurrently maintaining the established framework of legal rules, guarantees, and institutions, with the problematic modern concept of ‘state of exception,’ which, according to the poststructuralist interpretation of Agamben, refers to ‘the separation of force of law from law’ (State of Exception, 38) and ultimately to a no-man’s-land devoid of law, prime examples of which are Nazi Germany and the USA Patriot Act of 26 October 2001. Agamben’s essay has sparked an examination of whether and to what extent ‘states of exception’ existed in medieval and early modern Italy. See Vallerani, ed. ‘Sistemi di eccezione,’ a thought-provoking collection of nine essays published in Quaderni Storici. See also Moritz Isenmann’s provocative study ‘From Rule of Law to Emergency Rule in Renaissance Florence,’ in this volume. For a compelling critique of Agamben’s apocalyptic perspective, see Honig, Emergency Politics. 99 BNC, Magl. XXIX, 186, fol. 47r: ‘sicut videmus quandoque principem venire contra ius naturale et aufferre ius alterius ex causa predicta.’ 100 Ibid.: ‘Ex quibus omnibus lucide infertur commune et homines Castilionis teneri obnoxios ad gabellas prelibatas.’

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and Paolo di Castro.101 The latter was one of Italy’s most distinguished academic jurists and a prolific consultor who had a hand in the compilation of Florence’s Statuta of 1415 and taught civil law at the University of Florence on and off between the years 1413 and 1424.102 We learn of their consilia from yet another consilium, dating around 1438–40 and penned by Otto Niccolini, who unequivocally defended Castiglione’s tax immunity.103 We also learn that Niccolini had written an earlier consilium defending the immunity, but so far I have been unable to find it. The immediate context of Niccolini’s consilium was an extraordinary tax (balzello/balzellum) of eighty florins that Florence imposed on Castiglione. The tax was part of a bundle of balzelli that Florence sought to collect from its subject communities to help pay for its ongoing war with Milan. The question Niccolini was asked to resolve was whether Castiglione was required to pay this extraordinary tax in view of both the immunity granted by Florence in 1384 and the terms of the enactment (provvisione) authorizing the extraordinary tax. In contrast to Bencivenni’s lawyerly contortions, Niccolini’s consilium was fairly straightforward because – from a narrow construal of the articles of capitulation – Florence’s ability to tax Castiglione was severely circumscribed. Accordingly, Niccolini conceded that Castiglione is subject to Florence’s superior jurisdiction.104 But he denied that Castiglione was

101 Paulus de Castro, Consilia ( Venice, 1581), vol. 1, cons. 313, fols 163v–64r. I also want to express my gratitude to Gabriele Taddei for referring me to the consilia of Francesco di Ser Viviano (†1430) and Biagio di Lapo Niccolini (†1467), which denied the validity of Florence’s imposition of a contract tax (gabella contractus) in Castiglion Fiorentino. The consilia are found in ASF, Diplomatico (a quaderno), Castiglion Fiorentino (19 March 1428, Florentine style). Again, because of the limited scope of my essay, I am leaving aside for now these dense consilia. However, I plan to devote a separate study to the consilia dealing with Castiglione’s tax immunity mentioned in this essay. 102 On Paolo di Castro, see Kirshner, ‘Paolo di Castro’; Tanzini, Statuti e legislazione, 380–6; and Lepsius, ‘Paolo di Castro as Consultant,’ in this volume. 103 On Otto Niccolini, see Brizio, ‘Una raccolta.’ A copy of Niccolini’s consilium numbers among his consilia collected in a seventeenth-century manuscript – only recently made available to scholars – found in Florence, Archivio Niccolini da Camugliano, Florence, MS 5, fols 197v–202v, cons. XXIX, which is described by Brizio. Regarding the dating of the consilium, the terminus post quem is 1438, when Niccolini officially matriculated into the Guild of Lawyers and Notaries; the terminus ante quem is 1443, when Francesco Marchi, who endorsed the consilium, died. 104 Archivo Niccolini da Camugliano, Florence, MS 5, fol. 197v: ‘Cum commune Castilionis Florentini venit sub imperio et iurisdictione civitatis Florentie recognovit ipsum imperium et jurisdictionem cum nonnullis pactis et capitulis compositis, initis et

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thereby subject to Florentine jurisdictional sovereignty in the matter of taxation, because under the articles of capitulation, the faculty to impose taxes belongs to the community of Castiglione itself.105 With regard to taxation, Castiglione retained its independence (libertas), which Florence may not infringe, even on grounds of necessitas and utilitas publica. Similarly, Niccolini denied that the enactment authorizing the balzello overrode Castiglione’s immunity. True, the enactment carried a standard derogatory or ‘notwithstanding’ clause rescinding any privilege and exemption contrary to the enactment’s dispositions. The clause, Niccolini observed, referred to a privilege exempting someone from a compulsory civil obligation that could be rescinded merely at the will of the granting authority. Castiglione’s immunity was altogether a different species, for it was granted to a free people not subject to Florentine tax levies. In groove with Bartolus’s doctrines on the contractual status and irrevocability of an acquired right (ius quesitum), he explained that the enactment did not override the tax immunity, which had been acquired as the result of a pact (the agreement of two or more parties). The immunity, moreover, had hardened into a contractual right (cum transiret in contractu) that by operation of law Florence may not rescind unilaterally.106 In conclusion, citing his earlier consilium and the consilia of previous jurists defending Castiglione’s immunity, and with the endorsement of the present opinion by Francesco Marchi (†1443), his senior colleague, Niccolini determined that Florence’s officials may not impose the extraordinary tax.107

factis inter ipsum commune Florentie ex una et ipsum commune Castilionis et homines eiusdem ex alia.’ 105 Ibid., fol. 201r: ‘Sed ius imponendi talia onera fuit reservatum ipsi communi Castilionis: ergo non potest competere communi Florentie.’ 106 Ibid., fols 201v–202r: ‘Item, dum dicitur “non obstante quod habeant aliquod privilegium vel exemptionem, etc.,” intelligitur de privilegio non voluntarie concesso, quod posset ad libitum revocare, 1. Vacuatis, C. de , lib. 10 (C. 10. 32 (31). 19), et ibi per Bar. et 1. 2, et ibi concordantie, et Bart. ff. De iur. immunit. (D. 50. 6). Non autem de illa immunitate (MS: immunitas), que quoad redderet populum illum liberum et non subditum, que pro libito revocari non posset cum transiret (MS: transmitteret) in contractu, ut 1. Item eorum, § Ex eisdem, ff. Quod cuiuscunque (MS: quisque) universitas (D. 3. 4. 6. 3), et ibi Bart. (MS: Bal.) 1. Quod semel, ff. de decret. ab ordin. facien. (D. 50. 9. 5), et ibi plene per Bart. et per eumdem in 1. Omnes populi (D. 1. 1. 9).’ 107 Ibid., fol. 202v: ‘Ex quibus et iis, que dicta sunt plenissime per prefatos doctores et me alias consulentem simul cum patre honorabili, domino [ Francisco] Benedicti (MS: Benedicto) de Marciis, doctore eximio, dico et concludo dictam impositionem non potuisse per dictos officiales fieri stantibus predictis, et sic de iure credo, salvo potiori iudicio. Ego Otho Lapi Niccolinus de Sirigatti de Florentie legum doctor

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Unlike other cases, the divergence of opinion on this occasion was not the result of a division of labour, with Bencivenni, on the one hand, ‘as lead counsel’ merely doing his job in enabling his cash-strapped client, Florence, to harvest the taxes it demanded from its dependents, and with Niccolini, on the other, engaged by Castiglione, similarly doing his job in defending his client’s interests. In the cases at hand, the consilia of Bencivenni and Niccolini were produced in direct response to requests from government officials for what amounted to declaratory judgments.108 Did the divergence of opinion arise from differences in ius commune doctrines, legal facts, or political preferences? These questions need to be investigated, but even if we could answer them, there is the further question of whether Castiglione was actually forced to pay the taxes. Recent research showing that in fact Florence imposed ordinary and extraordinary taxes in violation of the articles of capitulation and over the objections of the Castiglionesi raises yet more questions.109 Did the Florentine officials impose the taxes before or after they received thumbs up from the government lawyers that the imposition was consistent with ius commune standards of legality and therefore were acting under colour of law? Did the officials seek to impose taxes in disregard of the principled objections set forth by Niccolini and other lawyers, signifying that Florentine political and fiscal expediency in the final analysis trumped considerations of legality? Alternatively, did the officials eventually cancel or reduce Castiglione’s taxes in response to the consilia upholding the tax immunity and in recognition of the Castiglionesi’s inability to support such an unrelenting tax burden? My aim in raising these questions is not so much to criticize Martines’s ground-breaking research but to highlight the contextual challenges attending consilia as a historical source.110

iuris.’ In the manuscript of the 1384 statutes preserved in the Biblioteca Comunale of Castiglion Fiorentino, one finds a marginal reference to the consilia of Niccolini and several other jurists who defended Castiglione’s tax exemption, which indicates the importance of these opinions to the Castiglionesi. See Statuto, fol. 5v (left margin): ‘Super hoc capitulo consilia infrascriptorum doctorum Nelli de Sancto Geminiano, Pauli de Castro, Dionisii de Barigianis, Floriani de Sancto Petro, Johanni de Ymola et Octonis de Nicolinis.’ 108 As far as I can tell, Niccolini was never appointed sapiens communis. I base my classification of his opinion as a consilium sapientis on internal evidence. 109 See notes 88 and 89 above. 110 The lack of published catalogues of consilia in manuscript constitutes a major obstacle to effective research, which can, and does, lead to cherry-picking. For a model catalogue of the consilia manuscripts, see Maffei et al., I codici del Collegio di Spagna.

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Over the last forty years, I have been engaged in research on questions and themes that I first encountered in Lawyers and Statecraft, which I read in the tumultuous spring of 1968 while a graduate student and a resident fellow at the American Academy in Rome. I felt grateful at the time that Martines’s study was addressed not only to the author’s peers but especially to beginning scholars such as myself in search of non-traditional research topics and multidisciplinary approaches to legal history. In the text and footnotes, the reader was invited to investigate a cluster of significant yet unexplored subjects, including lawyers’ fees, arbitration, appellate courts, reprisals, commentaries on statutes, and the careers of Florentine jurists. The valuable references to manuscripts of consilia preserved in the Biblioteca Vaticana and the Biblioteca Nazionale and Archivio di Stato in Florence were a boon, leading me to spend many months investigating and transcribing consilia dealing with family matters (marriage, dowries, and inheritance) as well as with issues relating to citizenship and the exercise of public power. My experience is hardly unique. Encouraged by the example of Lawyers and Statecraft, a number of historians have drawn on consilia to produce a robust body of research that has broadened and deepened our knowledge of the role jurists played in adjudicating the inevitable conflicts engendered at the intersection of political imperatives and the rule of law. I take confidence from the papers by a new generation of scholars published in this volume that the interplay of law and politics in late medieval and Renaissance Italy continues to be a vital area of scholarship.

Consilium sapientum: Lawmen and the Italian Popular Communes SARA MENZINGER

The aspect of Lauro Martines’s Lawyers and Statecraft that has most influenced my own research on the political role of legal experts in the Italian communes of the second half of the thirteenth century is the attention he devotes not just to who the lawyers were but to what they did. Although such an approach might seem obvious, its novelty is one of the principal reasons for the success of Martines’s book in Italy, where it crossed the boundaries traditionally dividing the two academic disciplines of history and legal history. If the historians of communal and Renaissance Italy have focused – and today still focus – on the social identity of Italian lawyers in an effort to chart their family origins, their economic status, and their professional formation, legal historians have traditionally limited their interest to statutes and legal treatises, that is, to the products of the activity of lawyers, who interest legal historians primarily as authors of texts and drafters of laws rather than as a social group.1 Nevertheless, as scholars such as Martines – and in Italy, Antonio Padoa Schioppa and Mario Sbriccoli – first recognized, given the exceptional civic engagement that has always characterized Italian legal experts, it is only through the interaction of these two approaches that we are able to achieve

1 In addition to the classic German studies of Italian law experts by Johannes Fried (Die Entstehung) and Peter Classen (‘Die gelehrten Richter,’ ‘Richterstand und Rechtswissenschaft,’ ‘Richter, Rechtslehrer’), see the more recent historical studies that have considered these issues: for the twelfth century, Wickham, Legge, pratiche e conflitti, 105–13; for the thirteenth century, Grillo, Milano in età comunale, 267–70, 407–29, Ronzani, ‘I “giurisperiti,”’ Poloni, Trasformazioni della società, 130–44; and for the fourteenth and fifteenth centuries, Tanzini, Il governo delle leggi, 179–82, 265–76. For additional bibliography, see Menzinger, Giuristi e politica, 5–10.

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a balanced picture of communal and Renaissance lawyers.2 In Martines’s work, the decision to focus on Renaissance Florence – in addition to the historian’s personal inclinations and previous research – was justified by doubts about the very possibility of such research before the second half of the fourteenth century, given the relative poverty of documentary evidence in Italian archives dating as far back as the thirteenth century or earlier. Thanks, however, to numerous studies and editions of communal archival documents published in the last four decades, it is possible to assert that such doubts, although perfectly justifiable in the 1960s, are no longer tenable. Our current knowledge of the well-preserved judicial and political evidence3 – at least for some thirteenth-century cities – has encouraged me to engage in research into the professional and political activities of thirteenth-century communal lawyers, which, as in the case of Martines’s work, takes as its framework the operation of city governments during a specific phase of their political existence.4 The object of my research is neither the political ideas expressed by famous jurists in their formal exegetical writings nor the social and economic fortunes of individual authors, but rather the reasons why thirteenth-century city governments turned so frequently to legal intermediaries and the scope and effects of this historical phenomenon. In this paper I use indefinite expressions such as lawmen, lawyers, or legal experts to refer to the iudices, iurisperiti, and sapientes iuris, or, more rarely, doctores legum mentioned in the documents.5 Except for the last, whose title testifies that they had attended a course of legal studies in a university, before the end of the thirteenth century we do not know precisely what and where the others might have studied.6 They might have attended a university or a local law school of some kind, but what is certain is that they routinely identified themselves – and were so identified by their cities – as iudices – persons who, thanks to their legal training, 2 Padoa Schioppa, ‘Sul ruolo dei giuristi,’ republished and revised in Padoa Schioppa, Italia ed Europa, 293–312; Sbriccoli, L’interpretazione dello statuto. 3 In addition to the general survey of Cammarosano, Italia medievale, for an updated bibliography on judicial records of the thirteenth century, see Vallerani, La giustizia pubblica; for a recent survey of the administrative records, see Sbarbaro, Le delibere dei Consigli. 4 Menzinger, Giuristi e politica. 5 The archaic English term lawman described ‘one whose official duty it was to declare the law’ (Oxford English Dictionary). It seems a particularly apt translation of iurisperitus and sapiens iuris in the context of the thirteenth-century commune. 6 On this question, with reference to Milan, see Padoa Schioppa, ‘La giustizia milanese.’

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worked in the law courts as judges and lawyers. Moreover, in contrast to those of the twelfth century, the Italian legal experts of the thirteenth were distinct from notaries, who were legally empowered to draw up documents, even if the border between judges and notaries was not yet drawn as sharply as it would be in the fourteenth century.7 We can say that the lawyers considered here were not famous for their exegetical writings, but rather for the political and professional activities in which they engaged at the local level. To return to the thirteenth century is not simply to open a window onto the situation of lawyers as a social group 150 years before the conditions studied by Martines; it is also a means of trying to understand the real origins of the peculiar role that communal Italian lawyers played in public life in cities from the thirteenth century until the rise of the signorie and beyond. The political commitment of lawmen was already evident in Italian cities during the second half of the twelfth century, if not before, when it is possible to establish the engagement of many lawyers, some of them famous, at the highest levels of communal institutions. But these cases mainly reflect the individual paths of people who, for one reason or another, chose to put their legal expertise at the service of government. What was vitally new in the thirteenth century was the collective function that began to be attributed to communal lawyers, whose political commitment now appeared to be an ineluctable product of their legal expertise, analogous to the practice of law in the tribunals or, in some cases, to university teaching. In the remainder of this chapter I analyse the political forces that determined this change, its social and political consequences, and the forms in which legal advice on political questions was expressed. Two turning points in the thirteenth century led to a radical change in the position and function of communal lawyers. The first was the form of government that, beginning in the first decades of the thirteenth century, was adopted by all the cities of central and northern Italy. These cities chose to confer administrative and judicial powers on a foreign podestà, usually for a six-month period, rather than to be ruled any longer by the representatives of the local aristocracy (consules). The second turning point 7 For some observations on the use of the title notarius and the mixed form iudex et notarius in Italy, see, for the eleventh century, Cortese, ‘Legisti, canonisti e feudisti,’ 197–8, and for the twelfth century and the beginning of the thirteenth, Mayer, Felix et inclitus notarius, 88–90. For the evolution of the notarius figure in Italy in general, see the recent study of Bartoli Langeli, Notai.

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was noticeable by the middle of the thirteenth century, when many Italian cities adopted what we call ‘popular’ government, characterized by the appearance on the political stage of a large number of ‘new men’ – citizens, that is, of non-noble origins and with no former political experience who were mainly engaged in trade or commerce. These two turning points are not unconnected, because even if the coming of the podestà did not strictly coincide with the historical period we usually describe as ‘popular,’ it nevertheless forms part of the same political trajectory that soon led to the rise of popular governments. Indeed, the decision to entrust the political direction of cities to foreign officers was the result of a general call not only to curb the influence of noble families on urban institutions but also to ensure higher professional standards. As is by now well known, the foreign podestà was supported by a familia, a household of professional officials – mostly judges and notaries, also foreigners – whose primary task was to apply the statutes of the cities they were called on to govern, which were officially presented to them on their arrival. Far from supplanting local legal experts, the new, foreign officials promoted a stronger political commitment among local lawmen for two reasons. The first is that there was a genuine desire on the part of the podestà and his officials to apply communal rules correctly, thus overcoming problems arising from the short, six-month terms of office, the wide variety of statutes encountered by itinerant podestarial households, and the sometimes defective education of the foreign judges. Such difficulties are even more pertinent when we consider the importance attributed to the customary dimension in the interpretation of communal statutes. Even if by this time the cities of central and northern Italy spoke a common legal language deeply influenced by Roman and canon law, for foreign officials there still remained the key problem of knowing how communal statutes were traditionally understood in specific contexts. Therefore, it was important for there to be an intermediary body between the foreign officials and the local institutions that allowed for a dialogue between these transitory officials and the permanent reality of the cities they ruled. The second reason that led the podestà and their households to turn so frequently to the advice of communal lawyers was more subtle and would gain ground during the thirteenth century. In an environment as conflicted and fluid as the communal city, foreign officials needed to protect themselves against denunciation by those who might find their actions in some way prejudicial. Because the statutes formed the crux of the relationship between the podestà and the cities they governed, the constant concern of foreign officials was to avoid the accusation of perjury for having failed

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to apply the rules that on their arrival they swore to honour. And this is an understandable concern when we consider that at the end of their term of office, officials were required to submit to a veritable trial (sindacatus) in which the city might decide, for example, not to pay them their salary or, worse, to imprison or punish them if their behaviour was deemed incorrect. Local lawyers, therefore, began to assume the roles of repository and guardian of the laws of their cities, which can be inferred from the frequent requests to supply official opinions on various actions taken by foreign officials. These opinions were delivered in writing and retained by the podestà in order to demonstrate at the end of his term of office that he had conformed to the statutes. It is interesting to consider the form of these documents, which can be fully understood only by a comparison of judicial and political records. In the legal practice of Italian cities, judges customarily delivered a definitive judgement at the end of a trial only after having called in an external lawyer – namely, a lawyer not involved in the proceedings – who gave an official opinion (consilium sapientis) on the case. From this perspective, the foreign podestà simply transferred the authority the lawyer’s opinion already enjoyed in the judicial field to the political field.8 This is what clearly emerges from the records of Perugia and Bologna, where not only were the opinions given by lawyers in the political field called consilia sapientum and kept in the same judicial registers in which judicial consilia were recorded, but also the institutional council in which these local lawyers were convened was called – at least in Perugia – the ‘Consilium sapientum,’9 such was the fusion of judicial and political language. The semantic ambivalence of the medieval Latin word consilium – which, like the word consiglio in modern Italian, had the double meaning of ‘advice’ and ‘council’ – was played on to indicate at the same time the technical legal opinion of a lawyer in a trial and the institutional body in which lawyers were convened in order to deliver a legal opinion on political questions.10 We are therefore confronted with two consulting practices that, even if they took place in different fields, contaminated each other and as a result came to resemble one another. Under podestarial government, then, interaction between local and foreign judges, encouraged by sharing cultural and administrative knowledge, led to both the birth of a rudimentary city 8 For a classification of the different kinds of consilia in the communal world, see Ascheri, ‘Le fonti e la flessibilità,’ 15–17. 9 See Menzinger, Giuristi e politica, 105–30, and Bertelli, ‘Il potere nascosto,’ 11–31. 10 Menzinger, Giuristi e politica, 188–93.

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bureaucracy and the reinforcement of the self-consciousness of a professional group. While iudices, iurisperiti, and doctores had played an important role in some consular governments of the twelfth century, the stimulus deriving from the joint assemblies convened almost daily by the foreign officers certainly resulted in an extraordinary increase in the cohesion and self-awareness of city lawyers as a group in the succeeding century. This trend intensified from the middle of the thirteenth century as some Italian communes adopted ‘popular’ governments – a phenomenon extensively documented in cities such as Perugia, Siena, and Bologna – which consequently offer an opportunity to study the role of lawyers in this particular political experience. Albeit at different moments and in various ways, around the middle of the thirteenth century, all three cities experienced a profound political shift that was characterized by three basic elements: the enlargement of the city councils; the drafting of ‘popular’ laws; and the election of a ‘Captain of the People,’ a new foreign officer parallel to the podestà but whose main task was to protect the interests of the popolo.11 These innovations did not at all spell the death of the earlier political system, because if the new middling families of artisans and immigrants had entered forcibly into city institutions, they were obliged to live alongside the old noble families, families who still had in their hands the bulk of the city’s wealth, which was derived mainly from the ownership of lands in the contado. In Siena, Perugia, and Bologna, we can observe a sort of duplication of government: on the one side, there was the architecture of the old commune, with a communal council, a communal statute, and the podestà; on the other side, a Council of the People, a ‘popular’ statute, and a foreign Captain of the People as a result of the new political pressures arising from the middling classes. Two foreign officers, two councils, and two sets of statutes obviously raised very complex questions, especially when we consider the low degree of political hierarchization that was typical of the institutional life of the communes before the fourteenth century. This created a huge demand for the consultative services of lawyers, whose advice was now required to resolve the technical problems arising from both conflicting regulations belonging to the communal and ‘popular’ statutes and the perpetual changes

11 On the ‘popular’ governments of these three cities in general, see the classic studies of Mondolfo, Il populus a Siena; Grundman, The Popolo at Perugia; Fasoli, ‘La legislazione antimagnatizia’; and Milani, ‘Il governo delle liste.’ For additional bibliography, see Menzinger, Giuristi e politica, 61–71, 95–126, 225–51.

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introduced in both bodies of statutes as a consequence of the precarious political balance between popular and traditional communal institutions. Some examples will help clarify the questions that confronted lawyers. During the 1250s, the newly installed Captain of the People in Siena clashed repeatedly with the podestà.12 Solutions to these quarrels were routinely sought through the technical legal advice of local lawyers. Their task was to explain the respective judicial and administrative powers of the foreign officials. In 1256, in order to resolve contradictions between the statutes of the commune and those of the people, the Council of the People decided to turn to a board of lawyers whose particular task was to preserve the integrity of the captain’s oath, that is, to suggest means by which the captain might avoid adopting a resolution of any given case in conflict with the statute he had sworn to honour.13 Shortly afterwards, because the Council of the Commune and the Council of the People had earlier differed about the political line to adopt with the commune of Pisa, the Council of the People proposed to summon a number of local lawyers in order to clarify whether the issues contained in the order of the day for the Council of the Commune could also be discussed in the Council of the People. The sapientes iuris were to put their opinion in writing and present it to the podestà in an attempt to placate him by means of their consilium.14

12 For the political context of these quarrels in the history of Siena, see Menzinger, Giuristi e politica, 61–82. 13 Consilium populi of Siena, 1256, ASS, Deliberazioni, Consiglio generale 6, fols 76v–77r: ‘ [ Discussion] Dominus Ciampolus . . . super ordinamentis et capitulis supradictis . . . placet ei quod dominus capitaneus habeat sapientes iuris usque ad illam quantitatem quam habere voluerit, et ostendat eis suum ordinamentum ad quod iuravit . . . Bartolomeus Aççolini . . . super dictis ordinamentis . . . placet ei quod dominus capitaneus habeat usque ad illam quantitatem quam habere voluerit de sapientibus iuris, et ostendat eis dicta ordinamenta et capitula et suum ordinamentum, et recipiat ab eis . . . consilium quod salvet suum sacramentum, et suum ordinamentum per dicta capitula non rumpatur . . . [Decision] Consilium Populi est in concordia quod ordinamenta et capitula . . . in isto presenti Consilio lecta sint firma, et quod dominus capitaneus habeat priores xxiiiior et consules utriusque mercantie super predictis videndis et ordinandis et facendis et sapientes iuris usque ad illam quantitatem quam dominus capitaneus habere placuerit.’ 14 Ibid., fol. 25v: ‘[Discussion] In nomine Domini amen. Factum est . . . Consilium per dominum capitaneum de xxiiiior in quo proposuit et consilium petiit qualiter respondendum ambasciatoribus de Pisis super iuramento fiendo Communi Pisis contra suos inimicos. Iacobus Ciampoli consuluit quod dominus capitaneus incontinenti habeat vi. sapientes iudices vel plures vel pauciores ad suam voluntatem . . . et ipsi sapientes videant capitulum constituti quod loquitur de impositis per potestatem fiendis apud parlamentum; et si prudentes consuluerint . . . ipsum capitulum non contradicere, vult quod de

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The Sienese documents are of particular interest because they represent the earliest evidence of juristic intervention in such issues and actually date from the very first months in the life of a popular government. However, similar questions recurred again and again during the thirteenth century in Siena and elsewhere, as the records of 1277 in Perugia testify. In the first six months of this year alone, the foreign officials in charge at Perugia summoned local lawyers on at least eight occasions to clarify criminal rules in the statutes of the commune and of the people. In May, they asked twenty-three lawyers of Perugia to define the limits of their inquisitorial powers, posing the difficult question of whether foreign officials were empowered to pursue inquiries into all classes of crime only via a public investigation or whether they might also proceed by means of a secret investigation, or whether these powers – and especially the faculty of secret investigation – were limited to blood crimes.15 The response of the lawyers emphatically testifies to the importance of the customary dimension in legal interpretation mentioned earlier, because their statement, according to which foreign officers were not permitted to carry out secret investigations in cases other than blood crimes, was based – as they explicitly declared – on the customs followed in Perugia, where the power of investigation had always been limited in this way.16 In the same month, the Perugian lawyers were summoned once again by the foreign officials in order to resolve a clear contradiction between the communal and popular statutes with respect to criminal justice.17 In this case, it actually

ipso consilio fiat carta et . . . priores cum aliis quos voluerint vadant ad potestatem et iudicem et curiam, et rogent eos ut acquiescant consilio sapientum.’ 15 Consilium sapientum of Perugia, May 1277, ASP, Riformanze 8, fols 147v–48r: ‘[Question posed by the podestà and the Captain of the People] Infrascripti sapientes iuris electi per consules artium de voluntate potestatis et capitanei providere debent super declaratione et intellectu quorundam statutorum de quibus infra mentio habetur . . . Primo si inquisitiones publice fieri possint in maleficis unde sanguis non exivit per ipsum dominum potestatem et eius familiam nec ne, lecto statuto ibidem de hoc loquente.’ 16 Ibid.: ‘[Response] Qui omnes sapientes unanimiter et in concordia super predictis omnibus, per visionem et examinationem dictorum statutorum et per dicta et allegata per ipsos sapientes deliberatione et examinatione habita diligenti, consuluerunt quod inquisitiones publice fieri possint in maleficiis ex quibus sanguis non exivit licet secrete inquisitiones in dictis maleficiis sint prohibite, cum sic servatum fuerit in civitate Perusii temporibus retroactis.’ On this and other, similar cases, see Menzinger, Giuristi e politica, 156–8, and Vallerani, La giustizia pubblica, 289. 17 Consilium sapientum of Perugia, May 1277, ASP, Riformanze 8, fol. 148r: ‘[Question posed by the foreign officials] Item cum in statuto Communis loquente de exbannitis . . . videatur ambiguitas esse, et in dubium vertatur an ipsum statutum . . . prevalere debeat

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appears that they were entrusted with the power of defining which statute should prevail over the other.18 The four examples from Siena and Perugia just cited are, I hope, adequate to indicate the importance of the topics addressed by lawyers, topics that, even if framed in highly technical terms, in fact touch on key questions of communal power, as may also be inferred from the dissent or protests frequently provoked by such legal decisions. The noble origins of many communal lawyers, who might be regarded as disinclined to ratify political struggles chiefly aimed at a radical reduction of the privileges enjoyed by their own families, are sufficient to explain popular resentment of them, a sentiment we are confronted with in all three of the cities considered here.19 With important exceptions, the majority of communal legal experts in the thirteenth century continued to be of noble origin. This observation, however, has led scholars to undervalue the vital role that, in spite of class distance, lawyers played in popular governments. In the famous laws directed against the magnates – laws such as the Florentine Ordinances of Justice drafted by the popolo between the 70s and 80s of the thirteenth century to exclude the most powerful families from communal government – the iudices were invariably identified with the magnates. The best evidence of such popular resentment was the non-admittance of judges to communal offices, which was a measure common to the legislation of Florence, Siena, and Bologna, just to mention the most well-known cases. Undue attention to these measures, however, has led many historians to imagine too close a bond between the lawyer’s profession, his social origin, and his political role and to attach an excessive importance to such laws, interpreting them as proof of an actual exclusion of lawyers from communal government. The provenance of lawyers in the nobility has often been read as an unconditional acceptance of the values and models of the aristocratic world, against which the popolo had long struggled.

statuto Populi . . . et super hoc diversimode opiniones et intellectus sint, petiit idem dominus potestas per dictos sapientes quomodo et qualiter procedendum sit in dicto statuto et si servandum est et prevalere debet statuto Populi sibi consilium exhiberi.’ 18 Ibid.: ‘[Response] Item consuluerunt quod capitulum . . . est servandum, non obstante capitulo Populi quod est positum sub rubrica “quod nullus exbannitus rebanniatur nec de carcere extrahatur.”’ 19 For a general discussion of this question, see Maire Vigueur, ‘Justice et politique,’ ‘Il comune popolare,’ ‘Gli “iudices” nelle città comunali,’ and Cavalieri e cittadini, 424–5.

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The problem with this traditional picture is that it superimposes the social origin of the lawyer onto his role in the city. Paradoxical as it may seem, what the three cities I have studied have in common is that it was precisely in those governments that most explicitly tried to limit the influence of the powerful families, and into which the political integration of lawyers was most difficult that the demand for legal critical thought was most intense. This apparent paradox can be explained only if we look at the content of the political project of the popolo and at the key role it attributed to justice and rules. Rules, of course, had been important throughout communal history, but in the political experience of the popolo, they came to play an entirely new role. It was only in the era of the popolo that the principle of legality became a basic political argument and that rules began to be seen as an effective weapon against aristocratic violence. Hence, there was the need both to give a legal status to the political achievements of the popolo and to create a powerful judicial machine to ensure their observance. The support of urban lawyers was vital to achieving these aims, and notwithstanding the objections with which their opinions were sometimes received, their relationship to popolo politics remained extraordinarily strong. Intriguing evidence of this complicated relationship is found in the speeches of certain councillors of Siena in 1258. In that year, the restricted Council of the People, the so-called Council of XXIV, discussed the case of a bandit who had requested permission to return to Siena against the protests of his accuser, who had been instrumental in his exile and was now opposed to his return. After the proposal by the councillor Beringerius Iacoppi to entrust the case to a commission of sapientes iuris, another councillor, Orlandus Renaldi, proposed that if it was impossible to reconcile the bandit and his accuser, the Captain of the People should convene the city lawyers, but with the proviso that they be obliged to state in their consilium what seemed right to him and the representatives of the people.20 A month later, the same councillor of the people, Orlandus

20 Consilium of XXIV of Siena, October 1258, ASS, Deliberazioni, Consiglio generale 6, fol. 166v: ‘Orlandus Renaldi consuluit . . . quod dominus capitaneus roget consules utriusque mercantie ut faciant concordiam inter partes . . .; et si non fiat dixit quod dominus capitaneus habeat sapientes iuris ii. vel iii. pro quolibet terçerio . . . et habeatur ab eis sapientibus eorum consilium et sicut consuluerunt ipsi sapientes reducatur eorum consilium ad hoc Consilium xxiiiior; et predicti sapientes constringantur per dominum capitaneum consulere super dicto facto prout ei et prioribus [Populi] videbitur, facendo eos iurare si voluerint vel non facendo eos iurare.’

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Renaldi, openly opposed the request for a legal opinion from the local lawyers on the election rules for popular delegates. Using very strong words, Orlandus stated that ‘he did not want any lawmen, and he did not want their legal advice on this issue because the popular representatives [namely, the XXIV] knew better than the lawmen their business and their laws.’21 Notwithstanding Orlandus’s objections, in the end, the council decided once again to entrust this task to a commission of lawyers. Why, then, did popular governments repeatedly seek the advice of the lawyers when their political intervention was so conflictual? We have already considered two reasons: on the one hand, the importance of legality and justice in the political program of the popolo and, on the other, the demand for a juridical culture capable of rationalizing what had by the second half of the thirteenth century become an extremely complicated politico-judicial system. But there is also a third reason that could have enhanced the importance of juridical culture, and that is the emerging affinity between learned law, in particular Roman and canon law, and democratic principles. Examples illustrating this can be found in the records of Siena and Perugia respectively. In 1257, the popolo of Siena requested introducing into the statutes a law aimed at protecting the interests of poor citizens in the tribunals. From the intervention of the councillor Ciampolus, who was himself a judge, we learn of the existence of an office, composed of three ‘Judges of the People,’ whose task was to give free legal assistance to the poor or to citizens who were thought to have been unjustly condemned.22 The existence of this office was noted by William Bowsky, who attributed it to the so-called government of the Nine, the oligarchic government that ruled Siena from the 1290s.23 The discussion of 1257, however, allows us to backdate its activity, demonstrating that a public office of lawyers was

21 Ibid., November 1258, fol. 172r: ‘Orlandus Renaldi . . . super facto xxiiiior dixit quod xxiiiior veteres et xxiiiior novi cum bonis x. hominibus Populi per quodlibet terçerium sint simul et obstendantur eis capitula constituti et per eos fiat dictum factum xxiiiior qualiter sit faciendum, et alios sapientes iuris non vult habere et non vult quod super dicto facto sapientes alii iuris debeant consulere, quia ipsi xxiiiior sciunt eorum facta et eorum ordinamenta melius quam alii sapientes.’ 22 Consilium populi of Siena, 1257, ASS, Deliberazioni, Consiglio generale 6, fols 83v–84r: ‘dominus Ciampolus Ranieri Uliveri iudex, lecto capitulo Populi in dicto Consilio quod loquitur de tribus iudicibus eligendis, secundum formam constituti Populi predicti, pro gravatis et iniuste condempnatis a potestate vel ab aliis officialibus, et etiam pro impotentibus qui comode iudices vel advocatos habere non possent . . . consuluit etc.’ 23 Bowsky, ‘Medieval Citizenship,’ 227.

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instituted not in the oligarchic atmosphere of rich Sienese banking families at the end of the thirteenth century, but in fact under the popolo government some forty years earlier. Some twenty years later, there were similar deliberations among the lawyers of Perugia, and they testify to the determination of the Perugian popolo to assure all citizens, regardless of their economic status, of the right to be heard in a law court. In 1277, the foreign officials then in charge at Perugia asked a commission of local lawyers whether a condemned person who appealed a penalty inflicted on him should pay the communal officials a sum of money in advance by way of bail. The response of the lawyers was firmly against any such requirement because, as they stated, ‘both the poor and the rich and powerful have an equal right to be heard and to seek their rights.’24 Both ideas – the necessity of some form of free legal aid for those who could not afford to pay a lawyer and the notion that no money should be demanded of a defendant in advance of a trial in order to guarantee a hearing – derive from Roman law, confirmed, in the case of Perugia, by direct quotation ‘de iure.’ The opinions delivered by communal lawyers in both of these cases should prevent us from simply assuming that on the basis of their noble origins, they would necessarily harbour unfavourable attitudes towards protective measures in favour of the weaker classes. The great respect for the learned law – on which, in the final analysis, their professional and political identity was founded – drove them in many important circumstances to distance themselves from contingent political interests and to uphold principles derived from an entirely different context. Without wishing to overstate the significance of these new developments, I am nevertheless convinced that the original interaction between politics and law that arose in the Italian popolo governments did not only lead to a deviant use of judicial weapons, along with a biased exploitation of legal arguments, to promote partisan interests – as has often 24 Consilium sapientum of Perugia, May 1277, ASP, Riformanze 8, fol. 155r: ‘[Question posed by the podestà and the Captain of the People] Super . . . articulo quo fuit in consultationem deductum, si aliquis condemnatus vel exbannitus voluerit quod per predictos officiales habeatur cognitio super condemnatione vel exbannimento de eo factis, an debeat illam quantitatem pecunie, in qua fuerit condemnatus vel exbannitus, ante quam in aliquo audiatur deponere penes massarios Perusii . . . an non.’[Response of the lawyers of Perugia] ‘Consuluerunt quod de iure non teneatur nec cogatur ad huiusmodi depositionem pecunie faciendam, sed audiatur de iure suo, non obstante quod depositionem huiusmodi facere recusaret, ut sic equaliter audiantur et possint prosequi iura sua pauperes sicut divites et potentes precipue cum talis solutio et pecunie depositio a iure non inducatur nec etiam a capitulo constituti prefati.’

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been argued – but that it also fed the drive towards a formalization of new ideas on institutions under the guiding influence of communal lawyers. In the context of the reconstruction of the political activities of jurists in popular governments, we can, in conclusion, return to Martines’s principal thesis, that Florentine jurists were instrumental in the shift from commune to signoria; in his words, they ‘helped to pave the way for absolute government’25 and evaluate its relevance to the pre-Renaissance period. The lively role of jurists in city governments as early as the twelfth century testifies that the political vocation of Italian jurists was not a feature that appeared at a unique moment in communal history but rather one that constitutes an element inherent in the form of government developed by medieval cities of central and northern Italy. Hence, Martines’s view that the political commitments and engagement of quattrocento Florentine jurists were inextricably linked to executive power – a link, he argues, that we already observe in the late fourteenth century with a proliferation of executive offices and an invasion of the judicial field on the part of the executive branch of government26 – must be reconsidered and contextualized within the framework of a more long-term phenomenon. In recent years, research dedicated to the twelfth century increasingly emphasizes the significance of iurisdictio (broadly, the administration of justice), beginning with the earliest communal experiments, within the context of which a neat demarcation between executive and judicial spheres did not exist.27 Judicial expression of political power was most certainly a part of the DNA of Italian city governments from the twelfth century onward. As a consequence, the political vocation of jurists was not, as Martines argues, a phenomenon dependent mainly on specific fifteenth-century historical factors. It is true, however, that the intervention of jurists in Italian city politics represents a constant but not uniform phenomenon in the sense that significant historical moments of change coincided with peaks in requests for juridical mediation. This occurred in the Florentine republic for reasons that Martines has persuasively analysed, but it also happened – for reasons, as we have seen, that were in part similar and in part completely

25 Lawyers and Statecraft, 402. 26 Ibid., 398–9. 27 In addition to the works of Wickham, see in Arlinghaus et al., eds, Praxis der Gerichtsbarkeit, in particular the contributions of Milani, ‘Lo sviluppo della giurisdizione,’ 21–46; Vallerani, ‘Tra astrazione e prassi,’ 135–54; and Menzinger, ‘Forme di organizzazione giudiziaria,’ 113–34. See also Vallerani, La giustizia pubblica, 9–24.

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different – around the mid-thirteenth century. Here, the history of Bologna offers important analogies to that of Florence. Although Bologna did not experience a morcellation of executive power similar to that of quattrocento Florence, the results were similar in the area of the balìe of sapientes, special ad hoc commissions convened by the communal governments to resolve problems du jour. According to Martines, the proliferation of executive offices in Florence, far from signalling an enlargement of political participation on the part of the citizenry, was driven by the requirements of an oligarchic division of power.28 Similarly, the proliferation of balìe in late thirteenth-century Bologna was a direct consequence of a desire on the part of a restricted circle of families to guarantee their own privileged access to power by resorting to consultation as an instrument for skirting rigid popular rules governing the turnover of the councillors and the prohibition on magnates to fill certain posts.29 The frequency with which a given group of jurists appears on such balìe and the political influence that those commissions permitted them to exercise indicate the existence, even in the late thirteenth century, of a sort of ‘inner oligarchy’ in the sense in which Martines uses this expression.30 The Bolognese and Florentine cases were different, however, not because jurists in communal society of the late thirteenth century differed that much from jurists of the fifteenth in their roles, but because there had been a radical change in the political conditions in which they functioned. If learned law played a fundamental role in the legitimating of power in both communal and Renaissance Italy, it is misleading to see jurists, in their individual experiences, as the agent-protagonists of specific institutional changes.31 The general category of ‘jurists’ referred to a reality that was heterogeneous. The category included men of diverse political orientations, from prominent academic jurists to wealthy members of the urban aristocracy to personages of much humbler stature. What is more, the political orientation and activities of legal experts in thirteenth-century Bologna was neither monochromatic nor unidirectional. The doctores legum ordinarily sided with the magnates, but because of the responsibilities with

28 29 30 31

Lawyers and Statecraft, 400–1. Menzinger, Giuristi e politica, 251–67. Lawyers and Statecraft, 5. On this question, see Menzinger, Giuristi e politica, 5–8, my partial reconstruction of the debate between Padoa Schioppa (‘Sul ruolo dei giuristi’) and Sbriccoli (L’interpretazione dello statuto and ‘Legislation, Justice and Political Power’).

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which they were charged, they also initialled the Ordinamenti Sacrati that were directed against those same magnates. The iudices intervened politically on the side of the magnates, but on more than one occasion they also claimed that, socially, they were part of the popolo. In addition, the notaries, who by their social and political status represented one of the principal animating forces of the Bolognese popolo, were also a powerful corporation that especially in the 1280s opposed the more extreme positions of the popolo and aligned themselves with the jurists.32 These are not events that can be labelled as contradictions or that make any interpretative key impossible; rather, once again, they invite deep reflection on the dialectical relationship among overlapping political roles, professional identities, and social origins. Reflection on precisely those dimensions reveals, at least for the thirteenth century, the existence of a segment of society whose principal element of cohesion was less political, social, or professional than it was cultural. While the jurists shared the values and viewpoints of the upper levels of urban society, their authority as legal experts did not reside in their political identification but in their legal culture, specifically as representatives of Roman law. If legal opinions can be considered ideological instruments furnishing learned rationales for political acts, they also possessed a positive regulatory function in a society and in institutions imbued with Roman juridical principles and in customary rules mediated by Romanistic studies that had been elaborated for centuries.

32 Menzinger, Giuristi e politica, 290–308.

From Rule of Law to Emergency Rule in Renaissance Florence1 MORITZ ISENMANN

Florentine Statecraft: Conflict or Consensus? From the last two decades of the fourteenth century onward, society and politics in the republic of Florence underwent a fundamental change. After the defeat of the guild regime and the establishment of an aristocratic government in 1382, the corporate structure that had characterized politics in communal Florence was progressively emptied of its significance. At the same time, an unprecedented political centralization was implemented. Florence came to be ruled by an oligarchy, and access to the most important offices the republic had to offer to its citizens became the prerogative of this oligarchy’s inner circle. Although Florence did not openly change its republican constitution, and although civic humanists praised Florentine ‘liberty’ in contrast to the despotic rule of signori such as the duke of Milan, Florence became something very close to a signory itself. Although historians of Florence broadly tend to agree with the development roughly outlined above, there are different answers to a crucial question that arises from it and that points to the very nature of Florentine statecraft in the Renaissance: by what means did the successive oligarchic regimes succeed in imposing their centralizing rule on the overwhelming majority of citizens who were removed from positions of power? The approaches to this question that have been developed by institutional historians can be divided in two different schools of thought that, for the

1 I wish to thank Professors Julius Kirshner, Laurent Mayali, Anthony Molho, and Lawrin Armstrong, whose ideas and comments have greatly improved this article. All archival documents cited are located in the ASF.

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benefit of clarity, can be labelled conflict-based and consensus-centred approaches. The most important contribution to the conflict-based approach was made by Lauro Martines in his study of lawyers and statecraft; he analysed a transformation in the administration of justice that occurred in Florence at the end of the trecento. Since the twelfth century, jurisdiction had been entrusted to magistrates, such as the podestà and the Captain of the People, who were ‘foreigners’ ( forestieri ) in the sense that they were recruited – together with their administrative staff composed of judges, notaries, and police personnel – from another city. The introduction of such a judicial system had been driven by the hope that these judges, as outsiders, would not be implicated in the factional strife that generally afflicted medieval communes and that they would therefore be able to administer nonpartisan justice. In Martines’s assessment, until the end of the fourteenth century, the courts of the foreign rectors indeed possessed a certain working autonomy. With the oligarchization of the republic’s leadership beginning in the last two decades of the fourteenth century, however, the executive power increasingly encroached on the terrain of the rectores forenses.2 Existing executive offices composed of Florentine citizens stepped up their judicial activity, and new magistracies with judicial competencies were created, while the competencies of the old judiciary were progressively reduced. The result was a thoroughly politicized judiciary that relied on an instrumental use of the law. As Martines suggests, political opponents ‘had little chance of survival’ when faced with powerful executive offices: ‘In the second half of the fifteenth century, with the decay of the regular courts and the ever-expanding powers of the executive, justice at times became a spoil and citizens became more docile.’3 Historians in Italy have generally followed the trail blazed by Martines. Zorzi, in particular, has collected rich data in support of Martines’s thesis and has emphasized the repressive character of the regime that took power in 1382.4 In contrast, anglophone scholars focusing on the institutional history of the Florentine republic have mostly preferred to pursue different lines of investigation, especially of electoral politics. Unlike Martines, who views the process of Florentine statecraft as one of conflict and potential violence, these scholars see the nature of oligarchic power in a nonviolent manipulation of the communal ‘constitution.’ Rubinstein – whose

2 Martines, Lawyers and Statecraft, esp. 124–43 and 397–404. 3 Ibid., 129. 4 Zorzi, L’amministrazione della giustizia, passim, but esp. 72.

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landmark study The Government of Florence under the Medici appeared in 1966, two years before Lawyers and Statecraft – was fascinated by Medicean electoral controls, which in his view were the crown jewel of a ‘policy to secure and strengthen the regime by peaceful means within the framework of the constitution.’5 With a similar approach, Najemy has developed the concept of ‘consensus politics,’ the currently dominant paradigm for explaining the success of the oligarchic regimes. He explains that after the fall of the guild regime, the oligarchy expanded the class of those eligible for office, giving citizens the illusion of shared power – an illusion because at the same time particular electoral devices were introduced that ensured that real power remained in the hands of the oligarchy’s inner circle. Nonetheless, the vague ‘promise’ of high office ensured that the regime could count on the support of the middling classes that subjected themselves to the oligarchy’s ‘benevolent paternalism.’6 It appears obvious that the two approaches are difficult, if not impossible, to reconcile. If electoral controls were so efficient, as Rubinstein contends, why was it necessary to build up a repressive judiciary? Najemy has become increasingly aware of the problem that electoral controls alone could not work. Although in Corporatism and Consensus he suggests that dull and passive citizens, too uninformed even to comprehend the electoral process, ‘played the game as faithful creatures of the regime,’7 in his recent History of Florence he has introduced the idea that ‘fear of the workingclasses’ and of social revolution may have helped to drive non-elite major guildsmen into the arms of the oligarchs.8 If there was a solid alliance of elite and non-elite major guildsmen, however, would not the old judiciary of the foreign rectors have been more than sufficient to keep an isolated working class under control? What is most striking about these contradictions is not their obviousness, but the absence of any scholarly debate around them. Differences are simply glossed over.9

5 Rubinstein, Government of Florence, 124. He thereby emphasized a substantial difference between the republic of Florence and the signorie, whereas Jones, ‘Communes and Despots,’ 91, had argued with particular regard to fourteenth- and fifteenth-century Florence that it was ‘hard to draw sharp differences between work done by despots and that begun by communes and continued independently by contemporary republics.’ 6 Najemy, Corporatism and Consensus, 263–317. 7 Ibid., 299–300. 8 Najemy, History of Florence, 176–81. 9 See, e.g., Najemy, History of Florence, where every development in the administration of justice is omitted and Lawyers and Statecraft is prominently absent.

