THE POLITICS OF LAW IN LATE MEDIEVAL

AND RENAISSANCE ITALY

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
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Printed in Canada
ISBN 978-1-4426-4075-7 (cloth)

Printed on acid-free, 100% post-consumer recycled paper

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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 161

OSVALDO CAVALLAR

Afterword 184
LAWRIN ARMSTRONG

Contributors 191
Bibliography 195
Index 223
Abbreviations

ASF Archivio di Stato di Firenze

ASP Archivio di Stato di Perugia
ASPi Archivio di Stato di Pistoia
ASS Archivio di Stato di Siena
BAV Biblioteca Apostolica Vaticana
BCFL Biblioteca Capitolare Feliniana, Lucca
BCG Biblioteca del Circolo Giuridico (Siena)
BFG Biblioteca della Facoltà di Giurisprudenza dell’Università
di Firenze
BG Biblioteca Guarnacci (Volterra)
BML Biblioteca Medicea Laurenziana di Firenze
BMV Biblioteca Marciana di Venezia
BNC Biblioteca Nazionale Centrale di Firenze
BNF Bibliothèque Nationale de France
BR Biblioteca Riccardiana (Florence)
BSR Biblioteca del Senato della Repubblica (Rome)
BUPi Biblioteca Universitaria di Pisa
C. Codex Iustiniani
c. capitulum
Capitano Atti del capitano del popolo
cons. consilium, consilia
CP Consulte e pratiche
CR Capitoli registri
D. Digesta Iustiniani
Esecutore Atti dell’esecutore degli Ordinamenti di Giustizia
Fam. Familiares
Inst. 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 histo-
rians 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 gra-
ciously 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 historiogra-
phy 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 ini-
tiative 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 humanis-
tic 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 special-
ized 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 orga-
nizing the 2008 Renaissance Society of America sessions. We are also grate-
ful 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
This page intentionally left blank
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: dip-
lomatic reports, legislation, political discussion at the summit of govern-
ment (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, espe-
cially 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 polit-
ical and social weight apart from their legal learning; something, say, that
4 Lauro Martines

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 po-
litical power. And if the shadow of something Marxist fell over this ap-
proach, 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 human-
ists 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 pro-
fession 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 imagi-
nation 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 jurisdic-
tional and administrative conflict within the perimeters of internal or do-
mestic 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, how-
ever, 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.
6 Lauro Martines

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 concep-
tual 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 gener-
ated 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 extenu-
ating 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 profes-
sion, above all in scholarship on the actual working opinions and argu-
ments (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 law-
yer was the man best equipped to engage in public debate. The fifteenth cen-
tury was, accordingly, the great age of political distinction for the Florentine
lawyer. He was continually found in the three places which denoted maxi-
mum 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 tak-
ing 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 fu-
ture 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 valu-
able criticisms of an earlier version of my essay.
2 Martines, Social World, 249–50.
3 Ibid., 250 n. 38.
8 Julius Kirshner

review of Lawyers and Statecraft, the British historian Denys Hay marvelled
enviously at the author’s perseverance and courage and ironically at ‘the en-
lightened 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 disinter-
ested 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 ideologi-
cal ends. Erudite studies exclusively focused on the protean ideas and so-
called 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 ap-
proach, advocating that humanist and legal ideas be read as ‘ghosts of the
social system.’6 He was, however, advocating an approach that makes vis-
ible 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 em-
ployed 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.
 A Critical Appreciation of Lawyers and Statecraft 9

Both books were immediately recognized as tours de force of scholar-

ship 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 fo-
cuses 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 prac-
titioners 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 pro-
duced 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 govern-
ment 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.
10 Julius Kirshner

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 patri-
cian 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 con-
temporary, 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 stimu-
lating chapter, entitled ‘Florence and Milan: Toward the Modern State?’
later appeared in an Italian anthology of historical studies analysing the de-
mise 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 hu-
manists 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 influ-
ential 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.’
 A Critical Appreciation of Lawyers and Statecraft 11

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 admin-
istration 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 his-
toriography 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 twenty-
five, 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 representa-
tion of lawyers in the highest reaches of power reflected the advantageous
political and social positions of their families, their education and profes-
sional 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 amal-
gam 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 Woolf, Bartolus of Sassoferrato.

19 Brucker, review of Lawyers and Statecraft, 478–9.
20 Sznura, ‘Per la storia del notariato.’
21 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.
12 Julius Kirshner

Far more vital was the gravitational force of social networking and polit-
ical 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 medi-
eval 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 thir-
teenth 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 indispens-
able 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 giv-
ing 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.
 A Critical Appreciation of Lawyers and Statecraft 13

lawyer’s performance. It is not obvious that practising lawyers, at least in

the eyes of their contemporaries, were deemed more honest and compe-
tent 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 il-
literate, 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 chan-
cellor 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 casu-
istry 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 poli-
tics 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.’
14 Julius Kirshner

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 law-
yers? 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 uninten-
tional, 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 submit-
ted 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 adminis-
trative competence in the notary. As a result, the most skilful and well-
connected 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 litiga-
tion, assisted as intermediaries between lawyers and their clients, acted as
bona fide representatives for clients in myriad legal circumstances, pre-
pared 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 predi-
cated 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, retro-
spectively imaginable, even if far-fetched. All the same, it is inconceivable
that the capital city, let alone the moving parts of the Florentine territo-
rial state, could have functioned as well as it did without a staff of nota-
ries. 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.’
 A Critical Appreciation of Lawyers and Statecraft 15

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 in-
dispensable, and that the working relationship between lawyers and nota-
ries 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 exper-
tise 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 prepara-
tion, interpretation, and execution of diplomatic documents and treaties.
Lawyers were also consulted on disputes generated by competing magis-
tracies 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 cre-
ated by an intricate parcelling out of authority and by a mobile system of
office-holding’ (169). These puzzles became exponentially more demand-
ing 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 short-
term 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.
16 Julius Kirshner

administrative experience that informed their opinions (consilia). Inside

Florence, lawyers were appointed to new judicial and quasi-judicial magis-
tracies, 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 states-
men 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 sapien-
tum 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 com-
plied 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.’
 A Critical Appreciation of Lawyers and Statecraft 17

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 circum-
stances 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 dis-
putes 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 govern-
ment’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 unforesee-
able and uncontrollable circumstances and events.
The interplay of the ius commune and ius proprium has long been a cen-
tral 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.’
18 Julius Kirshner

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 as-
pects 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 re-
quired 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 gram-
mar, logic, rhetoric, and moral philosophy as well as a thorough compre-
hension 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 expres-
sion 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.’
 A Critical Appreciation of Lawyers and Statecraft 19

was universally prized as a defining characteristic of a literate and pru-

dent 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, al-
lege [Roman and canon] laws, as well as provide conclusive and unequivo-
cal 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.’
20 Julius Kirshner

arguments before they provided the norms, texts, and reasoning war-
ranting 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 en-
abled 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 precedent-
setting 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 stat-
utes 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 control-
ling 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 fifteenth-
century 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 honey-
combed with citations of consilia as well as of Roman and canon law,