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My contention is that the real source of power in the successive Albizzi and Medici regimes (1393–1433, 1434–98, respectively) was neither electoral controls nor consensus politics, but a constant threat of actual physical violence exercised on the rest of the citizenry. By investigating the development in the administration of justice delineated by Lauro Martines forty years ago, I propose to show that political repression in Renaissance Florence did not take place sporadically or outside its constitutional framework. As an analysis of the legal mechanisms used by the oligarchy and the Medici to secure their rule reveals, political repression was an intrinsic part of a governmental system that was increasingly situated in the specific institutional logic of a state of emergency. Thereby, the oligarchs did not manipulate or corrupt the communal constitution, but instead took advantage of fundamental contradictions already inherent in communal legal and political culture. The argument has to start with these contradictions. Rule of Law and State of Emergency in Communal Florence As historians have often emphasized, the Italian communes introduced into European society a completely novel approach to public power. Instead of conceptions of God-given order and the centralizing rule of monarchs and princes, ‘distrust in rule and power was a governing principle’ in the medieval Italian commune.10 This distrust found its expression in measures that aimed at minimizing the power of officeholders, such as the selection of officials by lot, the development of a written approach to administration, and short terms of office combined with the principle of rotation. The most exemplary of such devices intended to control government organs – not only by means of supervision from ‘above’ by political leaders, but also by instances of control that were independent of the administration itself – was the procedure of sindacato (syndication). Syndication was a procedure to ensure the accountability of public officials that every foreign magistrate had to undergo.11 It was introduced in the closing decades of the twelfth century, when the disentanglement of the commune from episcopal rule and the subsequent creation of independent 10 Keller, ‘Kommune,’ 575. See also Ascheri, ‘Die andere Gewalt’ and ‘Governo.’ 11 On syndication, see Engelmann, Die Wiedergeburt; Masi, ‘Il sindacato’; and Lepsius, ‘Summarischer Syndikatsprozeß’ and ‘Kontrolle.’ For a more detailed consideration of the arguments treated in this essay, see my study Legalität und Herrschaftskontrolle.

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organs of government demanded forms of control over official conduct. This necessity for regular and periodic control was reinforced by the introduction of foreign judges, who were required to leave the city after a period of six months. Distinctive features of the procedure were that it was applied within a predetermined period following the official’s term of office, normally about ten days, and that it was carried out by a number of syndics, drawn by lot, along with one of the city’s foreign officials. This body was assisted in its judgments by a legal adviser, and the procedure followed the form of a summary inquisitorial trial. All citizens, even those who had failed to pay communal taxes, were entitled to lodge complaints against the officials, in their own interest as well as in that of other citizens or of the commune as a whole. No appeal against a sentence was possible, and conviction in a sindacato disqualified a podestà or Captain of the People from serving in another city. With syndication – a procedure that thoroughly verified the legality of officials’ conduct – an important element of the rule of law was introduced into late-medieval Italy. The standards set by medieval Roman law could hardly have been higher. According to medieval legal doctrine, officials could be held liable during syndication for any unjust sentence they had handed down and for any illegal act they had committed in the exercise of their administrative duties, including cases of simple negligence (negligentia) or minor guilt (culpa levis), not to mention clearly culpable behaviour (dolus).12 Leading jurists, such as Baldus de Ubaldis (1327–1400), went so far as to claim that a judge could be made liable in syndication even if the plaintiff had previously appealed unsuccessfully in one of the city’s ordinary courts of appeal against a sentence.13 There was, however, a significant difference between legal doctrine and actual practice. While jurisprudence emphasized the importance of syndication for cases involving both civil and criminal law, in actual practice, civil cases were almost entirely unknown. In fact, from the end of the thirteenth century, citizens seeking the revision of a civil-law sentence could make an appeal to the court of the appellate judge.14 As the Florentine syndication records disclose, citizens employed the remedy for a variety of other reasons. They lodged complaints about bills not paid by the magistrates 12 Engelmann, Die Wiedergeburt, 336–466. 13 Ibid., 403–4. 14 After an unsuccessful appeal, the chances of reversing the sentence in syndication were minimal, and given the tax a plaintiff had to pay for the consideration of his charge, citizens abstained from pursuing this possibility.

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and their staffs during their stay and accused magistrates of corruption and extortion. They also used syndication as a means for appealing criminal sentences, which were not reviewable in any ordinary law court,15 and to accuse officials of acts of arbitrary violence as well as of violating procedural prescriptions laid down by statutory and medieval common law. The latter uses of syndication are of particular interest here, for they resemble today’s fundamental rights of ‘due process of law’ and of habeas corpus. In fact, strict rules limiting officials’ powers concerning the arrest and imprisonment of citizens were to be found in communal legislation everywhere. It was prohibited, for example, for police personnel to bring a person to prison without providing him beforehand with the possibility of presenting to a judge evidence supporting his innocence or of raising formal objections (exceptiones) to the process.16 In addition, specific reasons had to be cited when handing over an individual to the prison warden,17 and the time during which persons could be kept in custody had well-defined limits.18 Procedural prescriptions established by medieval canon law in the ordo iudiciarius guaranteed that no person could be condemned without having had his day in court or on the basis of doubtful testimony.19 Civil-law jurisprudence, moreover, left no doubt that excessive torture and even unjust banishments should be dealt with and punished in syndication.20 The Florentine statutory compilations reflect a profound awareness that the normal function of syndication was of vital importance to making legality a cornerstone of civic life. Thus, it was strictly forbidden in the city’s councils even to propose that the Captain of the People be exempted from syndication ‘regarding all and single acts’ he and his staff had committed. Such a proposal would be punished with a stiff fine, and anyone was authorized to denounce the author of the illicit proposition.21 The eight priors and the Standard-bearer of Justice, who together formed the republic’s highest executive office, the priorate, were threatened with

15 The only possibility was to appeal to the government. Zorzi, L’amministrazione della giustizia, 29. 16 Caggese, ed., Statuti, vol. 2, Podestà, 1325, book 5, rubric 40, p. 355. 17 Caggese, ed., Statuti, vol. 1, Capitano del Popolo, 1322–5, book 5, rubric 1, pp. 197ff. 18 Caggese, ed., Statuti, vol. 2, Podestà, 1325, book 3, rubric 65, pp. 205–6. 19 On this, see Pennington, Prince and the Law, esp. 132–64. 20 See Baldus de Ubaldis to C.7.2.7, cited in Engelmann, Die Wiedergeburt, 347. 21 Caggese, ed., Statuti, vol. 1, Capitano del Popolo, 1322–5, book 1, rubric 1, pp. 7 ff.; Statuti 12 (Capitano del Popolo, 1355), fol. 9r.

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execution and confiscation of their goods if they failed to ensure that the statutes regulating syndication were duly observed. Priors could not ‘have or receive’ special powers that would allow them to suspend the statutes in these respects; if this nevertheless happened, such powers were void. The priors were forbidden even to debate a proposal to ‘revoke, suspend, reduce in any way, or obstruct the execution’ of these statutes, being ipso iure removed from office and punished with an exorbitant fine if they dared to do so. The members of the councils had the duty to resist such proposals ‘with words and deeds.’22 The almost shrill insistence on the validity of these statutes and the exorbitant severity of the threatened punishment should be understood as a sign of impotence. In fact, the rule of law and measures to minimize the power of officials were only one side of communal legal-political culture, a culture that was constantly threatened by other norms that allowed for the suspension of the rule of law and a maximal concentration of power. Beginning in the twelfth century, lawyers started to distinguish a sphere of public law concerned with the welfare of the community from the interests of private persons. The ruler’s most important task was presented as the preservation of the peace and unity of the community, an idea reinforced during the thirteenth century by the Aristotelian view of man as a ‘social animal’ living naturally in society. The same civil and canon lawyers who championed the idea of the rule of law therefore also argued that in circumstances of compelling necessity (necessitas) and for reasons of public welfare, the emperor ( princeps) or city states exercising the functional equivalent of imperial power could take exceptional measures in order to safeguard the community.23 One important field for the application of this doctrine was taxation: forced loans were largely justified by references to public expediency.24 In periods of political crisis and strife, however, communal governments also made regular use of this doctrine in order to elude syndication. Circumventing accountability was a logical consequence of political action; otherwise, the magistrates could have been called to account for repressive actions that violated the principles of due process and habeas corpus, sentences could have been reversed, and banishments could have been nullified. Thus, invoking a state of necessity, governments and

22 Statuti 12 (Capitano del Popolo, 1355), book 2, rubric 44, fols 110v–12v. 23 Post, Studies, 14, 241–309 passim; Saint-Bonnet, L’état d’exception, 36, 117–80 passim. 24 Kirshner, ‘Reading Bernardino’s Sermon,’ 553; and Armstrong, Usury and Public Debt, 87–93, 101–5.

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special commissions endowed with plenary powers (balìe),25 which were usually set up in times of civil unrest, granted the officials special powers – arbitrium or bal ìa in the contemporary terminology – that logically implied a suspension of accountability. Emergency measures and suspension of syndication were enacted, for example, in 1281 to put an end to the violent excesses between Guelfs and Ghibellines that threatened the survival of the polity. A year later, retroactive suspension of syndication was employed to protect the newly established government of the Priors of the Guilds, whose rise would have been impossible without the compliance of the judiciary.26 The first decades of the fourteenth century, moreover, saw the emergence of new magistracies exempted from every form of accountability, often entrusted to particularly remorseless individuals whose only task was to stifle dissent and crush opposition to the regimes in power. The most important of these offices was that of the Captain of the Guard (Capitano di Guardia), which was created in 1335. The first to hold this office was Jacopo de’ Gabrielli da Gubbio, who entered the city with a military train of fifty knights and one hundred foot soldiers.27 Called by the ruling group ‘to keep the citizens in fear,’ Gabrielli carried out ruthless repression, as Giovanni Villani recounts in his cronica, ‘administering blood justice as he liked, without regard to the statutes.’28 Villani’s description of the first appearance this official made in Florentine history conveys the impression that contemporaries had a deep sense that with this office, fundamental rules of civic life were violated precisely because its holders could proceed arbitrarily and di fatto, without having to respect laws and statutes.29 Hence, the chronicler advised his fellow citizens never again to be so foolish (vaghi) as to appoint such officials, for this would lead to bloodshed and the rise of tyrannical regimes: e nascene tirannica segnoria – from the chronicler’s point of view, a prophetic warning.30 25 On the balìe, see Molho, ‘Florentine Oligarchy.’ 26 Salvemini, Magnati e popolani, 112–13 27 The same office existed in Siena and Pisa under the more appropriate name of ‘War Captain’ (Capitano di guerra). Martines, ‘Conflict,’ 80. For Siena, see also Bowsky, A Medieval Commune, 45–54. When Jacopo de’ Gabrielli was appointed a second time, in November 1338, he also received the title of Capitano di guerra. PR, 29, fol. 105. 28 Villani, Nuova cronica, vol. 3, 87. 29 ‘[I]l detto oficio, il qual’era arbitraro e di fatto, senza ordine, legge o statuto osservare, per potere per lo detto oficio disfare e cacciare di Firenze cui fosse piacuto a certi che reggeano la città.’ Ibid., 91. 30 Ibid.

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Political Centralization and Permanent State of Exception Throughout the communal era and roughly until the end of the 1370s, such measures remained exceptional, and governments re-established the normal legal order soon after conflicts had been settled to the advantage of one or other faction. Nevertheless, the use of special powers (arbitrium) and the waiver of syndication made by the communal governments of Florence proved a kind of original sin that would contribute substantially to the failure of the communal experience. It was the tool that allowed for the centralization of government against the interests of the majority of citizens. The more narrow and centralized governments became during the early Renaissance – especially from the early 1390s – the more they would rely on the state of emergency. After a long if precarious period of internal peace following the signoria of the duke of Athens (1342–3), emergency measures were again introduced on a large scale in the political confrontation and rapid succession of different regimes that characterized the years following the revolutionary struggles of the summer of 1378. Victorious but threatened by poor workers on the one side and the elite on the other, it was the regime of the minor guilds, the most broadly based guild regime in Florentine history, that revived in December 1378 the office of the Capitano di Guardia and summoned Cante de’ Gabrielli da Gubbio, son of the brutal Jacopo de’ Gabrielli, to the city ‘for the good and the peaceful state and the due security of the city of Florence.’31 This measure would backfire a few years later, for the appointment of Cante would in turn serve as a point of reference for the emergency legislation enacted in January 1382, when the guild regime was brought down. One of the very first measures of the balìa constituted to reform the new regime was to suspend syndication of all major foreign magistrates. On the one hand, they had to be protected because of the role they had played in the overthrow of the government; on the other, they needed to be equipped for the reprisals they would have to mete out on behalf of the new and more aristocratic regime. First, the syndicating jury of the Executor of the Ordinances of Justice was hand-picked, thus ensuring that there would be no condemnation by the syndics. More importantly, the members of the balìa 31 PR, 67, fols 112v–13r. In July of the following year, Cante was reappointed for one more term; PR, 68, fol. 86v. For a compact chronological consideration of the use of Capitani di balìa during the last decades of the fourteenth century, see also Zorzi, L’amministrazione della giustizia, 45–6.

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determined that for his past term of office, the Captain of the People Obizzo degli Alidosi could not be syndicated for anything but ‘theft, corruption, and debts.’ Furthermore, the assembly decreed that the same special powers granted to Cante de’ Gabrielli four years earlier could be conferred on the Captain of the People as well as the podestà, and that at the end of their term of office they could be syndicated, again, only for ‘theft, corruption, and debts.’32 In addition, to stabilize the regime, the balìa decreed that at the end of Obizzo degli Alidosi’s term of office, the tried and tested Cante de’ Gabrielli should be reappointed as Captain of the Balìa. Was such a blatant suspension of legality legal? Paradoxically, yes. Legal historians have rightly emphasized that arbitrium did not mean ‘arbitrariness’ in the modern sense and that medieval jurists conceived arbitrium as a less than absolute power that could be exercised only within well-defined limits.33 As a tool of positive law, arbitrium could not be used to supersede higher norms of equity and natural law, such as the requirement of the ordo iudiciarius that nobody be condemned without having had his or her day in court. Yet even natural law was powerless if it lacked means of enforcement. Hence, the crucial point was the juridical position of syndication. Since the early duecento, syndication was justified on grounds of the Roman law precept of redditio rationum, that is, the obligation of a procurator or guardian (tutor) to account for his administration of another person’s property (negotiorum gestio). The foreign magistrates were equated with the ‘guardian’ of the city, which became the official’s ward ( pupilla), a ruse that enabled the jurists to oblige the foreign magistrates to undergo syndication.34 On the same grounds, they also rejected a complete exemption from syndication, because culpable behaviour (dolus) could never be remitted, for this corresponded to an ‘invitation to commit crimes.’35 But the analogy with the redditio rationum of Roman law was problematic, because guardianship regarded financial administration and not jurisdiction. On the basis of the Roman sources, medieval lawyers concurred that only those aspects of syndication governing communal and private finances could not be suspended at all.36 Thus, the reduction of liability to cases of ‘theft, corruption, and debts’ – culpable cases par

32 33 34 35 36

Balìe, 17, fol. 25r. Ascheri, ‘Practicae conclusiones,’ 43; Meccarelli, Arbitrium, 43 and passim. See Roffredus de Benevento, ‘Quaestiones sabbatinae,’ 446–7. Ibid. Ibid. See also Bartolus, In secundam infortiati partem commentaria, to D. 33.8.23.2, fol. 84v.

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excellence in financial administration – accorded to the magistrates was a shrewd solution adopted by governments to suspend legality while fully conforming to legal doctrine. All they needed (and never failed) to do was to assert their legislative sovereignty by using the non-obstante formula that was necessary to derogate other norms of positive law.37 It is difficult to imagine that medieval jurists, most of them practitioners of law, were unaware that by legitimating the suspension of syndication through arbitrium they jeopardized the natural-law precepts of the ordo iudiciarius, which should have served to limit the extent of the arbitrium. Yet they did not make any visible effort to shield effectively the principles of due process from the normative power of governments. On the one hand, this might have derived from a general difficulty in coping with conflicting norms emanating from the two basic principles on which most law was founded, that is, natural law and public utility. But in cases concerning private property and fiscal privileges, for example, jurists did not hesitate to voice their objections against coercive governmental action if it violated norms of equity and natural law.38 Although it is impossible to prove why something in the past was not done or was not said, the jurists’ silence becomes at least more comprehensible if we assume that they did not consider the ordo iudiciarius from the modern perspective of the individual. In actual practice, the ordo helped citizens to protect ‘their’ rights of due process, and ironically, for this very reason, governments sought to exclude it from syndication in times of political struggle. Jurists, however, did not (or at least not primarily) conceive of the ordo iudiciarius as a tool for protecting the subjective rights of individuals. Instead, for them, the ordo was part of an objective legal order whose purpose was to assist in the right ordering of society.39 The due-process doctrine formulated by medieval jurists did not establish ‘absolute norms protecting a litigant’s right to a trial.’40 These jurists arguably ‘had no place in their souls for a Leviathan,’41 but their expectation that political power should preserve

37 With the standard derogatory formula ‘non obstante lege,’ legislators acknowledged that newly enacted statutes both modified already existing laws and overruled them at the same time. Cortese, La norma giuridica, 1: 81–6. 38 Kirshner, ‘Baldo degli Ubaldi’s Contribution,’ esp. 347–9. 39 See the considerations of Helmholz, Spirit of Canon Law, 305–8, regarding the law of double jeopardy. For a view of the ordo iudiciarius as a means to restore an order of divine justice destroyed by original sin, see Mayali, ‘La juridiction ecclésiastique,’ 18 and passim. 40 Pennington, Prince and the Law, 121. 41 Ibid., 119.

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the peace and unity of the community was sufficiently strong that they accepted that emergency powers based on the logic of public expediency trumped the principles of due process rooted in natural law. That said, after Cante’s term of office,42 things returned to a normal state again. This was consonant with the policy pursued by the new regime, which was more aristocratic than the guild regimes of the previous years but tried to establish a new equilibrium excluding radicals on the left and on the right and open access to high office in turn for an increasing number of persons from the broad middle strata. But as early as the summer of 1387 the new equilibrium suffered a first setback, when the arciguelfi, that is, those most committed to Guelf principles of oligarchy, attacked the moderate members of the elite and the guild community with the intention of shifting the political balance towards oligarchic forces. By decree of a balìa, they managed to reserve for the time a substantial number of seats on the priorate for a hand-picked elite, thus introducing discrimination within the regime.43 The measure was controversial, but this time a major clash was avoided, not least because the members of the balìa were expressly forbidden to alter syndication of the foreign officials and therefore limited in their repressive potential.44 For the subsequent attack on the minor guilds, however, on 17 May, the Signoria attempted to bring about the appointment of a Captain of the Balìa with special military contingents. But the proposal was voted down by the lower guildsmen because they feared that ‘the Guelfs planned to chop off the heads of whoever they wanted,’ as an anonymous chronicler at the time wrote.45 The proposal remained on the agenda, and in the ad hoc assemblies of the leading citizens who advised the Florentine government (consulte e pratiche) it was again recommended that the future Captain of the People be changed into a Captain of the Balìa with the same special powers and the modification of syndication conceded to his predecessors.46 For the lower guildsmen, this was a battle for survival. Knowing that they would be lost if they

42 Cante was Capitano di balìa for one year, that is, two terms of office, until September 1383. Sindacati, 34. 43 This was achieved by the introduction of the so-called little bag (borsellino), a special electoral pouch from which the Standard-bearer of Justice and two of the eight priors would be drawn. Najemy, Corporatism and Consensus, 276–7. 44 PR, 76, fol. 36r. 45 Molho and Sznura, eds, Alle bocche della piazza: Diario di anonimo, 70–1; Brucker, Civic World, 82. 46 CP, 26, fol. 50r.

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backed down on this point, they resisted the law even when the oligarchs, for their own protection and in order to force the vote, called soldiers into the city. The guildsmen resisted the appointment of the Captain, which saved their lives, but under military pressure, an electoral reform passed that substantially reduced the representation of the minor guilds in communal offices.47 If some sort of ‘consensus’ between the elite and non-elite major guildsmen had still existed after the 1387 reforms, it definitely came to an end at the beginning of the 1390s. From the spring of 1391 voices were raised in which it was claimed that certain moderates who had been purged in 1387 should be restored to their political rights, and on 8 August 1391, in the Consiglio del Popolo, the appointment of a Captain of the Guard was approved.48 The anonymous chronicler notes that the discretionary powers allowed the Captain ‘to hang and decapitate any person he wanted, and especially those who spoke up against the regime [stato],’ specifying moreover that his appointment had been promoted by the arciguelfi so that ‘the others would not speak up against them.’49 This policy of silencing opposition with the threat of legally sanctioned violence was again used in the autumn of 1393, when upper-class conflict, especially between the Albizzi and the Alberti, irreversibly escalated, and Albizzi partisans took advantage of the situation in order to strengthen further the elitist elements in the government.50 One of the first measures taken by the newly constituted balìa consisted of securing the survival of the new regime by armed force. For this purpose, the members of the balìa appointed Francesco de’ Gabrielli da Gubbio as Capitaneus custodie, balìe et populi for six months.51 They also reiterated the modification of syndication.52 The Captain made effective use of his special powers. On the day when the reforms that would sanction the definite predominance in the government of persons belonging to the inner circle of the oligarchy were implemented, he made a show of force, parading ‘with many soldiers’ through

47 48 49 50 51 52

Molho and Sznura, Diario d’anonimo, 71. PR, 80, fols 71r–2r. Molho and Sznura, Diario d’anonimo, 107. Brucker, Civic World, 90–1. Balìe 17, fol. 85r. Ibid., fol. 86r. This detail seemed worth noting to the ‘Anonimo Fiorentino’ in his Diario d’anonimo, 156: ‘si raunorono in Palagio quelli de la Balìa per attendere a riformare la città, e in questo dì feciono Chapitano di Popolo con balìa, sança potere essere sindachato, messer Francescho da Cantiano de’ Ghabrielli, con piena balìa.’

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the city.53 On 12 November, he suppressed a revolt of minor guildsmen, decapitating several persons who had come to the piazza shouting ‘Long live the guilds!’54 Six days later, he condemned in absentia twenty-three other persons to hanging if they were captured. Because one of them was present when the sentences were read out, he was immediately arrested, then executed a couple of days later.55 The coup d’état of the Albizzi represented the breach of a dam. The 1387 reforms had already been ‘much criticized’ by many non-elite citizens, who understood perfectly that their political influence was vanishing.56 The reforms of 1393 – which, for example, increased the number of seats on the priorate reserved for members of the elite – were hardly acceptable any more to minor guildsmen as well as to non-elite major guildsmen.57 And the oligarchy was aware of this. Brucker has observed that the new regime was ‘tougher and more ruthless’ than that of 1382.58 But it was not only a ‘tougher’ regime than the previous ones; from an institutional point of view, it was a different one. Until 1393, all regimes had restored the normal legal order after the conflicts had been fought out. The Albizzi and their followers, on the contrary, transformed the state of emergency into the normal legal order, issuing a stream of emergency decrees and extending the validity of previous ones. Thereby, the regime not only tried to secure the continued existence of the Capitano di balìa as an institution, it also sought to establish a personal continuity as well, reappointing – against statutory law – the same trusted official repeatedly. On 8 January 1394, Francesco de’ Gabrielli was confirmed in office for the first time. Nine days later, he banished a certain Agnolo da Luiano for five years, having found him guilty of having said ‘together with certain citizens that this regime neither should nor could persist because of the dishonest things it did.’ 59 In July as well as in December 1394, the Captain was confirmed in office

53 Molho and Sznura, Diario d’anonimo, 157. On the scrutiny, see Brucker, Civic World, 92–3; and Najemy, Corporatism and Consensus. 54 Molho and Sznura, Diario d’anonimo, 162–4. 55 Bellondi, ed., Cronica volgare, 181–2. 56 Ibid., 35; Najemy, History of Florence, 183. 57 On the electoral reforms, see Brucker, Civic World, 92–3; and Najemy, Corporatism and Consensus, 287–92. 58 Brucker, Civic World, 94. 59 Molho and Sznura, Diario d’anonimo, 166. For further repressive acts involving the Capitano di balìa, see ibid., 167–70, 186, 190. For the persistence of opposition against the regime, see also Brucker, Civic World, 96–101.

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for an additional six months,60 thus extending the state of exception until November 1395. Already on 21 May 1395, the signory sought and obtained the power to reappoint Francesco de’ Gabrielli as Captain of the Balìa for another term.61 After thirty months in office, Francesco de’ Gabrielli left Florence in March of the following year,62 but as early as February 1396 a law had been enacted that allowed for the appointment of another Captain until the end of October.63 In August 1397, the so-called Council of the Eighty-One – a special council created by the balìa of 1393 that consisted of the Signory and other important executive offices of the regime64 – was empowered to elect Capitani di balìa for the next three years.65 At the end of the three years, by the decree of a balìa, an even more enduring situation was established, giving the Ottantuno the power to appoint Capitani di balìa for the following five years; in other words, for ten terms of office. Needless to say, these Captains would wield the same powers as their predecessors.66 This analysis leads to several observations. First, the fundamental regime changes of these years were enforced by means of emergency measures, and the electoral reforms that altered the social composition of the government were always supported by actual or threatened violence as long as opposition to them persisted. To see in electoral controls the major tool for domination is to take the façade for the real source of power. Second, as the reduction of liability to ‘theft, corruption, and debts’ by the Captains shows, the regime was always very cautious not to stray too far from the boundaries of legality. Repression in Renaissance Florence was not a crime; it was pure statecraft. Third, the years between 1382 and the beginning of the fifteenth century were not a unity in which a system of ‘consensus politics’ was built. From 1387 on, the politics of social equilibrium initiated in 1382 was ended, and a progressive centralization of political power was implemented. This centralization was accompanied by an ever more intense repression and suspension of legality that was

60 61 62 63 64 65 66

PR, 83, fols 111v–13r, 214v–17r. PR, 84, fol. 69v. Molho and Sznura, Diario d’anonimo, 192. PR, 84, fol. 272r–v. For the Ottantuno, see Molho, ‘Florentine Oligarchy,’ 32–3, 40–1, and 43–6. PR, 86, fols 103r–104v. Balìe, 17, fols 146v–47r.

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necessary precisely because the consensus between the tough core of the oligarchy and the rest of the citizenry had ruptured.67 This rupture becomes all the more evident when we turn again to the change in the administration of justice discussed by Martines in Lawyers and Statecraft. It was during these very years, in which the oligarchy exercised its emergency rule through the Captain of the Guard, that this development towards the substitution of executive magistracies for the foreign rectors was initiated. This change can be most clearly traced in the case of the office of the Otto di Guardia (Eight for Security),68 which was created as a temporary office after the defeat of the Ciompi in 1378 and became a permanent magistracy under the oligarchs after their ascendancy in 1382. A type of political and military police, the Eight for Security would eventually replace the Captain of the People in carrying out repressive tasks at the service of the regime. But why was this change actually implemented? The answer to this question is less obvious than it might at first appear. Zorzi has argued that the communal judiciary staffed by foreign officials had exhibited ‘evident shortcomings’ and proved inadequate in carrying out the repressive measures in the service of the oligarchy and the Medici.69 Yet in the closing decades of the trecento, the foreign rectors had carried out their repressive tasks quite successfully. In a certain sense, the rectores forenses were even the ideal figures to carry out repressive

67 Najemy fails to offer direct evidence for his contention that citizens had a ‘perception that political participation had never been broader’ than during the Albizzi era’ (History of Florence, 183), deducing it simply from statistics on officeholding. His interpretation of these figures as evidence of consensus politics, however, is questionable: between 1382 and 1391 there was indeed an increase in the number of nominations for office, which initially might have generated a perception of broader participation. But this was soon reversed by the introduction of the borsellino, whose negative impact on their political fortunes was well understood by citizens. After 1391 nominations remained fairly stable and the number of candidates actually approved by the accoppiatori increased substantially. But it seems unlikely that the latter in itself could contribute to building a consensus because – in view of the secrecy surrounding the second step of the electoral process – it was unintelligible to ordinary citizens. Its only effect was to dilute further the political chances of those not belonging to the exclusive circle of persons whose names were deposited in the borsellino, an effect Najemy himself notes (Corporatism and Consensus, 285–6). 68 On the Eight for Security, see Antonelli, ‘La magistratura degli Otto’; Martines, Lawyers and Statecraft, 124–5, 135–6, 431–3; Zorzi, L’amministrazione della giustizia; and Stern, Criminal Law System, 193–8. 69 Zorzi, L’amministrazione della giustizia, 37.

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measures because they possessed communal legitimacy and were seemingly independent of political factions. Their main ‘inadequacy’ was that the foreign officials were subject to communal legality and, therefore, to syndication. It was not a juridical problem in the strict sense, because the suspension of legality was always entirely ‘legal,’ at least from a formal point of view. Nevertheless, governments faced thorny problems arising from legal doctrine when they sought to quarantine foreign officials from syndication. For if such an exemption could not simply be decreed by a balìa, it had to be ratified by the city’s two legislative councils. Baldus de Ubaldis and his pupil, Paolo di Castro (†1444), in their lectures on the lex Mancipia diversis artibus (C. 6.1.5), held that the priors, even if vested with arbitrium, did not have the authority to release an official from syndication. Only the populus could claim the place of the emperor and grant such an exemption,70 yet the populus florentinus was extremely reluctant to concede the exemption. Proposals to vest the Captain of the People with emergency powers, including a waiver of syndication, encountered fierce opposition in the councils. In 1382, the legislative councils voted down the proposal to reappoint Cante de’ Gabrielli as Captain of the Guard in late October, although it passed some weeks later.71 The opposition to the appointment of a Captain of the Guard in 1387 has already been mentioned. Although the first reappointment of Francesco de’ Gabrielli in 1393 passed smoothly, when voting was held on a reappointment, the resistance against the powerful magistrate was strong, and the proposal passed in the Consiglio del Popolo by only a single vote.72 Then, in May 1395, the majority that empowered the Signory to again appoint a Captain of the Balìa was rather narrow.73 In December 1395 and February 1396 – not coincidentally during the months when Donato Acciaiuoli and other moderate members of the elite challenged the regime and were expelled from the city – proposals to confirm the Captain were blocked in the councils.74 Opposition to emergency measures and suspension of legality reached its peak in 1396. Between June and the end of August, the appointment of the Captain was

70 71 72 73 74

Paulus de Castro, Super primo, secundo, et tertio Codicis, fol. 234r. Brucker, Civic World, 71. LF, 44, fols 132r–v, 149v, 190r. Ibid., fols 166r–67v. LF, 45, fols 2r–v, 10r–11r.

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blocked three times.75 With the end of the Captain’s term approaching, the Signory intensified its attempts to renew the Capitano di balìa, but without success. On 7 October 1396, a proposal to confirm the existing Captain for an additional two months and to appoint a new one for the time following was voted down in the Consiglio del Popolo.76 The same happened three more times in the same month,77 and a final proposal in November was rejected.78 Only after a failed conspiracy, followed by the speedy execution of its ringleaders in August 1397, was the regime able to obtain the necessary votes in favour of the proposal. Considering that Florentine citizens already lived under permanent threat of losing their lives if they opposed the regime, such resistance is all the more remarkable. The Captains were sometimes refused favours or the honours normally granted by the councils at the end of their term of office, another evident sign that many citizens approved the state of emergency with clenched hands in their pockets.79 At the end of the day, the oligarchs succeeded in breaking the resistance of the councils, but that was nothing to be counted on for the future. Hence, the goal of the regime was necessarily to avoid the suspension of syndication being put to a vote. With the foreign magistrates, this would never be entirely possible. The new magistracies, such as the Eight for Security, however, offered precisely this advantage: they were not subject to syndication.80 Offices occupied by Florentine citizens holding jurisdictional competencies were an anomaly not foreseen by the communal constitution, which therefore had not provided a solution for this problem. From the moment of their institution, the new magistracies commanded powers that the foreign officials could be granted only by a declaration of a state of emergency. To put it differently, with the new magistracies, the communal state of emergency received an institutionalized form.81

75 76 77 78 79 80

Ibid., fols 28r, 32r, 40r; see also Brucker, Civic World, 100. LF, 45, fols 43r–44r. Ibid., fols 47r–50v. Ibid., fol. 54r. LF, 44, fol. 160r; LF, 46, fol. 1r. The contrary assertion of Stern, Criminal Law System, 143–4, lacks corroborating evidence. 81 Cf. the ever more frequent employment of commissari with special powers in the territory from the 1380s, whose transformation into ordinary officials in the midsixteenth century has been called a ‘regolarizzazione dello straordinario’; Connell, ‘Il commissario e lo stato,’ 617.

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From Permanent to Institutionalized State of Emergency The complete implementation of the state of emergency as a governmental system was not fully accomplished until the end of the fifteenth century, when the office of the Captain of the People was abolished and the Eight for Security took over its duties entirely. Until that moment, many actions of the Eight were channelled through the foreign magistrates. In effect, in all crucial situations, the Medici also had to rely on the emergency rule of the Captain of the Balìa in order to suppress dissent. After 1434, they maintained the state of emergency for six years beyond the duration of the balìa.82 On the occasion of a near riot that occurred on the eve of the battle of Anghiari in 1440, a special police magistrate (Bargello) who was exempted from syndication (‘sanza avere a stare a sindacato’) administered giustizia di fatto and ‘hung many without confession and communion from the windows of this palace [the Palazzo Gianfigliazzi] and from the bridge of Santa Trinita,’ as Giovanni Rucellai recounts in his memoir, or zibaldone.83 As with the previous balìe, the so-called Consiglio Maggiore, which would remain in power for five years, was also flanked by a Captain of the People exempted from ordinary liability,84 and in the tense situation of 1458, when Cosimo enforced a further political centralization by the creation of the Consiglio del Cento, both the existing podestà and the Capitano del Popolo were reappointed and assigned the usual additional powers.85 As early as the first decade of Medici rule, the Eight for Security were increasingly developing into an ordinary criminal law-court, and the Captain of the People was reduced to the rank of a mere executor of their orders.86 The control exercised over the administration of justice changed markedly. In a rudimentary hierarchy, it was another executive office, the Defenders of the Laws (Conservatori delle Leggi) to which the new magistracies were subjected. Created in 1429, the Defenders quickly superseded the other executive magistracies and accumulated manifold competencies regarding criminal matters and powers of supervision over the new judiciary. But the control exercised by the Defenders was no substitute for

82 Balìe, 25, fols 29r, 90v–91r; PR, 126, III, 163r; PR, 126, IV, 51r–52r; PR, 127, II, 231r; PR, 127, III, 135r; PR, 128, II, 200r. 83 Quoted from Molho, ‘Cosimo de’ Medici,’ 51–2. 84 Balìe, 26, fol. 24r–v. 85 Balìe, 29, fols 3v–4r. 86 Zorzi, L’amministrazione della giustizia, 72 and passim.

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syndication. In contrast to the sindacato, the protection of citizen’s rights did not play any role in the tasks of the Defenders, who relied on socalled tamburazioni – anonymous denunciations placed in special boxes (tamburi ) – to track down and punish crimes against the state such as corruption or peculation. A first attempt to disempower the foreign officials completely was made in January 1462.87 In a radical reform, the podestà and the Captain of the People were deprived of their judicial competencies, which were conferred on six foreign jurists (doctores). Their military staffs were drastically reduced, while for the first time, the Eight were equipped with a powerful police squad of their own.88 Syndication of the doctores was stripped from the body of ordinary citizens and conferred on the Defenders, while the accountability of the traditional foreign officials and their remaining police personnel was definitely reduced to ‘theft, corruption, and debts.’ This should have been the final blow against the rule of law in Florence. But things changed when, three years later, Cosimo died, and his son Piero soon had to face republican opposition led by former Medici chief lieutenants. It is highly significant that, while they were unable to agree on a political project for the city, they immediately wanted to eliminate the oppressive judiciary that had been instituted over the past decades. The lawyer Domenico Martelli, for example, spoke out openly against the Eight, explaining in a pratica that the citizens of Florence lived in fear because of their broad powers. In his opinion, the ordinary magistrates had enough regular power to move against criminal elements and to administer justice,89 and indeed, on 26 September 1465, the reform of the judiciary enacted two years earlier was revoked. The podestà and the Captain of the People were restored to their full competencies, the police squad of the Eight was suppressed, and syndication was carried out once again according to the statutes.90 Furthermore, on 8 November, the Defenders of the Laws were reformed and, for the first time, subjected to syndication.91 If syndication of the Defenders was ever carried out, it was only for a short period. Ten months later, in September 1466, Piero the Gouty restored Medici rule in Florence. Since the judiciary had been reduced to their ordinary powers, he had to rely on raw military force, calling mercenary 87 88 89 90 91

PR, 153, III, 39r–52r. Ibid.; Zorzi, L’amministrazione della giustizia, 76. Martines, Lawyers and Statecraft, 433. PR, 153, III, 70r–73r. PR, 156, II, 180r.

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troops to the city.92 On 5 September, however, when the balìa granted the foreign rectors ‘the powers, jurisdiction, and authority that in such cases are usually conferred,’ repression was legalized again.93 To secure the regime beyond the duration of the balìa, the future priors were granted the powers to extend the state of exception for the next five years, until 1471.94 In order to give the foreign rectors ‘greater incentive’ to fulfil their duties and to enforce the measures taken by the balìa, they could be syndicated, in civil as well as criminal matters, excluding all those cases that directly concerned the regime (‘excepto che non abbino a stare a sindicato pe’ casi directe e vere apartenenti allo stato’).95 Although the precise meaning of stato is debatable,96 the content of the decree was pure ‘reason of state.’ It was the last time that the foreign rectors and suspension of syndication were used in political confrontations, because Piero’s son Lorenzo completed the transformation of the judiciary that the Florentine oligarchy had initiated a century before.97 In 1477, the abolition of the Captain of the People and, in the following year, the regulation of the powers of the Otto di Guardia in the lex Gismondina formally established the superiority of the Eight over the foreign officials. Whereas before it had still been theoretically possible to challenge sentences in the domains of criminal justice during syndication, now even this remnant of the rule of law was discarded and the state of exception was permanently institutionalized. Not surprisingly, a few months later, on the occasion of the Pazzi conspiracy, the Otto di Guardia would condemn and execute dozens of people without bothering to prove their guilt or subject them to an ordinary trial.98 Conclusion The Italian communes were a remarkable political experiment that was doomed to failure. Fascination with the political creativity of the communes and their efforts to balance and minimize power have sometimes obscured problematic aspects of their legal-political culture. It has also seduced historians into viewing the communal ‘constitution’ as an ideal

92 93 94 95 96 97 98

Rubinstein, Government of Florence, 183–8. Balìe, 30, fol. 9v. Ibid., fols 44r–45r. Ibid., fol. 9v. On the meaning of the word stato in Renaissance Florence, see Rubinstein, ‘Notes.’ See Zorzi, ‘Ordinamenti’ and ‘Judicial system.’ Martines, April Blood, 124–5, 197–9.

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system that was corrupted and manipulated in the transition to the principate. It was not manipulation but rather contradictions inherent in the legal and political culture on which the communes foundered and especially on an unresolved relationship between the rule of law and the state of exception. In a culture that considered political dissent illegitimate and that conceived of organized opposition as a prelude to conspiracy and uprising,99 the possibility of suspending legality opened the way for the repression and even annihilation of political enemies and escalated political conflicts to the highest possible level. The political adversary had to be annihilated, for otherwise he – using the very same emergency powers – would take revenge. This happened several times in the republic of Florence before the oligarchs eventually escaped this cycle by rendering the state of emergency permanent. In this way, they were able to raise statecraft and the possibility of legal coercion to unprecedented heights. This leads me to a more general observation. ‘Anachronistic,’ ‘teleological,’ and ‘positivistic’ have become familiar slogans to deprecate studies that point to the foundations of the modern state in the Middle Ages. Medieval society has even been called a ‘society without a state.’100 However protean and incomplete the juridical definition of sovereignty might have been in the late Middle Ages, such an assertion becomes unsustainable when dealing with political organisms whose governments disposed of the means to suspend fundamental principles of the rule of law and to annihilate political opponents in a completely legal way, by invoking ‘necessity,’ ‘the common welfare,’ or ‘public safety.’ It is, of course, correct to insist that there was nothing inevitable in the emergence and ultimate triumph of the modern state in Europe. By legitimizing the suspension of accountability, however, and therefore of legality for the sake of preserving the regime (stato), medieval jurists liberated statecraft from the restraints imposed by the law and paved the way for a concentration of power that would lead in the last instance to the constitution of the modern state. The Florentine trecento and quattrocento were a significant chapter in that development.

99 Martines, ‘Political Conflict.’ 100 Grossi, L’ordine giuridico, 31.

Paolo di Castro as Consultant: Applying and Interpreting Florence’s Statutes1 SUSANNE LEPSIUS

Paolo di Castro (1360/2–1441) was a prominent yet typical representative of university-trained lawyers in the late-medieval period, a sociopolitical group that Lauro Martines evocatively portrayed in his Lawyers and Statecraft. In common with other members of this group, Paolo combined his teaching tasks as a professor with practical legal activities, giving advice and putting his professional expertise at the service of the government on diplomatic missions. He is one of the few jurists of the fifteenth century who escaped the generally negative (and biased) verdict of legal historians influenced by Friedrich Carl von Savigny that the socalled commentators were unoriginal, prolix, and less inspiring than their predecessors, the glossators of Roman law.2 After obtaining his doctorate in civil and canon law (doctor utriusque iuris) in Avignon, Paolo taught civil law in Florence (1401, 1413–14, 1422–4), Siena, Bologna, and, after 1429, in Padua.3 He completed commentaries on the Digest and most parts of Justinian’s Code, which were reprinted until the seventeenth century,4 attesting to his enduring fame as the third big name of the school of commentators, next to the colossuses Bartolus of Sassoferrato and 1 This article has greatly profited in many respects, not least the English, by thoughtful suggestions from Lawrin Armstrong and Julius Kirshner, to both of whom I would like to express my gratitude. Any errors that remain are entirely my own. 2 Savigny, Geschichte des römischen Rechts, vol. 6, 1–15. 3 Lange and Kriechbaum, Römisches Recht im Mittelalter, 813–18 (on his bibliography); d’Amelio, ‘Castro, Paolo di,’ 227–33. On Paolo’s Paduan period, see Belloni, Professori giuristi a Padova, 293–2. See also Kirshner, ‘Paolo di Castro.’ 4 For the European legal book market and as a reference tool for all known printed editions of the jurists of the ius commune period, see Osler, Jurisprudence of the Baroque, vol. 2, nn. 3897–900, particularly on the last Venetian editions of Paolo’s

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Baldus de Ubaldis.5 To historians of Renaissance Florence, Paolo is mainly known for his presumed role in drafting the new statutes of 1415,6 because, next to Bartolomeo Vulpi da Soncino, he apparently was the only universitytrained lawyer on the committee responsible for redacting the new statutes. Whereas among legal historians Paolo’s influence on the statute-making process seems to be overrated and attributed – a perspective perhaps typical of modern lawyers – to his authority as the ‘outstanding lawyer of the first half of the fifteenth century,’7 Martines points out another, perhaps less recognized, function of lawyers in the Italian communes when he remarks that ‘whatever the lawyer’s part in judicial and general statutory reform, his part in the enactment of specific legislation was always more prominent and he was more often called on to play it.’8 Whatever the role played by some lawyers in such day-to-day statute drafting in the various deliberative councils in Italian communes might have been, we are – thanks to the recent studies of Tanzini – now able to identify Paolo di Castro’s handwriting in several passages of the never-enacted Florentine statutes of 1409 as the clearest indication of his personal intervention in this fundamental source of law. The passages studied by Tanzini all deal with the sections of the statute concerned

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commentary on the Digestum vetus and three editions of his consilia, printed in Venice in 1609 and 1617, respectively. Del Re, ‘Paolo di Castro,’ 192, 195. A similar assessment of Paolo as the heir to Cinus, Bartolus, and Baldus, though in an epoch of decline of the Bartolist school, is expressed by Lange, ‘Die Rechtsquellenlehre,’ 421–40. The edition used in the following is Statuta populi et communis Florentiae. The preface to this eighteenth-century edition of the statutes mentions Bartholomeo Vulpi and Paolo di Castro along with several notaries and proctors involved in the statute-making process. Doubt has been cast on whether Paolo was commissioned to participate in the drafting of the 1415 statutes because, in contrast to Bartholomeo da Soncino, no payments to Paolo can be traced in the cameral records. Nevertheless, as Tanzini has shown (Statuti e legislazione, 280–6), Paolo played some role in correcting and amending the 1409 statutes. Moreover, we have at least three personal statements by Paolo himself that he was one of the compositores statutorum; see below, nn. 11, 46, and 68. The view minimizing Paolo’s contributions to the 1415 statutes is reported by Tanzini, ibid., 282. Lange and Kriechbaum, Römisches Recht im Mittelalter, 818, and 823 on the prestige Paolo di Castro enjoyed among his contemporaries, especially illustrated by his calls to reform several city statutes. Also, Savigny, Geschichte des römisches Recht, vol. 6, 290, acclaims Paolo di Castro because he showed ‘for his time an unusually critical historical sense in the treatment of legal sources,’ praise that Savigny normally did not accord the school of ‘postglossators,’ in which, of course, for mere reasons of chronology, Paolo would have to be counted. Martines, Lawyers and Statecraft, 187.

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with the punishment of crimes (de maleficiis) and taxation (estimi),9 leaving open to further research the question of whether Paolo’s direct influence might be identified in other parts of the 1409 statutes. Following a line of argumentation suggested by Martines, that the task of a jurist is rather ‘to iron out difficulties in the existing set [of laws] so as to make for a more efficient and smoother execution of the tasks of government,’ I will focus on several consilia that Paolo di Castro produced on Florentine matters, either by way of advice requested by a judge or some public official (consilium sapientis) or as advice on behalf of one party in a legal controversy (consilium pro parte).10 Linking Paolo’s judicial opinions to his role in Florentine statutory development and his commentaries will allow us to gauge his approach towards statutory norms when applying, interpreting, and reshaping the terms of the Florentine statutes. Paolo himself, commenting on Justinian’s letter promulgating the Code (AD 534), spoke of his own experiences in drafting the new Florentine statutes. By subsuming communal statutes under the heading of Justinian’s Code, he put the role of the communal statute drafters of his time on the same footing as the emperor Justinian himself: ‘What those men elected as statutarii for the reshaping of statutes do, I discovered myself once in Florence, since they can amend them, excise material, express their meaning [authoritatively] and assemble them in the appropriate sections according to their general applicability. But they are only allowed to perform those three functions if they have a special mandate.’ Paolo went on to distinguish a full authorization from a specific, more restricted mandate, which would only allow for ‘adding and shortening of the wording’ of the statutes.11

9 Tanzini, Statuti e legislazione, 280–6. 10 On the characteristics of both types of consilia, see, among others, Ascheri, ‘Le fonti e la flessibilità,’ 11–53. 11 Paulus de Castro, Commentaria super Codice, Prooemium, (de novo codice componendo, l. Haec que necessario), fol. 2va, n. 10: ‘Quid possint facere statutarii electi super reformatione statutorum id quidem semel reperi Florentie. Nam possunt corrigere, detrahere, declarare et in congruis locis collocare possint virtute generalis arbitrii. Sed illa tria non nisi specialiter eis sit mandatum . . . quod si habebat solum arbitrium generalissimum super bono statu reipublicae non possit statuta corrigere ut dictum est: Sed si habebat speciale super reformatione statutorum licet non specialissimum quod possit addere vel minuere, satis potuit facere ex natura talis arbitrii, cum confirmatio consistat in predictis sicut in declarando vel collocando in locis congruis.’

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When applying the existing statutes to a concrete case, Paolo, like any other jurist, was obliged to interpret them whenever the wording of the statutes seemed ambiguous or the specific facts of the case did not seem to be covered by the wording. An extensive interpretation of the statute meant opting for the legal mechanism prescribed by the statute in all conceivable constellations of cases, whereas a restrictive interpretation of a statute’s wording in ambiguous cases or a narrowing of the legal consequences of a statute based on the intention of the statute makers limited the applicability of the statute to a few options. If, in the latter instance, the statute was inapplicable, the jurist had recourse to the ius commune, that is, to the body of learned law taught in the medieval universities, which consisted of Roman and canon law and their accumulated interpretations in the form of glosses and commentaries. By contrast, an extensive interpretation of the statute necessarily narrowed the applicability of the ius commune. Contextualizing all three of Paolo di Castro’s lawyerly activities (as a university professor and author of commentaries, as consultant in legal disputes where he was called on to apply and interpret statutes, and as statute drafter) will help clarify whether Paolo in general tended to interpret statutes narrowly, leaving ample scope to the ius commune and thus rendering local laws ‘infertile,’ as is suggested in the most recent handbook of German legal historiography12 – a somewhat paradoxical judgment when we consider Paolo’s role in drafting the Florentine statutes of 1415. Consilia by Paolo di Castro In the later printed editions of Paolo’s consilia, usually organized in three parts,13 modern scholars are confronted with more than one thousand

12 Lange and Kriechbaum, Römisches Recht im Mittelalter, 822, praising Paolo’s doctrine of narrow interpretation of local statutes according to the overarching prerequisites of the ius commune because it prevented legal fragmentation and in the same instant bemoaning the ensuing tendency of a ‘Sterilität des bodenständigen Rechts.’ 13 For this section I have used the editions Consilia Pavli De Castro (Frankfurt, 1582) and Consiliorum sive responsorum (Turin, 1580), which differ in foliation but at least have identical numbering of the consilia in all three parts, so far as I can tell. The two rare incunable editions of Paolo’s consilia – Nuremberg, Anton Koberger, 1485, assembled by Bartholomaeus de Caepolla, and Rome, Wendelinus de Wila et al., 1473 – contain far fewer consilia (398 in the Nuremberg edition). A preliminary investigation, however, suggests that in some cases, the incunable editions provide more context for the consilia because they have longer factual accounts in their narration of the casus. This area deserves more research.

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of his legal opinions delivered in a wide variety of cases. Aeneas Silvio Piccolomini, the future pope Pius II (1458–64), said of his contemporary Paolo di Castro that he ‘flooded all Italy with his consilia because often the parties of a law suit agreed on him as consultor and because the judges had great respect for his authority.’14 Although irrefutable attribution of any one of the printed consilia to Paolo is difficult, the census of Andrea Romano, who identified only 194 of the printed consilia as doubtlessly attributable to Paolo,15 is certainly too conservative. Despite these difficulties, I have chosen for the following investigation several consilia in printed editions in which the content or other evidence makes Paolo’s authorship likely even if they do not bear his authenticating subscription. Of course, it would be desirable to identify the manuscript tradition of every consilium cited, but that is impossible, because virtually no modern catalogues describing individual consilia of any medieval jurist exist.16 Thus, it might be easier to find authentic autograph consilia of Paolo di Castro in the archives17 than to establish the manuscript tradition of a single consilium already known through one of the early-modern printed editions.

14 ‘Omnem Italiam consiliis suis implevit, cum frequentes ad eum litigantes concurrerent et iudices eius auctoritati multum tribuerent, cuius doctrina solida et sine dolo esset,’ cited from Andrea Romano, ‘La giurisprudenza,’ 607–34. 15 Ibid., 623. Romano relied for his count on the subscriptions to the consilia in the Turin edition of 1580, admitting as certainly authentic only those consilia that provide in their subscription exclusively and expressis verbis Paolo’s name, while excluding those that carry names of other jurists. Romano’s assumptions are problematic on two counts. First, even in the earliest incunable editions of the consilia, the subscriptions – as well as the case narratives introducing the legal problem with which the consilium dealt – tend increasingly to be regarded as superfluous details, irrelevant to the legal point at issue, and were progressively eliminated from one edition to the next. Thus, certainly more ‘anonymous’ consilia in the printed editions stem from Paolo himself than the subscriptions would suggest. Second, even if other jurists’ names show up in a subscription, this does not mean that Paolo had no hand at all in contributing to its argumentation, especially when we consider the practice in communes such as Florence, with its many ‘consultocrats’ and parties eager to bolster their case with as many legal experts as possible. Such consilia probably represent group consilia rendered on the same legal problem by several doctors of law, and we often find such consilia in their original form, complete with wax seals, in several Florentine cases. 16 On the specific difficulties of the genre of consilia stemming from this lack of research tools, see Lepsius, ‘Editing Legal Texts.’ 17 Random examples of original consilia by Paolo di Castro, signed by the jurist himself and confirmed by his (large or small) wax seal, are to be found in, for example, BNC, Landau Finaly 98, fols 146r–49r and Ravenna, Biblioteca Classense 485, vol. 3, 285–9 (an example of an original consilium rendered together with several other jurists – Luisius de

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Paolo’s consilia, moreover, were not limited to the interpretation of Florentine statutes. We find references to the statutes of other communities in north and central Italy, including Siena, Pistoia, Pisa, Parma, Milan, Verona, Padua, and Venice, as well as to legislation in Spain and to the laws of the Habsburgs. Equally impressive is the wide range of topics he covered, from ship mortgages to the documentation required for notaries in syndication to questions of taxation, incest, and often, of course, to procedural questions. Many cases are related to inheritance, particularly the always vexed question of excluding daughters, sisters, or mothers from testate or intestate succession. Such questions of private law appealed to top lawyers not only because of the fees involved but also because inheritance cases – like divorce cases today – were heavily contested. From the large bulk of Paolo’s printed consilia, I have only chosen examples that explicitly mention the statutes of Florence, whether or not they clearly identify Paolo as the author. The first two consilia deal with disputes regarding the devolution and disposition of dowries, a common situation raising so many legal problems that a huge part of a lawyer’s activity would in one way or another involve solving dowry questions.18 The next consilium also concerns another common issue, the question of how to deal with local statutes after a change of political affiliation, which again concerned the factual question of how to treat dowries in law. The consilium also deals with some legal problems arising from disputes over household communities (consorteriae) and the property held by them in common. Maritus lucretur dotem uxoris sue premortue In one of his many published and unpublished consilia on dowries,19 Paolo took up a recurrent problem of statutory interpretation in Florence, which Flisco, Lodovicus de Banccheriis de Urbino, Gasper de Bonucis, Honofrius de Donolis, and Salustius domini Guillelmi de Perusio). Other hitherto unpublished consilia have been published in extracted form by Andrea Romano, ‘La giurisprudenza,’ 629–32, and are mentioned by Del Re, ‘Paolo di Castro,’ whose Sei consigli inediti di Paolo di Castro (Rome, 1945) I have not been able to consult. 18 Martines, Lawyers and Statecraft, 94; on another constellation in which dowry questions would arise, see Thomas Kuehn, ‘Lawyers and Housecraft in Renaissance Florence: The Politics of Private Consilia,’ in this volume. 19 With no specific reference to the Florentine statutes, Paolo di Castro dealt, for instance, with the exclusion of daughters and sisters from succession to their parents if they had been previously furnished with a suitable dowry: see Paulus de Castro, Consilia,

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had already kept many of the best-known Italian jurists of the fourteenth century busy. The Florentine statutes of 1355 to which Paolo referred established that the dowry of a predeceased wife, which the husband had administered during marriage, would, in the absence of surviving children, accrue (luc retur) entirely to the husband, who from now on had full property rights.20 One would love to know more of the concrete details – when, why, and by whom Paolo had been consulted – but unfortunately, the printed editions transmitting his legal opinion21 do not give any details or specific quaestio facti that would allow for a more precise chronology and contextualization. Rather harshly, Paolo rejected the legal position of another prominent jurist, Bartolomeo da Saliceto (†1412), who was teaching in Bologna and Ferrara.22 In his principal work, a huge commentary on Justinian’s Code, Bartolomeo argued that the wording of the Florentine statute should be interpreted to mean that the entire dowry should accrue to the husband only if the husband had already begun to shoulder the burdens of marriage, that is, when the marriage had been implemented, and if the spouses had begun to live together. The reasons Bartolomeo gave in his commentary were diverse, some alluding to the etymology of uxor and maritus, others hinging on a comparison with the statutes of Ferrara, which had expressly provided that at least half of the dowry should accrue to the husband if he had already shouldered great expenses connected with the introduction (ductio) of his wife into his household.23 Even if the Florentine statute

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vol. 2, cons. 6, 7, 30, 91, 118, and vol. 3, cons. 54. In an unpublished consilium, ASF, Corporazioni religiose soppresse 98, 263, fols 386r–90r, kindly brought to my attention by Julius Kirshner, Paolo discussed the succession rights of a paternal grandmother. On the importance and function of dowries in general in the patrilineal inheritance system, see, for example, Reyerson and Kuehn, ‘Women and Law,’ 131–41, 138ff.; Bellomo, ‘Dote’; and Chabot, ‘Lineage Strategies,’ 127–44, esp. 131–5. Paulus de Castro, Consilia ( Frankfurt, 1582), vol. 1, cons. 154, fols 75va–76ra (= Paulus de Castro, Consilia [ Turin, 1580], vol. 1, fol. 77ra–b). Even though the incunable editions sometimes appear to provide more detailed factual accounts, the Nuremberg edition ( Nuremberg: Koberger, 1485), where this consilium is numbered 124 (no foliation), provides the same text as the later editions with no further details. I have not so far been able to locate the original consilium. Lange and Kriechbaum, Römisches Recht im Mittelalter, 796–800. Saliceto penned a number of consilia dealing with Florentine matters. See, for example, Kirshner, ‘Privileged Risk.’ Bartholomaeus de Saliceto, Commentaria in . . . quintum et sextum Codicis, ad C. 5.3.6 (Cum in te), fol. 4ra, no. 5. For Bartolomeo da Saliceto, though, the point of reference was the Ferrarese statutes, because he posits as a legal consequence of the factual setting in our

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did not overtly refer to such a consideration, one could attribute similar reasoning to the statutarii in Florence as the Ferrarese statute makers had expressly uttered. Thus, he concludes, the statute should be interpreted in a restrictive way, meaning that the dowry would only accrue to the husband if he had already incurred the burdens of marriage. He emphasized that his interpretation was not unsound (absurdus), especially because he and other jurists had provided the same advice in a Florentine case.24 In his consilium, Paolo di Castro flatly dismissed Saliceto’s argumentation and solution. Instead, he argued for adherence to the wording of the statute, which in comparison with Saliceto’s solution would give the Florentine statutes a broader applicability: because the statute required only three conditions – namely, a valid marriage through vows of consent given in the present tense (verba de presenti), that the woman had been furnished with a dowry, and that the couple did not have common children – the husband would gain full right in the dowry, even if he had not yet shouldered the expenses of marriage and the marriage had not been consummated. He rejected Saliceto’s arguments from etymology as frivolous, because the statute makers would have used ordinary language instead of mere grammatical expositions that no one, not even a civil lawyer, could understand. According to ordinary usage, husband and wife were so called immediately after they had contracted marriage through present-tense vows.25 Because one could only speculate about the intentions of the statute makers, an interpretation of the statute on the basis of the drafters’

case that the husband could claim half (and not all) the dowry, according to the statutes. The Florentine statutes were exceptional in Italy because of the husband’s comprehensive rights over the dowry of a predeceased wife in the absence of surviving children. On this point, see Kirshner, ‘Maritus lucretur dotem,’ 116; and Bellomo, ‘Dote,’ 20–4. 24 Bartholomaeus de Saliceto, Commentaria in . . . quintum et sextum Codicis, ad C. 5.63.6 (Cum in te), fol. 4ra, no. 5. 25 ‘Ad rationes autem dicti domini Bartholomei non multum curo respondere quia satis sunt frivolae, si bene inspiciatur, cum vadat post grammaticales expositiones vocabulorum dicendo quod uxor dicitur quia in usu viri et maritus dicitur maris ritus etc. Quae verba etiam penes legistas dicuntur esse derisoria quia statutum et statuentes non consideraverunt tales expositiones, que paucis notae sunt, sed potius communem usum loquendi, secundum quem uxor et maritus dicuntur statim quod matrimonium est contractum per verba de presenti,’ Paulus de Castro, Consilia (Frankfurt, 1582), vol. 1, cons. 154, fol. 76rb, no. 3. In this opinion, Paolo argued in a similar fashion, distinguishing mere words and legal concepts, as shown by Sbriccoli; see Sbriccoli, L’interpretazione dello statuto, 177, n. 65, for his commentaries.

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intentions is impermissible.26 Paolo sustained the right of the husband to claim the dowry immediately after vows had been exchanged, insisting that additional criteria were irrelevant.27 In his opinion, Paolo di Castro does not refer to the factual case that had brought Saliceto, Baldus, and others with different arguments to concur in interpreting the Florentine statutes restrictively.28 Similarly, he did not refer to a similar point made by Rosello dei Roselli of Arezzo and Saliceto together with Francesco Cappelli; namely, that the intention of the Florentine statute makers of 1355 was unclear,29 which thus called for a restrictive interpretation according to the ius commune. Instead, Paolo only disputed Saliceto’s above-mentioned opinion in his commentary, which is much more elaborate than the latter’s consilium. Paolo does not mention the Florentine jurist Giovanni di Ruggero de’ Ricci (†1402), who anticipated Paolo’s arguments in defending the husband’s right to claim the dowry.30 In consequence, Paolo remained an isolated voice among the consultants who contributed to the famous Florentine debate. Here, because Paolo quoted only the comment by Saliceto, he seems not yet to have been acquainted with the other jurists’ consilia ( jurists who had joined Saliceto in his own consilium). Whatever the drafters’ intentions, the relevant statutes at the heart of these opinions had undergone constant revision. The statute of the podestà 26 Paulus de Castro, Consilia ( Frankfurt, 1582), vol. 1, cons. 154, fol. 75vb, no. 3. With his rejection of reference to the true meaning of the statute if it had not been expressly put down in the statute, Paolo in this consilium refused to make an argumentum a tacita mente statuentium, which he had declared licit in other circumstances in his commentary; see Sbriccoli, L’interpretazione dello statuto, 264, n. 80. 27 ‘Non ergo est curandum, si sit ducta, vel non, cognita vel non, factae sint expensae, vel non et qui ista considerant, non recte considerant, sed solum considerandum est, an esset nupta per consensus et per verba de praesenti,’ Paulus de Castro, Consilia (Frankfurt, 1582), vol. 1, cons. 154, fol. 76ra, no. 3. Such additional criteria, limiting the scope of applicability of the statute, had been raised by the other consulting jurists. 28 Kirshner, ‘Maritus lucretur dotem,’ 124–9 (on the opinion rendered by the eight jurists), 139–42 (edition of the consilium by Saliceto). On the opinion issued by Baldus in this case, see Lepsius, ‘Die Ehe, die Mitgift und der Tod,’ 129–46. 29 Rosello dei Roselli of Arezzo: ‘Modo ad propositum licet mens sive ratio statuti predicti non colligatur ex verbis ipsius statuti, colligi potest’; Kirshner, ‘Maritus lucretur dotem,’ 144, ll. 37f.; Bartholomaeus de Saliceto and Franciscus de Cappellis: ‘Pro qua ratione statuentes fuerint moti non apparet ex statuto, et tamen istud statutum est contra ius commune, igitur id non extendendum, sed in suis meris terminis restringendum’; ibid., 141, ll. 16–19. 30 On Giovanni di Ruggero de’ Ricci, see Martines, Lawyers and Statecraft, 482, and Kirshner, ‘Maritus lucretur dotem,’ 128, 152–5 (edition of his consilium).

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of 1325 granted the husband the right to full property of his predeceased wife’s dowry if they had no surviving children.31 The wording but not the content of the statute was slightly altered in the statutes of the podestà of 1355.32 The wording of both 1325 and 1355 had raised the issue of how the word maritus should be interpreted, especially whether the entire dowry of his predeceased wife would already accrue to the husband having merely exchanged present-consent marriage vows or whether a restrictive interpretation of the statutes should be favoured according to which the husband had to satisfy other requirements as described above. The draft of the never-enacted 1409 statute clarified this issue by adding that the husband of a predeceased wife is required to have introduced the bride into his household before her dowry would finally accrue to him.33 The 1409 statute apparently followed a suggestion offered by Ludovico Albergotti and Baldus de Ubaldis about the necessity of introducing the bride into the husband’s household,34 which these two jurists understood was equivalent to the consummation of the marriage and hence to the husband’s shouldering the burdens of marriage. Interestingly, in the 1409 version of the statute, this chapter is separated by eighteen folios from the other rubrics concerning dowry questions. Finally, the statutes of 1415 clarified that the husband could gain full property of the dowry of his predeceased wife, without surviving children, on condition that the wife had been introduced into his household or that the marriage had been properly contracted and then consummated.35

31 Caggese, ed., Statuti, vol. 2, Podestà, 1325, book 2, c. 70: ‘Quod conservetur in successione et de mundualdis et etate legittima,’ p. 130: ‘Item quod vir sive maritus possit et debeat lucri facere dotem uxoris sue praemortue, si filius vel filia non extant ex eis.’ 32 ASF, Statuti 16 [1355], c. 74: ‘Qualiter succedat in dotem et in aliis bonis uxoris premortue maritus,’ fol. 98v: ‘Quod maritus lucretur dotem uxoris sue premortue si filius vel filie non extarent ex eis.’ 33 ASF, Statuti 23 [1409], collatio 6 (civilium causarum), fol. 292va: [c.] ‘Qualiter succedatur in dote et aliis bois uxori premortue’: ‘Maritus lucretur dotem uxoris sue premortue transducte ad domum vel econverso si filius vel filia non extaret ex eis’ (my italics). 34 Ludovicus de Albergottis, consilium, in Kirshner, ‘Maritus lucretur dotem,’ 143, ll. 20ff.; Baldus de Ubaldis, consilium, in Lepsius, ‘Die Ehe, die Mitgift und der Tod,’ 146, ll. 21ff. 35 Statuta populi et communis Florentiae, vol. 1, book 2, rubric 129, ‘Qualiter succedatur in dotem uxoris praemortuae,’ 222: ‘Maritus lucretur dotem uxoris suae praemortuae transductae ad domum, vel aliter matrimonio in forma nuptiali contracto, et consummato, si filius, vel filia, vel alii descendentes non extarent ex eis tempore mortis ipsius uxoris’ (my italics).

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From this chronology we can infer that Paolo rendered his consilium (I.154) before the 1409 statutes were drafted, when he probably was still unacquainted with the problems swirling around the 1355 statutes. Because he expressly dismissed the condition of the ‘leading of the bride’ as irrelevant (a requirement added in 1409), declaring the considerations of the statute makers unclear and not even indicated in the wording of the statute, he presumably did not even know of the consilia Baldus and the other jurists had rendered in the late fourteenth century. We can also infer that he had not yet been called to the University of Florence, but was asked as a foreign jurist for his legal advice. Later, in a commentary probably composed after he had come to Florence, Paolo showed himself well informed on the earlier consilia, but – again arguing explicitly against Saliceto – rejected their arguments as unconvincing. Paolo expressly maintained his former legal position, which he had held in his consilium, that one must adhere to a literal interpretation of the statute, which allowed the husband to claim the dowry without having to satisfy non-statutory requirements. Paolo criticized his assumed adversaries for relying on impulse rather than on reasoning from the intention (mens) and final cause for the legislation (ratio).36 Paolo’s reasoning fell on deaf ears, as the drafters of both the 1409 and 1415 statutes disregarded his opinion. Nor was his minority opinion mentioned by the commentators Alessandro di Salvi Bencivenni (1385–1423) and Tommaso Salvetti (1390–1472),37 although both commentators provided ample references to controversial issues attending succession to dowries.

36 Paulus de Castro, Commentaria super Digesto veteri II, ad D. 12.4.9 (Si donaturus), fols 47vb–48ra, nos. 3–4. 37 On Bencivenni, see Martines, Lawyers and Statecraft, 186, 239, and 492 no. 79, and on Salvetti, 501 no. 137. Martines mentioned the latter’s commentary to the Florentine statute of 1415, but considered it as probably lost; see also Martines, Social World, 67–9. On the significance of these commentaries to the Florentine statutes of 1415, see Tanzini, Il governo delle leggi, 112ff. On Tommaso Salvetti, see Tanzini, ‘An “Oracle of the Law”: Tommaso Salvetti and His Adnotationes ad statuta florentina,’ in this volume. I have consulted the manuscripts of their commentaries in BNC, II, IV, 435, fols 68r–71r on the rubric ‘Qualiter succedatur in dotem uxoris premortue’ (A. Bencivenni) and BML, Ashburnham 1680, fols 373r–84r (hand of Salvetti, dated to 1441), respectively, and I would like to express my gratitude to Dr Tanzini for his support in both libraries and his valuable comments discussing these issues.

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Lex Hac edictali (C. 5.9.6) A related problem addressed by Paolo di Castro and other contemporary jurists concerned concurring claims of the husband and children of the deceased wife, especially those from an earlier marriage, to the dowry. Interwoven with the problem of priority in succession was the problem of whether the wife still had a right to dispose of her dowry through a last will or whether such a right had been limited or even abolished through the statutory regulation. Above all, the rights of a deceased wife’s husband and children raised the intricate question of the degree to which municipal statutes, such as Florence’s, could legitimately disregard the requirements of the Roman law Hac edictali. This law forbade a husband or a wife who remarried38 to donate to other persons more than the share they had envisaged for their children of a previous marriage, that is, at least one quarter (legitima). The so-called legitima to which the children had an inheritance right could not be the object of any of the wife’s dispositions in favour of third parties, through either gifts to living people or a last will as a disposition mortis causa. If there were several children from several marriages, all were entitled to receive equal shares in inheriting the dowry according to norms of the ius commune. Paolo di Castro revealed that he was well aware of the minute differences in the wording of the old and the new Florentine statutes on this problem as well as of the various debates among doctors and advocates. In a consilium, of which unfortunately we do not know the concrete case, Paolo began with the apodictic statement that a statute should never be interpreted as being superfluous but should rather be interpreted – as long as such an interpretation could be considered reasonable – as wanting to somehow contradict and thus curb the legal sanctions provided by the ius commune.39 With this statement Paolo remained true to his general 38 The wording of Hac edictali, a rescript of the emperors Leo and Anthenarius, was directed towards both men and women who remarried and who by law had to provide a legitimate share of their property to children from a previous marriage. Significantly, the medieval interpretation of the passage addressed only infringements of the wife’s right to make a donation to her second husband – by then the central issue in statutory regulation – and remained silent on donations to third parties or testamentary dispositions. 39 Paulus de Castro, Consilia (Turin, 1580), vol. 1, cons. 192, fol. 97rb–vb (= Paulus de Castro, Consilia [Frankfurt, 1582], vol. 1, fols 95va–96ra). On this consilium, see also the detailed analysis, including the various versions of the Florentine statute in the fourteenth and fifteenth centuries (excepting the 1409 draft) in Gian Paolo Massetto, ‘Il lucro dotale,’

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approach that simply repeating the norms of the ius commune in a statute would render the statute superfluous and thus void.40 Citing the words of the ‘new statute’ – namely, that one should understand as dowry everything given by the wife to her second husband upon marriage 41 – he clearly referred to the wording of rubric 129 of the Florentine statutes of 1415, because only in that version is this addition found.42 Even though we cannot unequivocally identify Paolo’s intervention in the reformulation and addition to the statute of 1415, he referred in his consilium expressly to the intent of the statute makers. Expounding on the two different constellations of cases presumed by the statute, Paolo came to the conclusion that these words had been added because of an old controversy among Florentine advocates who had interpreted the older statutes in such a way as to leave to the children of a former marriage the legitima in conformity with Hac edictali. Aware of the problems arising from the former unclear wording of the statutes and of the consilia rendered by several Florentine jurists, the drafters in 1415 revised the statute in order to make it absolutely clear43 that children of

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189–364, 239–43. The problems of whether a statute would mandate the same legal results as the ius commune and should thus be considered superfluous, or whether its words were to be understood in such cases to contradict the ius commune, also preoccupied Paolo in several passages of his commentaries; see Sbriccoli, L’interpretazione dello statuto, 353 n. 96. Cf. similar statements: ‘Constat enim statutum posse derogare iuri communi in materia successionis, quae defertur de iure positivo . . . alias istud statutum nihil operaretur, quod esse non debet,’ Paulus de Castro, Consilia ( Turin, 1580), vol. 3, cons. 38, fol. 45ra, nos. 3–5. ‘Subdit novum statutum quod in casibus supradictis intelligatur dos, totum illud quod datum fuerit parti viri vel confessatum a parte viri pro dote vel promissum eidem pro dote,’ Paulus de Castro, Consilia (Turin, 1580), vol. 1, cons. 192, fol. 97rb, no. 1. Statuta populi et communis Florentiae, vol. 1, book 2, rubric 129, p. 223, ll. 16–19. The text of the printed edition of the statute should be corrected to ‘quod datum fuerit parti viri’ instead of ‘praefati viri,’ which from the sense and from grammar (‘datum’ requires a dative-case object) does not make sense. An equivalent passage can be found neither in Caggese, ed., Statuti, vol. 2, Podestà, 1325, book 2, c. 70, p. 130, nor in the Statuti del comune (Podestà) of 1355 in ASF, Statuti 16, book 2, c. 74, fol. 98v. Moreover, the 1409 statute does not yet contain a similar formulation; see ASF, Statuti 23, Statuti populi et communis (Podestà), collatio 6, fol. 292 va. ‘Satis autem censetur constare quando statuentes apponunt aliqua [ ‘aliqua’ should be amended according to Paulus de Castro, Consilia ( Frankfurt, 1582), fol. 96ra, l. 3, to ‘obliqua’] verba studiose et cum mysterio, que non possunt effectum aliquem operari nisi illum, prout est in casu nostro. Quod autem studiose fuerint illa verba apposita, patet. Tamen propter dubitationem et practicam praecedentem que est in

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a first marriage should be excluded from inheriting the dowry if the husband of a second marriage survived his wife’s death and if there were surviving children from this second marriage.44 Paolo explained that the drafters of rubric 129 feared that without this revision it would be difficult for widows to find new husbands, which was deemed more important than the interests of the children by her first marriage.45 At the end of his consilium, Paolo stated that this harsh consequence had to be tolerated because this had been the express intent of the drafters.46 In this case, Paolo was in favour of a strict literal interpretation of the statute even against the ius commune because here the intent of the statute makers could be established unequivocally. Thus, he rejected any suggestion by his legal colleagues that the statute be interpreted restrictively in light of the ius commune. In this case, we find that Paolo did not consistently favour a restrictive interpretation of the municipal statute in order to open up a broader range of applicability for the subsidiary ius commune.47 Not surprisingly, Paolo criticized the earlier opinions of the Florentine jurists who had interpreted the pre-1415 statutes restrictively in order to guarantee the children of a first marriage at least their legitima. Apparently, these old advocates (advocati antiqui) had held that it was not the 1355 statute that ‘disinherited’ the children of a wife’s first marriage, but rather the contract with which she had conferred everything as dowry on her second husband. Therefore, they held that not everything could be transferred as dowry to her second husband but only as much as would remain after the legitima for the children of her first marriage had been deducted. Paolo opposed this interpretation, even under the former wording of the

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omnibus notoria, unde in civitate Florentie debemus interpretationem facere secundum notorietatem facti. Tum etiam quia additum fuit a compositoribus novorum statutorum qui non nisi misterialiter [sic; recte magistraliter?] et studiose censentur apposuisse. Quod autem verba illa possunt hoc importare, patet,’ Paulus de Castro, Consilia ( Turin, 1580), vol. 1, cons. 192, fol. 97va, ll. 70–8. ‘Ut igitur ista dubitatio praecideret, cum de intentione statuentium esset, quod filii primi matrimonii excludantur a secundo viro sicut excluduntur a filiis secundi matrimonii apposuerunt verba illa, “quod intelligatur dos totum quod esset datum,” ’ ibid., vol. 1, cons. 192, fol. 97va, ll. 30–3. Ibid., ll. 48–56. ‘Caeterum per pactum neutri legitimo derogari potuisset. Maior est enim authoritas statuti quam sint pacta privatorum. Et his scio fuisse intentionem statuentium, que licet dura, servanda est, ff. qui et a qui l. Prospexit [my italics],’ ibid., vol. 1, cons. 192, fol. 97vb, ll. 19–22. See n. 12 on Lange and Kriechbaum’s contention that Paolo de Castro always opted for the broadest possible application of the ius commune.

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Florentine statute, because the dowry contract could only make disposition of the dowry during the time the marriage continued to exist, but could not deny the dowry to a woman’s children by a first marriage. Paolo criticized his predecessors because their reasoning led to the wrong consequences48 and also required the use of a superfluous fiction.49 Paolo referred to this interpretation of the former statutes of Florence in another consilium rendered in a non-Florentine case.50 Here, he had been asked to advise on a decision of an appellate court, which had divided the inheritance of a widow between her second husband and her son by her first marriage. Paolo started with how the wording of the statute should be interpreted,51 namely, that a husband should succeed a wife who died without leaving a last will in all goods if no common children existed.52 He argued that one might either limit the terms of the statute to the first husband, so that a second husband would not inherit at all according to the statutory regulation or, better, only according to the norms of the ius commune; or that the second husband be excluded from any inheritance rights introduced by the city statutes where there were children of a first marriage surviving.53 On the other hand, if one took the statute seriously and wanted it to have some effect, one would have to understand it literally – a child from a first marriage should be excluded entirely from inheriting.54 In either case, the appellate court had misjudged, because according to the first interpretation, the son would be universal heir to his deceased mother; according to the second interpretation, everything would accrue to the second husband, leaving nothing to his stepson. However, Paolo found a way out of these binary alternatives, thus upholding the court’s 48 Paulus de Castro, Consilia ( Turin, 1580), vol. 1, cons. 192, fol. 97rb, no. 2, ll. 31–8. 49 Ibid., fol. 97va, no. 2, ll. 20–7. 50 Paulus de Castro, Consilia ( Turin, 1580), vol. 2, cons. 348, fols 165va–66ra (= Paulus de Castro, Consilia [ Frankfurt, 1582], vol. 2, fols 172vb–73rb). 51 ‘Item quod vir sive maritus possit et debeat lucri facere dotem uxoris sue premortue, si filius vel filia non extant ex eis’; Caggese, ed., Statuti, vol. 2, Podestà, 1325, book 2, c. 79, p. 130; ‘Quod maritus lucretur dotem uxoris sue premortue si filius vel filie non extarent ex eis,’ ASF, Statuti 14 (1355), book 2, c. 74, fol. 98v. 52 ‘Statutum quod vir succedat uxori intestate non extantibus communibus liberis,’ Paulus de Castro, Consilia ( Turin, 1580), vol. 2, cons. 348, fol. 165va, no. 1, ll. 6–7. 53 ‘quia statutum . . . vel restringitur ad primum maritum seu ad secundum non extantibus liberis ex primo,’ ibid., ll. 7–8. 54 Ibid., ll. 24–9. The argument a verbis cum effectu intelligendis could be used either to extend or to restrict the interpretation of the statute, and it was used in both ways also by Paolo di Castro in his comments; see Sbriccoli, L’interpretazione dello stato, 382–4, esp. 384 n. 183.

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decision to divide the inheritance between the husband and stepson: a husband inheriting according to the statute in the event that his wife died intestate should not be better off than if she had left him her goods by last will. If she had disposed of her goods entirely in favour of her second husband, however, her son by her first marriage could invoke Hac edictali against his stepfather to obtain at least his legitima. At this point, Paolo drew a comparison with the similar problem in interpreting the Florentine statute ‘vir lucretur dotem totam uxoris praemortue.’ He referred to a common opinion held in Florence when interpreting this regulation that it could not be applied in favour of a second husband if there existed children from a previous marriage because the wife could not confer more on her second husband as dowry than what remained after the children from her first marriage had been provided for. Any dowry thus would be reduced before her second husband could inherit the remainder. If she had not made a contractual provision to protect the legitima of her children by the first marriage before remarrying, they appeared to be cheated rather by her than by the statutory provision defining the inheritance rights of their stepfather.55 Using almost the same words as in his earlier consilium, in the case at hand Paolo argued that the statute did not correct the ius commune in every respect but rather was mitigated by it,56 thus balancing the competing interests of the children of the first marriage and those of the surviving second husband against any other potential heirs, which was the object of the statute. Paolo concluded that the sentence of the appellate court should be upheld. Paolo also rebuked the stepfather because he had mistreated his wife and stepson in the most remorseless fashion, as could be proved by trustworthy witnesses. The stepfather had forbidden his stepson to visit his

55 Paulus de Castro, Consilia (Turin, 1580), vol. 2, cons. 348, fol. 165vb, no. 1, ll. 25–30. 56 ‘Statutum ergo predictum non corrigit illam l. Hac edictali, sed recipiat ab eo moderationem,’ ibid., no. 2, ll. 61–4. Paolo di Castro came to the same conclusion in another case, where there existed children from a woman’s first and second marriages. Here, the statute should be understood in the way that common children should exclude the father from inheriting anything from his wife. Because the statute did not differentiate between children from a first marriage and those from a second marriage, again the statute should be interpreted in light of and in accordance with the lex Hac edictali: Paulus de Castro, Consilia (Turin, 1580), vol. 1, cons. 359, fol. 169ra, no. 1, ll. 35–41; ‘et sic remanemus in dispositione iuris communis quae est ut ad successionem eius tam liberi primi matrimonii, quam secundi vocentur [. . .] non obstante statuto predicto, quia eius verba hic cessant, ergo et eius dispositio,’ ibid., no. 2, ll. 54–8.

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sick and feeble mother, whom he had starved to death in order to inherit her property and whom he had prevented under death threats from making a last will in which presumably she would have named her son from her first marriage her heir. The behaviour of the second husband – who would have inherited the entire property of his wife if the statute were taken at face value with no room for restrictive interpretation – seemed to Paolo di Castro all the more despicable because the husband was a doctor of law and thus a colleague.57 By bringing local statutory law and the ius commune into accord by interpreting the former in the light of the latter, Paolo followed a middle way, not entirely denying the validity of a statute when confronted by a norm of the ius commune but also not interpreting the statute as having completely abrogated the ius commune. In another case, a wife had died during her marriage, leaving a last will in which she bequeathed her dowry to her sons and daughters.58 According to the older Florentine statutes, this was permissible, but not according to the revised statutes of 1415. The question was whether a last will drawn up before the statutes had been revised was valid according to the old norms or whether it was rendered void because of the revised statutes, which came into force while the testator still lived. This was all the more problematic because following the intestacy provisions laid down in the revised statutes, only sons, not daughters, could inherit the dowry, which prohibited the mother from making a last will infringing on the sons’ claim to universal succession to the dowry.59 Citing Roman law and earlier jurists, Paolo

57 Paulus de Castro, Consilia ( Turin, 1580), vol. 2, cons. 348, fols 165vb–66ra, no. 3. 58 This appears to be an unpublished autograph consilium of Paolo himself with his subscription, but lacking the original wax seal. Florence, BNC, Panciatichi. 138, fol. 213r–v. 59 ‘Quod autem quam nova statuta civitatis Florentie inciperent habere vigorem mulier habens liberos et decedens constante matrimonio potuisset de dote sua testari etiam in preiudicium liberorum relinquendo tantum eis legiptimam, non obstante veteri statuto. Sub rubrica ‘qualiter subcedatur in dote’ per novum [interlin.: vero] statutum provisum est contrarium, quod nec testari nec aliam dispositionem facere possit immo ipsi liberi subcedant in dicta dote licet titulo universali non possit eis aufferi. Casus proponitur quod quedam domina existens in matrimonio ex quo habebat liberos fecit testamentum antequam nova statuta vigorem haberent in quo [inter lin.: filios] maschulos et feminas heredes instituit et si decesserint sine liberis eis substituit pariter [?] locum. Que domina decessit postquam dicta nova statua inciperunt vigorem habere. Dubitatur nunc an dictum [interlin.: testamentum] statutum valet vel non. Et hoc ideo quia si non valeret, filii maschuli subcederent exclusis feminis.’ Florence, BNC, Panciatichi. 138, fol. 213r, ll. 1–13.

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opined that the wording of the new statutes would have to be followed, thus voiding the last will. Interestingly, in this case Paolo referred neither to the precise words of the rubric in question nor to the intention of the statute makers of 1415, let alone his own possible involvement in drafting the rubric. One might interpret this as either unnecessary, in accordance with Paolo’s own position that one needed only to refer to statutory intent when the words were unclear. This was not the case here, because for the first time the statutes expressly prohibited a wife from making any disposition by last will of her dowry that would infringe on the rights of her sons or her husband.60 Because the words of the statute did not have to be interpreted, Paolo only had to discern the temporal applicability of the diverging old and new statutes. One can also interpret the 1415 intervention as a move to secure the most important share of the assets belonging to a woman during her marriage for her husband and (common) sons, that is, a new agnatic line of her husband – a finding that has been underlined by other case studies of Florentine inheritance practices.61 On the other hand, the statutory inheritance rules left the right of a married woman to make a last will unchanged over the course of the fourteenth century if she wanted to dispose ‘only’ of her non-dotal goods, a right that was restricted only by the right of her husband to receive up to a third of the non-dotal goods (the so-called paraphernalia)62 as legitima, if there were no children.63 Apparently these

60 ‘Et nulla mulier in dote, vel de dote, vel eius parte in casibus suprascriptis, vel aliquo eorum possit condere aliquam ultimam voluntatem, nec aliquid etiam inter vivos quoquomodo disponere de dicta dote, vel eius parte in praeiudicium viri, vel filiorum, seu aliquorum descendentium,’ in Statuta populi et communis Florentiae, vol. 2, book 2, rubric 129 (‘Qualiter succedatur in dotem uxoris praemortue’), p. 223, ll. 19–23. 61 See Chabot, ‘Lineage Strategies,’ 131–3 on the general intention of the statutes and the consequences for women who returned after the deaths of their husbands to their fathers’ houses as tornatae. 62 Kirshner, ‘Materials for a Gilded Cage,’ 184–207. 63 ‘In aliis vero bonis uxoris predicte non dotalibus, si testata decesserit, succedat vir saltem in tertia parte ipsorum bonorum, non extante aliquo filio vel filia ex eis,’ in Caggese, ed., Statuti, vol. 2, Podestà, 1325, book 2, c. 70, p. 130, ll. 4–6. The wording is identical in the statutes of 1355 in ASF, Statuti 16, book 2, c. 74, fol. 98v; in the draft statutes of 1409, in ASF, Statuti 23, collatio 6, fol. 292va; and almost the same in the final statute of 1415, in which other descendants than sons or daughters could now be preferred before the widowed husband would receive his legitima of a third: Statuta populi et communis Florentiae, vol. 2, book 2, rubric 129, p. 223, ll. 10–12.

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goods were considered less problematic to statute makers, who did not consider any changes necessary in this field. In his commentary, Paolo also referred to yet another consilium on succession to the dowry that he had rendered under the 1355 Florentine statutes. In that case, a wife had instituted her brother as universal heir, providing her children only with the legitima. He explained that the children could only inherit the dowry if they had been instituted as heirs by their mother. The statute should not be interpreted against the express will of the testator.64 But with this opinion, Paolo admitted, he had stood alone, because other jurists had held the contrary opinion, interpreting the 1355 statutes to the effect that the mother could not deny her children what they should inherit because of the statute.65 In summing up his arguments, Paolo observed that the concurring consilia of doctors of law in Florence, Bologna, Siena, and Perugia helped the client, a scholar and brother of the testator, to win his case even without having to go to court. The consilia also spurred the drafters of the 1415 statutes to include a prohibition against a woman from making a last will if she died still married and with surviving children.66 In commenting on the differences between the querela inofficiose donationis and the querela inofficiose dotis,67 Paolo referred explicitly to his own participation in the statute-making process of 1415. He explained that children from a first marriage might raise the querela inofficiose dotis, a remedy of the ius commune, if their mother had given her entire dowry to her second husband without reserving their legitima through a special agreement. Paolo mentioned the opinion of the doctors on the 1355 statute, that the relevant rubric should be interpreted restrictively

64 Paulus de Castro, Commentaria super Infortiato, ad D. 24.3.22 (Si cum dotem), fol. 16va–b, no. 11. 65 ‘Et magni doctores qui erant ibi, dubitabant, quia statutum dicebat quod liberi succederent quasi mater non potuerit eis auferre aliquid de dote, quia videntur habere ex dispositione statuti, arg. in l. Si arrigator, sed an impuberes, supra de adoptionibus ,’ ibid. 66 ‘Et illud consilium fuit subscriptum a doctoribus hic existentibus et etiam Bononie, Senis, Perusie et sic ille obtinuit sine litigio et propter hoc factum fuit statutum novum Florentiae quod mulier non possit in aliquo testari de dote, si moritur in matrimonio cum liberis sed quod ipsi habeant,’ ibid., no. 12. 67 A querela was a complaint attested in Roman law by which heirs entitled to a legitimate share of an estate could request the retractation of an excessive donation (querela inofficiose donationis) or dowry (querela inofficiose dotis) through which the testator had deprived them of their legitimate share. Cf. Adolf Berger, Encyclopedic Dictionary of Roman Law ( Philadelphia: American Philosophical Society, 1953), s.v. ‘querela.’

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so that in cases in which no explicit contract had been made, the husband should inherit only as much of his predeceased wife’s dowry as would remain if the legitima of children of a first marriage had been deducted. But such an interpretation of the statute favourable to the children had now been negated by the explicit wording of the new rubric expressly excluding the children of a first marriage. Paolo noted that the intention of statute makers, more precisely of the people of Florence, was that without the prohibition, widows would not find another husband if they had children from a first marriage.68 His reference in this context to the will of the people of Florence should perhaps be understood as a distancing formulation, signalling that it did not represent his personal intervention in the statute-drafting process or at least that it contravened his intentions. Reverberations of these difficult questions of statutory interpretation and the reasons that lay behind the revision of the 1415 statutes are found in the commentaries to the Florentine statutes of 1415. As far as the competing claims of children from a first and a second marriage were concerned, we find a reference to the policy objective of excluding children from a first marriage in order to facilitate the chances of a widow finding another husband. But in his commentary, Tommaso Salvetti did not refer to any specific Florentine common local knowledge of the original intent of the statute drafters, but rather cited Paolo di Castro’s quotation in his commentary on C. 3.30.1.69 Nevertheless, Salvetti’s commentary illuminates the circumstances of Paolo’s consilium (I.192). According to Salvetti, 68 ‘Si tamen ibi erat statutum de lucranda dote tota uxore premortua ut est Florentie, quia non debuit omnia bona dare in dotem postquam sciebat vel scire debebat tale statutum sed debuit tantum reservare quod sufficeret ad legitimam filiorum primi matrimonii et sic rescinditur lucrum statuti quod verisimiliter non creditur voluisse preiudicare filiis primi matrimonii, nisi diceret expresse quod maritus lucratur totam dotem etiam extantibus liberis primi matrimonii quia statutum potest tollere legitimam secundum communem opinionem per Cy. in l. Sancimus, infra de secun. [?] nupt. . Et ita recordor cum essem unus de compositoribus novorum statutorum Florentie quod fecimus poni in illo statuto et addi quod prius non erat: quia illa erat intentio populi: alias vidue non reperiebant maritum quando habebant liberos ex primo matrimonio,’ Paulus de Castro, Commentaria super Codice, ad C. 3.30.1 (Cum omnia), fol. 154va, no. 4. 69 ‘In statutum novum addita fuerunt a compilatoribus “etiam si ex ea uxore extant filius seu filii seu descendentibus ex alio matrimonio qui excluduntur a successione in dote predicta” et ista non erant in statuto antiquo. Quod Paulus de Castro in l. i, c. de inoffi. dot. dicit quod statutum novum expresse tollit dispositionem l. Hac edictali et illud fuit additum volentibus ita civibus Florentinis ad hoc ut viduae facilius

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the question had been transmitted by the Office of the Wards (Officium Pupillorum) to Floriano (di San Pietro of Bologna)70 and Bartolomeo Vulpi, both of whom had jointly counselled in favour of limiting the scope of the wording of the statute ‘qualiter succedatur in dotem,’ so that the entire dowry would accrue to the husband only after the legitimate share of the predeceased wife’s children from a first marriage had been subtracted. As the commentator to the statutes observed, Paolo di Castro had given his expert opinion to the contrary.71 An especially reliable witness, Salvetti pointed out that the ancient Florentine statute did not intentionally correct Hac edictali – thus opening the way to deduct a legitimate share of the dowry in favour of the children of the first marriage.72 Interpreting the Statutes of Communities Subject to Florentine Jurisdiction The multifaceted legal problems relating to claims on dowries of citizens living in communities in Florence’s orbit were further complicated when they submitted to Florentine rule and jurisdiction. Such a constellation lay at the heart of a consilium rendered by Paolo di Castro, which unfortunately cannot be localized precisely because the parties are referred to only by their Christian names.73 In this case a woman in a small community

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reperirent maritos quando habent filios ex primo matrimonio’ ( T. Salvetti, comment on the statute of 1415 in BML, Ashburnham 1680, fol. 390v). The consilium refers only to Florianus without further eponyms. Presumably, Florianus de San Pietro (†1441) was intended; he was a doctor of law teaching in Bologna, where we regularly find him sitting on doctoral exams from 1399; see Sorbelli, Il ‘liber secretus iuris caesarei,’ passim. ‘Et ita consuluit Florianus in dicto consilio super puncto transmisso per officium pupillorum et etiam dominus Bartholomaeus de Vulpis. Et dominus Paulus de Castro consuluit in contrarium et respondit dicto consilio quod illud de pacto et statuto . . . Et illud quod est ultra non est dos, tollitur per id statutum novum “Et intelligatur dos omne id” cui non potest teneri et ad nullum alium effectum fuit decretum’ ( T. Salvetti, comment on the statute of 1415 in BML, Ashburnham 1680, fol. 391r, ll. 26–8, 32–4). ‘Nam licet de iure verior videbatur quod non sit correcta quia ultra non est dos. Et sic vidi consilia Johannis de Riccis et antiquorum et postea etiam Pauli de Castro manu sua [potui?] totum scriptum domini Floriani, Antonii de Rossellis, Alexandri et multorum modernorum consulentium statutum antiquum non corrigere l. Hac edictali et dominus Albertus de Albeni de Luca habet originalia consilia predicta et ego etiam me subscripsi ibi’ ( T. Salvetti, comment on the statute of 1415, ibid., fol. 391v, ll. 12–18). Paulus de Castro, Consilia ( Frankfurt, 1582), vol. 1, cons. 129, fol. 65ra–b (= Paulus de Castro, Consilia [ Turin, 1580], vol. 1, cons. 129, fol. 64rb–vb). The place where the

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( podestaria) in western Tuscany, which had been formerly subject to Pisan rule and its statutes but was now subject to Florence, had died and was survived by her husband and a son born of their marriage. Under the community’s statute, the husband received one-half of the dowry, but the statute omitted to mention the disposition of the other half. Several options were proffered by Paolo. First, he excluded the statutes of Pisa, which earlier would have prevailed. Under the Pisan statutes, one-half would go to the father of the predeceased wife.74 Paolo went on to consider whether the statutes of Florence prevailed, according to which the husband would not receive any part of the dowry if there were common children surviving, which indeed was the case here.75 One could assume that the Florentine statutes prevailed, because the statutes of all cities and local entities subject to Florence had to be confirmed by Florence,76 and in the case of the podestaria they had actually been approved, thus integrating them into the legal orbit of Florence. case originated is not stated either; it is simply described as a potestaria. The actors were Laurentius, the son of the deceased Piera; Leonardus, his father (and husband-widower of the deceased wife); Simon, the maternal uncle of Laurentius (and brother of the deceased); and finally Baccinus, Laurentius’s paternal uncle (and brother of the husband). Again, one would wish to refer to the original consilium (if it survives) or the manuscript transmission of this text in order to reconstruct the precise context in time and place of this case. The case is also discussed – leaving aside all details of persons and, more importantly, of places (thus leading to an entirely decontextualized interpretation) – by Lange, ‘Die Rechtsquellenlehre,’ 425–7. 74 Paulus de Castro, Consilia (Frankfurt, 1582), vol. 1, cons. 129, fol. 65ra, no. 1. ‘Et constat, ut dixi, quod virtute statuti Pisani non devenit ad patrem uxoris, quia illud non est servandum in dicta Potestaria, sed ex alio capite videtur ad eum devenire, quia nec apparet, nec proponitur quod filius dicta Pierae adiverit hereditatem Pierae,’ ibid., fol. 65rb, no. 2, ll. 16–19. 75 This disposition remained the same in all Florentine statutes from 1325 until 1415; see above nn. 32, 33, 35, 63. 76 For the special elected office of four citizen approbatori and the later archival deposit of Statuti delle comunità soggette, see Tanzini, Alle origini, esp. 80–2 on podestarie and leagues of cities and communities in the years 1385–1430. From Tanzini’s analysis, one might guess that the podestaria in which Paolo’s consilium originated actually was Ripafratta, whose statutes had been approved by Florence in 1407; but the local statutes of twenty-two other podestarie in this period are also held in the Florentine Archivio delle Riformagioni, which indicates an active Florentine policy at the beginning of the fifteenth century to intervene in statute making on the territorial level. As Fasano Guarini ( ‘Die Statuten der Florenz,’ 64–72) has pointed out, in the case of Pisa, some of her former dependent towns were now forced for the first time to put their statutes into writing with a clause indicating that any lacunae should be filled by reference to the Florentine statutes.