47 See, for example, Martines, ‘Career and Library’; Maffei and Maffei, Angelo Gambi-
glioni, 189–98.
48 Kirshner, ‘Consilia as Authority.’
 A Critical Appreciation of Lawyers and Statecraft 21

illustrating how Florentine jurist-consultors in live cases had already con-

strued 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 cleans-
ing 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 interpreta-
tions 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 expan-
sion 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 execu-
tive 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.
22 Julius Kirshner

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 consid-
erable 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 pro-
fessional ethos primed to defend legally constituted political authority and
the status quo against reform. More fundamentally, he argues that the law-
yers had no option but to support oligarchic regimes, because the concepts
and practices of political parties and loyal opposition – which provide le-
gitimate 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 predict-
ably 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 associ-
ated 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.’
 A Critical Appreciation of Lawyers and Statecraft 23

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, tend-
ing 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 ac-
cord with the theory of the separation of powers – legislative, judicial, and
executive’ (470). Yet this notional model, he readily concedes, did not actu-
ally 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.
24 Julius Kirshner

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 under-
stood 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 scholar-
ship 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 reconceptualiza-
tion of Italian regional states, affirms the ways in which Florence’s relations
with its dependents were decentred and adaptive and textured by negotia-
tion, 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,
 A Critical Appreciation of Lawyers and Statecraft 25

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 politi-
cal 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 reg-
ulate 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 com-
munities 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 ju-
risdictional sovereignty, which, via legal fiction and metaphor, elevated the
civitas superior to the rank of princeps.66 In Martines’s own words:

‘Antropologia giuridica’; Tanzini, Alle origini, 194–5; Zorzi, ‘Pistoia e il suo territorio’;
Mannori, ‘Effetto domino’; Mannori, ed., Comunità; Bicchierai, Ai confini della repub-
blica, 349ff. For an incisive overview, Fasano Guarini, ‘État moderne.’
62 Zamperetti, ‘Magistrature’; Gamberini, ‘Principe.’ For an overview of the recent
scholarship, see Varanini, ‘Governi principeschi.’
63 Stolleis, ed., Staatsdenker; Costa, Civitas.
64 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).’
65 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.
66 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
26 Julius Kirshner

There was no law, no legitimacy in the Florentine dominion save by the au-
thority 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 full-
ness 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 per-
spective, 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 insis-
tently 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 em-
power 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 pro-
vide 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’ non-
recognition 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.
 A Critical Appreciation of Lawyers and Statecraft 27

invoked the authority of Cino, Bartolus, and Baldus to prevent political

expediency from degenerating into illegality and to hold officials account-
able 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 attrib-
ute to the civitas superior the quality of maiestas, that sacred dignity and
supreme authority that belonged to the Roman emperor. Florentine citi-
zens 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 per-
son and majesty of the emperor and the princes to whom he formally dele-
gated 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 histo-
rians 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 pub-
lic 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.
28 Julius Kirshner

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 sig-
nalled 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 emer-
gence 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 remark-
able 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 poli-
tics 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 poli-
tics 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 voca-
tion (l’impegno politico dei giuristi) of the jurists committed them, as a self-
conscious 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 com-
munes 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.
 A Critical Appreciation of Lawyers and Statecraft 29

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 inspi-
ration 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 regres-
sion 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 pat-
rimony, 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 territo-
rial 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 doc-
ile 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 uni-
verse 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.
30 Julius Kirshner

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 ju-
risprudence, 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 en-
terprise of ius commune jurisprudence. And Sbriccoli, as did many histo-
rians 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 unifica-
tion in 1860–1.81
Sbriccoli’s technical analysis of the intricacies of medieval statutory
interpretation remains essential reading for legal historians who, iron-
ically, 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, poli-
tics 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 understand-
ing 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 inter-
ests, 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 responsibil-
ity, 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 signifi-
cance 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.’
 A Critical Appreciation of Lawyers and Statecraft 31

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 ter-
ritorial overlordship.
To start with, there is a problem of generalizing from fragmentary evi-
dence. Because Martines refers to only a tiny fraction of the extant con-
silia 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 con-
firming 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 chal-
lenge 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 thirteenth-
century 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.
32 Julius Kirshner

that led Florentine lawyers to submit opposing opinions on the same and
comparable disputes.
To take one instructive example, Martines presents a summary de-
scription 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 capitula-
tion ( 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 symboliz-
ing 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 exemp-
tion (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.
 A Critical Appreciation of Lawyers and Statecraft 33

both ordinary and extraordinary taxes on Castiglione.88 By the early fif-

teenth 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 deter-
mine 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 ga-
belles should be construed as munera realia, a tax on property that is le-
gally 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.’
34 Julius Kirshner

by Florence’s exalted rank, ‘because the commune of Florence shines forth

pre-eminent among its subjects as princeps.’93 Third, Florence’s author-
ity to impose taxes on Castiglione derives from its exclusive jurisdic-
tion 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 mat-
ters, 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.
 A Critical Appreciation of Lawyers and Statecraft 35

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 justifica-
tion 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 utili-
tas 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 pro-
moting the republic’s welfare.99 ‘From all these reasons,’ Bencivenni deter-
mined, ‘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 counterargu-
ment 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 main-
taining the established framework of legal rules, guarantees, and institutions, with the
problematic modern concept of ‘state of exception,’ which, according to the post-
structuralist 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.’
36 Julius Kirshner

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 compila-
tion 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 immu-
nity.103 We also learn that Niccolini had written an earlier consilium de-
fending 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 re-
quired to pay this extraordinary tax in view of both the immunity granted
by Florence in 1384 and the terms of the enactment (provvisione) author-
izing the extraordinary tax.
In contrast to Bencivenni’s lawyerly contortions, Niccolini’s consilium
was fairly straightforward because – from a narrow construal of the arti-
cles of capitulation – Florence’s ability to tax Castiglione was severely cir-
cumscribed. 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 Fran-
cesco 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
 A Critical Appreciation of Lawyers and Statecraft 37

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 stan-
dard 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 grant-
ing 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 irrevocabil-
ity 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 Castili-
onis: 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 <decur.>, 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 <quid> 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
38 Julius Kirshner

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 cli-
ent, 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 doc-
trines, legal facts, or political preferences? These questions need to be in-
vestigated, but even if we could answer them, there is the further question
of whether Castiglione was actually forced to pay the taxes. Recent re-
search 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 gov-
ernment 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 po-
litical 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 immu-
nity 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 con-
textual 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 classi-
fication 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 cata-
logue of the consilia manuscripts, see Maffei et al., I codici del Collegio di Spagna.
 A Critical Appreciation of Lawyers and Statecraft 39

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 resi-
dent 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 signifi-
cant 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 exer-
cise 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 in-
evitable 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 poli-
tics 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 influ-
enced 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 in-
terest 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 Rechts-
wissenschaft,’ ‘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 four-
teenth and fifteenth centuries, Tanzini, Il governo delle leggi, 179–82, 265–76. For addi-
tional bibliography, see Menzinger, Giuristi e politica, 5–10.
 Consilium sapientum: Lawmen and the Italian Popular Communes 41

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 evi-
dence in Italian archives dating as far back as the thirteenth century or
earlier. Thanks, however, to numerous studies and editions of commu-
nal 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 re-
search is neither the political ideas expressed by famous jurists in their for-
mal 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 pre-
cisely 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 cer-
tain 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 iuris-
peritus 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.’
42 Sara Menzinger

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 docu-
ments, 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 condi-
tions 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 func-
tion that began to be attributed to communal lawyers, whose political
commitment now appeared to be an ineluctable product of their legal ex-
pertise, 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 po-
litical forces that determined this change, its social and political conse-
quences, 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.
 Consilium sapientum: Lawmen and the Italian Popular Communes 43

was noticeable by the middle of the thirteenth century, when many Italian
cities adopted what we call ‘popular’ government, characterized by the ap-
pearance 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 com-
ing of the podestà did not strictly coincide with the historical period we
usually describe as ‘popular,’ it nevertheless forms part of the same politi-
cal 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 fami-
lies 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 of-
ficials 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 overcom-
ing 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 im-
portant for there to be an intermediary body between the foreign officials
and the local institutions that allowed for a dialogue between these transi-
tory 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 them-
selves 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
44 Sara Menzinger

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 in-
correct. 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 defini-
tive 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 con-
silia 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 se-
mantic 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, inter-
action 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.
 Consilium sapientum: Lawmen and the Italian Popular Communes 45

bureaucracy and the reinforcement of the self-consciousness of a profes-

sional group. While iudices, iurisperiti, and doctores had played an impor-
tant 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 exten-
sively 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 experi-
enced a profound political shift that was characterized by three basic ele-
ments: 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 po-
litical system, because if the new middling families of artisans and immi-
grants 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 pres-
sures 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 re-
solve the technical problems arising from both conflicting regulations be-
longing 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 legisla-
zione antimagnatizia’; and Milani, ‘Il governo delle liste.’ For additional bibliog-
raphy, see Menzinger, Giuristi e politica, 61–71, 95–126, 225–51.
46 Sara Menzinger

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 cap-
tain 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 sacra-
mentum, et suum ordinamentum per dicta capitula non rumpatur . . . [Decision] Consi-
lium 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 mer-
cantie 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 respon-
dendum 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 parlamen-
tum; et si prudentes consuluerint . . . ipsum capitulum non contradicere, vult quod de
 Consilium sapientum: Lawmen and the Italian Popular Communes 47

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 sum-
moned 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 im-
portance of the customary dimension in legal interpretation mentioned ear-
lier, 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 for-
eign 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 habe-
tur . . . 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 poli-
tica, 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
48 Sara Menzinger

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, ad-
equate to indicate the importance of the topics addressed by lawyers, top-
ics 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 resent-
ment 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, how-
ever, has led scholars to undervalue the vital role that, in spite of class dis-
tance, 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 un-
conditional 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 <sapientes iuris> consuluerunt quod capitulum . . . est servan-
dum, non obstante capitulo Populi quod est positum sub rubrica “quod nullus exban-
nitus 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.
 Consilium sapientum: Lawmen and the Italian Popular Communes 49

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 in-
fluence 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 impor-
tant 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 polit-
ical 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 <concordia> 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 redu-
catur 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.’
50 Sara Menzinger

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 al-
ready 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 af-
finity between learned law, in particular Roman and canon law, and demo-
cratic 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.
 Consilium sapientum: Lawmen and the Italian Popular Communes 51

instituted not in the oligarchic atmosphere of rich Sienese banking families

at the end of the thirteenth century, but in fact under the popolo govern-
ment 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 per-
son 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 con-
tingent 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 inter-
action 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.’
52 Sara Menzinger

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 princi-
pal thesis, that Florentine jurists were instrumental in the shift from com-
mune 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 ju-
rists 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 ex-
ecutive 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 sig-
nificance 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 sig-
nificant historical moments of change coincided with peaks in requests
for juridical mediation. This occurred in the Florentine republic for rea-
sons 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 Gerichts-
barkeit, in particular the contributions of Milani, ‘Lo sviluppo della giurisdizione,’
21–46; Vallerani, ‘Tra astrazione e prassi,’ 135–54; and Menzinger, ‘Forme di organizza-
zione giudiziaria,’ 113–34. See also Vallerani, La giustizia pubblica, 9–24.
 Consilium sapientum: Lawmen and the Italian Popular Communes 53

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 com-
munal 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 consulta-
tion as an instrument for skirting rigid popular rules governing the turn-
over 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 cen-
tury, 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 be-
cause 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 het-
erogeneous. The category included men of diverse political orientations,
from prominent academic jurists to wealthy members of the urban aris-
tocracy 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 or-
dinarily sided with the magnates, but because of the responsibilities with

28 Lawyers and Statecraft, 400–1.

29 Menzinger, Giuristi e politica, 251–67.
30 Lawyers and Statecraft, 5.
31 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’).
54 Sara Menzinger

which they were charged, they also initialled the Ordinamenti Sacrati that
were directed against those same magnates. The iudices intervened po-
litically 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 posi-
tions 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 re-
flection 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 gov-
ernment 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 im-
portant offices the republic had to offer to its citizens became the pre-
rogative 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 devel-
opment 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 ap-
proaches to this question that have been developed by institutional his-
torians 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.
56 Moritz Isenmann

benefit of clarity, can be labelled conflict-based and consensus-centred

approaches. The most important contribution to the conflict-based ap-
proach 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 ad-
ministrative 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 as-
sessment, until the end of the fourteenth century, the courts of the foreign
rectors indeed possessed a certain working autonomy. With the oligarchiza-
tion 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 magistra-
cies with judicial competencies were created, while the competencies of the
old judiciary were progressively reduced. The result was a thoroughly po-
liticized 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 ex-
ecutive, 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 differ-
ent lines of investigation, especially of electoral politics. Unlike Martines,
who views the process of Florentine statecraft as one of conflict and po-
tential violence, these scholars see the nature of oligarchic power in a non-
violent 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.
 From Rule of Law to Emergency Rule in Renaissance Florence 57

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 de-
veloped the concept of ‘consensus politics,’ the currently dominant para-
digm 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 impos-
sible, 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 working-
classes’ 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 contra-
dictions 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 differ-

ence 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.
58 Moritz Isenmann

My contention is that the real source of power in the successive Albizzi

and Medici regimes (1393–1433, 1434–98, respectively) was neither elec-
toral controls nor consensus politics, but a constant threat of actual physi-
cal violence exercised on the rest of the citizenry. By investigating the de-
velopment 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 frame-
work. 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 advan-
tage 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 prin-
ciple’ in the medieval Italian commune.10 This distrust found its expres-
sion in measures that aimed at minimizing the power of officeholders,
such as the selection of officials by lot, the development of a written ap-
proach 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 of-
ficials 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 Herrschafts-
kontrolle.
 From Rule of Law to Emergency Rule in Renaissance Florence 59

organs of government demanded forms of control over official conduct.