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Therefore, one might consider it necessary to refer to the Florentine statutes whenever the statutes of a subordinate city contained a gap. But this confirmation should only be understood, Paolo continued, as prohibiting dependent communes from establishing statutory provisions against the interests of Florence as the dominant city. The question was whether and how far the regulation in the local statute could contradict Florentine norms, according to which the husband is precluded from any share of the dowry in a case where common children survived. In the case at hand, where the podesteria’s statutes approved by Florence did not touch on the political interests of its masters, one should look to the ius commune.77 But to which ius commune was yet another question. According to ancient Roman law, the remaining half of the dowry reverts to the father of the deceased wife. It was reasoned that because the father had promised and equipped his daughter with the dowry, he was able to reclaim it after her death.78 The solution Paolo came up with was to introduce a consuetudo generalis that as non-written law could nevertheless derogate the written rules of the ius commune. The content of this general custom was that the children of a marriage could inherit the remaining part of the dowry, leaving nothing to the deceased wife’s family of origin.79 77 ‘Quod ius commune satis est diversum in hoc a statuto Florentino ut infra patebit et sic videtur statutum Florentinum servandum, quia dico quod dicta reservatio approbatorum intelligitur facta quoad illa quae tenderent in praeiudicium communis Florentinae non quoad ea quae ipsos tantum de dicta Potestaria tangunt,’ Paulus de Castro, Consilia ( Frankfurt, 1582), vol. 1, cons. 129, fol. 64ra, no. 1. 78 Paulus de Castro, Consilia (Frankfurt, 1582), vol. 1, cons. 129, fol. 64ra, no. 2. Interestingly, the regulation in the Pisan statutes, which formerly would have applied in the podesteria, had also provided expressly that common children should have a claim of one-half of the dowry of their mother if their father still lived and that children from a former marriage also should have a claim of one-half of the dowry next to the person who had promised the dowry, and only in the last instance would a share be left to the wife’s widower. Thus, the Pisan statutes did not privilege the new agnatic line as unequivocally as the Florentine statutes did. Cf., for example, ‘Constituta legis et usus pisanae civitatis, a. 1233,’ in Bonaini, ed., Statuti inediti della città di Pisa, vol. 2, c. 30, p. 755. Due to the changed political affiliation of the podesteria, it was now highly inopportune to still refer to the Pisan statutes. Because of his tendency to exclude the particular circumstances of a case, in this case the question of political and institutional context, Lange seems somehow confused by the distinction between consuetudo generalis and consuetudo specialis, and he emphasizes perhaps too strongly that Paolo’s solution should rather be attributed to his adherence to the minority position of Martinus, a glossator of the twelfth century, who had already made a strong case in favour of the common children; Lange, ‘Die Rechtsquellenlehre,’ 427. 79 Paulus de Castro, Consilia ( Frankfurt, 1582), vol. 1, cons. 129, fol. 64ra–b, no. 2.

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In his consilium Paolo seems to have experimented with concepts of a regional common customary law (consuetudo generalis) that as a source of law might be applicable on one level with the learned ius commune to fill gaps in the local statutes. It would have been easier for Paolo to have filled the normative gap solely by recourse to the ius commune. However, because the ius commune solution (the other half reverting to her family of origin) would have been identical with the regulation in the Pisan statute, this was no longer a viable way, because the institutional, normative, and jurisprudential bonds of the podesteria to Pisa had been severed. On the other hand, one could not simply fill the gap with a direct reference to the Florentine statutes, because they contained a different solution (everything accruing to the common children outright) that directly contradicted the ius commune. Therefore, Paolo came up with a general Italian (unwritten) custom as a source of law on the same rank of hierarchy as the written ius commune. With this solution, Paolo opened up an interesting middle way of introducing the Florentine norm without simply replacing a former interpretative allegiance to Pisa with a new alliance to Florence. In effect, he refused to defer to the Florentine statute when the statute of a subordinate territory or city contradicted it or left certain legal problems unsolved.80 Regulating Household and Fraternal Common Property A third approach taken by Paolo di Castro in interpreting the Florentine statutes of 1415 can be discerned in two consilia presumably rendered pro parte and dealing with new statutes regulating alienation of property belonging to a household community called consorteria.81 The first case involved several partners. One partner wanted to sell his part of real estate held in common, in which case the statute provided that the other partner, who ‘had a wall in common in the property,’ could exercise his option to buy the property at the same price at which it had been offered

80 Therefore, I have to disagree with the reading of Paolo di Castro’s cons. 129 by Jane Black, who argues that in this opinion, Paolo fostered the ‘revolutionary idea’ of replacing the ius commune with the Florentine statutes as a common frame of reference in all cases in which the local statutes left gaps; see Black, ‘Constitutional Ambitions,’ 48–64, 58ff. 81 Both consilia referred to a rubric of the Florentine statutes, ‘rubrica de prohibita alienatione,’ which for the first time in the history of Florentine statutory development in the fourteenth and fifteenth centuries can be found in the 1415 statute.

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to a third, outside party.82 But in the case Paolo was asked to solve, the partner who wanted to exercise his option was not the only consors; he had a brother who held the common wall jointly with the client. The key question was whether the partner buying out the partner who wanted to sell his part of the common property could act individually and independently or whether he needed a mandate from his brother and joint partner. For Paolo, the problem was how to interpret the words ‘he who holds’ in the statute. If one were to interpret the words narrowly and literally as referring to full, exclusive ownership he could not proceed alone. But if one interpreted them untechnically and thus expansively as just ‘having the wall in common,’ Paolo’s client could exercise his option.83 Paolo solved the problem by allowing for an imprecise understanding of the phrasing of the statutes, giving one partner an individual independent option to buy without the mandate of the brother and third partner.84 Thus, in this consilium Paolo did not follow the strategy of narrowing down as far as possible the validity of the statutes in favour of the broadest possible application of ius commune.85 The problem posed to Paolo in the second consilium was the following: someone wanted to donate a patroneria to a third party without the consent of his partner. Was the statutory prohibition against alienating common property without such consent valid? Paolo began with a series of counter-arguments. To subsume such a case under the statutory regulation might seem questionable in two respects. First, from the general rule posited by the statute, one might presume that only when a sale, not a donation, was the motive for the contract would the prohibition be applicable, in contradiction to the rubric that referred to all cases of alienation. Second, how should one understand the term patroneria? Did it include an ecclesiastical right of patronage? If so, it could not be subject to statutory regulation, because patronage of church property came under ecclesiastical jurisdiction and legislation.86 Indeed, Paolo cited the very words of the

82 Statuta populi et communis Florentiae, vol. 2, book 2, rubric 109, p. 201, ll. 9–15. 83 Paulus de Castro, Consilia ( Turin, 1580), vol. 1, cons. 221, fols 108vb–109ra (= Paulus de Castro, Consilia [ Frankfurt, 1582], vol. 1, fol. 107r), fol. 108vb, no. 1, ll. 7–18. 84 Paulus de Castro, Consilia ( Frankfurt, 1582), vol. 1, cons. 221, fol. 108vb, ll. 51–8. 85 But such is the general conclusion drawn from several other consilia of Paolo di Castro by Lange, ‘Die Rechtsquellenlehre,’ 434–9. 86 Paulus de Castro, Consilia ( Turin, 1580), vol. 1, cons. 194, fol. 98rb–98vb (= Paulus de Castro, Consilia [ Frankfurt, 1582], vol. 1, fols 96v–97r).

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1415 statute,87 which called for interpretation because they could not be understood unequivocally. In his solution, Paolo contended that the statute must be interpreted so that its applicability would not be voided, articulating a principle that we have already seen in other circumstances as central to Paolo’s view on statutory dispositions and interpretation.88 Therefore, Paolo concluded, one would have to interpret patroneria as including ecclesiastical patronage rights, because the alternative interpretation suggested by the Romanlaw sources – that is, a patronage right the former owner, and his heirs, of a slave had towards his freed slaves – did not reflect Florentine usage or legal practice. Moreover, not only sales of common property but also donations without consent of the partner were prohibited by the statute and, by definition, ecclesiastical patronage rights could not be sold.89 On this last point, Paolo reproached the phrasing of the statute because he found it rather ‘mysterious’ that the statute began by including all kinds of dispositions, even donations, but then went on to restrict its application to sales. Only through an extensive interpretation could Paolo reach the conclusion that all kinds of alienations should fall under the prohibition.90 It is revealing that in neither consilium does Paolo refer to whatever role he may have played in drafting the statute, to the mens and ratio of the statute makers, or to the history of statutory development and successive verbal formulations of the statute, as he did, for example, in the question arising from legal problems in connection with dowry inheritance. It seems a reasonable assumption that the rubric ‘De prohibita alienatione’ was drafted by the members of the statutory committee without his participation. We can observe a similar distancing from the statute on this point in Paolo’s commentaries. For example, he refers only vaguely to a statutory requirement in Venice and in Florence that partners in common property must be treated as privileged buyers at the ‘just price’ – that is, the contracted price at which the outside third party had offered to buy – before 87 Statuta populi et communis Florentiae, vol. 1, book 2, rubric 109 (‘De prohibita alienatione rei inrequisito consorte’), p. 201, ll. 3–4, which reads: ‘Et idem intelligatur de padroneriis, ut supra dictum est de re immobili communi.’ 88 See n. 43. 89 Paulus de Castro, Consilia ( Turin, 1580), vol. 1, cons. 194, fol. 98va, no. 2a, ll. 26–30, 39–44, 47–51. 90 ‘Preterea statutum istud in principio non sine mysterio utitur uerbis generalibus, dicendo nulla persona debeat alienare, concedere, vel acquirere etc.,’ Paulus de Castro, Consilia ( Turin, 1580), vol. 1, cons. 194, fol. 98va, no. 2, ll. 59–65.

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the property could be sold.91 Because Paolo wrote this part of his commentary during his teaching activity in Padua, after his Florentine period, it is probable that he had the 1415 statutes in mind. Similarly, when commenting on the relevant sections of Justinian’s Code dealing with prohibitions on the sale of common or foreign property (C. 4.51 and C. 4.52), Paolo did not refer to the Florentine statutes or his own participation in drafting them, as he does in other cases.92 I can identify only one instance in which Paolo referred to his activity as a legal expert rendering a consilium on a question of the Florentine statute in cases of sales of common property. Unfortunately, however, the consilium referred to in this commentary is none of those presented above; perhaps it was unpublished. Here his advice was sought about the legal consequences when both former partners of a common property sold their shares of the common property without first obtaining the necessary consent of the other. Paolo pointed out that other jurists had advised contrary to his own opinion,93 but it is impossible to identify this consilium and determine whether Paolo or his adversaries convinced the court. From this and other instances we can thus infer that Paolo’s authority in interpreting the statute was far from undisputed in Florence and would not necessarily have led to a favourable decision for a client. From Bencivenni’s commentary on the Florentine statutes, we learn that the words ‘et idem intelligatur de patroneriis’ could only refer to the Romanlaw institution of ius patronatus for freed slaves, not to church patronage rights as Paolo had held, because the latter were subject to ecclesiastical law. Bencivenni’s commentary also provides us with more concrete details

91 Paulus de Castro, Commentaria super Digesto novo, ad D. 45.1.122.3 (Qui Romae § Coheredes), fol. 38vb, no. 4. 92 Thus, there is only a very vague reference to Baldus on the interpretation of a nonspecific statutory prohibition to ‘alienate property,’ which was to be understood as also comprising the prohibition to burden it with an ususfructus. Cf. Paulus de Castro, Commentaria super Codice, ad C. 4.51.7 (Sancimus), fol. 234rb, no. 3. Apparently, such statutory regulations did not require clear localization because they were more or less the same in all cities and communes: ‘Et per hanc legem videntur reprobari statuta et consuetudines que sunt quasi ubique quod consanguinei vel consortes vel vicini preferantur,’ Paulus de Castro, Commentaria super Codice, ad C. 4.38.14 (Dudum proximis), fol. 225va, no. 2. Finally, Paolo also remained deliberately imprecise about where a prohibition to sell common property would also apply and with what legal consequences for barter; cf. ibid., C. 3.38.1 (Divisionem), fol. 174rb, no. 2. 93 Paulus de Castro, Commentaria super Codice, ad C. 6.2.21 (Apud antiquos), fol. 12vb, no. 8.

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of the consilium I.194 discussed above. Apparently, a consilium pro parte had been rendered in favour of a restricted applicability of the statute (i.e., that it extended no further than patronage rights for freed slaves) by Stefano Guaspero Dominicis, Giovanni da Gubbio, Lorenzo Ridolfi, and Bencivenni himself, whereas Bartolomeo Vulpi and Paolo di Castro had held the opposite opinion that church patronage rights should also be subsumed under the terms of the 1415 statutes.94 Paolo’s opinion was that church patronage was of such great importance in Florentine social and religious life – in fact, more so than in any other city – that it must be subsumed under the wording of the statute if only to give the statute more practical relevance.95 With the leading opinions limiting the scope of the statute’s applicability to secular patronage rights over freed persons, the more practice-oriented opinion of Paolo di Castro did not gain a foothold in Florentine juridical discourse. Conclusion Insights into the role played by a leading consultant such as Paolo di Castro in Florentine legal affairs are provided by a comprehensive review of the evidence supplied by statutes, consilia, and commentaries. With regard to the 1415 statutes, for instance, there is a tendency in general legal history to overestimate Paolo’s contribution to the drafting of any particular passage. On the other hand, an approach that focuses exclusively on Paolo’s consilia risks minimizing the intricate problems of statutory interpretation, which might have been considerably more contentious than the impression conveyed by an appeal to decontextualized consilia as

94 ‘In verbo intelligatur: de patronis ut supra dictum est, scilicet libertorum non ecclesiarum, que sunt spirituales et spiritualitatibus submissi ut sunt patronatus ut in capitulo quando de illis statutum non videtur loqui sed de illis qui erant iuris temporalis et ita consuluimus dominus Stephanus Guasper Dominicis, Johannes de Eugubio, Laurentius de Ridolfis et ego in causa Antonii de Antella qui habet consilia licet ut audiarim dominus Bartholomaeus de Sunzino et dominus Paulus aliter consuluerint ad petitionem illorum de Piglis’ (A. Bencivenni, comment on rubric 109 of the 1415 statute in BNC, Fondo nazionale II, IV, 435, fol. 59v). 95 ‘Unum cum secundum communem usum loquendi nullus quasi vulgaris est, qui sciat quid sit iuspatronatus libertorum, sed quae sint patroneriae ecclesiarum omnes quasi sciunt, eo quia plus frequentantur in civitate illa, quam in aliqo alio loco, cum omnes quasi ecclesiae habeant patronos laicos et de illis debebit intelligi statutum’ (Paulus de Castro, Consilia [ Turin, 1580], vol. 1, cons. 194, fol. 98va, no. 2a, ll. 39–43).

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witnesses of Paolo’s general legal positions.96 Finally, the firm dating of the statutes allows us to date Paolo’s consilia themselves more firmly, providing at least a terminus ad or post quem. The consilia I have discussed show that from the beginning of his activities in Florence, Paolo di Castro displayed an acute awareness of minute differences in the wording of older and more recent statutes. In the cases presented here, he attempted to give the statutes the broadest possible range of applicability within the conceptual range permitted by the ius commune, either rejecting possible restrictive interpretations advanced by his colleagues or pleading for extensive interpretation in unclear cases. He frequently showed himself ready to criticize the long-held opinions of his colleagues on statutory interpretation and even had little hesitation in opposing the opinions of other distinguished jurists. Only in one exceptional case did he appeal in a consilium to his knowledge of the intentions of the drafters of the 1415 statute derived from his role in revising and reshaping the statutes. This was an argumentative strategy that might well have enhanced the persuasive force of a consilium but that he rigorously eschewed. Most likely, he acted out of respect for the statute, whose authority should be immunized by referring, if at all, only in general terms to the mens of the statute; on the contrary, he did not hesitate in his consilia or commentaries to juxtapose his own legal positions in matters of statutory interpretation to those of his colleagues. Finally, even the editorial contributions of so brilliant a jurist as Paolo di Castro did not provide the 1415 statute with a truly systematic arrangement of chapters – as we see in the widely dispersed chapters of book 2 dealing with dowries – nor was the statute formulated with such clarity that individual passages escaped the need of further interpretation.97 The result was that later in his distinguished career, Paolo was frequently called on to interpret ‘his’ statute of 1415 and often had to swallow the bitter pill of seeing his own statutory interpretations rejected by his confreres in the Florentine legal community.

96 See as an example Lange, ‘Die Rechtsquellenlehre,’ n. 4. 97 In a more detailed study to be published in German, I plan to come back to the question of whether and how Paolo di Castro intervened in drafting and reshaping the respective chapters of the 1415 statutes.

An ‘Oracle of the Law’: Tommaso Salvetti and His Adnotationes ad statuta florentina1 LORENZO TANZINI

By the fifteenth century, the composition of municipal statutes in the Italian city states had had a very long history. Even in Florence, where just a few fragments of the thirteenth-century statutes survive, the trecento was a very creative period for legislation, and two different redactions of the statutory codes were written in 1322–5 and 1355 (the latter was also translated into the vernacular by the well-known Andrea Lancia).2 A new commission was appointed in 1408 to prepare a third revision of the statutes, and when the prominent jurists Paolo di Castro (†1441) and Bartolomeo Vulpi (†1435) concluded their work in 1415, a new step in the legal and institutional history of the city was taken. Much more comprehensive than its fourteenth-century forerunners, the text of 1415 was a kind of summary of the institutional rules and the political aims of the regime that had governed the city since the fall of the ‘popular’ regime of 1378–82.3 From this perspective, a comparison of the fourteenth- and

1 This article is based on research conducted by Daniele Edigati and me into the role of commentaries on the Florentine Statutum in Tuscan juridical culture from the fifteenth to the eighteenth century. The manuscripts cited here are analysed in Edigati and Tanzini, Ad statutum florentinum. I thank Gustavo Bertoli and Susanne Lepsius for their suggestions regarding the material and sources and Lawrin Armstrong and Julius Kirshner for the revision of the English text. 2 For a short survey of editions of Florentine statutes and the historiography, see Zorzi, ‘Le fonti normative a Firenze.’ 3 Fubini, ‘Dalla rappresentanza sociale alla rappresentanza politica’ and ‘Diplomazia e governo.’ For a detailed analysis of the relation between the 1355 and 1415 redactions and the internal history of the latter, see Tanzini, Statuti e legislazione, 69–101, 199–310; Martines, Lawyers and Statecraft, passim; and Zorzi, L’amministrazione della giustizia, 9–20.

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fifteenth-century statutes – admittedly difficult because of the absence of a modern edition of the texts (only the statutes of 1415 are available in a very unsatisfactory eighteenth-century edition) – is an effective way to chart the institutional changes that accompanied the crucial transition from a communal polity to a nascent ‘territorial state.’ The codification of 1415 was also notable as the final redaction of the Florentine statutory tradition, and despite sharp opposition to the new statutes, especially to the extensive provisions regarding political offices and the executive powers of the Signoria, the text long remained the central point of reference in Florentine law, particularly the second book, which concerns civil matters. Reference to the statutes of 1415, therefore, is fundamental to any research on Renaissance Florentine society, particularly research concerned with the regulation of family life, women, and children. Legal practice in quattrocento Florence confirms the relevance of the 1415 codification: the second book of the statutes, De civilibus causis, was cited in hundreds of consilia written by Florentine lawyers, and it represents the core of Florentine legal culture.4 It is not surprising, therefore, that at various times, Florentine jurists attempted systematic expositions of this vast but disparate body of material so central to their practical activities. In Lawyers and Statecraft, Lauro Martines briefly mentions the commentary on book 2 of the Florentine statutes of 1415 by Tommaso Salvetti, a prominent jurist best known for his distinguished political career and his public and private consilia. Unfortunately, no scholar has followed up on Martines’s suggestion that the complete commentary is ‘possibly lost.’5 To date, no one has sought out Salvetti’s commentary, either for details of his biography or for insights into the interpretation and application of the statutory corpus that remained in force in Florence for more than three centuries. Despite the almost total absence of scholarly attention, Salvetti’s Adnotationes ad statuta florentina – which does indeed survive in several copies – was a highly significant work, cited with approval both in Salvetti’s own day and well into the eighteenth century. After his death, Salvetti was

4 For some examples of recent studies of fourteenth- and fifteenth-century legislation and its interpretation in consilia, see Kirshner, ‘Consilia as Authority’; Kirshner, ‘Baldo degli Ubaldi’s Contribution’; Kirshner, ‘Dowry, Domicile, and Citizenship’; Kuehn, Law, Family, and Women; and Tanzini, Il governo delle leggi, 155–214. The importance of the 1415 laws as a witness to the elite’s attitudes on family and social issues is also stressed by Najemy, History of Florence, 219–49. 5 Martines, Lawyers and Statecraft, 452, 467, 501.

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considered a fidelis interpres of the statutes of 1415 because of his personal acquaintance with their principal redactor, Paolo di Castro. During the sixteenth century, Salvetti’s authority was officially recognized when the Florentine rota civile declared that his work was ‘to be deferred to as an oracle’ (tamquam oraculo deferendum).6 This tradition is reflected in a remarkable number of manuscripts from the mid-sixteenth to the early eighteenth century that reproduce extracts from, or even the complete text of, the commentary.7 Preserved not only in Florentine collections and archives – presumably intended for the author’s colleagues and students – but also in other, more distant, libraries, these later manuscript witnesses of the Adnotationes are unquestionable evidence that Salvetti’s work was received as an important model for juridical commentary on the municipal law (ius proprium) in Florence and beyond. The author of the Adnotationes was born in 1390 to a prosperous family of notaries from Pistoia.8 He studied law at Padua and then Bologna, receiving the doctorate in utroque iure in 1418. During this time, and especially in Padua, Salvetti came into contact with several influential people with whom he would continue to have close relations in Florence. The first among these was the young Portuguese monk Gomes Eanes (†1459), later prior of the Badia Fiorentina. At Padua, Salvetti was a student of Raffaele Fulgosio (†1427), from whom he acquired a keen interest in matters

6 A later commentary notes: ‘Thomas Salvettus florentinus fuit statutorum suae civitatis fidelis interpres, super quorum intelligentia diu insudavit, et de statuentium mente fuit etiam informatus tamquam contemporaneus ipsorum editioni, et quia studiavit apud Paulum de Castro unum ex statutorum compilatoribus: De Comit. Decis. Flor. 99 n. 60 et 61 ubi ipsi auctoritate Rote nostre tamquam oraculo esse deferendum dicit Lenzonius’ (BG, XLIX 4, 4ms, fol. 1r). The most widely cited seventeenth-century commentary on the Statutum, the Apostille of Geri Spini, is no less laudatory: ‘Thomas Salvetti excellens iuris consultus florentinus fuit primus glossator dictorum statutorum et vixit tempore Pauli de Castro’ (see ASF, Manoscritti 11, fol. 9r). 7 In particular, the commentary on rubrics 44–110 of book 2 is preserved in BFG, C 2 73bis, originally accompanied by a first volume that is now lost. In BSR, Statuti 596, there is a seventeenth-century copy of the lengthy commentary on rubrics 2, 130 (fols 186r–252v). BNF, Fonds latin 12911, preserves a complete copy of the commentary on book 2. A seventeenth-century copy of the commentary on book 3 can be found in BUPi, MS 502. Beyond Florentine Tuscany, a partial seventeenth-century copy of the commentary on book 2 may be found in BCG, Fondo Antico, XVI a 102. 8 For the jurist’s biography, see Neri, ‘Il giurista Tommaso Salvetti’ (who makes no reference to the Adnotationes), as well as Martines, Lawyers and Statecraft, 501. For references to several consilia, see Martines, ibid., ad indicem.

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canonistic that would later characterize his work on the statutes and his professional practice.9 In 1425 the young Tommaso moved to Florence, where he enrolled in the Guild of Judges and Notaries. His professional skills, along with the high social standing his family had attained since their arrival in Florence, allowed him to launch a successful career as a jurist in association with distinguished jurisconsults, above all, Paolo di Castro, just a few years after the latter’s key role in redacting the statutes of 1415.10 In 1420 Salvetti received his first public commission, serving the commune on a diplomatic mission to Siena.11 Seven years later he was chosen – along with Nello di San Gimignano (†ca 1432), one of the best-known jurists in the city – to serve as sapiens communis on the delicate question of Volterra’s fiscal obligations under the Florentine Catasto. In light of the submission clauses that tied Volterra to Florence, the jurists concluded that Volterra was exempt from the Catasto, a response that was not appreciated by the government, which opted to ignore their opinion and insist on its fiscal rights until Florence’s war against Volterra in 1429.12 Salvetti’s relations with the reggimento may have suffered because of this incident, but in any event, it was the end of the Albizzi leadership in Florence and the return of Cosimo de’ Medici that made possible Salvetti’s rapid political ascent. Tommaso was a member of the Medicean balìa of 1434, when he served as arroto (that is, as an appointed member, not one drawn for public office by sortition) for Santa Croce quarter, and achieved the priorate for the first time in 1435.13 Salvetti’s career as a jurist also blossomed in the 1430s: he had become a member of the collegium doctorum in the law faculty of the University of Florence in 1430, and he authored

9 BML, Ashburnham 1680, fol. 314v: ‘et super isto dubio vidi consilium domini Raphaelis Fulgosii preceptoris mei.’ 10 Even if Tommaso lived together with his two brothers and their wives and numerous sons, the socio-economic standing of the Salvetti family was high, because its taxable wealth was assessed at a total of 3773 florins in 1427: see ASF, Catasto 69, fols 247r–51r. 11 See the profile by Martines, Social World, 67–9. 12 The consilium has been edited and studied by Fabbri, La sottomissione, esp. 260–1. Tommaso was again asked to express his opinion on the matter four years later, and this time, after the devastation of the war with Volterra, the Signoria adopted the conclusion reached by the two jurists in 1427, namely, that Volterra should be excluded from the Catasto. 13 Rubinstein, Government of Florence, 286; Neri, ‘Il giurista Tommaso Salvetti.’

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an extensive series of consilia, whose manuscript tradition has left many witnesses.14 Salvetti’s expertise in civil and canon law attracted a variety of clients, although the greater part of his professional activity focused on ecclesiastical cases. Salvetti took a particular interest in, and served as advocate for, the ancient Benedictine abbey of St Mary, the so-called Badia Fiorentina, whose prior from 1419 was the Portuguese Gomes Eanes, whom he had known years before in Padua.15 A religious institution as powerful as the Badia was, unsurprisingly, frequently involved in lawsuits over its patrimony and its acquisitions and legacies, and it was in constant need of legal advice.16 Salvetti became a close associate of Dom Gomes, and his connection with the Badia brought him into contact with other ecclesiastical institutions and some of the most prominent figures in Florentine religious life, such as the prior of Santa Maria degli Angeli, the humanist Ambrogio Traversari (†1439). In a letter of 1437, Traversari describes Salvetti as ‘optimus et amicissimus vir’ and requests his legal assistance in a case involving the monastic community.17 These relationships with the ecclesiastical establishment, which Salvetti cultivated all his life, strongly influenced his literary style. For instance, in a passage from his commentary on the statutes, Salvetti demonstrates familiarity with the life of Pope Eugene IV written by Antonio degli Agli (†1477), bishop of Fiesole and Volterra and a cleric with humanist interests, renowned in Medicean circles.18 But the Florentine Badia and particularly its prior, Gomes, remained at the centre of Salvetti’s circle of personal friends. When Gomes was recalled 14 On Salvetti’s university service, see Davies, Florence and Its University, 168–9. In addition to the consilia cited by Martines, Lawyers and Statecraft, ad indicem, see also ASF, Carte Strozziane III, 42, fols 13r–16v; ASPi, Raccolte 3, fols 469r–70v, 472r; and Kirshner, ‘Dowry, Domicile, and Citizenship,’ 257–8. 15 Salvetti recalls the association in BML, Ashburnham 885, fol. 1v: ‘visu ipse didici eum [the prior Gomes] sibi familiarissimus et monasteri florentini, cuius memoria satis subsequitur, advocatus fuerim, apud illum quotidie manens ut eiusque doctrina moribus ac disciplina recrearer.’ 16 The abbey had at its disposal several fifteenth-century copies of the city’s statutes for purposes of reference; see ASF, Corporazioni religiose soppresse 78 (Badia di Firenze), 389. 17 Traversari, Epistulae, V, 30 (from Fontebuona Abbey, 16 October 1437): ‘Ambrosius optimo et amicissimo viro Thomae. Quantum promoverit praesentia et virtus tua in re nostra cum patribus heremitis componenda vix adhuc scire possumus.’ 18 At BFG, C 2 73bis, fol. 306r, Salvetti recalls having read in the (now lost) Vita by Agli the news of the celebratory epitaph composed by Leonardo Bruni for the consecration of the Florentine cathedral in 1435.

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to Portugal, Salvetti celebrated his friend’s Florentine sojourn in a Vita Gometii, completed in 1443 and dedicated to Petrus de Coimbra, regent of the Kingdom of Portugal, who was then in Florence on an official visit. Salvetti remained closely associated with the abbey even after his friend’s departure, and he donated several canon-law books from his personal collection to the monastic library.19 Frequent autobiographical references in Salvetti’s work illustrate the trajectory of his professional career. Several cases – some simple, others complex and extended over a considerable period of time – confirm that his expertise on canonical and clerical matters was frequently called on. He recollected that he had served for twenty-seven years as legal adviser of the Compagnia di Orsanmichele, whose prominent role in the religious and political life of the city allowed Salvetti to exercise his professional skill in matters such as orphans and pious legacies.20 Meanwhile, Salvetti’s career continued steadily along its upward path under the Medici regime. In his capacity as a jurist, Salvetti was commissioned in 1441 to revise the rules for appointment to political office (imborsazione). In 1444 he was recalled to a leading political office as prior and at the same time participated in the Medici balìa. The years that followed confirmed Salvetti’s position within the Medici regime as he continued to be active in political life, holding several minor offices and assignments until his death in 1472.21 Political and professional issues were intimately related in Salvetti’s career. Following his work on the imborsazione rules, in 1445 he participated in a small, eight-member committee of jurists and representatives of patrician families whose task – according to the sparse documentary evidence that survives – was to bring 19 We know, for example, that Salvetti donated a copy of the Mercuriales of Johannes Andreae to the library; see Blum, La biblioteca della Badia fiorentina, 21, 133–4. 20 See BML, Ashburnham 1680, fol. 323v: ‘sepissime persuasi capitanum Orti sancti Michaelis, ubi annorum xxvii fui advocatus.’ In his commentaries, Salvetti devotes considerable attention to problems concerning priests and the clergy, primarily citing canonistic authorities; see, for example, the beginning of rubric 130, where he inserts a lengthy consilium by the canonist Giovanni da Legnano (†1383). Salvetti often cites the decisions of the Roman rota: see BML, Ashburnham 1680, fol. 343v: ‘Rota conclusio V 2’; and infra, fol. 344r: ‘an possit illam revocare Rota 472.’ 21 Salvetti was a member of Medici balìe in 1444 and 1458, one of the Dodici Buonuomini in 1446 and 1452, and Gonfaloniere delle società di popolo in 1450 and 1456. In old age (he was over 80 when he died) he seems to have declined political office, preferring to dedicate himself to legal consulting. On Tommaso’s political career, see Neri, ‘Il giurista Tommaso Salvetti,’ and also Rubinstein, Government of Florence, 309, 329, and ad indicem.

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order to the unwieldy multitude of amendments that had accumulated around the constitutional rules of the republic.22 Although the results of this project are unknown – most likely because the committee failed to complete its work – its effect on Salvetti’s professional career was critical. Coming soon after his second term as prior and his participation in the balìa of 1444, this committee provided Salvetti with the opportunity to participate in a reform project sponsored by Cosimo de’ Medici that was put into effect – at least in part – several years later with the reforms of 1458. No comprehensive revision of the Florentine statutes had been attempted since the great redaction of 1415, not least because of the tensions provoked by innovations regarding the legislative councils introduced in that revision. Nevertheless, several revisions were proposed and elaborated in the course of the fifteenth century during the years of the Medicean Signoria from Cosimo to Lorenzo, before the promulgation of the Savonarolan laws of 1494 and the institution of the Great Council, which reformed the whole structure of Florentine statutory councils.23 In the years 1444–5, Cosimo launched the first of these attempts to revise the Statutum systematically, and because the overhaul of such a large compilation was obviously beyond the capacity of a single jurist, it is plausible that Salvetti first conceived the idea of writing a commentary on the statutes as a result of his participation in Cosimo’s reform commission. A systematic commentary on the Statutum of 1415 in the form of glosses or annotations was not an entirely original idea. Copies of statutory collections, in whole or in part, circulated among jurists and advocates in the city’s tribunals. These copies were often furnished with marginal notes 22 Reported by Ammirato, Istorie fiorentine, V, 293; but see also Petriboni and Rinaldi, Priorista, 319: ‘al tempo de’ sopradetti Signiori [September – October 1445] elesse la Signoria certi cittadini a rivedere certe riformagioni, i quali furon questi, cioè misser Ghuglielmo Tanagli, misser Tommaso Salvetti, misser Girolamo Machiavegli, misser Domenicho Martelli, Nerone di Nigi, Neri di Gino Capponi, Bernardo Gherardi, Francesco Ventura.’ 23 The deliberations that led to the appointment of the Eight under Cosimo as Standardbearer of Justice spoke very clearly of a global revision of all ‘reformationes, ordinamenta et provisiones seu statuta quecumque, que legem facere dicuntur, seu ut leges de negociis communibus et publicis disponerent,’ in reality, the preliminaries to a new statutory redaction; see Fubini, ‘Il regime di Cosimo de’ Medici,’ 74–6. The classic study of Medicean changes to the institutional structure of the republic, with special regard to the councils, remains Rubinstein, Government of Florence, 77–98. The link between attempts to revise the statuta and changes of political regime in fifteenth-century Florence is stressed by the study of Fubini just noted.

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in which the jurist would remark on his own experiences interpreting the statutes, make observations, propose possible normative updates, or provide examples of practical jurisprudence in the courts. At times, such compilations could be quite substantial, with marginal notes accompanying a greater part of the Statutum’s text.24 In other cases, a relevant statute would be selected as the subject of a deeper and more focused treatment.25 This type of commentary, born of the personal experience of individual jurists, was not usually the work of a single author but rather appears to have been an ‘open’ work, continually updated and augmented by successive practitioners. The first named author of a commentary on the statutes was Alessandro di Salvi Bencivenni (†ca 1423). Just before 1423, Bencivenni wrote a collection of comments (adnotationes) to accompany the second and third book of the Statutum. This collection is generally regarded as the first commentary on the Florentine statutes of 1415.26 Bencivenni’s commentary became a model for his fifteenth-century successors. The commentary was now physically separated from the text of the Statutum itself. The form of the marginal gloss was abandoned and that of an autonomous text in which only individual rubrics, or sections, were noted in the titles was assumed.27 24 An interesting example is BNC, Fondo nazionale, II, I, 269, an early fifteenth-century copy of the statutes of the podestà and the Capitano of 1355 furnished with an elaborate series of marginal annotations dating from some time before 1414. The work has a practical tone: in addition to a particular emphasis on individual sections, the commentary expounds the most complex and relevant passages of the statutes by means of practical examples drawn from the city’s courts and most often resolved by a jurist’s consilium. It is almost certain that this type of gloss was not the work of a single author but the result of the accumulation of notes by several jurists. 25 A good example is ASF, Manoscritti 5, fols 33v–34v, an annotated copy of books 2 and 3 of the Statutum of 1415. The number of notes accumulated by the jurist was so great that after completely filling the margins of the two pages corresponding to rubric 2, cc. 129–30, he decided to continue his commentary, which he devotes to a short but detailed discussion of female inheritance, on the blank pages at the end of the copy. 26 The commentary is preserved in BNC, Fondo nazionale, II, IV, 435, on which see Martines, Lawyers and Statecraft, 452–3, and the profile of the author on 492. Sections of the commentary have been studied by Kuehn in ‘Some Ambiguities of Female Inheritance Ideology’ and ‘Consilia as Juristic Literature,’ 239–40. Owing in part to his premature death, Bencivenni’s activity as a consultant is not well documented. Some of his consilia can nevertheless be found in Maffei, I codici del Collegio di Spagna, nn. 82.55, 122.178a, and BNC, Landau Finaly 98, fols 70v–82v, 271r–72r, 302rv, and 327r–34r. 27 Salvetti often refers to Bencivenni in laudatory terms, as, for example, in BNC, Fondo nazionale, II, IV, 434, fol. 2v: ‘ut dixit etiam hic doctor celeberrimus et maximus causidicus dominus Alexander Salvii doctor florentinus.’

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Likewise, the choice of books that were subject to commentary – the second book, on civil cases, and the third book, on criminal cases (thus excluding the sections on institutional rules) – would be followed by most subsequent commentators. Although modelled on Bencivenni’s commentary, Salvetti’s work soon overshadowed his predecessor’s because of his more profound and detailed textual analysis.28 Salvetti most likely started to draft his commentary on book 2 of the Statutum in 1448. The date is not entirely certain; the incipit of the earliest copies of the work refers to ‘declarationes et pratiche dello statuto incepte in 1448,’ and internal evidence offers further confirmation of this date.29 The 1448 codex breaks off after the comment on rubric 61, De dote, before reaching the middle of the book. Although it is difficult to establish for certain whether this is the result of a defective manuscript or is evidence of an early redaction by the author, the overall composition of the manuscript lends support to the latter hypothesis. Following the commentary on the rubric on dowries, the manuscript preserves a long series of consilia. These were probably collected by Salvetti himself, and they consist of texts by Angelo degli Ubaldi followed by a miscellaneous collection of Florentine doctores of the late fourteenth and early fifteenth centuries.30 The manuscript therefore appears to furnish an example of the method Salvetti used to create his commentary as a whole: proceeding through the text of the statutes, the jurist drew on his own experience as a scholar and consultant to enrich its interpretation. He supported his comments with a copious selection of practical texts, most often consilia drawn from Florentine cases of earlier decades. The purport (declaratio) of the statutes would thereby be confirmed with an array of interpretations drawn from juridical practice.

28 As indicated by the fact that despite Salvetti’s expressed esteem for Alessandro’s work, the latter does not have a significant manuscript tradition after the fifteenth century. 29 BNC, Fondo nazionale, II, IV, 434, fol. 1r; see also n. 54 and the text quoted there. 30 BNC, Fondo nazionale, II, IV, 434, fols 150r–431r. The consilia appear to have been transcribed by the same hand that copied Salvetti’s text, which suggests that the miscellany was included intentionally. The section was probably compiled by Salvetti himself: in his commentary on book 3, he mentions a ‘consilium Baldi in paucis verbis ubi concludit contrarium ex quasi usu loquendi ubi quis dixerit “al dispecto di Dio” et dicebat posse fieri verba iniuriosa et contumeliosa’ (BMV, Lat. V, 54 [=2456], fol. 53v), and indeed, a very short consilium on blasphemy by Baldo is transcribed in our dossier at fol. 265r.

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This first manuscript provides evidence of an early, partial draft of the work, but in addition, two other manuscripts of the complete commentary on book 2 have been preserved. Both of them are copies made after Salvetti’s death but before the end of the fifteenth century. The first of these is a manuscript in the Biblioteca Medicea Laurenziana (BML), which can be dated to the 1470s.31 It contains a complete commentary on book 2 with the exception of the opening section, the final pages of the gloss to rubric 130, the last chapter on civil cases, and a short gap after the rubric De incendis et vastis.32 The manuscript most likely belonged to the Florentine jurist Antonio Strozzi (†1523), a prominent practitioner who is thought to have been the author of the marginal notes accompanying various parts of the text.33 Around the same time, another copy of Salvetti’s commentary was made, in this case complete and with no evident gaps. It passed through the hands of several owners, eventually arriving at the Biblioteca Marciana in Venice (BMV), where it is now preserved.34 These early manuscripts provide us with access to Salvetti’s work as a whole, but analysis of the work is complicated by the fact that the manuscripts include not only Salvetti’s original version but also additional annotations interpolated and assimilated into the text that are not easily distinguishable from the base work.35 The nature of an ‘open’ text – which, as we have seen, was typical of the commentary tradition – also influenced later and more systematic examples of the genre.

31 BML, Ashburnham 1680. 32 Ibid., fols 274v–75r. 33 Ibid., fol. 1r, over the first line of the text: ‘Antonii Stroze.’ On Strozzi, see Cavallar, ‘Lo “stare fermo a bottega” ’; the fact that he was familiar with Salvetti’s text is demonstrated by one of his quotations in a consilium of 1516, as was noted by Martines, Lawyers and Statecraft, 467 and n. 28. 34 BMV, Lat. V, 44 (= 2654). That the manuscript remained for a relatively long time in the Tuscan region is indicated by an ownership note of the late fifteenth century on fol. 1r: ‘ser Iohannes de Macchantis de S. Miniate causidici florentini,’ followed by the additional notation ‘hodie domini Horatii sui filii I.U.D.’ 35 These problems of dating might be resolved by a third, partial copy of Salvetti’s commentary on book 2 in BR, MS 3015, which includes the text up to rubric 127, De Appellationibus. Because this manuscript makes no reference to cases later than 1469, it might be considered the last witness of the work copied during Salvetti’s life, a sort of ‘missing link’ between the first draft of 1448 and copies made after Salvetti’s death. But in the absence of any external data about the composition of the manuscript, I have preferred to cite here the other two fifteenth-century codices with a view to devoting a more detailed analysis to this interesting manuscript elsewhere.

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In addition to the commentary on book 2, Salvetti produced an analogous work on book 3, which deals with causae criminales. In this case, the text is preserved in an excellent Marciano manuscript dating to the end of the fifteenth century and in an interpolated copy of the seventeenth century that was undoubtedly based on an intermediate copy of the Marciano version.36 It is, however, a rather problematic witness because of the copyist’s decision to include not only Salvetti’s text but also the notes on book 3 written by Alessandro Bencivenni, thus producing a sort of patchwork divided by rubrics that does not distinguish between the individual authors’ contributions.37 Writing the two treatises took Salvetti a very long time. The part on criminal law was certainly not completed before the mid-1450s, but internal references suggest that it might possibly date from ten years later.38 Although probably still in the process of elaborating his incomplete commentary on book 2, Salvetti referred to his own comments on civil cases in his remarks on book 3. Clearly, then, the commentary on book 3 took its final form only when the treatise on book 2 had already reached a structured and quotable form; it is therefore probable that the former was composed near the end of Salvetti’s life.39 Although Salvetti’s completed commentaries cover the entirety of both book 2 and book 3, they focus most intensely on passages that were deemed

36 BMV, Lat. V, 54 (= 2456). In this case as well, the possibility of a Tuscan provenance cannot be overlooked, as suggested by the sixteenth-century attestation of ownership on fol. 1r: ‘D. Mathei Carlinii Juris Consultus et Advocati florentini.’ The seventeenthcentury copy is BUPi, MS 502. 37 As evidenced by the incipit of BMV, Lat. V, 54 (= 2456), fol. 1r: ‘Questiones declarationes et prattice super 3 librum statutorum Florentinorum in materia maleficiorum et in scriptis redate per dominum Thomam Salvectis florentinum, ubi etiam inseruntur de verbo ad verbum scripta domini Alexandri Salvi de Bencivennis super eodem libro.’ 38 See n. 39. In fact, there are frequent references to cases of the 1450s that should probably be attributed to Salvetti. Furthermore, a final revision of the text could be dated post1467 if we can attribute with certainty an annotation in BMV, Lat. V, 54 (=2456), fol. 25rv, to Salvetti: ‘et in 1467 et die 10 iunii fuit approbatum consilium meum ser Michelem Schiattesi ex commissione dominorum priorum d. Domenico de Martellis.’ 39 BMV, Lat. V, 54 (=2456), on the rubric De pena declinantis iurisdictionem: ‘De intellectu istius statuti vide supra in [libro] secundo De declinante iurisdictionem comunis Florentie rubric 18, ubi plene dixi.’ At fol. 124v, Salvetti related several episodes of corrupt clerics condemned to death, one of them ‘tempore quo erat hic Eugenius,’ and another of 23 April 1464. This might provide a terminus post quem, although it is equally possible that the author here is not Salvetti but a later copyist.

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particularly complex and problematic. In the book on civil cases, for example, one of the most closely analysed rubrics is c. 1, De modo procedendi in civilibus, on which Salvetti composes a virtually autonomous treatise on civil procedure that is comparable to the better-known sixteenth-century work of Giovan Battista Asini.40 The author dwells at length on the matter of legacies and dowries, central themes in the legal practice and social customs of quattrocento Florence, and devotes only slightly less attention to the themes of debtors and creditors.41 Among the most thoroughly glossed sections, only the rubric 127, on appeals, ventures beyond the topics of obligations and family law to confront more general procedural issues. An exceptionally good example is the last rubric of book 2, c. 130, Qualiter mulier ab intestato succedat.42 In the seventeenth-century transcriptions, which reflect several strata of additions accumulated after the author’s death, the commentary on the rubric becomes a vast treatise on the subject of female inheritance, suggesting that in retrospect this was the most admired section of Salvetti’s commentaries.43 By contrast, the commentary on book 3 devotes considerably more attention to general material on procedure (especially the first two rubrics of the book), passing quickly over – or even omitting discussion of – the more detailed, substantive enactments. There are extensive and detailed discussions of certain classes of crime, particularly those involving bloodshed, with close attention to problems of forensic medicine, for example, the various categories of wounds and the appropriate penalties. But the manuscript tradition clearly underlines the divergent fates of the two parts 40 Asini, Ad statutum Florentinum. Salvetti’s commentary occupies fols 1r–33v of BNC, Fondo nazionale, II, IV, 434, that is, a little less than a quarter of the complete commentary on the first sixty-one rubrics. 41 A brief review of the text reveals that among the most thoroughly annotated chapters are c. 29, De heredibus ( BNC, Fondo nazionale, II, IV, 434, fols 60r–79r); c. 42, De precepto guarentigie ( BML, Ashburnham 1680, fols 110r–67r: the rubric concerning the preceptum guarentigie was not transcribed in the Nazionale manuscript, where there is a blank space corresponding to c. 42); c. 57, De cogendo debitorem ad solvendum ( BNC, Fondo nazionale, II, IV, 434, fols 109r–16r); c. 58, De precepto disgombrando (ibid., fols 116v–30r); c. 61, De dote et donatione (ibid., fols 133r–48r); c. 127, De appellationibus ( BML, Ashburnham 1680, fols 337v–62r); and c. 129, Qualiter succedatur in dote uxoris premortue ( BML, Ashburnham 1680, fols 362r–98r). 42 BMV, Lat. V, 44 (=2654), fols 232r–60v. 43 In fact, one eighteenth-century manuscript contains only the commentary on rubric 130, which was already being treated as an independent text; see BSR, Statuti 596, fols 186r–252v, in which pages are numbered 1–67, evidence that it was regarded as an independent commentary on rubric 130 and not an extract from a larger work.