This necessity for regular and periodic control was reinforced by the in-
troduction 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 pos-
sible, 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 (negligen-
tia) 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 ordi-
nary 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 syn-
dication for cases involving both civil and criminal law, in actual practice,
civil cases were almost entirely unknown. In fact, from the end of the thir-
teenth 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 syndi-
cation 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.
60 Moritz Isenmann

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 proce-
dural 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 possibil-
ity of presenting to a judge evidence supporting his innocence or of rais-
ing 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 medi-
eval 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 mak-
ing 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 ex-
empted 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.
 From Rule of Law to Emergency Rule in Renaissance Florence 61

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 ex-
orbitant 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 in-
terests of private persons. The ruler’s most important task was presented
as the preservation of the peace and unity of the community, an idea re-
inforced 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 pub-
lic 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, com-
munal 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 ha-
beas 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.
62 Moritz Isenmann

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, retro-
active suspension of syndication was employed to protect the newly estab-
lished 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 magistra-
cies exempted from every form of accountability, often entrusted to par-
ticularly 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 citi-
zens 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 contempo-
raries 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 ap-
point such officials, for this would lead to bloodshed and the rise of tyran-
nical 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.
 From Rule of Law to Emergency Rule in Renaissance Florence 63

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 intro-
duced on a large scale in the political confrontation and rapid succession
of different regimes that characterized the years following the revolution-
ary 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 his-
tory, 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 refer-
ence 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.
64 Moritz Isenmann

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 pow-
ers 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 ar-
bitrium 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 require-
ment 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 an-
other 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 com-
plete 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 Balìe, 17, fol. 25r.

33 Ascheri, ‘Practicae conclusiones,’ 43; Meccarelli, Arbitrium, 43 and passim.
34 See Roffredus de Benevento, ‘Quaestiones sabbatinae,’ 446–7.
35 Ibid.
36 Ibid. See also Bartolus, In secundam infortiati partem commentaria, to D. 33.8.23.2,
fol. 84v.
 From Rule of Law to Emergency Rule in Renaissance Florence 65

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 con-
flicting norms emanating from the two basic principles on which most
law was founded, that is, natural law and public utility. But in cases con-
cerning 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 indi-
vidual. 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.
66 Moritz Isenmann

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 num-
ber 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 inten-
tion 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 discrimina-
tion 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 there-
fore 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 contin-
gents. 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 citi-
zens 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.
 From Rule of Law to Emergency Rule in Renaissance Florence 67

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 com-
munal offices.47
If some sort of ‘consensus’ between the elite and non-elite major guilds-
men 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 pow-
ers 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 silenc-
ing 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 elit-
ist elements in the government.50 One of the first measures taken by the
newly constituted balìa consisted of securing the survival of the new re-
gime 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 govern-
ment of persons belonging to the inner circle of the oligarchy were imple-
mented, he made a show of force, parading ‘with many soldiers’ through

47 Molho and Sznura, Diario d’anonimo, 71.

48 PR, 80, fols 71r–2r.
49 Molho and Sznura, Diario d’anonimo, 107.
50 Brucker, Civic World, 90–1.
51 Balìe 17, fol. 85r.
52 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.’
68 Moritz Isenmann

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 re-
forms 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.
 From Rule of Law to Emergency Rule in Renaissance Florence 69

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 situa-
tion was established, giving the Ottantuno the power to appoint Capitani
di balìa for the following five years; in other words, for ten terms of of-
fice. Needless to say, these Captains would wield the same powers as their
predecessors.66
This analysis leads to several observations. First, the fundamental re-
gime changes of these years were enforced by means of emergency meas-
ures, 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 equi-
librium 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 PR, 83, fols 111v–13r, 214v–17r.

61 PR, 84, fol. 69v.
62 Molho and Sznura, Diario d’anonimo, 192.
63 PR, 84, fol. 272r–v.
64 For the Ottantuno, see Molho, ‘Florentine Oligarchy,’ 32–3, 40–1, and 43–6.
65 PR, 86, fols 103r–104v.
66 Balìe, 17, fols 146v–47r.
70 Moritz Isenmann

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 ex-
ercised 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 repres-
sive 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 for-
eign 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.
 From Rule of Law to Emergency Rule in Renaissance Florence 71

measures because they possessed communal legitimacy and were seem-

ingly 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, gov-
ernments 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 exemp-
tion. 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 re-
appointment of Francesco de’ Gabrielli in 1393 passed smoothly, when
voting was held on a reappointment, the resistance against the power-
ful 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 em-
powered the Signory to again appoint a Captain of the Balìa was rather
narrow.73 In December 1395 and February 1396 – not coincidentally dur-
ing 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 Paulus de Castro, Super primo, secundo, et tertio Codicis, fol. 234r.

71 Brucker, Civic World, 71.
72 LF, 44, fols 132r–v, 149v, 190r.
73 Ibid., fols 166r–67v.
74 LF, 45, fols 2r–v, 10r–11r.
72 Moritz Isenmann

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 pre-
cisely this advantage: they were not subject to syndication.80 Offices oc-
cupied 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 insti-
tution, 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 Ibid., fols 28r, 32r, 40r; see also Brucker, Civic World, 100.
76 LF, 45, fols 43r–44r.
77 Ibid., fols 47r–50v.
78 Ibid., fol. 54r.
79 LF, 44, fol. 160r; LF, 46, fol. 1r.
80 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 mid-
sixteenth century has been called a ‘regolarizzazione dello straordinario’; Connell, ‘Il
commissario e lo stato,’ 617.
 From Rule of Law to Emergency Rule in Renaissance Florence 73

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 situa-
tion 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 magis-
tracies 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 judi-
ciary. 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.
74 Moritz Isenmann

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 so-
called tamburazioni – anonymous denunciations placed in special boxes
(tamburi ) – to track down and punish crimes against the state such as cor-
ruption 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 re-
duced, while for the first time, the Eight were equipped with a power-
ful 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 be-
cause of their broad powers. In his opinion, the ordinary magistrates had
enough regular power to move against criminal elements and to adminis-
ter 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 accord-
ing 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 re-
stored 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 PR, 153, III, 39r–52r.

88 Ibid.; Zorzi, L’amministrazione della giustizia, 76.
89 Martines, Lawyers and Statecraft, 433.
90 PR, 153, III, 70r–73r.
91 PR, 156, II, 180r.
 From Rule of Law to Emergency Rule in Renaissance Florence 75

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 re-
gime 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 com-
pleted 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 theo-
retically possible to challenge sentences in the domains of criminal justice
during syndication, now even this remnant of the rule of law was dis-
carded 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 with-
out 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 com-
munes 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 Rubinstein, Government of Florence, 183–8.

93 Balìe, 30, fol. 9v.
94 Ibid., fols 44r–45r.
95 Ibid., fol. 9v.
96 On the meaning of the word stato in Renaissance Florence, see Rubinstein, ‘Notes.’
97 See Zorzi, ‘Ordinamenti’ and ‘Judicial system.’
98 Martines, April Blood, 124–5, 197–9.
76 Moritz Isenmann

system that was corrupted and manipulated in the transition to the princi-
pate. 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 excep-
tion. In a culture that considered political dissent illegitimate and that con-
ceived 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 emer-
gency 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,’ ‘teleologi-
cal,’ 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 deal-
ing with political organisms whose governments disposed of the means to
suspend fundamental principles of the rule of law and to annihilate po-
litical 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 representa-

tive of university-trained lawyers in the late-medieval period, a socio-
political 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 so-
called 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 Di-
gest and most parts of Justinian’s Code, which were reprinted until the seven-
teenth 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
78 Susanne Lepsius

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 university-
trained lawyer on the committee responsible for redacting the new statutes.
Whereas among legal historians Paolo’s influence on the statute-making pro-
cess 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 recog-
nized, 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 law-
yers 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 in-
dication of his personal intervention in this fundamental source of law. The
passages studied by Tanzini all deal with the sections of the statute concerned

commentary on the Digestum vetus and three editions of his consilia, printed in Venice
in 1609 and 1617, respectively.
5 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.
6 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.
7 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.
8 Martines, Lawyers and Statecraft, 187.
 Paolo di Castro as Consultant 79

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 gov-
ernment,’ 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 mean-
ing [authoritatively] and assemble them in the appropriate sections accord-
ing 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 compo-
nendo, l. Haec que necessario), fol. 2va, n. 10: ‘Quid possint facere statutarii electi
super reformatione statutorum id quidem semel reperi Florentie. Nam possunt cor-
rigere, 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 speci-
alissimum quod possit addere vel minuere, satis potuit facere ex natura talis arbi-
trii, cum confirmatio consistat in predictis sicut in declarando vel collocando in locis
congruis.’
80 Susanne Lepsius

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 appli-
cability 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 uni-
versity 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 nar-
rowly, 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.
 Paolo di Castro as Consultant 81

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 diffi-
culties, I have chosen for the following investigation several consilia in
printed editions in which the content or other evidence makes Paolo’s au-
thorship 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 cata-
logues 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 con-
silium 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
82 Susanne Lepsius

Paolo’s consilia, moreover, were not limited to the interpretation of

Florentine statutes. We find references to the statutes of other communi-
ties 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 pro-
cedural questions. Many cases are related to inheritance, particularly the
always vexed question of excluding daughters, sisters, or mothers from tes-
tate 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 ex-
amples 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 ques-
tions would arise, see Thomas Kuehn, ‘Lawyers and Housecraft in Renaissance Flor-
ence: 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,
 Paolo di Castro as Consultant 83

had already kept many of the best-known Italian jurists of the fourteenth
century busy. The Florentine statutes of 1355 to which Paolo referred es-
tablished 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 prop-
erty 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

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.
20 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.
21 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 foli-
ation), provides the same text as the later editions with no further details. I have not so
far been able to locate the original consilium.
22 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.’
23 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
84 Susanne Lepsius

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 hus-
band 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 argumen-
tation 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 fur-
nished 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 con-
summated. 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 stat-
ute 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.
 Paolo di Castro as Consultant 85

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 con-
cur 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 re-
strictive 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 men-
tion the Florentine jurist Giovanni di Ruggero de’ Ricci (†1402), who an-
ticipated Paolo’s arguments in defending the husband’s right to claim the
dowry.30 In consequence, Paolo remained an isolated voice among the con-
sultants 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).
86 Susanne Lepsius

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 po-
destà 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 hus-
band 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 hus-
band’s shouldering the burdens of marriage. Interestingly, in the 1409 ver-
sion 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 suc-
cedatur in dote et aliis bois uxori premortue’: ‘Maritus lucretur dotem uxoris sue pre-
mortue 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 consum-
mato, si filius, vel filia, vel alii descendentes non extarent ex eis tempore mortis ipsius
uxoris’ (my italics).
 Paolo di Castro as Consultant 87

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 un-
convincing. Paolo expressly maintained his former legal position, which
he had held in his consilium, that one must adhere to a literal interpreta-
tion 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 in-
tention (mens) and final cause for the legislation (ratio).36 Paolo’s reason-
ing 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 refer-
ences 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.
88 Susanne Lepsius

Lex Hac edictali (C. 5.9.6)

A related problem addressed by Paolo di Castro and other contempo-

rary 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 envis-
aged 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 disposi-
tion 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 differ-
ences 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,’
 Paolo di Castro as Consultant 89

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 every-
thing 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 can-
not 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 in-
terpreted 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

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.
40 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.
41 ‘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.
42 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.
43 ‘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
90 Susanne Lepsius

a first marriage should be excluded from inheriting the dowry if the hus-
band 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 trans-
ferred 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

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.
44 ‘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.
45 Ibid., ll. 48–56.
46 ‘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 <D. 40.9.12> [my italics],’ ibid., vol. 1,
cons. 192, fol. 97vb, ll. 19–22.
47 See n. 12 on Lange and Kriechbaum’s contention that Paolo de Castro always opted for
the broadest possible application of the ius commune.
 Paolo di Castro as Consultant 91

Florentine statute, because the dowry contract could only make disposi-
tion 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 conse-
quences48 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 hus-
band, 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 com-
mune; or that the second husband be excluded from any inheritance rights
introduced by the city statutes where there were children of a first mar-
riage 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.
92 Susanne Lepsius

decision to divide the inheritance between the husband and stepson: a hus-
band 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 prae-
mortue.’ He referred to a common opinion held in Florence when inter-
preting 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 in-
herit 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 de-
fining 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 compet-
ing 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 trust-
worthy 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 mode-
rationem,’ ibid., no. 2, ll. 61–4. Paolo di Castro came to the same conclusion in an-
other 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.
 Paolo di Castro as Consultant 93

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 mak-
ing 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 stat-
utes, only sons, not daughters, could inherit the dowry, which prohibited
the mother from making a last will infringing on the sons’ claim to univer-
sal 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.
94 Susanne Lepsius

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 posi-
tion 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 inher-
itance 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.
 Paolo di Castro as Consultant 95

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 chil-
dren 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 con-
silia 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 do-
nationis 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 <D. 1.7.32>,’ 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 inof-
ficiose 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.’
96 Susanne Lepsius

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 re-
main 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 exclud-
ing the children of a first marriage. Paolo noted that the intention of stat-
ute 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 interven-
tion 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 com-
peting claims of children from a first and a second marriage were con-
cerned, 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 illumi-
nates 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. <C. 5.4.27>. 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. <C. 3.30.1> dicit quod statutum novum expresse tollit dispositionem l. Hac
edictali et illud fuit additum volentibus ita civibus Florentinis ad hoc ut viduae facilius
 Paolo di Castro as Consultant 97

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 en-
tire 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 cor-
rect 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 unfortu-
nately 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

reperirent maritos quando habent filios ex primo matrimonio’ ( T. Salvetti, comment on

the statute of 1415 in BML, Ashburnham 1680, fol. 390v).
70 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.
71 ‘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).
72 ‘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).
73 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
98 Susanne Lepsius

( 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 com-
munity’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 stat-
utes of Florence prevailed, according to which the husband would not re-
ceive 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 con-
firmed 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 de-
ceased); 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 con-
stat, 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 ap-
paret, 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.
 Paolo di Castro as Consultant 99

Therefore, one might consider it necessary to refer to the Florentine stat-

utes 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 an-
cient 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 consue-
tudo 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. Interest-
ingly, 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 unequiv-
ocally 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 circum-
stances 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.
100 Susanne Lepsius

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 stat-
ute, 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 (ev-
erything accruing to the common children outright) that directly contra-
dicted 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 re-
placing 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 alie-
natione,’ 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.
 Paolo di Castro as Consultant 101

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 inde-
pendently 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 under-
standing 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 follow-
ing: 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 regula-
tion 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 appli-
cable, 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 ecclesiasti-
cal 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).
102 Susanne Lepsius