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of Salvetti’s commentary. The commentary on civil cases was copied and anthologized repeatedly, becoming enshrined as an authoritative source in subsequent jurisprudence. By contrast, in the field of criminal law, where legislative changes of the sixteenth century and the extensive reforms of Cosimo I (†1574) reduced the relevance of the criminal-law statutes in the 1415 corpus, Salvetti’s work barely outlived the author and soon fell into relative obscurity. Salvetti’s Adnotationes may be analysed from several perspectives, but it must be acknowledged that the author was first and foremost a professional legal consultant, a master of the consilium sapientis, a bridge between the venerable doctrines of the great masters and grubby, quotidian legal practice in which he had such vast experience. His annotations are a sort of guide for Florentine lawyers, where the statutory regulations are anatomized through the hundreds of cases he cites and analyses. Much like the intricate and sometimes contradictory forensic cases on which it draws, the commentary evades simple characterization and remains difficult to grasp as a whole. Salvetti’s highly technical subject matter did not prevent him from including extensive allusions to the city’s political life. For example, on rubric 44, on councillors’ judicial immunity, Salvetti cites the case of a certain Sinibaldo di Filippo, a leather cutter detained while serving as a member of the 1434 balìa. The question concerned the applicability of the law in this case: should the Medici balìa be considered an ordinary council benefiting from the same immunities enjoyed by the Councils of the People and the Commune or an extraordinary assembly alien to the constitutional principles of the commune and therefore excluded from such immunities?44 The fact that Salvetti was also a member of the balìa and from the same quarter as Sinibaldo (Santa Croce) might explain his interest in this particular case, which was later resolved by reference to subsequent norms. Salvetti’s opinion emphasizes the enormous powers of the Medicean balìa,

44 See BNC, Fondo nazionale, II, IV, 434, the commentary on c. 44, De prohibita captura consiliariorum. The balìa was a highly effective tool in the hands of the Florentine elite (and later the Medici) to bypass the councils and enact extraordinary measures: cf. Molho, ‘Florentine Oligarchy,’ and Fubini, ‘Dalla rappresentanza sociale alla rappresentanza politica.’ Elsewhere, Salvetti recalls having participated as a member of the Dodici Buonuomini in the editing of a new law concerning crimes committed at night; see BUPi, MS 502, fol. 8r. On 12 June 1452, Salvetti was drawn and seated among the Dodici for Santa Croce quarter; see ASF, Tratte 603, fol. 154r.

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which was regarded as endowed with both the power and the privileges of the ancient councils.45 On another occasion, the author refers to an incident in which he was personally involved – again probably owing to his close relations with Cosimo – a controversy with Francesco da Padova, envoy of Eugene IV to Florence in 1445. The argument centred on the pope’s excommunication of Florentine councillors for violations of the patrimonial rights of the clergy, and it related to a highly sensitive section of the statutes, namely, rubrics II, 18–25, regarding civil and ecclesiastical jurisdiction over usury, excommunication, and nomination to clerical benefices.46 By 1427, a section of the statutes had already been annulled by the Florentine authorities at the behest of Pope Martin V, but the subject of ecclesiastical policy remained a sensitive area in Florentine legislation.47 Salvetti’s experience as a politician combined with his expertise in canon law provides a valuable insight into the political tensions that arose from certain sections of the statutes. In this case, Salvetti’s commentary provides a nuanced reading that strikes a balance between formal respect for canon law and a skilful invocation of the papal privileges the republic had been recently granted that allowed Florence to enlarge its jurisdiction in traditionally ecclesiastical fields.48 45 BNC, Fondo nazionale, II, IV, 434, fol. 101rv: ‘An illi de balia ordinati per parlamentum tempore quo congregata ipsa balia etiam pro faciendo scruptineum sint tuti fuit ardua quaestio in 1434 de mense octobris in Sinibaldo Philippi ritaglatoris capto dum iret ad congregationem cum sociys de balia . . . Dicebam quod in ea [scil. balia] erat omnis auctoritas et sic populi et comunis et uno actu poterant fieri id quod per duo consilia unde per maioritatem rationis dicatur in ea idem statui . . . postea per reformationem istud statutum declaratum et exstensum [fuit] ad consilium ducentorum et ad consilium maius et baliam predictam et sic postea ad aliam baliam seu consilium maius del 39 et del 44.’ 46 BNC, Fondo nazionale, II, IV, 434, fols 50v–51r: ‘et per ista dicta dicebam domino Francisco de Paua huc destinato oratori a papa Eugenio in 1445 quod consiliarii qui reddiderunt fabas reformationi de possessione non danda nisi subditis vel de territorio florentino non erant excomunicati.’ 47 Bizzocchi, Chiesa e potere nella Toscana, 86–7. 48 Without going into the details of Salvetti’s interpretation, which are complicated by a high degree of ambiguity, it should be noted that the most significant assumption of the Adnotationes is Salvetti’s insistence that the law of 1427 did not abrogate (as later commentators would argue) but simply modified the rubrics on ecclesiastical jurisdiction, which therefore remained applicable in specific cases. Salvetti presumably refers to unusual, politically sensitive situations involving Florentine and papal interests (e.g., the institution of the Catasto, the Council of 1439, or the presence in Florence of the papal ambassador in 1445) that touched on the link between ecclesiastical jurisdiction and political relations with the popes.

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In Salvetti’s commentary, among the frequent references to recent political events in the city there are several to the Medici: ‘et ita consului pro Cosmo de Medicis,’ as Tommaso records, recalling a problematic question regarding orphans’ rights.49 On other occasions Cosimo de’ Medici was himself a protagonist in litigation or arbitration in which the author was directly involved.50 We have no record of the consilia Salvetti wrote at Cosimo’s request, but his frequent references of this sort can be taken as an indication of a close relationship with the signore – or at least with his political circle – and it emphasizes the reciprocal relationship between the political and the professional in the career of the author of the Adnotationes.51 Salvetti was deeply concerned with the political function of juridical culture, whose public relevance was reflected in the statutes. Indeed, on several occasions he could not refrain from commenting on contemporaneous political errors and imprudent decisions made by Florentine officials. A case in point – historically distant at the time Salvetti was writing, but relevant to the jurist – was the controversy over the Catasto of Volterra in 1427. Commenting on the rubric Quod consilia edita contra comunia [sic] non valeant, Salvetti declares that an overly literal application of the norms on the nullity of consilia sapientum contrary to the commune’s interests ‘is not without danger,’ especially when they concerned obligations imposed by the Florentine republic on other communes. The Signoria, in fact, has the power to refuse a consilium that could damage the public interest – that is, the interest of the state – but this choice cannot be completely free in a case where Florence was strictly bound by a clause of a bilateral pact it made with a town that had submitted to its rule. And indeed, as Salvetti notes, ‘Many times Nello [da San Gimignano] and I gave advice, when we were sapientes of the commune during the time of the Catasto of 1427, concerning places and persons [exempt] because of the submission pacts that had been approved according to Florentine laws.

49 BSR, Statuti 596, fol. 223v. 50 Ibid., fol. 235r, for a case of 1436; and BML, Ashburnham 1680, fol. 244v, which documents a case in which Cosimo de’ Medici and Neri Capponi were arbitrators. In BMV, Lat. V, 54 (=2456), fol. 8r, Salvetti mentions a strange case involving the Medici bank: ‘in 1444 fuit condemnatus in capite quidam forensis portans litteram cambii ad Cosmum de Medicis nomine sociorum que erant aperentia de societate et sociis suis et non erat vera.’ 51 In addition, it may be noted that Salvetti’s wife, Margherita di Antonio Portinari, belonged to a family that provided several factores of the Medici bank, even if it is not known whether Antonio himself had personal links with them.

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Despite this, the Officials of the Catasto chose not to follow our advice, and this was the cause of the rebellion of the city of Volterra.’52 Salvetti refers to a similar episode involving retaliation and the immunity traditionally enjoyed by ambassadors in foreign territories. A few years earlier, while passing through Florence, the Neapolitan ambassador Angelo Morosini da Siena was seized by way of reprisal for debts owing to Florentine merchants. Domenico Martelli (†1476), along with Salvetti himself, secured the release of Morosini, but the outrage against the ambassador – and, by extension, his lord – was the cause of the revenge taken against the Florentine republic: As sapientes of the commune, messer Domenico Martelli and I argued before the Dieci di Balìa on behalf of Sir Angelo Morosini da Siena, ambassador of the king of Aragon, that he could not be seized in Florence or in Florentine territory through which he was passing on account of the debts owed to Florentines; and he was released. But afterwards, displeased and offended because of his arrest and detention, he provoked the king of Aragon against us, and this was the cause of his descent on our territory in the region of Pisa, where he still remains in 1448.53

Salvetti undoubtedly exaggerated the gravity of this episode, because the king of Aragon scarcely needed additional reasons in order to execute his designs against Florence.54 But the excerpt nevertheless suggests that if the city’s institutional behaviour had reflected the legal advice of the jurisconsults, the enemy’s pretexts for war would have been significantly weakened. On the contrary, the Signoria, with the same attitude shown twenty years before in the case of Volterra, had submitted the problem to the jurist after having made a decision about Morosini, thereby using

52 ‘Sepissime conclusuimus dominus Nellus et ego dum fuimus sapientes comunis tempore creationis catasti in 1427 in nonnullis locis et personis propter eorum capitula, quod fuerunt approbata secundum ordinamenta, et tamen quia offitiales Catasti noluerunt observare fuit causa rebellionis civitatis Vulterrarum’ (BMV, Lat. V, 44 [= 2654], fol. 169r). 53 ‘Sic retulimus dominus Dominicus de Martellis et ego sapientes communis coram decem balie pro domino Angelo de Morosinis de Senis oratore misso a rege Aragonum, quod non potuerat capi Florentie seu in territorio florentino unde transibat pro debitis florentinorum et fuit relapsatus; sed postea ut ingratus indignatus de dicta captura [et] detentione promoverit regem Aragonum contra nos, et fuit causa adventus eius ad territorium nostrum in comitatu pisano, ubi nunc est in 1448’ (ibid., fol. 101r). 54 See Soldani, ‘Alfonso il Magnanimo,’ 273–6.

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the jurist’s technical skills without obliging the government to observe his legal judgment, an attitude that may be noted frequently in Renaissance Florentine government.55 From his point of view, in both passages Salvetti represents himself and his professional colleagues as guided by prestige and moderation, suggesting that scientia iuris in the service of the republic would allow the government to avoid rash or naive decisions.56 If the objective was rarely realized – and the commune did not, as Salvetti observed, always follow his advice in its political decisions – this did not detract from the prestige and reputation Salvetti’s commentaries on the commune’s statutory foundations enjoyed for at least two centuries. In the conclusion of his work, Martines suggests that the prominence of lawyers in the fifteenth-century Florentine polity was a product of the growth of executive power rather than constitutive of it.57 Legal culture was therefore above all an instrument for building the modern state on the foundations of the communal inheritance, of which the statutory tradition was a key element. From this perspective, Salvetti’s important work of interpretation, which he offered to his contemporaries and successors in the government of the republic, may be viewed as a formidable contribution to strengthening the effectiveness of the Florentine statutes in countless practical cases. At the same time, both in Martines’s account and perhaps even more strongly in the recent historiography, lawyers’ attitudes towards the state were not completely determined by the function bestowed on them by the ruling class: there remained a significant space in 55 On the complex relation between jurists’ opinions and the political aims of the regime, see also Armstrong, Usury and Public Debt, in particular 100–1, where it is argued that the role of the lawyer was to legitimate the regime’s political aims, and this is presumably what the Signoria intended by requesting the intervention of Salvetti and colleagues in the cases considered here. 56 Such a role for legal culture is emphasized in Kirshner, ‘Baldo degli Ubaldi’s Contribution,’ esp. 343–9. In the case of Baldo’s consilium, the problem concerned the fiscal privileges of a single citizen, and the jurist’s role could be considered as ‘a corrective . . . offering citizen and noncitizen residents, corporate bodies, and subject communities the genuine possibility of redressing the arbitrary deprivation of their privileges and rights.’ Salvetti nevertheless considers his own intervention as little more than a corrective, because in both the cases of Volterra and Morosini, the question was one of political decisions, and the Adnotationes’ aim is to offer a general rule about problematic situations of this kind. 57 I refer here especially to the final pages of Martines, Lawyers and Statecraft, 464–76, and in particular 466: ‘The lawyer as a dominant figure in statecraft was the work of the state. The state gave the lead and kept the initiative.’

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which they were able to express their professional identity.58 Indeed, the delegation of powers from the elite tended to become a self-delegation in which legal culture reflected the lineaments of power in the state. The case of Salvetti may also be relevant in this regard: by surveying the whole of Florentine statutory legislation, the lawyer reflected in legal practice the structure of the state. And as the fortune of Salvetti’s Adnotationes demonstrates, if lawyers were an instrument of the state, the state was not able to do without them for most of its history. The traditional interpretation of the statutory codification, embodied in Salvetti’s commentary and by his seventeenth-century heirs, was the principal reason for the extraordinary longevity of book 2 and almost certainly for the absence – otherwise inconceivable in a city as important as Florence – of a printed edition of the statutes before the late eighteenth century. In other words, the very longevity of book 2 of the statutes may be attributed to the lawyers’ interpretation. That as late as the nineteenth century Tuscany was the only Italian state without a civil code was due to its long and tenacious tradition of interpretation, a dialogue between doctrine and legal practice that informed Tuscan legal culture even after the abolition of the statutes. And in this shaping of the state as a ‘state of lawyers,’ the forgotten Tommaso Salvetti was certainly among its leading authors.

58 This is emphasized with reference to an earlier period in the history of communal Italy by Menzinger, Giuristi e politica, 331–7. New perspectives on the case of Milan, which is considered by Martines in comparison with Florence, may be found in the discussion of lawyers in Covini, La balanza drita, 15–110.

Lawyers and Housecraft in Renaissance Florence: The Politics of Private Consilia THOMAS KUEHN

Among the countless virtues of Lauro Martines’s Lawyers and Statecraft in Renaissance Florence is that it highlights the importance of legal opinions, called consilia, as historical sources. Vitally, Martines made those sources more available. The most highly thumbed section of my copy of Lawyers and Statecraft is the roster of manuscripts containing Florentine consilia.1 Lawyers and Statecraft also appeared at a propitious moment (1968). The year before saw the essay on jurisprudence (Saggio sul diritto giurisprudenziale) by Luigi Lombardi, and the year after Mario Sbriccoli’s provocative study of jurisprudential statute interpretation (L’interpretazione dello statuto). Lombardi’s linkage of consilia with the development of jurisprudential communes opiniones, Sbriccoli’s analysis of statute interpretation, and Martines’s coupling of jurists with political power have fused into a sense that ‘citizen jurists and attorneys immersed in a legal culture in which diritto comune [the academic law, based on Roman and canon law] and ius proprium [local statutes and customs] were closely interwoven’ played a creative role in forging a diritto urbano in each locale.2 As Martines put it, the lawyer was ‘the most important single figure’ in the processes of legal and governmental adjustment in the fifteenth and sixteenth centuries.3 Martines’s assessment was that ‘the bulk of the extant judicial opinions and pleas is in the realm of private law, and so of little interest to the historian of politics, political theory, public law, and the state.’4 He pursued 1 2 3 4

Martines, Lawyers and Statecraft, 450–5. Chittolini, ‘Statuti e autonomie urbane,’ 33, 36. Martines, Lawyers and Statecraft, 475. Ibid., 450.

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consilia that touched on those subjects. The much more numerous private law cases, however, have attracted my attention and the attention of others investigating other areas of Florentine life and experience as well as other areas of law. We have been variously drawn towards social history and influenced by anthropological investigations, including those dealing with kinship, gender, and dispute resolution.5 Martines’s stress on lawyers’ consultative functions is all the more important in view of the general neglect of these on the part of legal historians. It is interesting that – for reasons that have much to do with the academic location of legal history6 – by and large, Italian legal scholars, despite their easy access to consilia, did not study them before Lawyers and Statecraft appeared or even afterwards to a great extent. It is not quite precise to say that no Italian scholars use consilia; predating Martines by a decade was the classic study of Guido Rossi.7 More recently, Mario Ascheri has offered several incisive essays.8 Andrea Romano has drawn on consilia to study inheritance and family in Sicily,9 and among others, Vincenzo Colli, Diego Quaglioni, Elena Brizio, Rodolfo Savelli, and Adriano Cavanna have also made valuable contributions.10 Still, it is worth noting that it is Ascheri himself who has asked, ‘Is it not significant that it is often the nonlegal historians who have stressed the interest of the consilium as a historical source?’11 To many legal historians, consilia represent a derogation from the pure law of the classroom to the problematic law of the courtroom, from the logical and refined ius commune to the illogical and coarse realm of the ius proprium. To cite one of the best-known legal historians, Manlio Bellomo, ‘Consilia demonstrate the contrary of what certain scholars have thought: in reality . . . the ius commune was used massively and constantly in consilia, out of the conviction that only in the ius commune must one, and therefore could one, find the arguments that were needed for trials.’12 5 6 7 8 9

Kuehn, ‘Antropologia giuridica dello stato.’ See Hespanha, Introduzione alla storia del diritto europeo, 11–26. Rossi, Consilium sapientis iudiciale. Ascheri, ‘ “Consilium sapientis,” ’ ‘Le fonti e la flessibilità,’ ‘Il “dottore” e lo statuto.’ Romano, ‘Letteratura consiliare,’ Famiglia, successioni e patrimonio familiare, ‘La giurisprudenza consulente.’ 10 See Colli, ‘Consilia dei giuristi medievali’; Quaglioni, ‘Giurisprudenza consulente’; Brizio, ‘I consilia di Bartolo da Sassoferrato’; Savelli, ‘Tribunali, “decisiones” e giuristi’; and Cavanna, ‘Il ruolo del giurista.’ 11 Ascheri, ‘Le fonti e la flessibilità,’ 19. 12 Bellomo, Common Legal Past of Europe, 81.

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He goes on to downplay studies of consilia ‘since they all deny the ius commune any important role as a law capable of real effect on local legal practice or doctrine.’13 Neither I nor anyone else I know of would argue that ius commune was unimportant or not ‘used massively and constantly,’ as Bellomo has it; but neither would we say it was the only important source for forensic arguments.14 It was precisely the sort of dilemmas thrown up by local practices that needed to be reconciled with the learned ius commune and that made the university-trained lawyers and their consilia so vital. Mario Sbriccoli, a student of the political role of jurists, stated that ‘even in cases where a definite organic connection between jurist and political power can be historically verified,’ it was the jurist’s professional knowledge and skills ‘which constituted his competence, and with it his credibility.’15 Social historians, of course, are trying to understand the dynamics of elements such as family and gender, not the ideological consistency and conceptual coherence of ius commune. Just as Martines sought to work through the lawyers’ professional role in governance, others are intent on understanding the role of jurists in working through problems that social life threw before the law.16 This is not the occasion to provide an exhaustive bibliography of studies utilizing consilia. Happily, there are now so many of them that it would be a lengthy, not to mention tedious, task. Rather, I simply want to reinforce the point that beyond statecraft, consilia have provided access to various problematic dimensions of what we might term housecraft. There is a second heavily worn section of my copy of Lawyers and Statecraft; it is the appendix containing profiles of 194 lawyers who lived and worked in Florence between 1380 and 1530.17 There, Martines categorized these men by their status as Florentines of old, established families, as ‘new men,’ or as outsiders from elsewhere in Tuscany or beyond. These categories arose from Martines’s driving concern with poli13 See also, in the same vein, Bellomo, I fatti e il diritto, esp. 465–6, 470, 654–60. One of his targets is Ingrid Baumgärtner – see Baumgärtner, ed., Consilia im späten Mittelalter; Ascheri, Baumgärtner, and Kirshner, eds, Legal Consulting; Baumgärtner, ‘Stadtgeschichte und consilia’; and Baumgärtner, ‘Consilia.’ 14 Ascheri notes Bellomo’s blinkered judgment of Baumgärtner in ‘Le fonti e la flessibilità,’ 14 n. 12. 15 Sbriccoli, ‘Legislation, Justice and Political Power,’ 38. 16 Kirshner, ‘Consilia as Authority,’ ‘Custom, Customary Law and ius commune,’ ‘Baldo degli Ubaldi’s Contribution’; Cavaller, Francesco Guicciardini giurista. 17 Martines, Lawyers and Statecraft, 481–509.

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tics coupled with his acute sensitivity to the role of ‘hereditary privilege and preferment’18 in advantaging these professionals for political roles. He goes on to explain his classifications in terms of the relative advantages of the first group, Florentines of old, established lineages. However, he also notes that the ‘instrumental quality of a legal education’ allowed foreignborn lawyers, especially earlier in the fifteenth century, ‘a means of entry to politics and government out of proportion with the meagre chances of other non-Florentines.’19 Working in fifty year intervals, Martines reveals that between 1380 and 1430, there were forty-six lawyers – twenty-two outsiders, eleven from new Florentine families, and thirteen from old patrician lineages.20 By 1480–1530, the situation was reversed – there were then fifty-three lawyers, of whom only seven were outsiders, fourteen from the new families (some of whom, such as the Niccolini, were not all that ‘new’ any longer), and thirty-two from old lineages.21 In short, at the beginning of the fifteenth century, the legal profession in Florence was dominated by men from outside the city. By the end of the century, the Florentine legal profession was just that – Florentine – and it was dominated by men from the old elite families, such as Francesco Guicciardini, who, as Martines shows, exhibited a precise sense of social ranking.22 While Martines saw evident differences between native Florentine lawyers and outsiders in terms of political influence, he did not see any real differences in terms of social background, academic training, or, presumably, professional outlook. As he said, ‘Lawyers who came from outside Florence had very much the same sorts of background as lawyers whose great grandfathers or more remote ancestors were citizens of Florence.’23 Still, the differences between Florentines and outsiders have always intrigued me, maybe especially because those outsiders were numerically evident at the point in Florentine history when humanism (spurred powerfully by outsiders such as Leonardo Bruni and Poggio Bracciolini, as Martines himself had previously established)24 took its civic turn and the 18 19 20 21

Ibid., 62. Ibid., 72. Ibid., 73. The intervening period, 1430–80, saw eighteen outsiders, eleven from new families, and fourteen from old ones – for a total of forty-three (73–5). 22 Martines, Lawyers and Statecraft, 64–5. 23 Ibid., 74. 24 Martines, Social World. From Lawyers and Statecraft, it seems that those who practised in Florence between 1400 and 1420 included fifteen from old families (five of them dead

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art of the early Renaissance was first establishing itself. It was the era, as well, of the progressive narrowing of the Florentine ruling oligarchy and its division into two rival factions, and it was the period that saw the final, spectacular extensions of Florentine regional hegemony – the additions of Pisa, Cortona, and Livorno, and the failed attempt to add Lucca.25 To insert a legally relevant event into that chronology, this was also the period that saw the last redaction of Florence’s statutes, an initiative of a couple of decades, that went into effect in 1417.26 Conversely, the increasing dominance of Florentines of old families among the legal fraternity by the end of the fifteenth century coincides with judicial reforms in Florence, which moved to reduce the influence of and finally abolish the courts staffed by foreign professionals (notably the Capitano del Popolo and the podestà) in favour of courts run by judges of local provenance, such as the Mercanzia, or to expand the powers of executive bodies.27 Ultimately, discontent with inefficiency and overlapping court competences drove the creation in 1502 of a single ruota, staffed by five trained foreign jurists, to handle most civil litigation.28 Why the seeming disdain of foreign jurists? Just what had those outsiders been doing? Did they see the law differently? Were they less respectful of Florence’s statutes? To confront such questions, provisionally, I want to take a unique consilium (actually two consilia) from an area of private law to track the role of Florentine jurists, not regarding government but concerning one of the recurring dilemmas of family life.29 One set of lawyers in 1403 faced a hypothetical problem regarding dowry restitution to a wife following her husband’s death. The same hypothetical, with a small twist, was put to an entirely different set of lawyers in 1413, although this second group also disposed of the determinations

25 26 27 28 29

before 1415), seven new men, and seventeen outsiders. Of the men from old families, only Filippo Corsini and Lorenzo Ridolfi had any professional resonance. None of the men from new families did, but among the outsiders, one has to reckon with not only Nello Cetti and Paolo di Castro but also Torello Torelli, Antonio Roselli, Ruggiero Antignalla, Bartolomeo Vulpi, and Guaspare Bonizi. For this period, see Brucker, Civic World, and Najemy, History of Florence. Here, in addition to Lawyers and Statecraft, 184–7, one must now consult Tanzini, Statuti e legislazione and Il governo delle leggi, esp. 155–67. In addition to Martines, Social World, 135, see Zorzi, L’amministrazione della giustizia, ‘Ordinamenti e politiche giudiziarie’; and Astorri, ‘Note sulla mercanzia fiorentina.’ Martines, Lawyers and Statecraft, 140–1. BNF, Magl. XXIX, 193, fols 17r–25v (hereafter Consilia).

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of the first and could well have been loath to depart from the conclusions of their predecessors. Ten years is not a long time, and especially not in an area such as law, where rules and interpretations could change at a glacial pace. Still, the sets of lawyers were also very different, so a brief analysis may reward the effort. First, let us examine the case they faced in common. No names were used in the narrative of facts ( punctus), only initials; it smacks therefore of a hypothetical carefully structured to highlight an ambiguous area of law. On the occasion of marriage, two brothers (B and C; also acting for a third, D, then underage) and a paternal first cousin ( J) had acknowledged receipt of a six-hundred-florin dowry from the father (N) of the new bride (K) of one of these brothers (B). Their father (A) was dead, having left these sons as his heirs, substituting them to each other if they died without sons (and thus laying his property under an obligation for such substitution, a vital feature of a testamentary trust, fideicommissum).30 Receipt of the dowry (confessio dotis) meant that the three brothers and their cousin promised to return the dowry when the event arose, giving all warranties ‘secundum consuetudinem notariorum civitatis Florentie.’31 Following marriage, the husband soon died. The couple had no children. The wife sought return of her dowry and received it in its entirety from the cousin, ceding her dotal right to him in response, as set forth in a quitclaim ( finis) drawn up by a notary. To this point, the narrative is perhaps unexceptional. The husband’s death was the usual moment for restitution of the dowry. Indeed, the statute of Florence regulating restitution of dowries (before 1417) allowed it only on the natural death of the husband.32 It also stipulated that the court was to deal summarily with any litigation for dowry restitution. The summary guarantee spelled out in Florence’s statutes and customarily provided in all notarized contracts was termed the preceptum guarantigie, and it put a surety ( fideiussor; here, the cousin) at risk along with and not just after the principal debtor.33

30 For a fine study of this increasingly popular device, see Piccialuti, L’immortalità dei beni. 31 Kirshner, ‘Morning After.’ 32 Statuti della repubblica fiorentina, vol. 2, Podestà, 1325, book 2, rubric 17, De dote et donatione restituenda, 91–3; essentially unchanged in ASF, Statuti 16, Statuto del podestà dell’anno 1355, book 2, rubric 21, fol. 77r–v. 33 Campitelli, Precetto di guarantigia.

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The situation would be quite the reverse if the marriage had produced children or the wife predeceased the husband; in either case, her dowry would have been destined for the children or would have stayed with the husband. To forestall widows with children from leaving and possibly remarrying, husbands quite often left them special rights and additional resources in their wills.34 A childless widow had no enduring attachment to her husband’s household and probably needed her dowry, effectively her inheritance from her natal family, for her own purposes, including possible remarriage. But the social uses of her dowry were not the lawyers’ concern. The problem was what was to be done if the deceased husband’s estate was not sufficient to meet the dowry obligation. Was his father’s other property, then in the hands of his brothers as coheirs to the father and substituted heirs to him, liable to the claims now held by the cousin? In short, could the surety, who had come through on his promise, have a remedy against his cousins? The case was about the surety’s right to recovery. Protection of sureties’ rights in return for assuring widows’ recovery of their dowries was an important social and economic issue.35 Following the case narrative, there is a section that in a very professional and scholastic fashion proceeded to lay out the relevant law. It amounted to an allegatio that an attorney ( procurator) might deliver in preliminary arguments to lay out his client’s rights. In this case, ‘he’ was intent on arguing that the cousin, as surety, had an action against the brothers to recover the amount he had returned to the widow as her dowry. The allegatio first erected four arguments that the property held by the deceased husband’s brothers was not liable for return of the widow’s dowry, but it then embraced the contrary position – that the property was obligated – and offered four counter-arguments. All four were redolent with legal subtleties and are precisely the sort of thing that can scare most historians away from consilia specifically and the law generally. To reduce the arguments to their simplest terms – it could be maintained that the property was not obligated because it belonged to others, not to the husband. Also, the property had been placed under the obligation for substitution in the father’s testament long before his sons had entered into the dotal contract. True, there was a crucial text of civil law, the authentica Res quae to the Codex (C. 6.43.3,3), which allowed for alienation of

34 Here see Kirshner, ‘Maritus lucretur dotem’; Chabot, ‘Seconde nozze’; Chabot and Bellavitis, ‘A proposito di “Men and Women in Renaissance Venice.” ’ 35 See Kirshner, ‘Question of Trust.’

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property that otherwise could not be alienated (e.g., because obligated to a testamentary substitution) in order to meet a dowry obligation if the daughter’s inheritance share ( portio legitima) was insufficient. However, that law referred to a situation in which the father was still alive, and it referred to establishing a dowry, not to returning one. As the allegatio put it, ‘The aforesaid rationale ceases in returning the dowry received by a son after his father’s death, to restore which the father is not found to be held, as he did not receive it nor did he obligate himself to return it, and thus ceases the disposition of the law, that is the said authentica.’36 The opposite argument was that one could seek the property in accord with Florence’s statute on the execution of guarantees in dotal instruments because the authentica applied equally to restoration as to constitution of dowries. This argument was said to be in accord with the Glossa ordinaria and ‘omnes doctores.’ It took four times as long to refute the four arguments as to state them. Even though the gloss to Res quae said it applied ‘in dote et donatione constituenda a gravata persona,’ the allegatio claimed it should be construed more broadly.37 This was also the opinion of Bartolus of Sassoferrato (1313–57), Cino da Pistoia (†1336/7), and other doctores.38 As the Glossa ordinaria allowed alienation for dowry both before and after a father’s death, the allegatio argued that the same logic applied to other dimensions of dowry obligation. The authentica was thus construed to serve a social purpose: ‘The reason for permission of alienation and obligation is that it commonly benefits everyone that marriages be contracted and the city replenished with children, and it specifically benefits certain people for whom marriages are useful, so property subject to restitution or substitution that cannot be alienated or obligated should be absolved (for a dowry).’39 The same logic explicitly applied to donatio propter nuptias. A grant of property from the groom to the bride, it too encouraged marriage. 36 Consilia, fol. 18r: ‘Ratio autem predicta cessat in dote a filio post mortem patris recepta restituenda quam non reperetur patrem teneri restituere cum ipsam non receperit nec ad ipsam restituendam se obligaverunt, ergo cessat legis, id est dicte auth dispositio.’ 37 Glossa ordinaria, 5 vols (Lyons, 1562), vol. 3, col. 1223. 38 Consilia, fol. 18v. Bartolus to Auth. Res quae (C. 6.43.3,3), Opera omnia, 10 vols (Venice, 1615), vol. 6, fol. 45ra. 39 Consilia, fol. 19r: ‘Ratio permissionis alienationis et obligationis predicte, que est quod quia ea que communiter omnibus prosunt, ut matrimonia contrahi et liberis civitatem repleri, ut l. i solu. ma., his que spetialiter quibusdam utilia sunt, ut res subiacentes restitutioni vel substitutioni alienari vel obligari non posse, proponi debent.’

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However, ‘lest the male be in worse condition than the female, because he may not have a dowry established for him but only receives her dowry, and especially in this city [ Florence], in which the donatio propter nuptias is not and cannot exceed the sum of 50 lire,’ restitution of dowry should be accorded the same weight as its constitution (which supposedly favoured the woman).40 To whom were the lawyers speaking? And who or what had set in motion their labours? And why then? Not every consilium, especially not a hypothetical one, aimed at a judicial audience (litigants and judge). Discussion of these issues could have been aimed in part at legislators and other lawyers and notaries. The impetus to lay out the hypothetical may have come from the lawyers, or even the Florentine guild of lawyers and notaries as a whole, as they faced a recurrent issue about dowry restitution and the relation of local law to ius commune. The lawyers’ signatures offer no relief on this point – no indication of to whom they addressed their opinions or if they were conditional on having such a case before them. ‘Dico et consulo,’ or equivalent words, were all each had to say. The first group of lawyers who handled this legal situation were, in order of appearance, Filippo Corsini (1334–1421), Bartolomeo Popoleschi (†1412), Ricciardo del Bene (ca 1369–1411), Antonio da Romena (fl. 1390s), and Giovanni Serristori (†1414). The first three were from old Florentine families. Martines classified the fourth as an outsider and the fifth as a new man. The heavy lifting was done by Corsini, a man Martines characterized as ‘amazingly active’ in government and diplomacy, a ‘leading oligarch,’ and a ‘tough old lawyer.’41 Corsini began by aligning himself with the allegatio’s arguments, outlining his own reasons why the authentica Res quae applied to both constitution and restitution of dowry. He then ventured into issues of grammar and logic – noting that the text used the present, not future, tense ( ‘Nota quod dicit subiacent et non dicit subiacebunt’) and that dos and donatio were causally interrelated, as one did not give a donatio propter nuptias to one’s bride unless he had previously received her dowry. Further, the logic of the law dictated that ‘when a law permits some act it seems to permit the

40 Consilia, fol. 19r: ‘ne deterioris condictionis sit masculus quam femmina cum ipse pro se non habeat constituere sed recipere dotem, et maxime in hac civitate in qua non fit nec fieri potest donatio propter nuptias excedens quantitatem librarum quinquaginta.’ 41 Martines, Lawyers and Statecraft, 45, 96, 351.

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obligations and securities accessory to that act.’42 He read into the mind of the testator that the substitution of heirs, should they die without children, meant that he wanted them to have children, and thus to marry. The general tendency of the law to encourage marriage ( favor matrimonii) thus found echo in the specifics of this hypothetical family and its patriarch’s will. Along the way, Corsini ventured into jurisprudence, citing Bartolus, Cino, the Glossa ordinaria, Jacopo d’Arena (ca 1253–96), and Oldrado da Ponte (†1335). The others signed to add their weight to Corsini’s position. The authority of consilia could rest in part on the multiplication of signatures.43 Del Bene dated his signature 12 October 1403. Serristori dated his 23 December. He made the only interesting addition to Corsini’s arguments when he noted that in the case before them, the cousin had advanced his property in restitution, but he could not pretend to the privilege the ius commune gave sons. Serristori, however, maintained that the cousin was owed the property because he had in fact acted in accord with ‘the agnatic relationship, as anyone in a similar degree of relationship is obliged by custom to go surety for a relative.’44 In all, the attorneys were directly responsible for less than three pages. While they made reference to texts of ius commune and to jurisprudential authorities, they also delved into logic, grammar, and kinship behaviours. The second encounter of lawyers with this case came in 1413 (one signature is dated 21 March 1412/13). A different roster faced the same facts and summation of legal pros and cons (practically word for word), with the difference that this time, the son/husband (B) was said to have been seized by thieves and had five hundred florins taken from him and a later ransom that further diminished his inheritance. In effect, the six-hundred-florin dowry was lost to his misfortunes. In this circumstance, did the cousin who had gone surety and repaid the dowry have a remedy? The first jurist was Nello Cetti da San Gimignano ( b. 1373). He was joined, in order of appearance, by Ruggiero di Niccolò d’Antignalla (fl. 1390s–1420s), Paolo di Castro (ca 1360–1441), Pietro d’Ancarano (1330–1416), and Floriano da San Pietro (†1441). The last two were not mentioned by Martines. He classified the other three as outsiders, and it 42 Consilia, fol. 20r: ‘quando lex permictit aliquem actum, videtur permictere obligationes et ypotecas accessarias ad illum actum.’ 43 Kirshner, ‘Consilia as Authority.’ 44 Consilia, fol. 20v: ‘necessitate angnationis cum quilibet in simili gradu constitutus ad fideiubendum pro coniunto ex quadam consuetudine necessitetur.’

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is safe to say that these last two were as well. This is a different array of juristic talent from the first group. The first three here were all teachers of law in Florence, as was Corsini,45 although the Studio had been closed since 1407 and was only on the verge of reopening in 1413.46 Pietro d’Ancarano too had taught in Siena and Bologna and, as the most renowned canonist of the era, had been prominently involved in the council at Pisa in 1409. Back in 1394, he had been nominated as one of three jurists to oversee revision of Florence’s statutes, a task that then came to nothing.47 Floriano da San Pietro was a teacher of law in Bologna and Siena.48 Paolo di Castro had recently returned to Florence and was about to be involved with revision of the city’s statutes (in which Bartolomeo Vulpi da Soncino [ca 1359–1435] played a large role). In this second instance, the real work was done by Nello Cetti and Paolo di Castro. Antignalla’s contribution was real, but brief. The other two added brief comments and references, but their main contribution was the weight of their corroborating signatures. Nello began by acknowledging the ‘precedens consilium’ and agreeing with it, although he did not refrain from rehearsing the reason Res quae applied after the father’s death, lest ‘wives indiscriminately be defrauded of their dowries due to such fideicommissa, where the legitima is insufficient.’49 The problem was whether Res quae applied in this case, and he supplied three reasons why it did.50 Here is where the husband’s kidnapping came into play, as one line of argument was that events during his married life should affect his wife and not the fideicommissary heirs. Another line of argument was that the dowry had merely been ‘confessed’ in the notarial text, and that did not mean it had really been delivered in full. Again, the arguments dismissing these objections were lengthier and more involved. What is striking about Nello’s text is how it works on the texts of the Corpus iuris civilis, making few references to the Glossa ordinaria, Bartolus, and Guido da Suzzara (†1290). Nello insisted that the general hypothec for the dowry was not vitiated by a fideicommissum, even more so as Florence’s statute on the summary process of guarantigia submitted claims to initial judgment

45 46 47 48 49

Davies, Florence and Its University, 34 n. 166. Brucker, ‘ Florence and Its University,’ 223–4. Tanzini, Statuti e legislazione, 17. See Minnucci and Kosuto, Lo studio di Siena. Consilia, fol. 22r: ‘mulieres indistincte propter talia fideicommissa ubi legitima non sufficeret suis dotibus fraudari.’ 50 Consilia, fol. 22r–v.

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on the basis of the notarial instrument, which took the payment as real, even if it had not been in fact. Bartolus provided on-point support that property lost to thieves did not vitiate the privilege provided by the authentica.51 The wife’s protection was not lost, in theory, by the husband’s misfortune. Nello’s four dense pages were followed by a half-page from Ruggiero d’Antignalla. He added that as the brother (C) had also stood surety for the dowry, hypothecating his present and future goods, the properties that come to him later by the paternal fideicommissum were bound for return of his sister-in-law’s dowry.52 Again, only a few texts of ius commune were put in play. Paolo di Castro simply moved to offer three further arguments in support of his predecessors.53 He decided that the share that fell to the older surviving brother was obligated, but as the youngest brother (D) had not himself stood surety, being too young, there was doubt about his liability, as what had been hypothecated by his brothers was, at the time, sufficient for the dowry. He concluded that the youngest’s share was at least conditionally obligated at the time of the dowry, and losses to an estate were to be shared by all heirs. In this portion of his opinion, he found occasion to cite Bartolus once. Paolo returned to the presence of the fideiussor and gave three reasons it might be argued that the woman’s privilege under Res quae did not migrate to her guarantor. He countered with six reasons to the contrary, each briefly presented and backed by a text of civil law.54 The most eloquent passage of his contribution faces the fact that it was unjust to let heirs face losses in the estate but not the claims of a surety: It would not be equitable that the debt be satisfied from the property of the surety and later there not remain to him recourse against anyone, so of these two [possibilities] it is less iniquitous that heirs suffer this loss, because the property was at that time both the obligated husband’s and his father’s, than that the surety suffer to recover who had no part in the business and who employed

51 Bartolus to Auth. Res quae (C. 6.43.3,3), Opera omnia, vol. 6, fol. 45rb. 52 Consilia, fols 23v–24r. 53 His opinion is not among those of his later gathered and printed – at least not in his Consilia (Venice, 1571). 54 Consilia, fol. 25r.

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his generosity by standing surety, and it is not equitable that one be at risk from his own generosity.55

As for the problem of the woman’s right to dowry transferring to her surety, Paolo di Castro gave three reasons it did, citing Bartolus once. Pietro d’Ancarano added the sole reference in all this to Baldo degli Ubaldi (1327–1400). It was a useful reference, as Baldo unequivocally and eloquently defended a widow’s right of recovery of dowry in the face of a fideicommissum.56 Floriano da San Pietro only confirmed that a dotal confessio should be taken at face value, ‘ut instrumentum sonare et indicare videtur.’57 Comparison On the face of it, the two multi-signatory consilia agreed – the surety had legal recourse against his uncle’s estate to recover the dowry he had restored to the widow. Our question is, Were there any significant differences between the two texts? Did the outsiders (in the second case) have any different approach to things? They knew Florence’s statutes, and they were aware of marital practices there. Where, if at all, did they differ? In both instances, these jurists were dealing with a carefully crafted case that isolated the implications of one key text, the authentica Res quae. They were united in supporting the claims of a surety who had done his duty. Sureties on dowries were a regular feature of social and legal life. Failure to support their claims could have powerfully gutted the marriage market.58 The second group was happy to endorse the conclusions of the first. What stands out in their effort is the relative self-assurance of the authors of the second text and, marked by the infrequent use of juristic predecessors,

55 Ibid.: ‘non esset equum quod satisfiet de bonis fideiussoris et fideiussori postea non remaneret regressus contra aliquem, unde positis hiis duobus minus iniquum est quod fideicommissores patiantur hoc dampnum cum illa bona semel fuerint mariti gravati et patris eius quam quod patiatur querere fideiussor ad quem nil partium de negotio et qui intercedendo liberalitate usus est unde non est equum quoniam ex sua liberalitate periclitari.’ 56 Baldo to C. 6.43.3,3, Opera omnia, 10 vols (Venice, 1577), vol. 7, fols 160vb–61va, at 160vb. 57 Consilia, fol. 25v. 58 In this connection, see Cavallar and Kirshner, ‘Making and Breaking Betrothal Contracts.’

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their relative prolixity. It took them eight pages to deal with the same issues, with the minor complication of the theft and ransom. As Patrick Gilli has perceptively remarked, ‘Tous les consultores ne se valent pas.’59 The consilia we have seen brought out the foremost talents in Florence at those moments – Corsini, the most prominent native-born lawyer, and Cetti and di Castro, two men in the midst of careers that would have resonance in legal doctrinal developments throughout Italy. Of the two groups, the first, faced with an allegatio that made sixteen references to the Glossa ordinaria or named doctores (Cino, Bartolus, etc.), added another thirteen. The second group’s lengthier opinions, in contrast, offered only six references to the Glossa, Bartolus, and Baldo. Conversely, only their efforts referred to a Florentine statute and to the forensic weight of Florentine dowry instruments. It was as if the more Florentine set of lawyers in the first group had to establish their acquaintance with jurisprudence, while the outsiders had to display knowledge of Florentine laws and practices. The Florentines showed they were doctores; the foreign doctores showed they were Florentine. In the end, the differences between Florentines and outsiders seem to have been much more significant to their political fortunes. As legal professionals, addressing legal problems, even those arising in good part from the ambiguities of local statutes, and employing the tools and texts of the profession, there was not much to choose between insiders and outsiders. Conclusion Given the similarity of the findings of the two sets of consultores, the question arises, Why was the second consilium commissioned at all? It produced no new insight, except that esteemed non-Florentine jurists concurred with their Florentine colleagues. But perhaps that was the point. Corroboration of the problem that a dowry guarantor faced and of what was right in that case mattered on its own. Perhaps one consequence of these consilia was the revision of Florence’s statute on dowry restitution in the new redaction with which Paolo di Castro was involved. The new statute was decidedly lengthier and more complicated than its predecessor. Here, for the first time, it was established that fideiussores could be sued for return of a dowry, although they could not be jailed for the debt (unlike the principal or his heirs, who could be

59 Gilli, ‘Les consilia juridiques.’

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jailed after two months had elapsed). Modes were set for proving a husband’s death – also a new feature. However, most interesting from our perspective was the new clause that ‘anyone obligated who has paid or was charged for all or part of a dowry, its increase, or the donatio propter nuptias, should have recourse against the husband and his heirs and his property for recovery of all that has thus been charged or paid.’60 This statutory language served to relieve doubts that a surety could recover what he had paid out for another’s obligation. The judicial opinions of lawyers could not become binding precedents. There was no such process in civil law, certainly not in Florence or in other communities, which sought to safeguard their laws from judicial review and revision.61 However, lawyers’ opinions, or at least the legal problems they highlighted, could become the basis of legislation, and in that indirect manner they could become precedential. The impetus in that direction may have been greater than in previous Florentine statute redactions because of the influence of outsiders such as Nello Cetti and Paolo di Castro. Paolo di Castro and Bartolomeo Vulpi laboured on the statutes under the supervision of five leading citizens, the Monte officials.62 Opportunities certainly existed for these lawyers to impress on such citizens the need for clarification and harmonization of laws, including with regard to rules of ius commune. In fact, although they had failed to be enacted in 1409, Florence’s statutes had been radically revised, emulating civil law more closely. The 1415 revision reverted to older forms a bit more and avoided the issues of penal law and territorial jurisdiction that had undermined the previous effort.63 However, it was also the case, as Lorenzo Tanzini has maintained, that in comparison with the relatively inconspicuous lawyer who worked on the statutes in 1409, Giovanni da Montegranaro, Paolo di Castro had a greater reputation and gave the new statutes ‘una più robusta consapevolezza dottrinale.’64 Perhaps it was precisely in the areas

60 Statuta communis Florentiae, vol. 1, book 2, rubric 61, De dote et donatione restituendis, et exigendi modo, 156–9, at 158: ‘quilibet obligatus, qui solverit, vel exactus fuerit in totum, vel in partem dotem, eius augmentum, vel donationem propter nuptias habeat regressum contra virum, et eius haeredes, et bona pro recuperatione totius eius, quod sic esset exactum, vel solutum in solidum.’ 61 Kirshner, ‘Consilia as Authority,’ 129–33. 62 Martines, Lawyers and Statecraft, 186. 63 Tanzini, Statuti e legislazione, 50–2, 200–4, 280–309. 64 Tanzini, ‘Gli statuti fiorentini.’

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of private law that remained most closely tied to ius commune – such as marriage, inheritance, paternal powers, agnation, and much more – that the professionals trained in ius commune could have their most dramatic and direct impact.65 That was the portion of the statutes to which two Florentine lawyers, Alessandro Bencivenni (1385–1423) and Tommaso Salvetti (1390–1472) – a new man and an outsider, respectively – would direct interpretive commentaries that rested on consilia of their predecessors and contemporaries.66 With regard to statecraft, Martines concluded that lawyers could call down the government for manoeuvres that violated laws and rights arising in ius commune (but also in Florence’s ius proprium) and that they did so at moments when the public utility was indeed at risk. Perhaps we can say that we have learned a parallel lesson about lawyers’ approach to housecraft. Perpetuation of patrimony and family line were pre-eminent values in law that the lawyers certainly understood and to which they subscribed. However, a widow’s right to recover her dowry and a surety’s right to recover his expenses – disutilities to the patrimony of the deceased husband and his brothers, yet utilities to the surety’s and the widow’s future maintenance (and the widow’s possible remarriage) – were to be respected and protected. Lawyers placed faith in the rule of law to furnish equitable solutions. Multiplication of their signatures and opinions provided substance to that sense of equity, however powerfully this sense was driven in ideological terms and however politically biased its function in reality often was. The presence of these attorneys with their expertise in ius commune does not mean that ius commune was the only component at play in the case. The use of sureties in dowries was undoubtedly not a practice limited to Florence, but it was a feature of Florentine life, as were the statutes on return of the dowry and on swift recovery under guarantigia, which was further licensed by the practice of Florentine notaries to include such clauses in contracts. As Ascheri has stated, it was the consilium – itself an institution foreign to the civil law in which jurists seemed almost embarrassed to confront the facts – that ‘ended up paradoxically by being a privileged channel of the diffusion and triumph of ius commune in practice.’67 The truly creative frontier of law in the fifteenth

65 Martines, Lawyers and Statecraft, 92. 66 These are found in BNF, Fondo nazionale, II, IV, 434–5. 67 Ascheri, ‘Le fonti e la flessibilità,’ 36.