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 patron-
age rights, because the alternative interpretation suggested by the Roman-
law 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 do-
nations 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 disposi-
tions, even donations, but then went on to restrict its application to sales.
Only through an extensive interpretation could Paolo reach the conclu-
sion 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 succes-
sive verbal formulations of the statute, as he did, for example, in the ques-
tion 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 con-
tracted 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 aliena-
tione rei inrequisito consorte’), p. 201, ll. 3–4, which reads: ‘Et idem intelligatur de pa-
droneriis, 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, di-
cendo 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.
 Paolo di Castro as Consultant 103

the property could be sold.91 Because Paolo wrote this part of his commen-
tary during his teaching activity in Padua, after his Florentine period, it is
probable that he had the 1415 statutes in mind. Similarly, when comment-
ing 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 ad-
vice 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 author-
ity 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 Roman-
law 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 non-
specific 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.
104 Susanne Lepsius

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 foot-
hold 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 re-
gard to the 1415 statutes, for instance, there is a tendency in general legal
history to overestimate Paolo’s contribution to the drafting of any par-
ticular 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 eccle-
siarum, que sunt spirituales et spiritualitatibus submissi ut sunt patronatus ut in capi-
tulo 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).
 Paolo di Castro as Consultant 105

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, provid-
ing at least a terminus ad or post quem.
The consilia I have discussed show that from the beginning of his activ-
ities 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 op-
posing the opinions of other distinguished jurists.
Only in one exceptional case did he appeal in a consilium to his knowl-
edge 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 arrange-
ment 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 com-
prehensive 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.
 Tommaso Salvetti and His Adnotationes ad statuta florentina 107

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 cen-
tral 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, particu-
larly 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 cau-
sis, was cited in hundreds of consilia written by Florentine lawyers, and it
represents the core of Florentine legal culture.4 It is not surprising, there-
fore, that at various times, Florentine jurists attempted systematic exposi-
tions of this vast but disparate body of material so central to their practical
activities.
In Lawyers and Statecraft, Lauro Martines briefly mentions the com-
mentary 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.
108 Lorenzo Tanzini

considered a fidelis interpres of the statutes of 1415 because of his per-

sonal 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 fam-
ily 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 es-
pecially 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.
 Tommaso Salvetti and His Adnotationes ad statuta florentina 109

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 diplo-
matic 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 blos-
somed 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.’
110 Lorenzo Tanzini

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 ecclesiasti-
cal 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 patri-
mony 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 connec-
tion with the Badia brought him into contact with other ecclesiastical in-
stitutions 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 ‘op-
timus et amicissimus vir’ and requests his legal assistance in a case involv-
ing 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.
 Tommaso Salvetti and His Adnotationes ad statuta florentina 111

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 col-
lection 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 re-
called 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.
112 Lorenzo Tanzini

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 crit-
ical. 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 revi-
sion. 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 system-
atically, and because the overhaul of such a large compilation was obvi-
ously 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 col-
lections, 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 Standard-
bearer of Justice spoke very clearly of a global revision of all ‘reformationes, ordina-
menta 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 stat-
utory 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.
 Tommaso Salvetti and His Adnotationes ad statuta florentina 113

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 accompany-
ing 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 succes-
sive practitioners.
The first named author of a commentary on the statutes was Alessandro
di Salvi Bencivenni (†ca 1423). Just before 1423, Bencivenni wrote a collec-
tion of comments (adnotationes) to accompany the second and third book
of the Statutum. This collection is generally regarded as the first commen-
tary 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 elab-
orate 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 com-
mentary 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 Mar-
tines, 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 Inheri-
tance Ideology’ and ‘Consilia as Juristic Literature,’ 239–40. Owing in part to his pre-
mature 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 causi-
dicus dominus Alexander Salvii doctor florentinus.’
114 Lorenzo Tanzini

Likewise, the choice of books that were subject to commentary – the sec-
ond book, on civil cases, and the third book, on criminal cases (thus ex-
cluding the sections on institutional rules) – would be followed by most
subsequent commentators. Although modelled on Bencivenni’s commen-
tary, 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 manu-
script lends support to the latter hypothesis. Following the commentary
on the rubric on dowries, the manuscript preserves a long series of con-
silia. 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 mis-
cellany 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.
 Tommaso Salvetti and His Adnotationes ad statuta florentina 115

This first manuscript provides evidence of an early, partial draft of the

work, but in addition, two other manuscripts of the complete commen-
tary 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 ru-
bric 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 vari-
ous 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 distinguish-
able 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 com-
mentary on book 2 in BR, MS 3015, which includes the text up to rubric 127, De Appel-
lationibus. 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 pre-
ferred to cite here the other two fifteenth-century codices with a view to devoting a
more detailed analysis to this interesting manuscript elsewhere.
116 Lorenzo Tanzini

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 ver-
sion.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 di-
vided 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 in-
ternal references suggest that it might possibly date from ten years later.38
Although probably still in the process of elaborating his incomplete com-
mentary 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 struc-
tured and quotable form; it is therefore probable that the former was com-
posed 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 seventeenth-
century copy is BUPi, MS 502.
37 As evidenced by the incipit of BMV, Lat. V, 54 (= 2456), fol. 1r: ‘Questiones declara-
tiones 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 post-
1467 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.
 Tommaso Salvetti and His Adnotationes ad statuta florentina 117

particularly complex and problematic. In the book on civil cases, for ex-
ample, 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 mat-
ter of legacies and dowries, central themes in the legal practice and social
customs of quattrocento Florence, and devotes only slightly less atten-
tion to the themes of debtors and creditors.41 Among the most thoroughly
glossed sections, only the rubric 127, on appeals, ventures beyond the top-
ics of obligations and family law to confront more general procedural is-
sues. An exceptionally good example is the last rubric of book 2, c. 130,
Qualiter mulier ab intestato succedat.42 In the seventeenth-century tran-
scriptions, 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 at-
tention 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 blood-
shed, 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.
118 Lorenzo Tanzini

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 profes-
sional legal consultant, a master of the consilium sapientis, a bridge be-
tween 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 dif-
ficult to grasp as a whole.
Salvetti’s highly technical subject matter did not prevent him from in-
cluding extensive allusions to the city’s political life. For example, on ru-
bric 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 prin-
ciples 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 par-
ticular 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.
 Tommaso Salvetti and His Adnotationes ad statuta florentina 119

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 sec-
tion of the statutes had already been annulled by the Florentine authori-
ties 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 ecclesiasti-
cal 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.
120 Lorenzo Tanzini

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 regard-
ing 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 contempo-
raneous political errors and imprudent decisions made by Florentine
officials. A case in point – historically distant at the time Salvetti was writ-
ing, 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 applica-
tion of the norms on the nullity of consilia sapientum contrary to the com-
mune’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 can-
not 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.
 Tommaso Salvetti and His Adnotationes ad statuta florentina 121

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 ear-
lier, 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.
122 Lorenzo Tanzini

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, sug-
gesting 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 foun-
dations 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 tradi-
tion 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 con-
tribution 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’ atti-
tudes 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 Contribu-
tion,’ 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 correc-
tive, because in both the cases of Volterra and Morosini, the question was one of politi-
cal 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.’
 Tommaso Salvetti and His Adnotationes ad statuta florentina 123

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 survey-
ing 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 tradi-
tional interpretation of the statutory codification, embodied in Salvetti’s
commentary and by his seventeenth-century heirs, was the principal rea-
son 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 te-
nacious 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 forgot-
ten 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 giuris-
prudenziale) by Luigi Lombardi, and the year after Mario Sbriccoli’s pro-
vocative study of jurisprudential statute interpretation (L’interpretazione
dello statuto). Lombardi’s linkage of consilia with the development of juris-
prudential communes opiniones, Sbriccoli’s analysis of statute interpreta-
tion, 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 inter-
woven’ 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 his-
torian of politics, political theory, public law, and the state.’4 He pursued

1 Martines, Lawyers and Statecraft, 450–5.

2 Chittolini, ‘Statuti e autonomie urbane,’ 33, 36.
3 Martines, Lawyers and Statecraft, 475.
4 Ibid., 450.
 Lawyers and Housecraft in Renaissance Florence 125

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 im-
portant 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 con-
silia, 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 Kuehn, ‘Antropologia giuridica dello stato.’

6 See Hespanha, Introduzione alla storia del diritto europeo, 11–26.
7 Rossi, Consilium sapientis iudiciale.
8 Ascheri, ‘ “Consilium sapientis,” ’ ‘Le fonti e la flessibilità,’ ‘Il “dottore” e lo statuto.’
9 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.
126 Thomas Kuehn

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 argu-
ments.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 understand-
ing 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 be-
yond. These categories arose from Martines’s driving concern with poli-

13 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.
 Lawyers and Housecraft in Renaissance Florence 127

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 foreign-
born 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 law-
yers, 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 fif-
teenth century, the legal profession in Florence was dominated by men
from outside the city. By the end of the century, the Florentine legal pro-
fession 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 law-
yers and outsiders in terms of political influence, he did not see any real
differences in terms of social background, academic training, or, presum-
ably, 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 in-
trigued me, maybe especially because those outsiders were numerically
evident at the point in Florentine history when humanism (spurred power-
fully by outsiders such as Leonardo Bruni and Poggio Bracciolini, as
Martines himself had previously established)24 took its civic turn and the

18 Ibid., 62.
19 Ibid., 72.
20 Ibid., 73.
21 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
128 Thomas Kuehn

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 ex-
ecutive 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 outsid-
ers 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 hy-
pothetical, with a small twist, was put to an entirely different set of lawyers
in 1413, although this second group also disposed of the determinations

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.
25 For this period, see Brucker, Civic World, and Najemy, History of Florence.
26 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.
27 In addition to Martines, Social World, 135, see Zorzi, L’amministrazione della giustizia,
‘Ordinamenti e politiche giudiziarie’; and Astorri, ‘Note sulla mercanzia fiorentina.’
28 Martines, Lawyers and Statecraft, 140–1.
29 BNF, Magl. XXIX, 193, fols 17r–25v (hereafter Consilia).
 Lawyers and Housecraft in Renaissance Florence 129

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 substitu-
tion, 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 stat-
ute 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 pro-
vided 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.
130 Thomas Kuehn

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 law-
yers’ concern. The problem was what was to be done if the deceased hus-
band’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 al-
legatio 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 authen-
tica 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.’
 Lawyers and Housecraft in Renaissance Florence 131

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 con-
stituenda 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 re-
plenished 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<entice>
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.’
132 Thomas Kuehn

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 mo-
tion 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, outlin-
ing his own reasons why the authentica Res quae applied to both constitu-
tion 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.
 Lawyers and Housecraft in Renaissance Florence 133

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 chil-
dren, 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 relation-
ship, 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 signa-
ture 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.’
134 Thomas Kuehn

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 re-
nowned canonist of the era, had been prominently involved in the coun-
cil 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 fidei-
commissa, 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 Davies, Florence and Its University, 34 n. 166.

46 Brucker, ‘ Florence and Its University,’ 223–4.
47 Tanzini, Statuti e legislazione, 17.
48 See Minnucci and Kosuto, Lo studio di Siena.
49 Consilia, fol. 22r: ‘mulieres indistincte propter talia fideicommissa ubi legitima non
sufficeret suis dotibus fraudari.’
50 Consilia, fol. 22r–v.
 Lawyers and Housecraft in Renaissance Florence 135

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 au-
thentica.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 sup-
port 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 condi-
tionally 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 mi-
grate 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 prop-
erty 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.
136 Thomas Kuehn

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 indi-
care 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 re-
stored to the widow. Our question is, Were there any significant differ-
ences 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.’
 Lawyers and Housecraft in Renaissance Florence 137

their relative prolixity. It took them eight pages to deal with the same is-
sues, 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, of-
fered 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 juris-
prudence, 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 pro-
fessionals, 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 ques-
tion 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.’

138 Thomas Kuehn

jailed after two months had elapsed). Modes were set for proving a hus-
band’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 redac-
tions 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 ro-
busta 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.’
 Lawyers and Housecraft in Renaissance Florence 139

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 predeces-
sors 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 house-
craft. 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 hus-
band 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 sub-
stance 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 guaranti-
gia, 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 para-
doxically 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.
140 Thomas Kuehn

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 ma-
leficio), they dwelled between cities – in the vast territories outside the de
facto reach of the regimes they opposed – or else they resided uncom-
fortably 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 pow-
ers, from the free use of torture to the suspension of normal criminal pro-
cedures 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.
142 Robert Fredona

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 lae-
sae 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 con-
spirators against the city could be said to have committed treason.6 At first
glance, these may seem to be conventionally narrow and legalistic ques-
tions, because even without maiestas, a city such as Florence could un-
questionably prosecute such conspirators for sedition (seditio) and other
crimes that carried severe penalties and allowed for abbreviated inquisi-
tion procedures. But these questions, and Baldus’s answers, will serve to
challenge the master narrative of the inexorable transformation of the late-
medieval 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.’
 Baldus de Ubaldis on Conspiracy and Laesa Maiestas 143

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 simi-
lar 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 cit-
ies, 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 con-
stitutio 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.
144 Robert Fredona

distinction between crimes against Rome and those against other, lesser
cities. ‘I ask,’ he wrote, ‘whether anyone who assembles a group [for il-
licit 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 trea-
son 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 under-
mined from within and beset from without by conspiracies, usually orches-
trated 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 re-
cently 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 ham-
mer, 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 parti-
sans 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 con-
gregat 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 al-
legat 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.’
 Baldus de Ubaldis on Conspiracy and Laesa Maiestas 145

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 plot-
ters, 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 out-
side Treviso. There, nearly 140 miles from home, a band of exiles plot-
ted 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 re-
take 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 im-
plicating 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,
146 Robert Fredona

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 conspira-
tors. After they were captured, though, it quickly became apparent that
the Capitano and Esecutore were unwilling to condemn them, so the lead-
ers 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

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 co<m>pari a farlo cristiano messer Baldo da Perugia dottore di leggi e di
decretali, messer Cerretano de Cerretani da Siena dottore di decretali.’
18 Stefani, Cronaca, rubric 828, 353: ‘sì grande che grandissima novità genererebbe.’
19 See ASF, PR, 68, fols 196v–97v, a measure ‘pro Antonio de Bruscholo.’
20 ASF, CP, 18, fol. 55v (also foliated 53v): ‘quod si rectores nollent facere iusticiam fiat
commissio civibus et artificibus qui faciant.’
21 Stefani, Cronaca, rubric 833, 357: ‘balìa insieme con gli Rettori a fare dare esecuzione
alla giustizia.’
22 Ibid., rubric 334, 358: ‘Andate, e fategli morire voi, che se io non gli troverò colpevoli,
io no ‘l farò.’
 Baldus de Ubaldis on Conspiracy and Laesa Maiestas 147