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century was the consilium. That was when consilia began to be extensively prized and collected.68 That was when, as Martines recognized forty years ago, the university-trained doctors of law had ‘learned, like the greatest of the commentators, to get the best out of their rationalism by adapting it to the practical exigencies of daily life.’69

68 See Ascheri, ed., Tribunali, giuristi e istituzioni, 185–209; and Colli, ‘Consilia dei giuristi medievali.’ 69 Martines, Lawyers and Statecraft, 88.

Baldus de Ubaldis on Conspiracy and Laesa Maiestas in Late Trecento Florence1 ROBERT FREDONA

Rebels (rebelles), betrayers ( proditores), and traitors (who had fallen into the crimen laesae maiestatis) were outsiders, inhabiting distinct physical and juridical spaces. Like criminals placed under the ban (banniti pro maleficio), they dwelled between cities – in the vast territories outside the de facto reach of the regimes they opposed – or else they resided uncomfortably in cities not their own. Like public enemies (inimici and hostes), deserters (transfugae), and banniti, they were also outside the law, stripped of rights and subject to being killed with impunity. For the repression of political crime, cities arrogated to themselves a range of extraordinary powers, from the free use of torture to the suspension of normal criminal procedures to swift and secret summary condemnations.2 Under normal procedures, convictions in contumacia (failure to obey a court summons) for serious crimes were remarkably common;3 threatened with summary procedures and the severest possible penalties, political criminals in even greater numbers fled prosecution and fell under the ban. They formed the large bands of usciti and cacciati that loomed so frightfully in the medieval Italian political consciousness and attracted to themselves not-yet-targeted friends and allies.4 Because it so clearly delineated the boundaries of inside and outside, adumbrating the very limits of state power, political crime posed the question to which sovereignty was the answer; it presented

1 I wish to thank Osvaldo Cavallar, Vincenzo Colli, Julius Kirshner, and John Najemy for their generous assistance. 2 See, for example, Statuta populi et communis Florentiae, vol. 1, 278–80, 283–6. 3 The figures in Dorini, Diritto penale, 38, show rates as high as 87% for murder in the years 1380–3. 4 See, for example, the events in Pitti, Cronica, 44–6.

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jurists with a set of problems that required them to examine and explicate the foundations of their thought on the lawful exercise of political power. At the centre of the jurists’ answer was the Roman idea of maiestas – the awesome dignity and encompassing power of supreme political authority – as well as the corresponding ‘crime of injured maiestas’ – the crimen laesae maiestatis – or treason. Defined in both Justinian’s Code and Digest in the Corpus iuris civilis under the title Ad legem Iuliam maiestatis (C. 9.8 and D. 48.4), treason encompassed a wide range of ‘crimes against the state’ – from gathering together for seditious purposes to turning a city over to the enemy – and provided for a range of penalties, including death and the confiscation of property. The constitution Ad reprimendum (1313) issued by the emperor Henry VII, which was rapidly incorporated in Justinian’s Corpus iuris by medieval jurists, added that traitors could be condemned ‘summarily, simply, and without commotion or normal judicial procedures.’5 In this essay, I examine an opinion, probably written in the winter of 1379–80, of the jurist Baldus de Ubaldis (†1400) of Perugia that questions whether the commune of Florence possessed maiestas and whether conspirators against the city could be said to have committed treason.6 At first glance, these may seem to be conventionally narrow and legalistic questions, because even without maiestas, a city such as Florence could unquestionably prosecute such conspirators for sedition (seditio) and other crimes that carried severe penalties and allowed for abbreviated inquisition procedures. But these questions, and Baldus’s answers, will serve to challenge the master narrative of the inexorable transformation of the latemedieval commune into the early modern state, or principato. Laced with the poison of anachronism, this narrative reads back into Baldus’s opinion and trecento jurisprudence more generally later developments and has haunted the history of medieval and Renaissance politico-legal thought from at least the time of the right-wing legal scholar Francesco Ercole.7

5 Text in Schwalm, ed., Constitutiones, vol. 2, 965–6: ‘summarie et de plano sine strepitu et figura iudicii.’ 6 Baldus addressed treason in a number of places in his lectures and commentaries, sometimes appearing to allow for treason against cities; for examples, see Canning, Political Thought, 121–3. He also addressed treason directly in at least one other consilium, BAV, Barb. lat., 1408, fol. 123rv (= cons. 213 in vol. 3, fol. 60v, of the 1491 Brescian edition). 7 See, for example, Ercole, Dal comune al principato and Da Bartolo all’Althusio; on Ercole, see Lo Bianco, ‘Ercole, Francesco.’

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In addition, the questions will serve to problematize the widely held view (given its most explicit recent expression by Mario Montorzi)8 that jurists were instrumental in the early modern state’s triumph and legitimization by showing how jurists could challenge and limit the power of regimes and assert the primacy of law. Baldus’s teacher Bartolus of Sassoferrato (†1357) had addressed a similar question in his influential commentary on the constitution Qui sunt rebelles of Henry VII, which had been issued by Henry along with Ad reprimendum as part of his campaign against Robert of Naples. ‘Should this constitution,’ wrote Bartolus, also apply to one who rebels against any king or prince, or against his own city? It seems so, because the constitution says ‘against our officials’ . . . [but] I say the opposite because it is not against the good fortunes of the emperor or the empire . . . Kings and cities can have jurisdiction from the emperor, but they exercise it mainly for themselves and not on behalf of the emperor, and thus this constitution does not apply to them, because it mainly speaks of those who plot against the person of the emperor or the good of his empire.9

This opinion speaks directly to the political rights and authority of cities, an issue long at the centre of the scholarship on Bartolus’s political thought. And it suggests that Walter Ullmann’s well-known claim – that for Bartolus, ‘the sanctions for nonobedience to the laws of the people are exactly the same as those for nonobedience to the Prince’s law’ – must be questioned.10 Indeed, faced with the problem of political crime, Bartolus, in his commentary on the lex Proximum (D. 48.4.1), relied on the traditional

8 Montorzi, Fides in rem publicam. 9 Bartolus de Sassoferrato, Consilia, quaestiones, et tractatus, fol. 105r (gloss on the word ‘rebellando’): ‘Sed an hec constitutio habeat locum contra eum qui rebellat contra aliquem regem vel principem vel contra aliquam propriam civitatem. Quod videtur quia hic dicitur contra officiales nostros . . . Contrarium dico quia nam tunc non fit contra prosperitatem principis vel imperii . . . Reges vero et civitates esto quod habeant iurisdictionem a principe tamen eam exercent principaliter propter se, non propter principem et sic cessat hec constitutio que specialiter loquitur in his qui machinantur contra personam principis vel eius officiales vel imperii utilitatem.’ This opinion is cited in both of Baldus’s opinions on the December 1379 conspiracy (discussed below); it is interpreted more expansively in the Vatican manuscript, which is followed verbatim by Nello da San Gimignano [Nellus de Sancto Geminiano], De bannitis II, 1, q. 16, fol. 366v. I translate ‘aliquem . . . principem’ as ‘any . . . prince’ in order to avoid confusion with the later use of ‘princeps’ as ‘emperor.’ 10 Ullmann, ‘De Bartoli sententia,’ 725.

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distinction between crimes against Rome and those against other, lesser cities. ‘I ask,’ he wrote, ‘whether anyone who assembles a group [for illicit purposes] in a city other than Rome should be treated in accordance with the lex Iulia maiestatis (D. 48.4); the gloss says that it does not apply to other cities because when it says “de urbe,” the city of Rome is to be understood; consider instead that one who assembles a group in a city other than Rome should be treated in accordance with the lex Iulia de vi (D. 48.6–7; C. 9.12).’11 Such a crime should be treated not as treason, Bartolus argues, but as vis, the umbrella under which serious offences against public order (such as sedition) that did not rise to the level of treason were punished in Roman law.12 As we will see, Baldus maintained a similar distinction in his consilium on treason in Florence. Popular governments in late-medieval Italy were often actively undermined from within and beset from without by conspiracies, usually orchestrated by their elite enemies; and this is perhaps nowhere more clearly seen than in the facts of the case that Baldus set out to address in the winter of 1379–80. Early in 1379, the Florentine guild government, which had recently supplanted the radical regime of the Ciompi, uncovered the first of that year’s many plots against it. According to accounts extracted by the Capitano del Popolo, the conspirator Jacobino di Nello explained the outlines of the plot to a prospective recruit: ‘We are a large group and have resolved together to cause a tumult (levare questa terra a romore) on Thursday night [7 April], and we want to bring back to Florence those who were chased out (cacciati) . . . and we’ve planned to ring the bell of San Lorenzo with a hammer, and we will raise the banner of the Guelf Party and that of the angel and cry out “Viva la Parte Guelfa!”’13 The Guelf banner summoned elite partisans of Piero degli Albizzi’s recently purged faction and supporters of the Guelf Party’s disastrous policy of proscription (ammonizione), which had

11 Bartolus de Sassoferrato, In secundam digesti novi partem, fol. 153v: ‘quero aliquis congregat gentem in alia civitate quam in civitate Romana: an incidit in leg. Iul. Maiestatis. Dicit glossa [ gl. ‘in urbe sint,’ ad 48.4.1] quod non habet locum in alia civitate quia cum hic dicat de urbe, intelligitur de civitate Romana, non autem intelligitur de alia, et allegat suas leges. Sed adverte quod qui facit congregationem gentis in alia civitate, tenetur leg. Iul. de vi.’ 12 Robinson, Criminal Law, 78–80. 13 ASF, Capitano, 1197 bis, fol. 10v, speaking to Palmiero di Luca: ‘noie simo una gran brigata che avemo deliberato insieme de levare questa terra a remore giovedi a nocte e volemo fare tornare in Fiorenza quelgli che sonn chaciati . . . e avemo ordinato de fare sonare la campana de San Lorenzo a martello e levaremo la bandiera de parte Ghelfa e quella delangiolo e grideremo viva la parte Ghelfa.’

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precipitated the Ciompi tumult; among them were Guerriante Marignolli and messer Pagno di Lionardo degli Strozzi. The banner of the angel brought together with them Ciompi, who had been excluded from the government they had helped to make, men such as Leoncino di Francino, who had served on Michele di Lando’s priorate, and other worker-revolutionaries with crude nicknames such as ‘Dishonesty’ (Falsia) and ‘Truth-killer’ (Amazza el vero). Their plot, revealed when a young priest at San Lorenzo betrayed the plotters, was repressed by the Capitano.14 In October, word of another, more dangerous plot came to Florence from the city’s ambassadors (among them Donato Barbadori) to the Angevin prince and Hungarian royal heir, Charles of Durazzo, who had entered Italy early in the War of Chioggia (1378–81) and set up camp outside Treviso. There, nearly 140 miles from home, a band of exiles plotted the overthrow of the Florentine government by force. According to the Capitano’s condemnation, Benedetto di Simone Peruzzi met with Giannozzo Sacchetti in the campo Trevisano and laid out the plot, which would require up to four hundred mounted teams (lancie), telling him, ‘ You will definitely see the exiles re-enter Florence . . . and they will retake power (reaveranno lo stato) and be greater in Florence than they ever were.’15 Tasked with raising two thousand florins to support the plot and bearing letters (officially believed to be fake) in which Charles pledged his support for the Guelf exiles’ cause, Giannozzo returned to Florence and was apprehended and beheaded by the Capitano, but not before implicating his allies, including Benedetto Peruzzi and Piero Canigiani.16 The Florentine government had long known that the canonist Lapo da Castiglionchio, perhaps the popular regime’s chief enemy, and his ally Benedetto Peruzzi were plotting near Padua with other Guelf exiles and feared their alliance with Charles, but the full extent of the plot would not become clear until December.17 14 Ibid., fols 9r–12v; 99v–101r, 130r–32r, 141r–42r, and 142v–44v. Some of the conspirators, such as Leoncino, were executed by the Capitano, while others, such as Pagno Strozzi, were fined; on the controversy that resulted from this unequal treatment, see Stefani, Cronaca, rubric 814, 343–4. 15 ASF, Capitano, 1198, fol. 103v: ‘per certo tu vedrai chelli usciti di fiorença rentraranno en fiorença . . . et reaveranno lo stato et serranno magiori en fiorença che mai fossoro.’ 16 Ibid., fols 103r–107v. 17 The case against Lapo, declared a rebel in 1378 in ASF, CR, 19b, fol. 187r, is made in diplomatic letters to Francesco Carrara: ASF, Missive, 18, fols 22r–v, 60v, 73r–73v, and 191r. On Lapo’s involvement in Florentine politics through the summer of 1378, see the essays in Sznura, ed., Antica possessione, especially those of Ricciardelli, Tanzini,

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On 10 December, the mercenary captain John Hawkwood sent word to the priors of a conspiracy under way that was, in the words of a chronicler, ‘so great that it would unleash the greatest revolution.’18 In exchange for twelve thousand florins, Hawkwood later revealed the crucial elements of this conspiracy: Guelf exiles and disgruntled Ciompi had gathered near Bologna, where they armed themselves and fashioned banners, to retake Florence with the help of a force under the control of Charles of Durazzo’s seneschal Giannotto da Salerno, who was then moving through the Romagna. Days later, a letter from Count Antonio of Monte Bruscoli was presented to the priors, warning that the plot was set to be carried out on the night of 19 December.19 The forces of the Otto di Guardia, the city’s recently formed magistracy in charge of repressing political crime, were quickly dispatched along with those of the rectors into the city and the contado in order to apprehend the suspect conspirators. After they were captured, though, it quickly became apparent that the Capitano and Esecutore were unwilling to condemn them, so the leaders of the government held a large assembly ( pratica) aimed at convincing them to do so. ‘If the rectors don’t want to do justice,’ cried Alessandro di Benedetto Gucci, echoing the sentiments of many at the meeting, ‘let it be entrusted to citizens and guildsmen who do.’20 By the end of the riotous session, in which armed guildsmen demanded capital punishment for the plotters, Alessandro’s call was answered, and the capitudini of the guilds gave four citizens ‘power, together with the rectors, to carry out justice.’21 When the Capitano still refused to carry out the executions, saying, ‘Put them to death yourselves, I won’t do it if I don’t find them guilty!’ the crowd threatened to kill him.22 Before the week was done, more than a dozen men implicated in the plot had been beheaded, among them Piero

18 19 20 21 22

Mazzoni, and Klein (46–120, 143–56). According to Lapo’s ricordanze, Baldus was godfather to one of his sons; see ASF, Carte Strozziane II, 3, fol. 85r (modern foliation): ‘furono miei copari a farlo cristiano messer Baldo da Perugia dottore di leggi e di decretali, messer Cerretano de Cerretani da Siena dottore di decretali.’ Stefani, Cronaca, rubric 828, 353: ‘sì grande che grandissima novità genererebbe.’ See ASF, PR, 68, fols 196v–97v, a measure ‘pro Antonio de Bruscholo.’ ASF, CP, 18, fol. 55v (also foliated 53v): ‘quod si rectores nollent facere iusticiam fiat commissio civibus et artificibus qui faciant.’ Stefani, Cronaca, rubric 833, 357: ‘balìa insieme con gli Rettori a fare dare esecuzione alla giustizia.’ Ibid., rubric 334, 358: ‘Andate, e fategli morire voi, che se io non gli troverò colpevoli, io no ‘l farò.’

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di Filippo degli Albizzi, Filippo di Biago degli Strozzi, Giovanni di Piero Anselmi, and Bartolo di Giovanni Siminetti. One chronicler and critic of the guild government, expressing an opinion that was commonly voiced, stated that they had been killed ‘at the bidding of Tommaso Strozzi and Giorgio Scali, who were ruling the city with a group of bandits.’23 Even Marchionne di Coppo Stefani, a supporter of the government serving on the priorate at that time, questioned one of the executions, that of Donato Barbadori, who had famously defended Florence at the court of Gregory XI during the War of the Eight Saints and had served the guild government as an ambassador.24 ‘If he was guilty,’ Stefani wrote, ‘he committed a great sin by making such a mistake, because he was a sincere man, very wise, and very helpful to the commune; but if he was not guilty, he was wronged greatly, and the person who denounced him acted wickedly.’25 Even with the conspirators eliminated, the government and its most vociferous supporters would not rest. ‘Let there be pure and undiluted justice,’ demanded the doublet maker Giovanni di Filippo – ‘it alone is the medicine for this city’s sickness.’ ‘In order to save the government,’ argued the wool shearer Feozzo di Casino, ‘let justice be done, yielding to no one.’26 Calls for the confiscation of the property of the condemned and for the penalization of their wives and children were heard among the chief representatives of the regime, men such as Tommaso Strozzi and Giorgio Scali, who also sought a rigged (a mano) election for the priorate

23 Cronaca terza d’anonimo, 132–3: ‘per operatione di messere Tomaso di Marco degli Strozzi e di messere Giorgio degli Scali che governavano questa terra con una brigata di ladroncelli.’ 24 For a summary of his impressive career as a diplomat, see D’Addario, ‘Barbadori, Donato.’ 25 Stefani, Cronaca, rubric 836, 359: ‘se fu colpevole, gran peccato fu di lui che in tanto errore venisse, perocch’era franco uomo e molto savio e molto utile al Comune; e se non fu colpevole, gran danno ne fu, e male fece chi di ciò l’abbominò.’ The execution of Donato Barbadori was often lamented by Florentines of later generations. Leonardo Bruni, for example, wrote that the executed men had committed no crime (‘nullum in captivis crimen neque rei notitia ulla reperiebatur’) and that the guildsmen had inflicted punishment on great and innocent men (‘magnis et innocentibus viris supplicio affectis’); History of the Florentine People, vol. 3, 20–1. Francesco Guicciardini similarly decried the execution, even citing Baldus’s opinion (presumably the version in the Vatican manuscript); see Cavallar, Francesco Guicciardini giurista, 4–6. 26 ASF, CP, 18, fol. 51v: ‘quod iustitia fiat pura et mera que sola est medicina infirmitatis istius civitatis’; and CP, 18, fol. 63r: ‘quod pro status conservatione justitia fiat non parcendo alicui.’

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of January – February 1380 to ensure that no disloyal priors be chosen.27 In January, the Capitano, on the basis of the confessions of Piero degli Albizzi and others, condemned nearly fifty people for participating in the December plot; as in April, they came from the ranks of Piero’s faction and from those of the Ciompi.28 The guild government, like so many regimes before it, had secured its rule by expelling its enemies – first the Albizzi partisans and then radical Ciompi. Now, in the areas outside Florence, in the zones between cities where mercenary armies and exiles could wander unhindered, this mixed band of conspirators had begun to create an alternative to the power of the Florentine government, a panItalian conspiracy that commissioned agents, raised armies, and engaged in secret diplomacy. The condemnation declared all of these men ‘betrayers and rebels of the commune of Florence’; they were now at war with their city and wholly excluded from its protections, and they were legally subject to death without process.29 The judicial process having been subverted by angry and frightened guildsmen, those unlucky enough to have been captured and killed in Florence had found themselves in a frightening, parallel situation: inside the city, but outside the law. The jurist Baldus de Ubaldis had taught at the Florentine Studio from 1358 to 1364, during which time he was granted ‘original citizen’ status and enrolled in the Guild of Judges and Notaries, becoming familiar with Florentine customs and participating in public life.30 During the first two years of the guild government, he returned to Florence and wrote a handful of consilia on important political issues there.31 At least two extant opinions of Baldus address the December 1379 conspiracy; one is preserved in manuscript in the Vatican Library (Vat. lat. 8069, fols 364v–67v) and the other in the Biblioteca Capitolare Feliniana of Lucca (BCFL, MS 351, fols

27 Brucker, Civic World, 56. The sturdy ‘rank and file’ of the guild community rejected the lattermost proposal; see Najemy, Corporatism and Consensus, 256–8. 28 The names of the forty-eight condemned are listed in ASF, Capitano, 1198, fols 55r–56r. 29 Ibid., fol. 56r: ‘proditores et rebelles communis Florentie.’ 30 For Baldus’s citizenship, see Cuturi, ‘Baldo degli Ubaldi,’ 366–9. For his guild enrolment, see Kirshner, ‘Ars imitatur naturam,’ 306. On his public participation, see Spagnesi, ‘L’insegnamento di Baldo,’ and Kirshner, ‘Baldo degli Ubaldi’s Contribution.’ 31 In addition to those discussed in this essay, see the consilium discussed in Kirshner, ‘Ars imitatur naturam,’ with the contemporaneous opinions discussed on p. 307. Kirshner notes that Baldus’s ‘professional and public activity during December and early January 1379–80 has never been determined,’ and it seems clear that Baldus either just passed through Florence in that period or, given the political climate, wrote his opinions on Florentine affairs from the safety of Perugia, where he surely was by 18 January 1380.

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89v–90v). Although the former appears to have been more widely cited in the quattrocento,32 I limit my discussion to the latter opinion.33 In the Lucchese manuscript, as in the later printed editions, there are two successive consilia on the December 1379 conspiracy. In the 1575 Venetian edition, they appear as consilia 58 and 59 in the first volume (fols 18v–21r). The compilers of Baldus’s consilia collection appear to have treated both of these opinions as having been written by Baldus, but evidence within the text shows that the first opinion (MS 351, fols 86v–89v; I.58) was written by another, as yet unidentified, lawyer, presumably Florentine, who was quite familiar with all the documentation and relevant pieces of legislation, and that the second opinion (MS 351, fols 89v–90v; I.59) alone represents the work of Baldus.34 To begin with, the first consilium is not written in Baldus’s easily recognizable style.35 Second, Baldus implicitly says that the arguments in the first consilium have been prepared by another, as in the opening line of the second consilium (fol. 89v), where he states that ‘laws for and against have been elegantly presented’ (‘Licet eleganter pro et contra sint inducte leges’). Third, there is no reason that Baldus would have written two different consilia that proffer distinct and opposing ar-

32 As, for example, in Angelo Gambiglioni, De maleficiis, fol. 134rv, as well as Nello da San Gimignano, De bannitis, II, 1, q. 16, fol. 366v. 33 It is difficult to determine the precise relationship between the opinion in the Lucchese manuscript, discussed in this essay, and the one in BAV, Vat. lat. 8069. They may represent two distinct and preparatory drafts of the same opinion, or one may be identical or nearly identical to the final signed and sealed opinion. Much of their argumentation is identical, but the Vatican version contains a more explicit critique of Donato Barbadori’s execution and more clearly focuses on the question identified by the scribe at fol. 364v, ‘utrum non revelare secreta seditionis sit crimen lese maiestatis.’ In the current volume, Osvaldo Cavallar traces the influence of the Vatican version on later jurists. I quote from the Lucchese manuscript, but I also provide variants (in square brackets, marked ‘M’) from the Milanese edition dated 1489. On the Lucchese manuscript, see Colli, ‘Il Cod. 351’; on the printed editions, see Colli, ‘Le opere di Baldo.’ According to Colli, the Lucchese manuscript represents a ‘minutario,’ or register of drafts or possibly copies, for a no longer extant Liber consiliorum of Baldo, but it is not necessarily better than the Milanese incunabulum. The opinion (as it appears in the printed editions) has been briefly discussed in Sbriccoli, Crimen laesae maiestatis, 211, and recently in Spagnesi, ‘L’insegnamento di Baldo,’ 146–55. 34 In presenting my arguments for misattribution (below), I am particularly indebted to the counsel of Osvaldo Cavallar. 35 In addition to issues of phraseology or style, the extensive and verbatim quotations at fols 86v–89r seem glaringly inconsistent with Baldus’s style. In addition, although this is not decisive, the first opinion is unsigned, while the second has (at fol. 90v) Baldus’s traditional ‘Et ita dico et consulo ego Baldus de Perusio utriusque iuris doctor,’ etc.

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guments on the same case. Fourth, it is clear that in his consilium, Baldus is simply contradicting the previous opinion, which he found to be defective.36 The existence of both opinions shows clearly that Baldus’s opinion was a consilium sapientis requested by officials of the guild government of 1378–82 after a Florentine lawyer, whom I have been unable to identify, had first treated the problem. In all likelihood, the officials realized that the case for confiscation was built on unstable foundations and, in order to clarify a point and avoid later liability, requested the ‘second opinion’ of a trusted consultor.37 Moreover, because the sentences of the conspirators do not assert that the crime of treason had been committed or bring up confiscation of their goods, it is apparent that Baldus addressed these issues because they were raised in the earlier opinion of the Florentine lawyer, who had supplied for Baldus his quaestio iuris. Legal experts (such as the Capitano or Esecutore, Baldus, and even the unidentified Florentine lawyer) would have known quite well that, from a legal point of view, a strong case could not be made against some of the conspirators. But they also would have known that asserting a charge of treason was the simplest way to confiscate property; indeed, in a practical sense, crimen laesae maiestatis means confiscatio bonorum under the ius commune because the person who committed treason lost control of and could no longer dispose of his property from the moment the crime was perpetrated. To place Baldus’s opinion in its proper context, I begin my discussion with the first opinion composed by our anonymous Florentine jurist. He commenced his opinion by providing lengthy extracts from four condemnations pronounced by the Capitano – those of messers Iacopo Sacchetti, Piero di Filippo degli Albizzi, Cipriano di Lippozzo Mangioni, and Filippo di Biagio degli Strozzi – and from one pronounced by the Esecutore, that of messer Donato Barbadori.38 Structurally, the four sentences of the Capitano

36 Canning, Political Thought, 122 n. 98, suggests that the first opinion might represent Baldus’s summary of the facts and presentation of pro and contra arguments, whereas the second opinion represents his solutio; but it should be noted that there is a brief and informal solutio provided at the end of the first consilium (at fol. 89v), one that Baldus rejects and criticizes in his opinion. 37 Even though Baldus was a friend of both Lapo da Castiglionchio and Donato Barbadori, the guild government’s repeated use of him as a consultor shows that he remained a trusted oracle of the law. Kirshner, ‘Consilia as Authority,’ 109–28, discusses the reasons for such trust in consulting jurists, namely, their expertise, impartiality, and sacred dignity. 38 BCFL, MS 351, fols 86r–88v; the original sentence contra ‘Donatum Ghieruccii de Barbadoris’ is in ASF, Esecutore, 840, fols 49r–50r; those against the others are in ASF, Capitano, 1198, fols 54v–66r, along with many others.

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were nearly identical: the condemned conspirator was in exile and was approached by a friend who told him of the plan for retaking Florence, and who then asked him to join and sign a document attesting to his assent or membership in the plot. After a brief exchange in which the condemned expressed concern about the plot and then decided to join, it is noted that he signed the document and ‘kept the plot secret and revealed it to no one’ in order to bring about ‘grave damage to the Guelph party and the peaceful and popular government of the guilds and guildsmen of Florence.’39 A sentence of capital punishment was then formally recounted, ‘that [he] be led to the place of justice and there be beheaded.’40 No further penalty was noted and nothing was said of treason or confiscation. The condemnation of Donato Barbadori was different. While serving as ambassador to Charles of Durazzo, Donato visited Bologna, where he found a group of Florentine exiles (exbanditi ) who informed him of their plan, involving a band of Ciompi and other forces, to retake Florence on 20 December 1379. In response, ‘Messer Donato said that the plot was well organized and will surely have its desired end and that he will give his help and favour to the plot at a necessary and advantageous time.’41 Unlike the others, he was not asked to join the plot or to sign the document as proof of his loyalty, yet he, too, was sentenced to death. After the condemnations, the Florentine lawyer surveyed the relevant statutory law of Florence, which included six statutes on issues such as the confiscation of goods and the penalty for creating a tumult, again quoting verbatim.42 Having presented the condemnations and statutes, the lawyer then asked whether the goods (and the profits thereof) of the executed conspirators

39 For example, at BCFL, MS 351, fol. 87r: ‘Et predicta [i.e., the elements of the plot] dictus Cyprianus in secreto tenuit et nemini revelavit ad hoc ut predicta habilius executioni demandarentur [mandarentur M] in grave dampnum et preiudicium partis Guelfe [[et add.]] pacifici et popularis status artium et artificum civitatis Florentie.’ Correction in double brackets from the original at ASF, Capitano, 1198, fol. 65v. 40 For example, at BCFL, MS 351, fol. 87r: ‘quod predictus Cyprianus ducatur ad locum iustitie et ibidem caput ab [a M] eius spatulis separetur [separetur om. M] amputetur,’ etc.; and ASF, Capitano, 1198, fol. 66r. 41 BCFL, MS 351, fol. 87v: ‘Ad que omnia predicta et singula respondidit dictus dominus Donatus quod predicta erant bene ordinata [et bene facta add.] et pro certo habebit finem optatum. Et quod in tempore necessario et opportuno dictus dominus Donatus dabit ad predicta consilium [ausilium] et favorem.’ Corrections in brackets from ASF, Esecutore, 840, fols 49v. 42 Ibid., fols 88r–89r. For the original of those mentioned, see ASF, Statuti, 18, fols 36r–37v and 53r–v.

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should have been and may now be confiscated. He laid out the issues logically, presenting pro and contra arguments within the dual conceptual frameworks of the ius commune and statutory law. In favour of confiscation, he noted that the conspirators seemed to have committed treason and were thus subject to confiscation, adding that ‘one who knows about a conspiracy or other crime in his city is punished as a participant because of his knowledge alone, according to the lex Utrum (D. 48.9.6),’ which provided the example that even accomplices outside a family can be punished for parricide.43 Similarly, the Florentine statutes seemed to allow confiscation. For example, one of the 1355 statutes of the podestà cited in the condemnations and quoted by the lawyer ‘seems to expressly impose confiscation’;44 and even ‘if confiscation were not expressly imposed in the condemnation, it may be legally inferred from the content of the municipal legislation.’45 To the contrary, the lawyer argued that treason was not applicable to the case of the Florentine conspirators because it applies only when one acts ‘against the emperor, or those who are at his side, or against the Roman republic, but not against other cities . . . as is proved in the final paragraph of the lex Fallaciter (C. 9.42.3.4), where the crime of treason and that of fighting against one’s country are distinguished as different types.’46 As a result, the accomplice who merely knew of a plot can still receive a punishment according to the lex Utrum, ‘but not punishment of one guilty of treason.’47 Even though Florence has many of the same privileges and immunities as the Roman republic, the lawyer continued, ‘the republic or fisc of Florence is still not the republic or fisc of Rome,’ and the words of the statutes do not say that it is.48 Nonetheless, ‘in the case of an offence committed against the republic and fisc of the city of Florence, confiscation ought to follow, just as in the case of an offence committed against the republic or fisc of Rome, because the republic and fisc of the

43 BCFL, MS 351, fol. 89r: ‘conscius de turbatione civitatis sue vel de alio commisso in civitate sua ex sola scientia punitur ut particeps, l. utrum ad l. pompe. de parri.’ 44 Ibid.: ‘imponi videtur bonorum publicatio expresse’; the original is in ASF, Statuti, 20, fol. 37r–38r, De pena facientis congregationem, etc. 45 BCFL, MS 351, fol. 89v: ‘si in sententia bonorum publicatio non sit expressa, tamen intellegitur de iure vigore dictarum legum municipalium.’ 46 Ibid.: ‘contra principem vel qui iuxta latus eius sunt vel contra rem publicam Romanorum non in aliis civitatibus . . . ut probatur in d. l. Fallaciter § fi., C. de abolitionibus, ubi crimen lese maiestatis et oppugnationis patrie alterantur ut species differentes.’ 47 Ibid.: ‘non tamen rei criminis lese maiestatis.’ 48 Ibid.: ‘non tamen res publica et fiscus Florentie est res publica vel fiscus civitatis Romane.’

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city of Florence has the same privileges, rights, etc.’49 The Florentine lawyer’s argument was, prima facie, a weak one, and he was probably aware of this. His conclusion eschewed the arguments presented in order to reach a conclusion in favour of confiscation, one that is based almost entirely on an expansive view of Florence’s legal status. ‘Although laws prescribing both for and against have been introduced in this matter,’ Baldus began his opinion, ‘three points must be reviewed in order to arrive at a more fruitful exposition: First, what is the title of this crime? Second, by what law is it punished? And third, with what penalty?’50 And it is here, in his answer to the first question, that Baldus finally arrived at the philosophical crux of the matter: maiestas, he stated, is fourfold, because the law speaks of the majesty of God, the emperor, the Roman people, and the king. But cities do not share in the quadruplicity of majesty because they merely stand in the place of private persons; nor do parties (such as the Guelfs and Ghibellines), because they are simply factions.51 Indeed, most cities are municipia – autonomous but still subject to a superior – and thus possess no maiestas. On the basis of name alone, then, they cannot be the object of ‘the crime of injured maiestas.’ But the crime of sedition can be committed against them: ‘He is guilty of sedition,’ Baldus proclaimed, ‘who conspires to betray or overthrow the public and good government of a city or to wage war against it or something similar, not in thought alone but by acting, such as conspiring, causing a tumult,

49 Ibid.: ‘tamen pro delicto commisso contra rem publicam et fiscum civitatis Florentie debet sequi publicatio bonorum, sicut pro commisso contra rem publicam vel fiscum civitatis Romane, quia res publica et fiscus civitatis Florentie habet eadem privilegia, beneficia etc.’ 50 Ibid.: ‘Licet eleganter pro et contra sint inducte leges proprie ad propositum facientes et determinantes tamen pro uberiori doctrina recensenda sunt tria, primo [consideranda sunt add. M] quis est titulus huius criminis, secundo, qua lege punitur, tertio qua pena.’ 51 Ibid., fols 89v–90r; I quote this crucial passage at length: ‘Et premitto ad evidentiam quod quadruplex est maiestas, scilicet Dei. ff. de arbitris, l. Non distinguemus, § Sacerdotio (D. 4.8.32.4), Imperatoris ut Inst. in prohe. (I. Pr.), et C. ad l. iul. mai., l. Quisquis (C. 9.8.5) cum si., Romani populi ff. e. l. i (D. 48.4.1), Regis C. ut nemo privatus titulos, l. Regie maiestatis (C. 2.15[16].1). Dicitur maiestas pretoris, ff. de iusti. et iur., l. pen. (D. 1.1.1), ff. de iur. om. iud., l. si familia (D. 2.1.9). Civitatis vero alie ab urbe non dicitur maiestas, quia civitates loco privatorum habentur ff. de furtis, l. Ob pecuniam (D. 47.2.82), ff. de verborum significatione, l. Bona civitatis (D. 50.16.15), et l. eum qui vectigal (D. 50.16.16). Item partis guelfe vel gebelline non dicitur maiestas hec enim non sunt nomina civitatis sed nomina partialitatis, de quibus notatur in c. statutum, § cum autem, de rescriptis lib. vi. (VI. 1. 3. 11. 3).’

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waging war, or occupying a territory of his city or municipium.’52 In a sense, sedition is the broader category into which the crime of treason falls (i.e., sedition against an entity with maiestas is treasonous), but for sedition against a municipium, it is not enough merely to wish for tumult or revolution; rather, a seditious conspirator must betray his city in a material way. Under the ius commune, sedition is punishable by death, but some conspirators are given clemency ‘either because of their rank or, perhaps, because they did not act to promote the sedition.’53 Because Florence is a municipium and is governed by its own laws, however, those who conspire against it should not be punished under the ius commune of sedition but according to the statutes of the commune. ‘Thus,’ Baldus said, ‘we should follow the via statutorum, neither adding nor detracting.’54 Reviewing the statutes, he found that they had given the rectors considerable choice (arbitrium) in terms of sentencing, and as a result, he argues that the penalties they announced should not be supplemented after the fact.55 Because the sentences against the conspirators had not mentioned a confiscation of their goods, the officials of Florence ought to remain firmly fixed in the ius strictum and do nothing to ramp up the penalties. ‘It is apparent,’ Baldus concluded, ‘that an implicit confiscation is not included within the ambit of corporal punishment, and because the statute, which is of the ius strictum, does not assert this, we should neither assert nor add it.’56 Baldus’s opinion was a brilliant balancing act. On the one hand, he diminished the authority of Florence, declaring that it lacks maiestas and arguing that it ought not be allowed to impose a delayed confiscation on the conspirators. On the other hand, however, he did not challenge the sphere of capacious authority secured for it in the Florentine lawyer’s opinion, in which its rights and privileges are equal to those of Rome and

52 Ibid., fol. 90r: ‘Est autem seditiosus ille qui [ Est seditio quando quis M ] tractat facere proditionem et novitatem contra publicum et bonum statum civitatis, vel facere guerram, vel aliquid simile non nuda cogitatione, sed perveniendo ad aliquem actum: puta faciendo coniurationem vel rumorem vel guerram vel occupando aliquam terram contra suam civitatem vel municipium.’ 53 Ibid.: ‘vel propter personarum dignitatem, vel puta quia minus delinquerunt ut quia non processerunt ad actum proximum factis.’ 54 Ibid.: ‘ergo sequamur viam statutorum neque addendo neque detrahendo.’ 55 Ibid., fol. 90v: ‘Et quia pena arbitraria est incerta, donec declaretur per iudicem, nullo modo pena non declarata supplenda est per impetrationem legalem.’ 56 Ibid.: ‘Et ex his apparet quod confiscatio tacita bonorum non venit in conscientiam pene corporalis, quia statutum quod est stricti iuris hoc non dictat ergo nec nos dictare debemus neque supplere.’

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in which its statutes and judicial acts are inviolable. By maintaining the logical firewall of separation between the ius commune and statutory law, Baldus was able to arrive at his desired conclusion and his desired goal, the perpetuation of the rule of law – that is, in this case, the idea that governments themselves, as well as their citizens, are constrained to adhere to their own lawfully established statutes and procedures.57 The government of Florence could have declared in its statutes that sedition against it be treated like treason, but it did not; those statutes could have called for confiscation, but they did not; and its judges could have used their statutory authority to impose such a confiscation, but they did not. Baldus’s reasoning would have permitted all those things, but it will not permit them after the fact. In his opinion, it is precisely the power and authority of Florence that restricts its power and authority to act. And this is the paradox at the heart of the primacy of law. In a metaphorical sense, one could say that the almost spectral superiority of Rome over Florence in Baldus’s opinion stood for the superiority of the law over the Florentines and their officials, the maiestas of Rome for the awesome dignity and terrible power of the law itself. Less than a year after the repression of the December 1379 plot, another case drew Baldus’s attention to Florence and its precarious guild government. On 15 September 1380, messer Giovanni di Mone, ambassador of the republic of Florence, was murdered in Arezzo. A grain dealer who had more than once been drawn as prior and Gonfaloniere, Giovanni had served as one of the so-called Eight Saints in 1376, been knighted by the Ciompi in 1378, and continued to serve the subsequent and short-lived guild government until his death.58 When word of messer Giovanni’s death reached Florence, said the chronicler Stefani, it came to be considered the ‘most disgraceful and unruly thing that had ever been done, because no other ambassador had ever been killed by Florentines.’59 Among the three assassins who assaulted and stabbed him was Tommasino da Panzano, who had arrived in Arezzo one day earlier along with Charles

57 The notion of a Rechtsstaat, or ‘the rule of law,’ and the corresponding rights discourse would not begin to be formalized until at least the eighteenth century; see Costa, ‘Rule of Law.’ Nevertheless, some aspects of what we understand by ‘the rule of law’ were already present in trecento juridical thought, as in this consilium. 58 Trexler, ‘Who Were the Eight Saints?’ 89; Cronaca prima d’anonimo, 73. 59 Cronaca, rubric 870, 379: ‘la più sconcia cosa mai fosse fatta, perocchè mai non fu più morto ambasciadori per Fiorentini.’

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of Durazzo, who had been received ‘with every royal honour’ by the Aretines and denounced in a Florentine pratica on the same day as a ‘public enemy’ and an ‘enemy of the regime.’60 Along with the killers, Charles had brought a small army, including hundreds of mounted soldiers and a band of more than fifty Florentine exiles and conspirators, led by Lapo da Castiglionchio, many of whom had been implicated in the plot to overthrow the government nine months earlier.61 In an assembly on 15 September, Francesco Cambi, a fervent supporter of the government, called for the priors to ‘make sure, using every means, that the murder of messer Giovanni di Mone be punished and his memory honoured.’62 In a stern measure, the priors declared Giovanni di Mone’s murder an ‘unspeakable wickedness and abominable crime’ and the three perpetrators ‘sons of Satan’ who should be killed; the government also proclaimed that if Tommasino were not dead within one year, his male relatives would also be condemned as rebels of the commune.63 Giovanni’s memory was, indeed, honoured days later with a public funeral, but the punishment had to be deferred.64 Fearing war with Charles, the Florentines agreed to pay 40,000 florins for a peace pact that required Charles to stop harbouring Florentine exiles and to refrain from interfering with Florence and her subject towns. In the words of the pact, Charles, who had been a public enemy, would become ‘as his ancestors had been, protector and benefactor of the city of Florence.’65 The murder of messer Giovanni would finally be avenged on 20 January of 1381, when Giovanni di messer Luca da Panzano killed his cousin, the murderer Tommasino, in a Sienese inn. Hoping to avoid becoming a rebel himself and having been

60 Ibid., rubric 869, 378: ‘con ogni onore reale’; ASF, CP, 19, fol. 59v: ‘quod Dominus Karolus est inimicus istius status,’ and fol. 60r: ‘quod Dominus Karolus est hostis publicus.’ 61 The Florentine plotters with Charles are listed in ASF, CR, 13, fol. 137rv; cf. the list of those condemned in ASF, Capitano, 1198, 55r–56r, discussed above. 62 ASF, CP, 19, fol. 63v: ‘Quod Domini provideant per omnem modum quod occisio Domini Johannis Monis puniatur et honoretur sua memoria.’ 63 ASF, PR, 69, fols 131v–33r: ‘nefandum scelus et abominabile delictum . . . satane filios’; Stefani, Cronaca, rubric 889, 387. 64 For the Florentine response, see Stefani, Cronaca, rubric 871, 379; Gherardi, ed., Diario d’anonimo, 417; and the diplomatic letter of 17 September to Charles of Durazzo in ASF, Missive, 19, fol. 47r. 65 ASF, CR, 13, fols 136r–39r (along with related documents at fols 139v–43v): ‘erit prout fuerunt eius progenitores protector et bene civitatis Florentie.’

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promised a reward, Giovanni had become an assassin for the republic.66 In a measure two months later, the priors and Otto di Guardia praised and rewarded Giovanni for the killing, explaining that by murdering the ambassador, Tommasino had become a rebel of the commune and was thus liable to be killed by citizens of Florence.67 At that time, the tumult of politics could dissolve even the affective bonds of premodern Italian kinship, setting cousins such as Giovanni and Tommasino against each other, and even fathers against sons.68 In a consilium sapientis in support of Giovanni’s reward, Baldus addressed this very issue. ‘He is not said to be a fratricide who, driven by the fervour of public love and desiring the protection of his native homeland, kills a savage enemy of it.’69 Indeed, Baldus argued, the kinship between them is annulled and the enemy is cut from the republic like a diseased limb; and because such a person deserves to be killed, his killer deserves a payment ‘that should be called “the reward for an extraordinary service” as in the lex Si pater (D. 39.5.34).’70 But Bartolus had signalled an opposing argument in his commentary on the lex Si adulterium § Liberto (D. 40.5.39[38].9). He opened his discussion of that paragraph, which asks whether a freedman can kill his patron with impunity if he catches him in adultery, by presenting the opinion of the thirteenth-century jurist Dino del Mugello, who had held that ‘if a statute says that anyone can kill a banned person with impunity, it will not allow a son to kill his banned father, nor a freedman his patron, nor a vassal his lord.’71 In disagreement with Dino, Bartolus observed that such a situation was addressed in Todi, where it was said that a son could 66 Tommaso Strozzi, one of the leaders of the guild government, was also accused of having paid someone in Lapo da Castiglionchio’s household in Rome to poison him; Stefani, Cronaca, rubric 890, 387, and ASF, Missive, 19, fols 100r–101v. 67 ASF, PR, 69, fols 256r–57v, ‘Octo Balie et custodie Civitatis Florentie in favorem Johannis domini Luce de Panzano.’ 68 For example, Benedetto di Simone Peruzzi, whose condemnation is discussed above, was famously denounced by his father in his account book for his treasonous activities against the guild government; Sapori, I libri di commercio, 522. 69 Baldus, Consilia ( Milan, 1489–93), vol. 3, cons. 264 (no foliation): ‘Qui fervore publice caritatis pro tutella naturalis patrie accensus cruentissimum eiusdem patrie hostem occidit non dicitur fratricida.’ There is no extant manuscript of this consilium; the Milanese edition is therefore the most authoritative version. 70 Ibid.: ‘merces enim eximii laboris appellanda est, ut ff. de don. l. si pater.’ In support of his assertion, Baldus also offered other relevant citations, namely D. 37.1.13, D. 37.4.1.9, D. 3.4.5.9, D. 28.2.29.5, D. 11.7.35, and D. 3.27.1–2. 71 Ad D. 40.5.39(38).9, in Dino del Mugello [ Dinus de Mugello], Super infortiato et digest novo (no foliation): ‘quod si contineatur in statuto quod quilibet possit impune occidere

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even kill his father if banned. He accepted the view that a patron caught in adultery is still a patron, ‘but this is not so in the case of a banned person, who is made an enemy and deserter of his city . . . and he is lost to his son just as he is lost to his city.’72 This doctrinal conflict between Dino and Bartolus was deftly reconciled by Baldus in his consilium. Bartolus’s commentary on Si adulterium § Liberto, he explained, ‘concerns an enemy who committed treason (hostem ex crimine lese maiestatis), as here, and another enemy who was banned because he primarily harmed a private person and secondarily harmed the republic’; and because the contrary opinion is speaking about ‘one to whom the city is an enemy’ and ‘not one who is an enemy to the city,’ his own argument about the reward stands.73 A person to whom the city is an enemy because he fell under the ban for a primarily private offence (as, presumably, in Dino’s opinion) cannot be killed by his son with impunity. If Tommasino had been an enemy of this sort, then Giovanni would have been bound by kinship not to kill him and would not have deserved the reward paid by the Otto. But Tommasino is an enemy of the other kind, an enemy to the city, an enemy ‘ex crimine lese maiestatis,’ and thus Giovanni was rightly rewarded. In this consilium, Baldus did not extensively address the question of whether Tommasino, in addition to being a rebel and enemy of the commune, was also guilty of treason, but he did at least imply that he was in his discussion of Bartolus’s opinion. Baldus had a repertoire of steering assumptions, philosophical principles, and a consistent working method throughout his works, even when the solutiones necessarily hinged on particulars; it is thus entirely possible that if he had explicitly addressed the issue, he would have held that Tommasino could not commit treason against Florence for the reasons presented in the earlier consilium. However, the possible discrepancy between Baldus’s two opinions, which were probably first written within a year of each other, is nonetheless meaningful because it makes clear that exbannitum quod non ideo filius ex vigore predicti statuti possit patrem occidere nec libertus patronum nec vasallus dominum.’ 72 Bartolus de Sassoferrato, In secundam digesti novi partem, fol. 162v: ‘Nam licet hic libertus reperiat patronum in adulterio, remanet tamen patronus et habet iura patronatus, sed non hic in exbannito, qui efficitur hostis et transfuga civitatis l. Amissione § Qui deficiunt, ff. de cap. dimi (D. 4.5.5.1) et sicut is perditur civitati, ita perditur filio l. Postliminium § Filius ff. de cap. et postlim. rever. (D. 49.15.19.7).’ 73 Baldus, Consilia (Milan, 1489–93), vol. 3, cons. 264 (no foliation): ‘sed refert inter hostem ex crimine lese maiestatis ut hic et alium hostem qui est diffidatus quia offendit principaliter privatam personam et secundario offendit rem publicam de quo cui civitas est hostis sed non ipse civitati de quo loquitur Bartolus.’

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the question of whether Florence possessed maiestas and could be the object of treason was still open to juristic interpretation. As we have seen, when Baldus wrote these opinions, the power of the Florentine regime was regularly threatened both within the walls of the city and outside them by elite Florentine families, disgruntled workers, and foreign princes and their armies. Mobs subverted the procedures of the courts and threatened the lives of judges; the priors lived in a state of siege and dispatched assassins to kill enemies of their regime. Nonetheless, Gene Brucker has accurately described the Florentine guild government of 1378–82 as the ‘closest approximation to the corporate ideal that Florence was ever to experience,’ and a commitment to legality was fundamental to that ideal and to the motivating ideology of the Florentine popolo.74 At moments of emergency, such regimes asked jurists to serve as trusted third parties and honest brokers to resolve troubling politico-legal issues. In response, jurists such as Baldus blended legal principles and pragmatic attention to specific circumstances in order to fashion solutions that conformed to the ius commune, respected legitimate political authority and lawfully enacted governmental measures, and afforded legal protection to citizens and subjects. When judges are menaced by armed mobs, when suspicion and fear govern the men entrusted with preserving the republic’s welfare, and when possibly innocent citizens are condemned to death, law may seem to be nothing more than a flimsy rationalization or, worse, a convenient instrument of injustice. In such a time, however, Baldus’s strict adherence to the law and his ability to speak freely as an oracle of the law provided refuge. In such a time, we should look to Baldus’s opinions, crafted with consummate skill by a jurist who believed in the sacred character of law, because they attest to the abiding dignity of law as a human institution, one that although imperfect aims, in the words of Ulpian, to be the great ‘ars boni et aequi.’ At its moment of greatest weakness, the Florentine guild government cloaked itself in the language of Roman imperial power and maiestas. This fiction is blatant when discussing weak and precarious regimes such as that one, but the ways in which later regimes – ones far less committed to law, in Florence and elsewhere – adopted and employed this rhetoric to mask or justify their illegal abuses of power and erode the fragile authority of the law are more subtle and thus more dangerous. As the power of these regimes increased, the authority of jurists decreased, and the history of the

74 Brucker, Civic World, 46.

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jurisprudence surrounding the crimen laesae maiestatis is thus an essential site for an examination of this process. What F.W. Maitland famously said of treason in medieval England, that it is a ‘crime which has a vague circumference and more than one centre,’ was also true of laesa maiestas in trecento Italy.75 This vagueness gave to jurists the freedom to defend the rule of law against the capricious and unrestrained power of political regimes, a freedom they would not enjoy two or three centuries later, when the authority of jurists as oracles of the law had been greatly diminished and the power of such regimes greatly enlarged; when, in other words, the sphere of laesa maiestas (and, as a result, of state power) was less like Maitland’s and more like the terrifying, disorienting, and all-encompassing sphere described in a different context by Pascal, ‘whose centre is everywhere and circumference nowhere.’76

75 Maitland and Pollock, History of English Law, vol. 2, 503. 76 Pascal, Pensées and Other Writings, 66; on this metaphor, see Borges, ‘The Fearful Sphere of Pascal.’

Laesa maiestas in Renaissance Lucca1 OSVALDO CAVALLAR

Nestled in the outer periphery of well-recognized Italian Renaissance city-states – Florence, Milan, and Venice – the small republic of Lucca has been aptly described as ‘the most fly-in-amber little town of the world.’2 Although this definition was intended to attract the attention of the cultured English traveller to the well-preserved historical and cultural attractions of this municipality, it also captures something of its sociopolitical characteristics, such as the ability to retain almost intact over a long period a ‘republican’ form of constitution in spite of the paradigm change of, for example, its neighbour Florence, which in the early decades of the sixteenth century turned into a full-fledged principate. No less perceptively than Belloc, Hobbes, joining art and politics, captured a conviction deeply embedded in Lucchese politico-institutional life: freedom or love for its own independence. While distinguishing between the freedom of states and that of private persons, the political philosopher, after listing Athens and Rome as outstanding examples of free states, cited the case of Lucca, where ‘on the Turrets of the city’ it is written ‘in great characters at this day, the word LIBERTAS.’3 That inscription, if not the meaning, spelled out the importance of the term. To these two aspects of Lucchese political identity or mentalité, one may add a third facet not so evident either to the refined traveller or the political thinker intent on registering the ensuing defragmentation of freedom: that prized ‘republican’ constitution coexisted with and historically depended on the privileged status of an ‘imperial’ city, that is, a city that recognized the emperor as its legitimate superior.

1 The research for this paper was funded by the S.V.D. School Fund. 2 Belloc, Path to Rome, 385. 3 Hobbes, Leviathan, chap. 21, 110.

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Two legal opinions (consilia) written by one of the prima donnas at the University of Florence (Studio Fiorentino), Bartolomeo Sozzini (1436–1506), around the end of the fifteenth century shed light on how this city preserved its political and institutional identity when both were imperilled, first by the signoria of Paolo Guinigi (1400–30) and then by an ill-planned and badly executed plot intended to place Lucca under Florentine control. Historical, political, and social as well as diplomatic circumstances set these two events apart, making any meaningful comparison between them impossible. Nonetheless, once they fell under the scrutinizing gaze of the jurist-consultor, they found a common denominator in the juridical construct of laesa maiestas – roughly translatable as ‘high treason’ or, to give it a more modern twist, ‘crime against the state.’ Absent from the primary written documentation pertaining to these two events and from the disciplinary vocabulary encoded in the municipal statutes, this legal construct appears, thanks to the authoring jurist, as a deus ex machina capable of unravelling and bringing consistency into a thorny situation of conflicting and multiple claims to property. One may liken laesa maiestas to the two-faced Roman god Janus; each of the two consilia examined here shows one of his two faces. Together they suggest that ‘the title of this crime’4 – a crime verging on sacrilege for its supposed gravity – was not only the statist and repressive mechanism devised by jurists, allegedly servants of the state,5 but also a post-mortem analytical device that permitted them to solve a legal conundrum in a way that, paradoxically, may be regarded as equitable and fair. They also suggest that laesa maiestas, far from being one single and heavy mace in the hands of the ‘state’ to suppress dissent and ensure obedience, was, rather, a flexible legal instrument for operating in a sphere where private and public interests mixed and collided. Sozzini was quite familiar with the city of Lucca and its political and legal institutions. On a personal level, while teaching at the University of Ferrara, he became acquainted with the Lucchese canonist Felino Sandei, with whom he maintained a friendly relationship.6 On an institutional level, in 1483, the Anziani (the Elders) of Lucca, wrote him, in his capacity as member of the plenipotentiary commission (balìa) entrusted with the task of preserving the safety of the Sienese regime, recalling their long-standing friendship with Sozzini’s family. Concerning the particular issue at hand, 4 I have taken this expression (‘titulus criminis’) from Baldus, Consilia (Venice, 1575), vol. 1, fols 18vb–20va, n. 58. 5 On this understanding of the crime, see Sbriccoli, Crimen laesae maiestatis, 363–5. 6 Bargagli, Bartolomeo Sozzini, 51.

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the jurist’s support and intervention were deemed particularly important.7 Then, in October 1489, just before the attempted coup of Andrea di Biagio Mei – the subject of the second consilium – and his associates, Sozzini was sojourning in Lucca when Luigi Venturi, the envoy of the Studio officials, came to discuss Sozzini’s resumption of duties at the University of Florence, promising him a salary, astronomic for that period, of 1500 florins a year.8 Late in 1495, when Sozzini was in Bologna, the city officials asked the Florentine government for permission to transport Sozzini’s belongings, books included, from Lucca to Bologna. Whether or not this request was accepted is unknown; the fact that Sozzini left his movable possessions in Lucca for about five years is an indication that he regarded them as being in a secure place during his peregrinations from one university to the other.9 Finally, when he attempted to flee Pisa – the location of the Studio Fiorentino – for the University of Padua, he directed his horse towards Lucca, only to be apprehended by the local podestà and brought back to the Stinche, a Florentine prison. Ironically, while in prison he was accused of stellionatus (a crime involving fraud, trickery, and deception) and laesa maiestas – if one is willing to believe a piece of information transmitted by Panciroli, a student of Mariano Sozzini Jr.10 The first consilium helps us to focus on a neglected dimension of laesa maiestas – as a charge levied against a tyrant – and on a neglected dimension of tyranny itself, a way of ruling that, in theory, may bring upon the tyrant charges of laesa maiestas. Although the juridical literature, especially Bartolus of Sassoferrato’s tract On Tyranny, stated that tyrants are guilty of laesa maiestas,11 instances where this specific charge was actually brought against a deposed or deceased ruler are extremely rare. More often than not, the charge was unelaborated – a non-specific accusation of tyranny, yet one sufficient to have meaningful legal repercussions. It is indeed true that the conceptual framework of Bartolus’s tract shaped the theoretical analysis of tyranny in the sixteenth and seventeenth centuries and that – contrary to Woolf’s, Ercole’s, and Emerton’s views – it played

7 Ibid., 137. Although he was a full member of the balìa, Sozzini was then teaching at the University of Florence. 8 Verde, Lo studio fiorentino, vol. 4, pt 2, 813–14. 9 See Bargagli, Bartolomeo Sozzini, 187–8 and 218–21, for the content of his library. 10 Ibid., 164–7; Verde, Lo studio fiorentino, vol. 2, 112. 11 Quaglioni, Politica e diritto, 180, ll. 107–9; 182–3, ll. 158–61; 189, ll. 288–90; 203, ll. 557–8.

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a significant role in actual litigation over the deeds of tyrants.12 However, the specific crime of which the tyrant was deemed guilty has largely remained on the fringes of scholarship. With few exceptions, historians have been satisfied with the unflattering implications and connotations of tyranny and have avoided investigating its legal operativity on a practical or theoretical level. In addition, although the terms tyranny and tyrant underwent a robust juridical elaboration, neither of them belongs to the core of the conceptual lexicon of Roman and medieval criminal law, and both have since disappeared from the political and legal vocabulary. In short, a tyrant may commit or may have committed various crimes, but there is no such thing as crimen tyrannidis or a cognate expression. In this light, the first consilium of Sozzini helps to bring into focus what specific crime the tyrant committed when his way of ruling did not morph into an undisguised despotism, or, to use Bartolus’s terminology, when he was not a tyrant by his conduct (tyrannus ex parte exercitii). The ‘tyranny’ of Paolo Guinigi is an established topos in Lucchese historiography: the lordship of the signore barely lasted one generation, and thereafter the consolidated communal institutions came back to life again to last, with small orbital adjustments, until Napoleon’s army toppled them. Writing in the sixteenth century, the Lucchese historian Nicolao Tucci characterized that comparatively brief signorial parenthesis as a ‘clear testimony of the tragic and ominous end that by the disposition of divine justice befalls those who by fraud or violence, or any other illicit means, usurp the dominion of their homeland.’ Even in the more nuanced assessment of Giuseppe Civitale, Paolo Guinigi was ‘a true tyrant of his own citizens,’13 and this was the assessment not only of local historians. The ‘condottiere’ Francesco Sforza, dispatched by the Duke of Milan to help Lucca withstand Florentine aggression, allegedly had sympathy for Lucca’s citizens suffering under the yoke of tyranny.14 It was also a topos of Florentine propaganda that enabled the attacking government to pose once again as a ‘champion of liberty’ intent on freeing the city from the rule of a tyrant, not on a self-aggrandizing or expansionistic foreign policy.15

12 For actual cases, see Kirshner, ‘Bartolo of Sassoferrato’s De tyranno,’ 303–31; Cavallar, ‘Il tiranno,’ 265–345. 13 Both historians are cited by Berengo, Nobili e mercanti, 19–20. 14 Bratchel, Lucca, 1430–1494, 19. 15 Ibid., 17; and for Florence’s posturing as champion of liberty, see Baron, Crisis of the Early Italian Renaissance, 12–46, 357–403.

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Sozzini’s first consilium presents a preliminary difficulty. It presupposes that the contested legal deeds involving two of Paolo Guinigi’s four brothers16 occurred when he was ‘tyrant,’ or, to use the telling expression jurists and historians often employed, when he had already ‘occupied the tyranny.’ However, when he assumed the title of Captain and Defender of the People of Lucca (14 October 1400) and that of signore (the following November), de facto becoming Lucca’s sole master, his four brothers were all dead.17 Lazzaro, his eldest brother, had been killed by his brother Antonio in February 1400 in an intrafamily struggle for power aggravated by other personal grievances. In turn, the fratricide and his accomplice (Niccolò Sbarra, his brother-in-law) had been swiftly executed by the local podestà the day after the murder occurred. Bartolomeo, the third son of Francesco Guinigi, died as a result of the plague the following May in Castiglione, where he had fled hoping to escape the contagion ravaging Lucca. The fourth brother, Roberto, died before 1394.18 Chronology thus seems to exclude the possibility that the disputed transactions occurred while Paolo was in fact ‘tyrant’ of Lucca. However, the ironclad logic of chronology is not an insurmountable obstacle. As the text of the opinion indicates, the contested deeds occurred between Paolo and the curators, or custodians, of the surviving offspring.19 The focus of the consilium on the figure of the tyrant and his legal incapacities unfortunately obscures the identity of the person/s who initiated the suit. Three questions were submitted to the jurist-consultor. First, could Paolo, when he was de facto tyrant of the city but before he was ‘condemned,’ lawfully inherit from his brother Bartolomeo? Second, assuming he could not inherit from his brother, should the inheritance go to the public treasury ( fiscus) or devolve to the intestate successors? Third, did the division of goods Paolo had made with his brothers, specifically the one with Lazzaro’s heirs, have any legal validity? These questions indicate, first, that Sozzini’s opinion was probably a consilium sapientis requested by a Lucchese court or one of its presiding officials in an ongoing patrimonial dispute, and second, that the main controversy was between the treasury

16 The four brothers were Lazzaro, Bartolomeo, Roberto, and Antonio. 17 For his rise to power, see Meek, Lucca, 1369–1400, 271–99, 333–45; for the genealogical table of Francesco di Lazzaro Guinigi, see p. 365. 18 Ibid., 198–9. 19 Sozzini, Consilia, vol. 1, fol. 41rb: ‘praedictos dividentes et contrahentes fuisse tutores et curatores filiorum Lazzari.’ According to Meek, Lucca, 1369–1400, 365, the only brother that had offspring was Lazzaro.

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and the surviving heirs of Paolo’s brothers and collaterals. Nonetheless, the scattered evidence collected by Bratchel suggests that even Paolo’s sisters were not passive bystanders in this patrimonial dispute.20 With regard to Paolo’s ‘condemnation,’ for the moment I have made no attempt to determine whether or not one of Lucca’s judicial courts or political institutions had pronounced a formal ruling condemning him and confiscating his goods. For my present purpose, I have taken both ‘condemnation’ and ‘confiscation’ as the operative assumptions, or the conditions of possibility, of the jurist’s opinion. The treasury had piled up powerful arguments for confiscation and buttressed them with ample citations from Lucca’s statutes – mainly a block of rubrics dealing with state security, threats to it, and the corresponding penalties.21 The penalties for the offender were severe, although not unusually cruel: he ‘will be dragged through the city of Lucca without a tabula . . . suspended from a noose until he dies, and his goods will go to the treasury.’22 Because Paolo died in a prison in Pavia in 1432, the only applicable disposition was the confiscation of his goods. For a jurist as well versed in procedural questions as Sozzini,23 municipal legislation on state security was no obstacle: none of the cited rubrics hindered Paolo’s legal capacity to acquire goods or to inherit in his lifetime. Latin grammar also came to his aid. Because the wording of the statutes was cast in the ‘future tense,’ it meant that confiscation was not automatic, and a judicial ruling was required. The statutes, in other words, implied that the judicial procedure (ordo iudiciarius) of the ius commune was the condition for their applicability. A further limitation of these municipal laws, which will become evident later on, was their narrow focus on goods and punishment – a myopic attitude that blinded the legislator to the complexity of the legal capacities of a person and the importance of a lapse of time before a decree on confiscation could be implemented. Last but not least, the identification of property 20 Bratchel, Lucca, 1430–1494, 17–49. 21 The pertinent rubrics are summarized in the opening section of the consilium; see Sozzini, Consilia, vol. 1, fol. 40rb. I have interpreted the dubious reading ‘foris’ to ‘furcis’ in view of the following ‘suspendatur.’ On the penalties for traitors, see also Statuto del Comune di Lucca dell’anno 1308, book 3, c. 60, ‘ De proditoribus Lucani comunis,’ 174. 22 The meaning of tabula is uncertain. It may be a tablet related to the condemnation or, more likely, one of the devotional icon-like tablets members of confraternities assisting persons condemned to death used when leading them to the place of supplice. For samples, see Edgerton, Pictures and Punishment, 165–221. 23 Pennington, Prince and the Law, 238–68.

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and the determination of its owner were also notoriously difficult to establish, particularly when the goods were held in common or disguised as gifts, legacies, and trusts. The brief engagement of the jurist-consultor with the statutes helps to bring into focus the contrasting strategic assumptions underlying this case. For the cash-strapped and thus omnivorous treasury, granting Paolo full legal capacity, or subjective rights, was the way to maximize its own interest. If Paolo’s legal capacities were unencumbered, he could acquire and inherit, and consequently all the accrued wealth could be rightfully incorporated by the offended city. For Sozzini, however, the way to counter the claims of the treasury and concomitantly safeguard the interests of the heirs of Paolo’s brothers and collaterals was to annul Paolo’s legal capacity to act, at least starting from the moment he became de facto tyrant of the city. If the legally incapacitated Paolo could not acquire and inherit, it meant that the common goods devolved to his brothers’ heirs and collaterals according to the rules of intestate succession, and the treasury could only demand the share that properly belonged to him. Further, the treasury assumed that Paolo’s legal capacity lasted until his condemnation; in contrast, Sozzini argued that it ended the moment he became signore of Lucca. Although the wealth of each of the two brothers is not known, the amount of confiscable goods varied significantly. For the treasury, the goods accrued because of the division and the inheritance were included; for Sozzini this was not so. Tyranny and laesa maiestas were the two ius commune constructs that elegantly effected Paolo’s legal incapacity. The jurist-consultor granted that the arguments of the treasury would stand were it not for the imputation of ‘tyranny’ and the crime of which the tyrant was guilty – laesa maiestas. Imprisonment, subsequent death, and confiscation came on Paolo by force of municipal statutes because he occupied the dominium (lordship) of Lucca; under the ius commune, he incurred the penalties of the crime of laesa maiestas. Because this reduced a person’s subjective rights to nothing, the jurist concluded, ‘Paolo’s capacity to inherit and acquire’ was a question worth investigating. Not surprisingly, the jurist-consultor grounded his main argument on Bartolus’s tract De tyranno, especially the opening section on etymology and the semantic changes that the term ‘tyranny’ underwent when it passed from Greek into Latin. Although citing the tract almost verbatim, he broke up the sources that Bartolus had woven into a seamless narrative, conveying the impression that he was quoting directly from the medieval encyclopaedists (Papias and Balbus), the glossa ordinaria to the Scripture

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of Nicholaus of Lyra and the Moralia of Pope Gregory the Great.24 Two points of this opening section deserve attention. First, Sozzini recognized that Bartolus was the first jurist who fully elaborated the ‘qualities’ of tyranny – the various ways to classify, understand, and deal with the diffuse phenomena of tyranny.25 Second, he recognized that the grounds for turning Paolo into a tyrant were not a specific series of despotic deeds – what a tradition going back to Aristotle, elaborated by Giles of Rome, and adopted by Bartolus himself26 came to consider as the telltale marks of tyranny – but the mere usurpation of the dominium of the city of Lucca, which excludes the possibility that Paolo might be considered a tyrant by conduct – a point, that Paolo was not a despotic ruler or a tyrant by virtue of conduct, on which even Lucchese historians have no significant qualms.27 Civitale, indeed, recognized that Paolo ‘loved justice and virtue’ and greatly cared about ‘good men.’28 While still elaborating Bartolus’s unprecedented doctrine, the focus of the jurist-consultor shifts subtly but steadily towards his major concern: laesa maiestas and where and when this crime can be committed. Since Azo’s time,29 one of the major tenets of the jurists was that it could be perpetrated only within the institutional setting of the Roman Republic and against the person of the emperor – a figure broadly construed to include the persons who surrounded him. Whether or not this imputation was available outside these two frameworks was a frequently asked question. Because in Roman-law sources the term city stood for Rome, the city par excellence, the answer was no. For Sozzini, then, the task was how to 24 Quaglioni, Politica e diritto, 176–80, ll. 38–117. 25 The taxonomy is by now well known: a tyrant ‘ex defectu tituli,’ ‘ex parte exercitii,’ and ‘velatus.’ Sozzini also suggests that the elaborations on tyranny proposed by the jurists of the generations after Bartolus lacked modulation – not a minor nuance when the discussion focused on penalties and the legal capacity to act. Sozzini, Consilia, vol. 1, fol. 41rb: ‘Solum enim Bartolus tractat de qualitate tyrannidis.’ 26 Quaglioni, Politica e diritto, 196–202, ll. 447–544. 27 Significantly, English historiography on Lucca has bracketed the period of Paolo Guinigi: the pioneering work of Meek extends from 1369 to 1400 and that of Bratchel from 1430 to 1494. True, in his latest book, Medieval Lucca, Bratchel has taken a wider perspective and devoted a chapter to Paolo’s signoria, but this is mainly to show that there was continuity and that the changes came as a response to specific political and social challenges. 28 Citation from Berengo, Nobili e mercanti, 20. 29 Azo, Summa, col. 888, ‘Ad legem Iuliam maiestatis,’ and Inst. 1.2.2 for interpreting common names such as ‘the poet’ (Homer for the Greeks and Virgil for the Romans), ‘city,’ etc.

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conceptualize the status of Lucca so as to allow that imputation. Bartolus, whom he cited, had argued that if someone should take power (‘pro rectore se gereat’) in a city without just title, this person would be bound by the terms of lex Iulia maiestatis.30 The marginal role that independent city states came to play with regard to the availability of maiestas was, however, a serious obstacle. Jurisprudential elaboration had treated cities other than Rome as private entities31 ( funguntur iure privatorum) and distinguished between fighting or taking up arms against one’s own city ( perduellio) and laesa maiestas properly speaking.32 This distinction had significant implications for potential penalties and the scope of their applicability – for instance, whether or not and to what extent the penalties affected children, wives, and other third parties. In addition – and this was the strongest objection – there was the consilium Baldus wrote for the case of Donato Barbadori, which occurred in Florence, wherein he classed his crime as sedition (seditio), if there was a crime at all, not as a hostile conduct towards one’s homeland ( perduellio) or laesa maiestas.33 Before entering into the specifics of the case, Baldus thought it necessary to dwell on the concept of maiestas. He presented a clear-cut classification based on Roman legal sources and gave examples of its application, but he avoided giving a precise definition. However, by linking maiestas to a set of Roman-law fragments (leges), he circumscribed its bearing and avoided the ambiguities derived from definitions based on etymology current among his predecessors. Of this masterful conceptualization, Sozzini cited the whole opening section according to the version transmitted by ms. Vat. lat. 8069 (housed in the Vatican Library), fols 364v–67v, which differs substantially from the printed version.34 Divine majesty aside, that imputation became available only when a crime affected the emperor, the king, and the Roman Republic, exemplified in the institutional figure of the praetor. Going against the trend established by Baldus’s magisterial discussion was not an easy task. From a juridical point of view, some of the arguments Sozzini produced are problematic. He introduced the gloss to lex Fallaciter – an authority he had previously cited to show that patria oppugnata and

30 31 32 33

Quaglioni, Politica e diritto, 185, ll. 210–13. D. 50.16.16 (Eum qui vectigal ). C. 9.42.3 (Fallaciter). On this opinion, see Fredona, ‘Baldus de Ubaldis on Conspiracy and Laesa Maiestas in Late Trecento Florence,’ in this volume. 34 Baldus, Consilia ( Venice, 1575), vol. 2, fols 18vb–20va.

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crimen laesae maiestatis should be kept conceptually separate – but gave no explanation why the same text could be used for supporting two different arguments.35 Then, on grounds of lex Utrum – a fragment that equated knowledge of a crime to punishable complicity36 and on which medieval jurists built the moral duty to reveal a plot against the security of an instituted power if one knew about it – he drew an Augustinian-like extension: Paolo, the tyrant, knowing that crimes were committed in the city of Lucca, was bound to denounce their perpetrator – he himself – just as one who knew of a threat to the security of his own city was obligated by statute to denounce the persons involved in the plot. In other words, knowledge stood for participation,37 and in Sozzini’s case, self-knowledge was elevated to complicity. This self-incriminating consciousness of sin notwithstanding,38 Sozzini rose to his peninsula-wide reputation when he started to elucidate the implications of Baldus’s consilium and the extent of its application. Inner-city factional strife and ousting one faction and introducing another that had been previously expelled was no grounds for laesa maiestas because the purport of the struggle was not to modify the so-called status of the city – that is, its constitutional arrangements. In contrast, taking over the dominium – voiding or substantially modifying these arrangements – was an act that implicated one in the crime of laesa maiestas. The immediate and sensorial contact with power that characterized the attitude of Sozzini’s contemporaries towards the stato equally applies to dominium and tyranny – this last term being often construed as a vacant lot or an object ready to be occupied or taken over.39 A grammatically minded political theorist would have construed this reflexive attitude towards stato, dominium, and tyranny as an SVO – subject, verb, and object – construct.

35 C. 9.42.3 (Fallaciter). Ambiguity is embedded in the text: while the glossa casus invites one to make a distinction between laesa maiestas and oppugnata patria, the glossa prodita seems to annul the previous distinction. 36 D. 48.9.6 (Utrum); note that the glossa to this lex did not regard mere knowledge as a sufficient reason for punishment. The issue of knowledge was fully discussed by Baldus in Consilia (Venice, 1575), vol. 2, fols 18vb–20va. 37 Sozzini, Consilia, vol. 1, fol. 40vab: ‘quia conscius perturbationis civitatis suae, vel alterius delicti commissi in civitatem suam, puniatur ut participes ex sola scientia.’ 38 It may be just a coincidence, but the Sozzini were one of the most prominent Sienese families who converted to Protestantism. 39 On this expression, construed after ‘occupare lo stato’ and cognates, see Martines, Lawyers and Statecraft, 390, and Kirshner, ‘A Critical Appreciation of Lauro Martines’s Lawyers and Statecraft in Renaissance Florence,’ in this volume.

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The occupation of a space that should have been left vacant became even more critical for another reason: the status of Lucca – a city that by tradition had recognized the emperor as its immediate superior and from whom it bought its own libertas.40 Accordingly, because Paolo took over dominium, jurisdiction, and civil and criminal powers (merum et mixtum imperium) in a city subject to the emperor, he was bound by the terms of the lex Iulia maiestatis. The city was part of the imperial persona, and on the grounds of the legal maxim stating that one who touches the ear is deemed to have touched the whole body, the usurper was regarded as having taken up weapons against the emperor himself.41 Having established the link between tyranny and laesa maiestas, whose consequences were devastating on a patrimonial level, the jurist had only to look at the three questions submitted to him with the norms of the ius commune in mind. The severity of the punitive sanctions aside, maiestas was a powerful tool for two reasons: first, it impinged on the legal capacity of a person to enter into a valid legal transaction and reduced it to nothing, and second, it established a precise moment for the beginning of that legal incapacity – that is, since the crime was perpetrated. In theory, all transactions into which Paolo entered after he became signore, including the acceptance of the inheritance of his brother Bartolomeo and the division of goods with Lazzaro’s heirs, became null by an operation of law (ipso iure), not by the force of his condemnation or the confiscation of his goods. The whole range of consequences, arguments, and proofs Sozzini suggested from his linking of tyranny and maiestas is highly technical and cannot be analytically examined here. But it should be not forgotten that the ability to articulate (although manipulation cannot be excluded a priori) in a knowledgeable, persuasive, and original fashion the substantive aspect of the law was one of the pillars on which the reputation of a jurist rested. A few examples should thus suffice, but with one caveat: a modern reader in search of a coherent argument based on a guiding idea will probably be disappointed by the articulation of Sozzini’s opinion because he stressed the force of single and independent arguments, even if contradictory or incompatible, rather than a chain of well-connected and interlocking points. Nevertheless, the whole is more than the sum of its parts.

40 On Lucca as an imperial city, see Berengo, Nobili e mercanti, 11–19, and Tommasi, ‘Sommario della storia di Lucca,’ 381–3. 41 For this maxim, see D. 47.2.21 pr. To appreciate the force of the argument, this fragment must be read in connection with the episode narrated in Luke 22:49–51.

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Sozzini’s answer to the first question – whether he could lawfully inherit from his brother Bartolomeo when he was de facto tyrant of the city but before he was ‘condemned’ – was that an inheritance, by testament or on intestacy, could not be transmitted to and received by Paolo because his status was analogous to that of a person perpetually banished (deportatus) who, by legal fiction, was treated as a dead person. If a deportatus was instituted heir in a last will, that institution was regarded as non-existent ( pro non scripta).42 Then, on grounds of the lex Quisquis – a key text spelling out the full range of penalties in a case of laesa maiestas against the emperor – the jurist-consultor reasoned by analogy: if the children of a person who committed laesa maiestas are excluded from paternal inheritance and succession, the children’s father, too, is prohibited from accepting any inheritance.43 Consequently, Paolo could not accept an inheritance if by law it could not be transmitted to him. In addition, there was the view of Dino del Mugello, who had argued that a person who committed that crime lost by an operation of law the ownership of his goods.44 But if he lost ownership, he lost also the capacity to acquire according to civil law. Further, Bartolus’s position – a significant and widely accepted modification of Dino rather harsh view – became another argument to add to the list. For Bartolus, what one lost was the right to administer the goods, not ownership.45 To lose ownership, he argued, a judicial ruling was required.46 Accordingly, for the jurist-consultor, if administration was interdicted, one could not acquire an inheritance, for if Paolo had no capacity to enter into an obligation (qui non potest se obligare), he could not accept an inheritance.47 Inheriting was precisely analogous to entering into an obligation. In revisiting municipal statutes, Sozzini found another argument supporting his view. Roman law had a pointed expression to describe the

42 C. 6.24.1 (Qui deportatur). In Roman law, perpetual banishment was the severest form of banishment because it included additional penalties, such as seizure of the whole property, loss of Roman citizenship, and confinement to a definite place – often an island. 43 For the Romanistic foundation of the penalties, see C. 9.8.5 (Qui suis). 44 Dinus ad D. 49.14.43 (Imperator), s.f.: ‘ipso iure perdant dominium rerum.’ The text speaks of heretics. However, the norms on maiestas were often extended to heresy and vice versa. 45 Bartolus ad D. 49.14.43 (Imperator), vol. 6, fol. 243rb. 46 Bartolus pointed out that according to recent developments in canon law, the heretic automatically lost ownership of goods. 47 Sozzini, Consilia, vol. 1, fol. 40vb: ‘quia ista est regula quod ille qui non potest se obligare non potest hereditatem adire.’

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status of a person who because of a crime he had committed was burdened by the weight of its penalty: he was a ‘slave of the penalty’ (ser vus poenae).48 Often used in connection with laesa maiestas, this expression effectively conveyed the extent of the legal incapacity burdening the offender, which was just like that of a slave without a master. Such a person could neither institute an heir nor accept an inheritance.49 The capacity to institute an heir and to be instituted as an heir were two sides of the same coin. Because of his violation of the statutes on the security of the republic of Lucca, Paolo’s position could be likened to that of a slave of the penalty. That the wording of the statutes used the ‘future tense’ now became immaterial, because on close inspection, the statutes did not use the expression ‘will be condemned’ but ‘will be dragged,’ which implies a condemnation by an operation of law. If the statutes conceded the capital execution, they also conceded its necessary or logical antecedent: the condemnation.50 That a condemnation could be executed without a previous judicial ruling was also a point on which jurists, especially canonists, had dwelt.51 While the necessity of a ruling stood as a general legal principle, in situations protracted over time, and thus well known to all (notorietas facti permanentis), the judge could skip the ruling and move directly towards the execution of the established penalty. Paolo’s tyranny had lasted thirty years. His imaginary judge proceeded not by pronouncing a ruling but by executing it.52 Realizing that he was navigating a sea fraught with

48 In Roman law, this expression refers to a free person who became a slave through condemnation to capital punishment, for example, the death penalty, fighting with wild beasts, or forced labour in the mines. Such a person was considered to be a slave without owner, not even the emperor. 49 Sozzini, Consilia, vol. 1, fol. 41ra: ‘Quarto hoc probatur quia clarum est quod effectus servus poenae non potest adire hereditatem . . . quia talis non potest heredes institui . . . ergo non potest adire. Sed talis qui commisit crimen laesae maiestatis fuit effectus servus poenae, ut d. l. quisquis, C. ad l. Iul. maiest., ergo non potuit adire.’ 50 Ibid.: ‘Et sic statutum praesupponit quod taliter delinquentes incurrant poenam ipso iure, nec sit necessaria alia sententia.’ 51 In the aftermath of the Pazzi’s attempt to eliminate Lorenzo and Giuliano de’ Medici, the issue of how to proceed in a notorious crime – that is, whether or not a formal judicial ruling was required before imposing capital punishment – became the centre of a series of consilia written on behalf of Lorenzo de’ Medici. Sozzini was one of several jurists who defended Lorenzo and the Florentine government from the accusation of laesa maiesta brought by Pope Sixtus IV. The attempt was indeed so notorious that the participants, including a bishop, could be punished without trial and judicial ruling. 52 Sozzini, Consilia, vol. 1, fol. 41ra: ‘Et hoc maxime videtur dici posse in terminis nostris propter notorietatem facti permanentis, cum prefatus Paulus tanto tempore dictum

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hypothetical clauses – such as, ‘it seems that one can say,’ ‘this . . . rather than that,’ and ‘according to one reading’ – the jurist-consultor abruptly returned to the initial interrogative and concluded that Paolo could not accept the inheritance of his brother Bartolomeo. Sozzini’s answer to the second question – whether the treasury could incorporate Paolo’s goods – was based on the subtle distinction between being ‘unworthy’ and being legally ‘incapable.’ Roman law had established the principle that an undeserving person – say, one who brought an unsuccessful complaint of undutiful will (a will by which the rights of succession of the nearest relatives were violated by a testator who allegedly disregarded his natural duties) – would lose what he received under the inheritance, which would then go to the imperial treasury. The charges of tyranny and maiestas had placed Paolo in the position of being legally ‘incapable.’ It was also a tenet of Roman and medieval jurisprudence that in a case of incapacity, the treasury was excluded from any claim on the goods. In support of the treasury, there was only one gloss, which was widely contested by major jurists – such as Iacopus de Arena, Cino da Pistoia, Bartolus, and Baldus – who flatly stated that it was plainly wrong ( falsa). The bottom-line argument was quite simple: the treasury could not confiscate what a person could not acquire due to legal incapacity.53 Sozzini’s answer to the third question produces another little-explored analogy to illustrate the legal position of a tyrant. Paolo was like a spendthrift ( prodigus) who could be deprived of the right to administer his own affairs by a court decree.54 The analogy was indeed weak, for interdiction of management did not occur by an operation of law. However, in the case of a notorious spendthrift, whether or not a judicial ruling was necessary was a point on which the opinions of jurists diverged. Some – for instance, Accursius and Petrus de Bellapertica – thought that notorious

dominium retinuerit occupatum, per notata per Innocentium in c. ex parte, de verb. signi., ubi dicit quod iudex in notorio potius dicitur procedere exequendo quam sententiando.’ 53 Ibid.: ‘quoniam ex his quae superius in praedicta quaestione dicta sunt, demonstratum est ipsum Paulum predictae hereditatis fuisset incapacem, ergo sequitur necessaria conclusio quod talis portio hereditatis pertineret ad coheredes suos: quoniam ista datur regula ac doctrina per maiores nostros: quod quando aliquis est incapax hereditatis vel legati illa non auferuntur a fisco tanquam ab indigno, sed remanent penes venientes ab intestato.’ 54 For the Roman-law definition, see D. 27.10.1 pr.

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prodigality sufficed to interdict administration by a mere operation of law; others thought not.55 The analogy of the spendthrift was helpful, but hardly capable of tipping the scales. Far more persuasive were Bartolus’s and Baldus’s discussions of the validity of contracts made with a tyrant. For the former, they were simply invalid and null.56 By contrast, Baldus took a more nuanced view: not all the contracts made with a tyrant were null; only those made under compulsion, duress, and malice. The extent of damages (laesio enormis) inflicted on the person who entered into a contract with a tyrant became the criterion for voiding the transaction.57 For the treasury, there was a tenuous argument: the transactions could not be contested any longer because they fell under the head of prescription. Sozzini counter-argued that prescription did not apply to the current case because of ‘bad faith’ (mala fides). If a third party bought something (res) belonging a minor without court supervision, due to possible fraud, the transaction was invalid: the buyer was bound to restore the thing plus the revenues he had derived from it, and he could not claim the benefits of prescription. Local knowledge58 ( fama) was also on the side of the heirs: the neighbours knew that the things Paolo acquired did not belong to him, and that placed Paolo in a position analogous to that of a buyer in bad faith. In addition, paternal uncles, heirs, and their curators also knew that the goods Paolo had incorporated belonged to them, for among them there was the house in which they lived. Prescription did not work against public knowledge and bad faith. The task of the jurist-consultor was to solve a specific problem, not to pronounce a historical judgment on the signoria of Paolo Guinigi. That the consilium conceals Sozzini’s personal opinion on the signore should come as a no surprise. The understanding of tyranny that emerges from it is that of ‘a bare legal incapacity to act.’ On a broader plane, it indicates 55 Sozzini, Consilia, vol. 1, fol. 41rb: ‘Et licet alii quantum ad hoc contradicant, quando a iudice adhuc non est interdicta administratio, eo quod in illis terminis sola prodigalitas interdicit administrationem ipso iure, de quo dicendum [est] ut ibi dicitur. Tamen in terminis nostris administratio est interdicta propter tyrannidem, cui admixtum est crimen laesae maiestatis, ut supra demonstratum fuit, eo ipso dictus contractus non tenuit.’ 56 Quaglioni, Politica e diritto, 188–96, ll. 266–442. 57 Baldus, Commentaria, ad C. 1.2.16 (Decernimus), and Quaglioni, ‘Un Tractatus de tyranno,’ 64–83. 58 On this term, see Kuehn, ‘Fama as Legal Status,’ 15–46, and Migliorino, Fama e infamia.

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that Bartolus’s construct of tyranny ‘ex defectu tituli’ (a tyrant who has no just title to rule) was a concept applied in practice – contrary to the view of the historians who have quickly dismissed it in an age dominated, or about to be dominated, by functionalist political thinkers such as Machiavelli, Francesco Vettori, and Guicciardini.59 It also shows that the accusation of laesa maiestas could be brought against the actual holder of political power and not only against those who attempted to undermine the established order, civil or religious. More important, it shows that laesa maiestas could be used as a device to produce certain legal effects that could not be accomplished otherwise, such as by statutory legislation. Indeed, municipal law had no instruments capable of focusing on Paolo Guinigi’s legal incapacity and its extreme limits. However, such a device was readily available under the ius commune. On the fairness of Sozzini’s main thesis and purpose – circumscribing the claims of the treasury and bringing the situation back to the instant that marked the beginning of tyranny – there are no doubts. The second consilium foregrounds a refined and elaborated concept of laesa maiestas. The subtlety of its nuances is often obscured by its employment to convey not only the unlawfulness of a deed that has no other name but also that of the class in which it should be placed and the elusive nature of the public entity the deed was thought to violate. The case focused on the ascendants and descendants of Andrea di Biagio Mei – a controversial figure with a history of brushes with the law-enforcement authorities of Lucca. In July 1482, when the general council decided to address the problem of endemic violence, Andrea was banished for three years because of his notorious misdeeds. Although not placed at the top of the list of the troublemakers – eighteen councillors cast a dissenting vote on his banishment – he was regarded with wellfounded suspicion.60 In 1490, he was induced by Francesco Gambini, vicar of Ripafratta and an employee of Lorenzo de’ Medici, to participate in a plot to betray a city gate to the Florentines. The plan was for Andrea to seize the Porta S. Pietro with the assistance of some armed companions and then hand it over to the Florentines. The plot came to nothing when Andrea’s accomplice, Gian Maria di Bartolomeo della

59 Marrara, ‘Il problema della tirannide,’ 99–154. Significantly, the telling subtitle of this illuminating essay is ‘L’abbandono della teoria di Bartolo alla luce della nuova realtà fiorentina e italiana.’ 60 Bratchel, Lucca, 1430–1494, 50–1.

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Filattiera, was accidentally arrested and revealed the conspiracy to the authorities.61 After Andrea’s decapitation and the confiscation of his goods, his brothers contested the extent of the confiscation. One issue proved particularly difficult to solve. Andrea’s grandfather (Meo di Biagio) had left a fideicommissum – a request to his heir to perform a certain action for the benefit of a third party – with the oft-used clause ‘if he dies without children’ (si sine liberis decesserit).62 If one of his descendants and beneficiaries should die without male children, the fideicommissum would then revert to the collaterals – Andrea’s brothers, in this specific case. The situation was further complicated because Andrea had a child who died just after birth. The lawyers of the treasury argued that their client could confiscate the fideicommissum on the grounds that the descendant was legally capable of accepting it, but that it could be taken away because he was ‘unworthy’ (indignus) – that is, the child of a person who committed laesa maiestas. With regard to the stillborn child, a further question was whether or not his mere birth was sufficient to fulfil the requirements of the fideicommissum. Because the conspiracy of which Andrea was part was instigated by a person close to Lorenzo de’ Medici, it is tempting to think that il Magnifico might have decided to help Andrea’s brothers, and for this reason he retained one of his best jurists, Bartolomeo Sozzini, then teaching at the Studio Fiorentino in Pisa. But it is also possible that other Lucchese connections may have been at work. The task of the Sienese jurist was not an easy one because the public treasury seems to have had the help of an equally capable team of jurists. The first consilium Sozzini wrote, which I have not been able to identify thus far, was sharply rebutted, and the jurist was forced to write a second, longer opinion. Both interventions can be squarely classed as consilia pro parte – opinions written on behalf of, or at the request of, the client, not a court official. The bruise to our legal prima donna’s ego had the effect of stirring his professional pride and raising the level of argumentation a few notches – although one cannot avoid the impression that at times he employs excessive subtlety.

61 Ibid., 83–4; for others details on the plot and its aftermath, see Lazzareschi, ‘Relazioni fra il Magnifico Lorenzo,’ 342–60. 62 The fideicommissum was further burdened with another condition: it could not be alienated.

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Sozzini’s second opinion also suggests that the early stage of the debate was strictly focused on the fideicommissum and the conditions of its validity. It was only at a subsequent stage that the issue of laesa maiestas was brought into the discussion, and this by the jurist of the treasury. This is confirmed, indirectly, by Sozzini’s argument that the statutes of Lucca did not employ the term when listing the penalties for threats to the security of the state. It is indeed unlikely that the original charges against Andrea and his associates contained an accusation that had no grounds in the local statutes. Further, Sozzini was aware of the jurisdictional limitation that statutes imposed on city officials. Following the lay canonist Johannes Andreae and Nello da San Gimignano, he stressed that ‘present day officials’ are bound to act within the jurisdiction given them by the statutes, and laesa maiestas was certainly not part of their active vocabulary.63 The lawyers of the treasury had mastered the arguments on laesa maiestas and Bartolus’s doctrine of the independent city (civitas quae superiorem non recognoscit). The city of Lucca did not recognize a superior authority and thus enjoyed the same rights and privileges as the ‘emperor.’ Further, although they granted that it was doubtful that laesa maiestas could be committed against any lesser authority than the emperor, nevertheless, citing the gloss, Bartolomeo da Saliceto, and the popular manual of criminal procedure by Angelo Gambiglioni, they concluded that it could be committed against an independent city. If Andrea’s crime was indeed laesa maiestas, his children could not succeed to or inherit from their father and grandfather because they were ‘unworthy,’ and the goods of their father passed to the treasury. Furthermore, because children could be deprived of goods that came to them through their mothers on the grounds of the lex Quisquis § Uxores,64 this was even more the case when the goods came to them through a third party – the grandfather. Full legal capacity to inherit and succeed were pivotal to the claims of the treasury. The counterclaim of the jurist-consultor was that Meo’s children and grandchildren should succeed to their grandfather on the basis of the fideicommissum and that the treasury could not invoke the argument of unworthiness. His starting point was the traditional teaching on laesa maiestas and the limited range of its application – the Roman Republic and the emperor. Via Nello da San Gimigniano, Baldus’s consilium on Barbadori’s case

63 Sozzini, Consilia, vol. 2, fol. 176ra: ‘Nam potestates civitatum et alii officiales non habent hodie iurisdictionem nisi quatenus a statutis conceditur.’ 64 C. 9.8.5.5; the wives, however, could keep their dowry.

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was invoked to reinforce his thesis. Further, as Nello reported, Baldus’s intervention had created a broad legal consensus that affected even the way in which Florentine lawyers operated.65 A consensus that was difficult to ignore had been constructed around the limited applicability of maiestas. Furthermore, according to Sozzini, the argument could not be advanced because of the very formulation of Lucca’s statute on security: the municipal legislator used the term proditio, not laesa maiestas.66 In both claim and counterclaim, maiestas was a monolithic construct bereft of the nuances scholarship had erected around it since the time of the commentators. Furthermore, once it was introduced into the legal debate, it was difficult to dismiss. For the jurist-consultor, flatly denying that charge was certainly an option but one that would have not excluded the possibility of recasting the charge as perduellio – a crime that broadly fell under the heading of maiestas according to the ius commune. The path he chose was to show that the assumption of the treasury’s lawyers rested on too broad a generalization and ignored the many capitula (headings) into which maiestas had been subdivided, each with its own well-defined set of imposable penalties. In order to exclude unwarranted generalizations, he examined each capitulum in light of two basic legal principles (regulae iuris): first, hateful penalties – such as depriving children of succession and inheritance – could not be extended from one heading to the next; and, second, in criminal law, penalties should be mitigated.67 The starting assumption of the treasury was thus blocked in the first square – the first capitulum. Next to doctrine stood practice. Angelus de Ubaldis had stated that customarily the penalties of the lex Quisquis were not applicable to children. Normally, the opinions of jurists on matters of law were authoritative; their statements on judicial praxis were binding, and this was particularly true in the case of Angelus, who was an ‘excellent doctor and

65 Sozzini, Consilia, vol. 2, fol. 173ra: ‘Et secundum hanc opinionem consuluit Baldus, prout refert et sequitur insignis doctor Nellus de S. Geminiano in Tractatu bannitorum, in prima parte secundi temporis, ubi dicit quod ita vidit per viros magnae authoritatis consultum, et quod ita in civitate Florentiae pluries observatum fuit.’ For the same argument, prompted by another set of circumstances (a revolt in Sarzana against the lordship of Tommaso da Campofregoso of Genoa), see also Sozzini, Consilia, vol. 4, no. 57, fols 76ra–79rb. Here, too, the initial charge was laesa maiestas. 66 Ibid., vol. 2, fol. 173ra: ‘Et hoc maxime dicendum est in civitate Lucana, qua statutum sub rubrica De declaratione quinque casuum appellat crimen proditionis contra civitatem et pacificum statum et non laesae maiestatis, quae crimina ut separata distinguuntur.’ 67 Respectively, c. In poenis VI 5.13.49 and c. Odia VI. 5.13.15.

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expert on judicial procedure.’ For Sozzini, this was a point that the presiding judge ‘should very carefully consider.’68 The sweeping assumption of the treasury’s lawyers could not stand even when the status of the city (civitas quae superiorem non recognoscit) was taken into consideration. Following established Bartolan doctrine, Sozzini argued that a city could become independent from the superior authority of the empire in three ways: de facto, by prescription, and by grant or privilege. Each of these modes of acquisition had restrictions and limitations impeding the application of the maximum penalty reserved for cases where the majesty of the emperor was offended. Because the legal implications of these restrictions have been glossed over or ignored by many historians who have discussed the impact of Bartolus’s consequential formula, it seems opportune to dwell on them for a moment. De facto acquisition was a plain usurpation of jurisdiction for which a city should be punished. If the acquisition in se deserved punishment, the city ought not to receive a prize and be rewarded with a privilege.69 Acquisition by prescription was also problematic, for the ‘supreme power of the emperor was not subject to prescription,’ just like that of the pope.70 Both of them, after all, came from God. Further, prescription did not place a city on the same level as the emperor, for there was a difference between ‘being such’ and ‘being treated as such.’ In addition, prescription could not be extended from one case to a similar one.71 Similarly, acquisition by concession or privilege would not have placed a city on the same level as the emperor. Citing extralegal authorities such as the historian Flavio Biondo, Sozzini observed, not without some irony, that the emperor Rudolph had granted Florence freedom for a price of ‘six thousand ducats’ and Lucca for just ‘twelve.’ However, although freedom and the same rights as those of the princeps were granted, neither city was the ‘emperor,’ for what belongs to a person or a city because of a privilege and what belongs to it because of 68 Sozzini, Consilia, vol. 2, fol. 173va: ‘Statur autem dicto doctoris et periti quando dicit quod aliquid servatur vel non servatur de consuetudine . . . et maxime hoc in persona Angeli, qui fuit excellentissimus doctor et practicus. Unde illud verbum est multum ponderandum a domino iudicare debente.’ 69 Ibid.: ‘quoniam ex quo usurpant sibi iurisdictionem, et sic ex tali usurpatione, ex qua venirent puniendi, non debent praemium consequi et privilegium.’ 70 Consilia, vol. 2, fol. 173vb: ‘quoniam secundum magis communem opinionem doctissimorum virorum suprema potestas imperatoris praescribi non potest.’ 71 Ibid.: ‘suprema potestas acquisita in multis preascriptione non debet extendi ad alia quae competunt ratione supremae potestatis, quia praescriptio non extenditur de similibus ad similia.’

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the ius commune were not the same.72 The conclusion drawn from these three variations on the same theme was that such hateful disposition could not be extended and applied to any other case than the emperor himself. Not even construing the legal position of a city as universitas – a corporate entity – was of much help in the way of extending penalties. Lex Quisquis spoke of those who offended the ‘person’ of the emperor. But a city that did not recognize the emperor as superior, though it was undeniably a universitas, was not a ‘real person.’ It was a legal fiction that made a city into a ‘legal person,’ and both Angelus and Baldus had argued that strict and hateful penalties could not be exported from a real to a fictitious person.73 Next, the jurist-consultor turned his attention to the hermeneutical rules of the ius commune to reinforce his point. Jurists had mastered the art of extending norms from an explicitly contemplated case to a similar one in order to fill in the inevitable lacunas of the statutory system.74 However, restrictions on the hermeneutical play with penalties were more severe. ‘Identity of reason,’ Sozzini observed, did not suffice in criminal law, and two other criteria were required. First, the reason for extension must be stated in the text of the law, and second, the two situations must be exactly identical. Perceptively and with a bit of irony, he pointed out that the disposition of the lex Quisquis did not state any reason for the imposition of those severe penalties and that if by chance a reason could be deduced from the text, that only supported the opposite conclusion.75 Although the statutes were the main argument of the treasury, it was not a difficult task for the jurist-consultor to show that the judge could not impose a penalty that was not contemplated by municipal law. ‘Present

72 Consilia, vol. 2, fol. 174ra: ‘Si vero et tertio casu volumus dicere quod civitas Lucana gaudeat plena libertate ex concessione imperatoris, prout dicunt Blondus, lib. vii, ii decadis, et Palatina De vita pontificum, in vita Honorii, qui dicunt quod Rudulphus concessit libertatem Florentinis pro sex millibus ducatis et Lucensibus pro xii ducatis, adhuc idem concludendum est multiplici ratione. Primo, quia, licet habeant libertatem et iura principis, non sunt imperator. Sed bene dici possunt quod sunt loco imperatoris.’ 73 Ibid., fol. 174rb: ‘Nam d. l. quisquis loquitur quando offenditur persona imperatoris et loquitur in personam: igitur non habet locum in civitate, quae etiam superiorem non recognosceret, quia est universitas, quae vere non est persona licet loco personae fingatur. Nam dicimus quod dispositio odiosa et stricta, quae loquitur de persona, non habet locum in universitate.’ 74 On broad and narrow interpretation, see Sbriccoli, L’interpretazione dello statuto, 209–322. 75 Sozzini, Consilia, vol. 2, fol. 174ra.

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day officials,’ he stated, ‘enjoy only that amount of jurisdiction that the statutes give them.’76 However, while the statutes on proditio and rebellion only barred the children from paternal succession and inheritance, they said nothing on succession to grandfathers and fideicommissa. The treasury had a further argument: the statutes used the indefinite aliquam successionem, which was understood as ‘succession to anyone’ and thus included the grandfather. However, that indefinite or ‘universal’ expression should not be understood, Sozzini rebutted, ‘with regard to persons,’ and it was inserted with reference to testate and intestate succession.77 The discussion on whether or not Andrea’s stillborn child fulfilled the condition of the fideicommissum does not have to detain us here.78 While the treasury argued that the birth fulfilled the condition, Sozzini maintained that it did not because, as Baldus had argued, a child must be born alive, even if the anticipated first cry was not emitted, to be instituted as posthumous heir.79 Because of the unfulfilled condition, the fideicommissum reverted to the collaterals and could not be confiscated. To further complicate this issue, there was another set of circumstances that had to be taken into consideration: the child was conceived before the crime but born after. A widely known rule of Roman law held that children born before deportatio defeated the condition ‘if he dies without children’ attached to a fideicommissum; children born after, however, were thought to be born from a ‘different person.’ Furthermore, if the condition was defeated, the goods went to the treasury. The folios-long discussion80 of this issue is a tour de force in subtle interpretation of laws and statutes and a lesson in the hidden dangers of extending the norm stated in the lex Ex facto, § Ex facto (D. 36.1.18[17].5) to the present case. For the juristconsultor, birth, not conception, stood as the discriminating moment. Because the child was born of a father who lost his rights as citizen and freedom

76 Ibid., fol. 174vb: ‘iudex non potuit imponere aliam poenam quam in statuto contineatur, quia officiales hodierni temporis non habent iurisdictionem nisi quatenus a statutis eis attribuatur.’ 77 Ibid., fol. 175ra: ‘Et ad illam universalem “aliquam” clare respondeo quod illam universalis non respicit personas a quarum successione vult excludere . . . quasi dicat [neque] ex testamento neque ab intestato.’ 78 On this point Sozzini is not clear: on one hand, he suggests that it was an abortion that probably occurred in the latter period of gravidation; on the other hand, he speaks of a stillborn child. 79 The starting point for this whole discussion is the lex Quod certatum, C. 6.29.3. 80 Sozzini, Consilia, vol. 2, fols 175ra–76va.

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(ex eo qui amist civitatem et libertatem), the fideicommissum reverted to the collaterals – Andrea’s brothers – and could not be confiscated. Whether the second consilium persuaded the presiding judge is not known. The sophistication of Sozzini’s argumentation, although difficult to follow even for specialists, indicates that the salary he could command was not disproportionate to his abilities. However, if his overdose of subtlety may deter readers, his consilium should not be ignored for another reason: the deployment of arguments based on history and his attempt to separate the legal history of republican Rome from that of the empire. Suitable to Lucca’s conditions was the former, for it did not include the imputation of laesa maiestas. In the history of the emergence of that elusive entity called the ‘modern state,’ crimen laesa maiestatis has been presented as one of the most oppressive legal constructs devised to repress dissent, ensure obedience, and protect the very existence of the established political or religious authority.81 The bare sovereignty of the incipient state required an appropriate dress: maiestas. The focus of jurists and historians solely on the moment of the intellectual construction of the infraction has certainly created a monster. Undoubtedly, in addition to the benefits of order and clarity, systematic elaboration can also produce its own monsters that exist as a figment of the imagination. The two consilia examined above help to remind us of a few neglected aspects of this construct. First, like Janus, maiestas has two faces: as commonly assumed, it is the crime of subjects who threaten the established order and, though less frequently, that of the tyrant. Second, contrary to its quick dismissal, Bartolus’s construct of the tyrant ‘ex defectu tituli’ found application in a forensic debate. Third, maiestas is a cluster of crimes with graded penalties rather than a single offence. Fourth, it has also been used as a device to produce certain legal effects that could not be produced otherwise. The disciplinary lexicon of the statutes of Lucca did not include the term – an exclusion of which Sozzini was acutely aware. It entered rather late into the forensic debate and local statutes thanks to the jurist-consultors themselves, who deployed it to solve a legal impasse created by the limited vocabulary of, and the absence of sophisticated analytical tools in, the local statutes. Paradoxically, rather than favouring the claims of the state’s treasury, it ensured that ascendants, descendants, and collaterals of the accused would retain part of the wealth that was the initial object of confiscation.

81 Sbriccoli, Crimen laesae maiestatis, 1–7, 363–5; Martines, Lawyers and Statecraft, 445.

Afterword LAWRIN ARMSTRONG

In Quaderno 12 of the Quaderni del carcere, Antonio Gramsci turns to the history of ‘intellectuals,’ whom he defines broadly as those, such as lawyers, who perform some organizational or directive role in society. ‘Can one,’ he asks, find a unitary criterion to characterise equally all the diverse and disparate activities of intellectuals and to distinguish these at the same time and in an essential way from the activities of other social groupings? The most widespread error of method seems to me that of having looked for this criterion of distinction in the intrinsic nature of intellectual activities, rather than in the ensemble of the system of relations in which these activities (and therefore the intellectual groups who personify them) have their place within the general complex of social relations.1

The methodological error Gramsci identifies was (and remains) particularly characteristic of traditional continental legal history, which privileges the academic exposition of the ius commune and the intellectual lineage of doctrines over the actual practice of medieval and Renaissance lawyers, the latter expressed above all in consilia, the written opinions inspired by the concrete problems with which jurists grappled on a daily basis.2 Perhaps more than any other genre, consilia reflected ‘the general complex of social relations’ in which jurists operated. It is no exaggeration to 1 Gramsci, Quaderni del carcere, vol. 3, Quaderno 12 § 1; English translation in Gramsci, Prison Notebooks, 8. 2 See in particular the remarks of Thomas Kuehn in ‘Lawyers and Housecraft in Renaissance Florence,’ in this volume.

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say that Lauro Martines’s Lawyers and Statecraft in Renaissance Florence marked a decisive historiographical turn that drew inspiration – directly or indirectly – from Gramsci’s critique, itself very much ‘in the air’ in the 1950s and 1960s, as the first editions and translations of the Prison Notebooks influenced the political strategies of the Italian Communist Party and inspired fresh methodological approaches, above all in history. As Martines himself observes in his contribution to this volume on the genesis of Lawyers and Statecraft: My larger aim, right from the beginning, was to lodge Florence’s learned lawyers in a world that would include the different social classes, the professions, trade, money, and political power. And if the shadow of something Marxist fell over this approach, then so much the better for Marxism. I could think of no better way to take hold or make sense of an intriguing group of men. In effect, I was interested in them as agents and actors in a rich social and political context. It occurred to me that without such a context, their legal training could have no historical significance and almost no meaning.3

As all the contributions to this volume attest, Martines’s insistence that lawyers must be understood above all as social and political actors has had an enduring influence on the way historians interpret lawyers and law in the Italian city-states. The effect of Lawyers and Statecraft was immediate and, unusually for an English-language study, not just on Anglo-American scholarship: Mario Sbriccoli enthusiastically endorsed Martines’s approach in his magisterial L’interpretazione dello statuto, published a year later. In the present collection, Julius Kirshner evaluates the influence of Martines’s book in a wide-ranging critical assessment of Lawyers and Statecraft, both in its contemporary context and in the light of the changing legal and political historiography of medieval and Renaissance Italy since 1968. If, in Kirshner’s view, Martines underestimated the critical role of the notariate in the legal culture of Florence and the complexities of exploiting consilia as evidence of the positive political commitments of jurists, he nevertheless roundly confirms the productivity of the central interpretative thrust of Lawyers and Statecraft, which remains unaffected by radically changing conceptions of the Italian city-states in the last forty years. Kirshner also emphasizes the extent to which the contributions to this volume do

3 See ‘The Composition of Lawyers and Statecraft,’ above, 4.

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not exhaust the thematic possibilities opened up by the bold perspectives of Lawyers and Statecraft: conspicuously wanting here, for example, are studies of the leading role jurists played in diplomacy – one that matched their prominence in domestic public affairs – and any comparative consideration of lawyers in Renaissance Florence and Milan, which provides the cap-stone of Martines’s study. In keeping with his earlier research on the social networks in which the civic humanists were embedded, Martines’s time frame in Lawyers and Statecraft is tightly focused on the later fourteenth and fifteenth centuries. But as Sara Menzinger shows in her essay on ‘lawmen’ in the popolo regimes of Perugia, Bologna, and Siena, Martines’s approach can be fruitfully employed to interpret the civic engagement of jurists in the thirteenth century. Thus, far from being tied to uniquely Florentine circumstances, the key political and social roles of lawyers identified by Martines should be seen as part of a much wider phenomenon, itself the product of the emergence and uneven evolution of the Italian commune, neatly summed up in the expression consilium sapientum, which, in Perugia at least, referred both to an expert opinion composed by a team of jurists at the request of the government and to the institutional forum in which lawyers were regularly convened to advise the commune’s magistrates. Moritz Isenmann’s essay returns to the chronological terrain of Martines’s study with an examination of the role of administrative controls in the establishment of oligarchic, and later Medicean, dominance in late trecento and quattrocento Florence. In contrast to the ‘consensus’ model of political order that currently holds sway in the Anglo-American historiography, Isenmann’s essay – implicitly invoking Carl Schmitt’s concept of the ‘state of exception’4 – maintains that jurists, driven by the limitations implicit in their own legal constructs and the urgent political requirements of the elite, contributed to elaborating an apparatus of violent repression that guaranteed the stability of the Albizzi and Medici regimes by effectively destroying the rule of law expressed in institutions such as syndication. As Martines remarks in Lawyers and Statecraft, much of a practising lawyer’s energy and skills was absorbed by the drafting and interpretation of communal statutes, and by elucidating the relationship between ius proprium norms and those of the ius commune, topics taken up by Susanne Lepsius and Lorenzo Tanzini. Lepsius considers the dialogue between the

4 Schmitt, Political Theology, 5–15.

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exegetical production of a leading jurist, Paolo di Castro – who frequently lectured on civil law in the Florentine studio in the first three decades of the fifteenth century, when the city’s corpus of statutes was being systematically revised – and the patterns of statutory interpretation revealed in his consilia, which suggest that although the jurist adopted a variety of interpretative strategies in expounding the ius proprium, he generally opted for the widest possible application of the statutes consistent with the ius commune. The collective interpretative wisdom of local Florentine practitioners was distilled into commentaries on the statutory compilations, often in the form of successive layers of glosses augmented and expanded by several generations of jurists. Tanzini examines one of the most influential of such commentaries, the Adnotationes ad statuta florentina of Tommaso Salvetti, which expounds the 1415 redaction of the statutes with reference to the consilia of Salvetti’s predecessors and those of Salvetti himself. Long believed lost, Salvetti’s complete text has been recovered and reconstituted by Tanzini, whose essay analyses the text and its diffusion beyond Florence in a model of historical detective work. Perhaps the most striking characteristic of Martines’s book is its extensive use of consilia to gauge the political attitudes of jurists and to illustrate the ways in which they served political power. But as Lepsius reminds us, the bulk of a lawyer’s consultative activity was dedicated to issues of private law: disputes over dowry, inheritance, kinship, marriage, legitimacy, and private property. The issue is tackled by Thomas Kuehn in his study of a sequence of joint consilia on a hypothetical problem of dotal sureties that highlighted ambiguities in the relevant statutory norms. Kuehn concludes that the private-law consilium represented as much a conduit for the diffusion of ius commune principles as the more high-profile public advice often required of jurists by the government. The political is the focus of essays by Robert Fredona and Osvaldo Cavallar, which examine respectively fourteenth- and fifteenth-century invocations of the crime of laesa maiestas, or treason, a crime that, as these contributions remind us, loomed large in the turbulent factional politics of the city-states. For the great civilian and canonist Baldus de Ubaldis, two of whose consilia are at the centre of Fredona’s essay, the question was whether republics such as Florence could be deemed to possess the quality of maiestas, properly an attribute of imperial authority. His answers, which insist that the government adhere to its own statutory norms, considerably complicate the by now traditional account of the role of lawyers in paving the way for arbitrary, absolutist government. Cavallar’s study of two consilia by the Sienese jurist Bartolomeo Sozzini generated by the fallout of the brief

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tyranny of Paolo Guinigi in Lucca and a failed Florentine coup against the city illustrates how laesa maiestas could be deployed not simply to repress dissent but, invoked in unexpected contexts, to resolve conflicts arising from the confusion of public and private interests so characteristic of the era. Beyond a general debt to the themes and methodology of Lawyers and Statecraft, what links most of the essays in this volume – and what also most clearly distinguishes them from Martines’s conclusions – is the willingness of contributors to view the interventions of lawyers in the life of the city-states in politically constructive terms. As Kirshner observes in his essay, Martines’s approach in Lawyers and Statecraft is ‘unapologetically instrumentalist,’ and his concluding verdict on Florentine lawyers is that from at least 1434 they dedicated their professional skills to strengthening the executive at the expense of other organs of the republic, thus clearing the path for the principate. A variation of this view is maintained here only by Isenmann’s essay, with its harsh assessment of the administrative measures evolved to quell dissent in oligarchic and Medici Florence. Other contributors implicitly align themselves with the position elaborated by Kirshner in several case studies, culminating in ‘Baldo degli Ubaldi’s Contribution to the Rule of Law in Florence’ (2005), that argue for the relative autonomy of the legal profession in the face of political constraints.5 Thus, for Menzinger the history of lawyers’ engagement in the thirteenth-century communes is one in which jurists of largely aristocratic background transcended their class origins in the interests of a common political project with the emergent popolo. Lepsius and Fredona agree that lawyers could display a staunch interpretative independence in the face not only of the consensus of their professional colleagues but of overt pressure from public authorities to reach politically desirable conclusions. For Cavallar, an emphasis on the elaboration of state power obscures the complex ways in which legal constructs such as treason could be wielded creatively in essentially non-political, even private-law contexts. Kuehn concludes that the overriding concern of lawyers in problems of private law was equity, however much this might conflict with an ideological bias in favour of, for example, patrimonial inheritance strategies; and Tanzini perceives in the exegetical activities of lawyers such as Salvetti the forging of a space in which jurists could express their professional and vocational identity relatively free of the imperatives of power.

5 See also Kirshner, ‘Citizen Cain of Florence,’ and ‘Consilia as Authority in Late Medieval Italy.’

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I remain unconvinced, because the relative autonomy of lawyers and law rarely seems to threaten the political and social status quo, particularly in contexts such as those of the medieval and Renaissance city-states (or, for that matter, contemporary Europe and America), where political and economic power were, as Martines and Sbriccoli well understood, thoroughly imbricated. As several essays here show, and as Kirshner has amply demonstrated, lawyers might challenge particular deployments of political power, but rarely power itself, which medieval and Renaissance jurists in the final analysis considered to be duly constituted by the ius commune and ius proprium, the source of their symbolic capital and the conceptual and professional framework of their activities. In view of the near consensus of the essays in this volume on the political autonomy of lawyers, it is notable that none seriously challenges Martines’s account of class in Lawyers and Statecraft. In the tradition of the great anti-fascist historian Gaetano Salvemini, Martines’s book represented a forceful intervention in the debate about the composition of the Florentine ruling class, and his metaphor of progressively more restricted circles of political and social influence was cited in most subsequent discussions of the issue.6 Class – and class domination – has remained at the centre of Martines’s work ever since. In 1969, a year after the eruption of violent protests against war, racism, and capitalism on First and Third World campuses, he convened a workshop at UCLA on violence and civil disorder in the Italian city-states. Martines’s introductory essay to the proceedings pleads with historians of violence to resist the temptation, dictated by the nature of their sources, to side reflexively with elites. Instead, he maintains, they should attend to inter-class and institutional violence, observing that ‘the history of violence is also a history of the values and institutions that define it.’7 Martines returned to the theme in his ambitious survey of politics and culture, Power and Imagination: City-States in Renaissance Italy (1979), where he provocatively reads Renaissance art and humanism – not only in Florence but throughout north and central Italy – in essentially Gramscian terms as ‘the articulated, formal, refined, or idealizing consciousness of those who speak for the powerful,’ whether the latter were the thirteenthcentury popolo, the oligarchs of early quattrocentro Florence, or the

6 Lawyers and Statecraft, 388–9. Cf. Kent, ‘Florentine Reggimento,’ 577–8; Brucker, Civic World, 262–82; and Molho, Marriage Alliance, 201–2. 7 Violence and Civil Disorder in Italian Cities, 1200–1500, 14.

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Milanese signori.8 An Italian Renaissance Sextet (1994) and Strong Words: Writing and Social Strain in the Italian Renaissance (2001) took the argument into the domain of literature. Martines’s close reading and thick contextualization of popular verse and novelle powerfully illuminate the passions of love, hate, fear, and revenge, political inclusion and exclusion, that animated the face-to-face culture of the city-states. The interpretation of Medici Florence in terms of patronage networks that cut vertically across class lines, expressed above all in the work of Dale Kent, is strikingly absent from the studies published here.9 Indeed, Martines’s most recent books, April Blood: Florence and the Plot against the Medici (2003) and Fire in the City: Savonarola and the Struggle for Renaissance Florence (2006), illustrate just how precarious and ultimately fragile such networks were as the foundation of a regime of domination. The assassination of Giuliano de’ Medici in April 1478 at the hands of the Pazzi conspirators (and the narrow escape of Lorenzo) drew, as Martines shows, on deep reserves of republican resentment, and the swift radicalization of the patrician anti-Medici coup of 1494 was the product of rage from below, channelled into revolution by the charismatic, chiliastic preaching of Savonarola, the Trotsky of quattrocento Florence. If therefore most of the essays in this volume contest Martines’s ultimate judgment on the politics of law in late medieval and Renaissance Italy, they also illustrate – not least by their striking silences – the formative influence of his (in every sense) radical intervention in Renaissance and legal history in Lawyers and Statecraft. But more significantly, their critical engagement with his themes and theses exemplifies precisely the kind of revisionist history so long and so ably championed by Lauro Martines himself. Noi lo salutiamo.

8 Power and Imagination, ix. 9 Rise of the Medici and Cosimo de’ Medici and the Florentine Renaissance.

Contributors

Lawrin Armstrong, associate professor of medieval studies at the University of Toronto, studies the relationship between law and economic thought in late medieval Italy. He is author of Usury and Public Debt in Early Renaissance Florence: Lorenzo Ridolfi on the ‘Monte Comune’ (2003) and co-editor of Money, Markets and Trade in Late Medieval Europe: Essays in Honour of John H.A. Munro (2007). Osvaldo Cavallar is professor in the Department of Policy Studies at Nanzan University, Japan, where he pursues research into late medieval jurisprudence and Renaissance political theory. He is author of Francesco Guicciardini giurista: I ricordi degli onorari (1991) and co-author of A Grammar of Signs: Bartolus da Sassoferrato’s Tract on Insignia and Coats of Arms (1994). Robert Fredona recently completed a doctorate in history at Cornell University with a dissertation on political conspiracy in Florence, 1340–82. He has published ‘Liberate diuturna cura Italiam: Hannibal in the Thought of Niccolò Macchiavelli’ in Florence and Beyond: Culture, Society and Politics in Renaissance Italy (2008) and ‘Carnival of Law: Bartolomeo Scala’s Dialogue De legibus et iudiciis,’ Viator 39 (2008). Moritz Isenmann is lecturer (Wissenschaftlicher Mitarbeiter) in early modern history at the University of Cologne. His research centres on the relationship between law and politics in late medieval and early modern Italy and Spain. He is author of Die Verwaltung der päpstlichen Staatsschuld in der Frühen Neuzeit: Sekretariat, Computisterie und Depositerie der Monti vom 16. bis zum ausgehenden 18. Jahrhundert (2005) and Legalität

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und Herrschaftskontrolle (1200–1600): Eine vergleichende Studie zum Syndikatsprozess: Florenz, Kastilien und Valencia (2010). Julius Kirshner, professor emeritus of history at the University of Chicago, has published extensively on late medieval and Renaissance legal history, economic thought, and social history. He is author of Pursuing Honor while Avoiding Sin: The ‘Monte delle doti’ of Florence (1978), coauthor of A Grammar of Signs: Bartolus da Sassoferrato’s Tract on Insignia and Coats of Arms (1994), and co-editor of several volumes, including The Origins of the State in Italy, 1300–1600 (1996) and From Florence to the Mediterranean and Beyond: Essays in Honour of Anthony Molho (2009). Thomas Kuehn is professor of history and chair of history at Clemson University. He pursues research on elements of family law in the lives of Renaissance Florentines. He is author of Emancipation in Late Medieval Florence (1982) and Law, Family, and Women: Toward a Legal Anthropology of Renaissance Italy (1991). His most recent books include Illegitimacy in Renaissance Florence (2002) and Heirs, Kin, and Creditors in Renaissance Florence (2008). Susanne Lepsius is professor of legal history and private law at the Ludwig Maximilian University, Munich. She is author of Der Richter und die Zeugen: Eine Studie zum Tractatus testimoniorum des Bartolus von Sassoferrato (2003) and Von Zweifeln zur Überzeugung: Der Zeugenbeweis im gelehrten Recht ausgehend von der Abhandlung des Bartolus von Sassoferrato (2003), and co-editor of several volumes, most recently Max Weber, Zur Geschichte der Handelsgesellschaften nach südeuropäischen Quellen: Schriften 1889–1894, Max Weber-Gesamtausgabe, vol. 1.1 (2009). Lauro Martines was born in Chicago and took his PhD at Harvard University. He is a former professor of history at the University of California, Los Angeles. A leading authority on the Italian Renaissance, he has published prolifically on the social and cultural history of the period. His books include Lawyers and Statecraft in Renaissance Florence (1968) – the inspiration for this volume – the pioneering study The Social World of the Florentine Humanists (1963), and Power and Imagination: City-States in Renaissance Italy (1979). His most recent books include April Blood: Florence and the Plot against the Medici (2003) and Scourge and Fire: Savonarola and Renaissance Italy (2006).

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Sara Menzinger, lecturer (Ricercatrice) in law at Roma Tre University, is a specialist in the legal culture of early communal Italy. She is author of Giuristi e politica nei comuni di popolo: Siena, Perugia e Bologna, tre governi a confronto (2006) and is currently editing the Summa trium librorum of Rolandus de Luca under the auspices of the German Historical Institute in Rome. Lorenzo Tanzini is lecturer (Ricercatore) in history at the University of Cagliari. His research is particularly concerned with the institutional history of Renaissance Florence and the construction of the territorial state in early modern Tuscany. He is author of Statuti e legislazione a Firenze dal 1355 al 1415: Lo statuto cittadino del 1409 (2004), Il governo delle leggi: Norme e pratiche delle istituzioni a Firenze dalla fine del Duecento all’inizio del Quattrocento (2007), and Alle origini della Toscana moderna: Firenze e gli statuti delle comunità soggette tra XIV e XVI secolo (2007).

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Bibliography

Manuscripts Cited Castiglion Fiorentino – Biblioteca Comunale Statuto (1384) Florence – Archivio Niccolini da Camugliano MS 5 – Archivio di Stato Balìe 17; 25; 26; 29; 30 Capitano 1197 bis; 1198 Carte Strozziane II, 3; III, 42 Catasto 69 Corporazioni religiose soppresse 78 (Badia di Firenze), 389; 98 (Santa Maria a Monticelli di Firenze), 263 CP 18; 19; 26 CR 13; 19b Diplomatico (a quaderno), Castiglion Fiorentino, 19 March 1428 Esecutore 840 LF 44; 45 Manoscritti 5; 11 Missive 18; 19 PR 29; 67; 68; 69; 76; 80; 83; 84; 86; 126–8; 153; 156 Sindacati Statuti 12; 14; 16; 18; 20; 23 Tratte 223; 576; 603 – Biblioteca della Facoltà di Giurisprudenza dell’Università di Firenze C 2 73bis

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Index

Acciaiuoli, Donato, 71 Accolti, Francesco ( jurist), 22 n Accursius ( jurist), 174 –5 Agamben, Giorgio, 35 n Agli, Antonio, bishop of Fiesole, 110 Albergotti, Ludovico ( jurist), 86 Alberti (family, faction), 67 Albizzi (family, faction), 58, 67–70, 109, 186; Piero di Filippo, 144, 146–7, 148, 150 Alidosi, Obizzo degli, 64 ammonizione (proscription), 144 Anghiari, battle of, 73 Antignalla, Ruggiero ( jurist), 127 n, 133, 134, 135 Antonio da Romena ( jurist), 132 Anziani (Lucchese magistracy), 162 arbitrium (discretionary authority), 62–5, 71, 154 Arezzo, 32, 155 aristocrats. See magnates, nobles Aristotle, 22, 61, 168 Arte dei Giudici e Notai. See Guild of Lawyers and Notaries Ascheri, Mario, 24 n, 125, 139

Asini, Giovan Battista ( jurist), 117 Athens, duke of (Walter of Brienne), 63 Badia Fiorentina, 108, 110 Balbus, Johannes (lexicographer), 167 Baldus de Ubaldis. See Ubaldis, Baldus de balìa (plenipotentiary magistracy): Bologna, 53; Florence, 15, 16, 21, 62, 63, 64, 66, 67, 69, 71, 73, 75, 109, 111, 112, 118–19, 146; Lucca, 162 banishment, 10, 15, 22, 60, 61, 172 n, 176 Barbadori, Donato, 145, 147, 149 n, 150, 151, 169, 178–9 Bargello (police magistracy), 73 Bartolomeo da Saliceto ( jurist), 83– 4, 85, 87, 178 Bartolus of Sassoferrato, 10 –11, 22, 25, 26, 27, 30, 37, 64 n, 77, 131, 133, 134, 135, 136, 137, 143– 4, 157–8, 163– 4, 167–9, 172, 174, 175, 176, 178, 180 Belloc, Hilaire, 161 Bellomo, Manlio, 11 n, 125– 6

224

Index

Bencivenni, Alessandro ( jurist), 18, 20 –1, 33–5, 36, 38, 87, 103– 4, 113–14, 116, 139 Biondo, Flavio, 180 Black, Jane, 100 n Boccaccio, Giovanni, 12 Bodin, Jean, 25 Bologna, 28 n, 31 n, 44, 45, 48, 53– 4, 146, 151, 163, 186; university, 3, 9, 13–14, 77, 83, 95, 97 n, 108, 134 Bonizi, Guaspare ( jurist), 127 n borsellino (electoral pouch), 66 n, 70 n Bowsky, William, 50 Bracciolini, Poggio, 9, 13, 127 Bratchel, M.E., 166, 168 n Brizio, Elena, 125 Brucker, Gene, 9, 11, 68, 159 Bruni, Leonardo, 9, 13, 110n, 127, 147n Buongirolami, Giovanni (jurist), 35, 104 Calasso, Francesco, 10 Cambioni, Niccolò ( jurist), 35 Canning, Joseph, 25 n, 150 n Capitano di Balìa. See Capitano di Guardia Capitano di Guardia (or di Balìa) (Captain of the Guard), 62, 63, 64, 66, 67, 68, 69, 70, 71, 72, 73 Capitano di Guerra (Sienese magistracy), 62 n Capitano del Popolo (Captain of the People), 45; Florence, 6, 56, 59, 60, 64, 66, 70, 71, 73, 74, 75, 128, 144, 145, 146, 148, 150 –1, 165; Perugia, 51; Siena, 46, 49 Cappelli, Francesco ( jurist), 85 Captain of the Guard. See Capitano di Guardia Captain of the People. See Capitano del Popolo

Castiglione (Castiglion Fiorentino), 32–8, 165 Catasto, 109, 120 –1; Officials of, 121 Cavallar, Osvaldo, 149 n Cavanna, Adriano, 125 Charles of Durazzo, king of Naples, 145, 146, 150, 155– 6 Chioggia, War of, 145 Chittolini, Giorgio, 24 Cino da Pistoia ( jurist), 26, 27, 131, 133, 137, 174 Ciompi, 70, 144, 145, 146, 148, 151, 155 Civitale, Giuseppe, 164, 168 civitas superior (urban jurisdiction), 25– 6, 27, 33– 6, 178, 180 Colli, Vincenzo, 125, 149 n commissari (territorial officials), 72 n communis opinio (consensus opinion), 19, 29, 95, 104, 124, 180 n Connell, William, 72 n consensus politics, 56, 57, 58, 67, 69–70, 186 Conservatori delle Leggi (Defenders of the Laws), 16, 73, 74 Consiglio del Cento (Council of One Hundred), 73 Consiglio del Comune. See Council of the Commune Consiglio Maggiore (Great Council), 73, 112 Consiglio del Popolo. See Council of the People consilium (opinion), 6, 9, 13, 14, 16 –17, 19–20, 21–2, 30, 31–8, 39, 44, 45, 46, 48, 49–50, 51, 54, 79–105, 107, 109, 110, 113 n, 114, 118–19, 120, 122 n, 124–6, 128–39, 142, 148–55, 157–9, 162–83, 184, 185, 187; pro parte, 16–17, 79, 100–4, 177; sapientis, 16, 44–5, 46, 118, 120, 150, 165, 186

Index consorteria (household community), 82, 100 – 4 consules (communal magistracy), 42 consulte e pratiche (advisory committees), 3, 15, 66, 74, 146, 156 Conte, Emanuele, 24 n contumacia (contempt of court), 141 Corsini, Filippo ( jurist), 16, 35, 127 n, 132–3, 134, 137 Cortese, Ennio, 65 n Council of the Commune (Consiglio del Comune), 45, 46, 61, 71, 72, 118 Council of Eighty-One. See Ottantuno Council of One Hundred. See Consiglio del Cento Council of the People (Consiglio del Popolo), 45, 46, 61, 71, 72, 118 critical legal theory, 26 custom, 99–100 Da Castiglionchio, Lapo ( jurist), 145, 156 Da Panzano: Giovanni di messer Luca, 156 –7, 158; Tommasino, 155, 156 –7, 158 Decio, Filippo ( jurist), 22 n Defenders of the Laws. See Conservatori delle Leggi Del Bene, Ricciardo ( jurist), 132, 133 Dieci di Balìa (Ten on War), 16, 121 Dino del Mugello ( jurist), 157, 158, 172 Dominici, Stefano Guaspere ( jurist), 104 dominium (lordship), 23, 167, 168, 170, 171 dowry: disposition of, 88–97; restitution of, 128–39; succession to, 82–7, 97–100 due process of law, 60, 61, 65, 66

225

Eames, Gomes, 108, 110 –11 Edgerton, Samuel Y., 166 n Eight Saints, War of, 147, 155 Eight for Security. See Otto di Guardia Eighty-One. See Ottantuno Emerton, Ephraim, 163 Equity, 13, 64, 65, 139, 188 Ercole, Francesco, 10, 22–3, 142, 163 Esecutore degli Ordinamenti di Giustizia, 16, 63, 146, 150 Eugene IV, pope, 110, 119 exception, state of, 35 n, 62, 63, 68–9, 71, 72, 73, 76, 186 Executor of the Ordinances of Justice. See Esecutore degli Ordinamenti di Giustizia Ferrara, statutes, 83– 4 fideicommissum (trust), 129, 137, 177 Florence: statutes, 9, 13, 15, 17, 18, 19, 20 –1, 36, 60 –1, 62, 68, 74, 77–105, 106 –8, 111–23, 128, 131, 134, 136, 137, 138, 151–2, 154 –5, 157;—of 1322–5, 60, 85– 6, 91, 106, 129 n;—of 1355, 17, 60, 61, 83, 85, 86, 87, 90, 94, 95, 113 n, 129 n, 152;—of 1409, 78–9, 86, 87, 94, 138;—of 1415, 17, 20 –1, 36, 78–80, 85, 87, 89, 90, 93– 4, 95, 96, 101– 4, 105, 106, 107, 112–22, 129, 134, 138, 187;—of 1477, 21 n; university, 9, 12, 18, 19, 36, 87, 109, 134, 148, 163, 177, 187 Floriano di San Pietro ( jurist), 97, 133, 134, 136 Francesco di Ser Viviano ( jurist), 36 n Fubini, Riccardo, 112 n, 118 n Fulgosio, Raffaele ( jurist), 108

226

Index

Gabrielli da Gubbio: Cante de’, 63, 64, 66, 71; Francesco de’, 67, 68, 69; Jacopo de’, 62 Ghibellines, 62, 153 Giannotti, Donato, 30 n Giles of Rome, 168 Gilli, Patrick, 137 Gilmore, Myron P., 4 Giovanni di Mone, 155– 6 Giovanni da Montegranaro (jurist), 138 Giudice degli Appelli (appeal judge), 16 Gonfaloniere della Giustizia. See Standard-bearer of Justice Gramsci, Antonio, 28, 29, 184 –5, 189 Great Council. See Consiglio Maggiore Gregory XI, pope, 147 Gregory the Great, pope, 168 Grossi, Paolo, 11 n, 24, 76 guarantigia (procedure), 129, 134, 139 Guelfs, 62, 66, 67, 144, 151 Guicciardini, Francesco, 10, 30 n, 127, 147 n, 176 Guido da Suzzara ( jurist), 134 Guild of Lawyers and Notaries (Arte dei Giudici e Notai), 4 –5, 11, 12, 14, 20, 109, 132, 148 guild regime, Florentine (1378–82), 55, 57, 63, 66, 106, 144, 146, 147, 148, 150, 151, 155, 157 n, 159– 60 Guinigi, Paolo, signore of Lucca, 162–76, 187–8 habeas corpus, 60, 61 Hawkwood, John, 146 Hay, Denys, 8 Henry VII, emperor, 142, 143 Herlihy, David, 28 Hobbes, Thomas, 25, 161 Honig, Bonnie, 35 n

humanists, 3, 4, 7–10, 13–14, 30, 55, 110, 127, 186, 189 Hyde, J.K., 27–8 imperium ( jurisdiction), 34, 36, 171 Irnerius, 30 ius commune, 11, 12, 13, 14, 16, 17–18, 20, 24, 25, 26, 28, 29, 30, 35, 38, 43, 50, 60, 64, 80, 85, 88–9, 90, 91, 92, 93, 95, 99, 100, 101, 105, 124, 125, 126, 132, 133, 135, 138, 139, 150, 152, 154, 155, 159, 166, 167, 171, 174, 176, 179, 181, 184, 186, 187, 189. See also law: canon ius proprium, 11, 17–18, 108, 124, 125, 139, 155, 186, 187. See also Ferrara, statutes; Florence, statutes; Lucca, statutes; Perugia, statutes; Pisa, statutes Jacopo d’Arena ( jurist), 133, 174 Johannes Andreae ( jurist), 178 Jones, Philip, 57 n Kantorowicz, Ernst, 10 Kent, Dale, 190 Kirshner, Julius, 122 n, 148 n, 150 n, 188–9 knighthood (civic), 3, 11, 15, 155 laesa maiestas (treason), 27, 141– 60, 162–83, 187 Lancia, Andrea, 106 law: administrative, 17; autonomy of, 16, 17, 21–2, 26 –7, 28–9, 30 –1, 49–50, 122–3, 155, 159, 188–9; canon, 9, 11, 18, 19, 20, 43, 50, 60, 61, 77, 80, 108–9, 110, 111, 119, 124, 134, 145, 162, 173, 178, 187; common (Anglo–American), 20, 24,

Index 60, 61, 138; common (European), 11 n; criminal, 25, 34, 47, 59, 60, 73, 75, 114, 116, 118, 141, 164, 171, 178, 179, 181; natural, 26, 35, 64 – 6; private, 18–9, 77–105, 107, 124 – 40, 187, 188; public, 10, 18, 19. See also Ferrara, Florence, ius commune, ius proprium, Lucca, Perugia, Pisa, statutes Legrand, Pierre, 11 n Lombardi, Luigi, 124 Lucca, 128, 161–83; statutes, 166 –7, 170, 172–3, 178–9, 181–2, 183 Machiavelli, Niccolò, 10, 29–30, 176 Magnates, 48, 53– 4. See also nobles Maitland, F.W., 160 Manetti, Giannozzo, 9 Marchi, Francesco ( jurist), 36 n, 37 Martelli, Domenico ( jurist), 16, 74, 112 n, 116 n, 121 Martin V, pope, 119 Marxism, 4, 8, 28, 185 Medici (family, regime, bank), 21, 58, 70, 73, 74, 110, 111–12, 120 n, 186, 188, 189; Cosimo il Vecchio, 73, 74, 109, 112, 119, 120; Cosimo I, duke, 118; Giuliano, 173 n, 190; Lorenzo il Magnifico, 75, 173 n, 176, 177, 190; Piero the Gouty, 74 Meek, Christine, 168 n Mei, Andrea di Biagio, 163, 176 –83 mens legislatoris (intention of the lawmaker), 17, 87, 89, 90, 94, 95– 6, 105 Mercanzia, 128 Michele di Lando, 145 Milan, 10, 23, 25, 27, 36, 55, 82, 123 n, 161, 164, 186, 190 Monte Comune, 10; officials of, 138 Montorzi, Mario, 143

227

Morosini, Angelo, 121–2 municipium, 153– 4 Mussolini, Benito, 23 Najemy, John, 12, 57, 57 n, 66 n, 70 n, 107 n necessitas, 35, 37, 61, 76 Nello da San Gemignano ( jurist), 10, 35, 109, 120, 127 n, 133, 134, 135, 137, 138, 178, 179 ‘new men,’ 43, 126, 127 Niccolini family, 127; Biagio di Lapo ( jurist), 36 n; Otto ( jurist), 36 –8 Nicholas of Lyra (exegete), 168 Nine, the (Sienese magistracy), 50 –1 nobles, 9, 10, 11, 12, 30, 42, 43, 45, 48, 49, 51, 53–4, 55, 63, 66, 111, 126, 127, 159, 188, 189, 190. See also magnates notaries, 4, 11, 12, 13, 14 –15, 42, 43, 54, 56, 78 n, 82, 108, 129, 132, 134, 135, 139, 185 Office of the Wards (Officium Pupillorum), 97 Oldrado da Ponte ( jurist), 133 oligarchs, 6, 22, 50, 53, 55–8, 63, 66, 67, 68, 70, 189 Ordinamenti Sacrati (Bologna), 54 Ordinances of Justice, 48 ordo iudiciarius, 60, 64, 65, 166 Orsanmichele, 111 Ottantuno (Council of Eighty-One), 69 Otto di Guardia (Eight for Security), 15, 16, 70, 72, 73, 74, 75, 146, 157, 158 Padoa Schioppa, Antonio, 40 Padua, 28, 82, 110, 145; university, 77, 103, 108, 163

228

Index

Palmieri, Matteo, 9 Paolo di Castro (jurist), 9, 22n, 36, 71, 77–105, 106, 108, 109, 127n, 134, 135, 136, 137, 138, 187; consilia of, 80–2 Papias (lexicographer), 167 Pascal, Blaise, 160 Pazzi conspiracy, 75, 173 n, 190 perduellio (armed rebellion), 169, 179 Perugia, 44, 45, 47–8, 50, 51–2, 148n, 186; statutes, 47–8; university, 3, 9, 95 Petrarch, Francesco, 13 Petrus de Bellapertica ( jurist), 174 –5 Piccolomini, Aeneas Silvius (Pius II), 81 Pietro d’Ancarano ( jurist), 133, 134, 136 Pisa, 3, 46, 62 n, 82, 98–100, 121, 128, 163, 177; Council of, 134; statutes, 98–100 Pistoia, 28, 82, 108 plenitudo potestatis (fullness of power), 27 podestà (magistracy), 15, 32, 42–5, 98, 163, 165; Florence, 16, 56, 59, 64, 73, 74, 128; Perugia, 51; Siena, 46, 47 Popoleschi, Bartolomeo ( jurist), 132 popolo (the people), 12, 43, 45– 6, 48, 49, 50, 51, 54, 71, 159, 186, 188, 189 Post, Gaines, 10 precedent (Anglo-American Common Law), 20, 138 prescription, 175, 180 Priors of the Guilds (Florentine magistracy), 15, 60, 61, 62, 66, 68, 71, 75, 109, 111, 112, 145, 146, 147, 148, 155, 156, 157, 159. See also signoria proditio (rebellion), 179, 182 Quaglioni, Diego, 125

rectores forenses (foreign magistrates), 15, 56, 57, 59, 64, 70, 71, 75, 146, 154. See also podestà, Capitano del Popolo Ricci, Giovanni di Ruggero ( jurist), 85, 97 n ricordanze (libri di famiglia, zibaldoni; diaries), 3, 9, 73, 146 n Ridolfi, Lorenzo ( jurist), 9, 16, 104, 127 n Robert, king of Naples, 143 Roffredus de Benevento ( jurist), 64 n Roman law. See ius commune Romano, Andrea, 81, 125 Roselli, Antonio, 9, 127 n ( jurist); Rosello, 85 ( jurist) Rossi, Guido, 125 rota civile (Florentine tribunal), 108, 128 Rubinstein, Nicolai, 30 n, 56 –7, 57 n, 112 n Rucellai, Giovanni, 73 rule of law, 35, 39, 59, 61, 74, 75, 76, 139, 155 n, 160, 186 Sacchetti, Franco, 13–14; Giannozzo, 145; Iacopo, 150 Salvemini, Gaetano, 3, 189 Salvetti, Tommaso ( jurist), 18, 20, 87, 96 –7, 106 –23, 139, 187; composition of Adnotationes, 114 –16 Sandei, Felino ( jurist), 162 Santa Maria degli Angeli, 110 sapiens communis (communal lawyer), 16, 33, 46, 109, 120, 121 Savelli, Rodolfo, 125 Savonarola, Girolamo, 112, 190 Sbriccoli, Mario, 28–30, 40, 85 n, 124, 126, 185, 189 Scaliger family, 27

Index Schmitt, Carl, 186 sedition, 142, 144, 153– 4, 155, 169. See also laesa maiestas, perduellio, proditio Serristori, Giovanni ( jurist), 132, 133 Sforza: family, 10; Francesco, 164 Siena, 45–8, 49–50, 62, 82, 95, 109, 186; university, 77, 134 signoria, 42, 52, 62; Florentine magistracy, 9, 11, 16, 66, 69, 71, 107, 120, 121 sindacato. See syndication Sixtus IV, pope, 173 n Sozzini: Bartolomeo ( jurist), 9, 22 n, 162–83, 187; Mariano ( jurist), 163 Spagnesi, Enrico, 149 n Spini, Geri ( jurist), 108 n Standard-bearer of Justice (Gonfaloniere della Giustizia), 60, 66n, 112n, 155 state: modern, 22–5, 27, 29–31, 76, 122, 142–3, 183; Renaissance (stato, status), 5– 6, 10, 12, 17–18, 22–7, 29–31, 67, 75, 76, 141–3, 145, 170 statutes (statutum, statuta), 11, 20, 29, 39, 40, 43, 44, 45– 6, 60, 78, 82, 106, 124, 162, 176, 181, 182, 186, 187; interpretation of, 17–18, 19–21, 28–9, 77–105, 112–23, 124, 186, 187. See also Ferrara, Florence, ius proprium, Lucca, Perugia, Pisa Stefani, Marchionne di Coppo, 147, 155, 157 n Stinche (Florentine prison), 163 Strozzi: Antonio ( jurist), 115; Filippo di Biagio, 147, 150; Pagno di Lionardo, 145; Tommaso, 147 syndication (sindicato), 43–4, 58–61, 62, 63, 64–6, 67, 71, 72, 73–5, 82, 186

229

tamburazione (denunciation), 74 Tanzini, Lorenzo, 78, 138 Ten on War. See Dieci di Balìa Torelli, Torello ( jurist), 127 n torture, 60, 141 Traversari, Ambrogio, 110 treason. See laesa maiestas Tucci, Nicolao, 164 tyranny, 29, 31, 62, 163–76, 188 Ubaldis, Angelus de ( jurist), 9, 114, 179–80, 181 Ubaldis, Baldus de ( jurist), 9, 26, 27, 30, 59, 71, 78, 85, 87, 136, 137, 142–3, 144, 150 –9, 169–70, 174, 175, 178–9, 181, 182, 187 Ufficiali dell’Onestà (Officials for Decency), 16 Ullmann, Walter, 10, 143 universitas (corporation), 181 utilitas publica, 34, 35, 37, 65, 139 Vallerani, Massimo, 35 n Venice, 12, 13, 25, 82, 102, 115, 161 Verona, 27, 82 Vettori, Francesco, 176 Villani, Giovanni, 62 Visconti: family, 10, 55, 190; Filippo Maria, duke of Milan, 164 Volterra, 109, 120, 121 Von Albertini, Rudolf, 30 n Von Savigny, Friedrich Karl, 77, 78 n Vulpi, Bartolomeo ( jurist), 78, 97, 104, 106, 127 n, 134, 138 Weber, Max, 23, 24 Woolf, C.N.S., 10, 163 Zabarella, Francesco ( jurist), 19 Zorzi, Andrea, 56, 70

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Toronto Studies in Medieval Law General Editor LAWRIN ARMSTRONG

Editorial Board PÉTER CARDINAL ERDŐ JULIUS KIRSHNER SUSANNE LEPSIUS GIOVANNI ROSSI

1 The Politics of Law in Late Medieval and Renaissance Italy, edited by Lawrin Armstrong and Julius Kirshner