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 affec-
tis’); History of the Florentine People, vol. 3, 20–1. Francesco Guicciardini similarly de-
cried 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.’
148 Robert Fredona

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 fac-
tion 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 pan-
Italian conspiracy that commissioned agents, raised armies, and engaged
in secret diplomacy. The condemnation declared all of these men ‘betray-
ers 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 sub-
verted by angry and frightened guildsmen, those unlucky enough to have
been captured and killed in Florence had found themselves in a frighten-
ing, 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 opin-
ions 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 enrol-
ment, see Kirshner, ‘Ars imitatur naturam,’ 306. On his public participation, see Spa-
gnesi, ‘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.
 Baldus de Ubaldis on Conspiracy and Laesa Maiestas 149

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 writ-
ten by another, as yet unidentified, lawyer, presumably Florentine, who
was quite familiar with all the documentation and relevant pieces of legis-
lation, and that the second opinion (MS 351, fols 89v–90v; I.59) alone rep-
resents the work of Baldus.34 To begin with, the first consilium is not writ-
ten 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.
150 Robert Fredona

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 defec-
tive.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 con-
fiscation 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 law-
yer) 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 maiesta-
tis 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 condem-
nations 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.
 Baldus de Ubaldis on Conspiracy and Laesa Maiestas 151

were nearly identical: the condemned conspirator was in exile and was ap-
proached 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 peace-
ful 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 condemna-
tion 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.
152 Robert Fredona

should have been and may now be confiscated. He laid out the issues logi-
cally, presenting pro and contra arguments within the dual conceptual
frameworks of the ius commune and statutory law. In favour of confisca-
tion, 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 be-
cause 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 munici-
pal 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 privi-
leges 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.’
 Baldus de Ubaldis on Conspiracy and Laesa Maiestas 153

city of Florence has the same privileges, rights, etc.’49 The Florentine law-
yer’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).’
154 Robert Fredona

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 sedi-
tion 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 (arbit-
rium) 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 stric-
tum, 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 di-
minished 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.’
 Baldus de Ubaldis on Conspiracy and Laesa Maiestas 155

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 govern-
ments 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 statu-
tory 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 ter-
rible 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 govern-
ment. 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 consid-
ered the ‘most disgraceful and unruly thing that had ever been done, be-
cause 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.’
156 Robert Fredona

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 ‘pub-
lic 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 ‘un-
speakable 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 fu-
neral, 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 interfer-
ing 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<factor> civitatis Florentie.’
 Baldus de Ubaldis on Conspiracy and Laesa Maiestas 157

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 am-
bassador, 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 consi-
lium 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 com-
mentary 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
158 Robert Fredona

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 com-
mentary 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 rea-
sons 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. Post-
liminium § 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.’
 Baldus de Ubaldis on Conspiracy and Laesa Maiestas 159

the question of whether Florence possessed maiestas and could be the ob-
ject 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 con-
formed 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 repub-
lic’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 char-
acter 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.

160 Robert Fredona

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 cir-
cumference 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 re-
gimes, 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 every-
where 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 cul-
tured English traveller to the well-preserved historical and cultural attrac-
tions 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 em-
bedded 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 impor-
tance 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 defrag-
mentation 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.
162 Osvaldo Cavallar

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 pre-
served 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 con-
trol. 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 juridi-
cal 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 maies-
tas 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 ser-
vants 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 re-
garded 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 dis-
sent and ensure obedience, was, rather, a flexible legal instrument for oper-
ating 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.
 Laesa Maiestas in Renaissance Lucca 163

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 of-
ficials, 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 belong-
ings, books included, from Lucca to Bologna. Whether or not this request
was accepted is unknown; the fact that Sozzini left his movable posses-
sions 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 dimen-
sion of tyranny itself, a way of ruling that, in theory, may bring upon the
tyrant charges of laesa maiestas. Although the juridical literature, espe-
cially Bartolus of Sassoferrato’s tract On Tyranny, stated that tyrants are
guilty of laesa maiestas,11 instances where this specific charge was actu-
ally 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.
164 Osvaldo Cavallar

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 re-
mained on the fringes of scholarship. With few exceptions, historians have
been satisfied with the unflattering implications and connotations of tyr-
anny and have avoided investigating its legal operativity on a practical or
theoretical level. In addition, although the terms tyranny and tyrant un-
derwent 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 un-
disguised 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 his-
toriography: 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 tes-
timony 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 as-
sessment 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.
 Laesa Maiestas in Renaissance Lucca 165

Sozzini’s first consilium presents a preliminary difficulty. It presup-

poses 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 follow-
ing 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 ‘con-
demned,’ lawfully inherit from his brother Bartolomeo? Second, assuming
he could not inherit from his brother, should the inheritance go to the pub-
lic 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.
166 Osvaldo Cavallar

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 de-
termine whether or not one of Lucca’s judicial courts or political institu-
tions 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 corre-
sponding penalties.21 The penalties for the offender were severe, although
not unusually cruel: he ‘will be dragged through the city of Lucca with-
out 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 life-
time. 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 limita-
tion 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 per-
son 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.
 Laesa Maiestas in Renaissance Lucca 167

and the determination of its owner were also notoriously difficult to es-
tablish, 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 inter-
ests 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 broth-
ers is not known, the amount of confiscable goods varied significantly.
For the treasury, the goods accrued because of the division and the in-
heritance 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 capac-
ity 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 etymol-
ogy 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
168 Osvaldo Cavallar

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 dif-
fuse 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 ques-
tion. 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.
 Laesa Maiestas in Renaissance Lucca 169

conceptualize the status of Lucca so as to allow that imputation. Bartolus,

whom he cited, had argued that if someone should take power (‘pro rec-
tore 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 re-
gard 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 po-
tential 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 home-
land ( 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 defini-
tions based on etymology current among his predecessors. Of this master-
ful 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 ver-
sion.34 Divine majesty aside, that imputation became available only when
a crime affected the emperor, the king, and the Roman Republic, exempli-
fied 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 Quaglioni, Politica e diritto, 185, ll. 210–13.

31 D. 50.16.16 (Eum qui vectigal ).
32 C. 9.42.3 (Fallaciter).
33 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.
170 Osvaldo Cavallar

crimen laesae maiestatis should be kept conceptually separate – but gave

no explanation why the same text could be used for supporting two dif-
ferent 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 character-
ized 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 gram-
matically 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 alte-
rius 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.
 Laesa Maiestas in Renaissance Lucca 171

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 tra-
dition 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 hav-
ing 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 transac-
tions into which Paolo entered after he became signore, including the ac-
ceptance 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 sug-
gested from his linking of tyranny and maiestas is highly technical and can-
not 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 in-
compatible, 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.
172 Osvaldo Cavallar

Sozzini’s answer to the first question – whether he could lawfully in-

herit 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 spell-
ing 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 inheri-
tance and succession, the children’s father, too, is prohibited from accept-
ing 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 commit-
ted 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 rul-
ing 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 sup-
porting 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.’
 Laesa Maiestas in Renaissance Lucca 173

status of a person who because of a crime he had committed was bur-

dened 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 of-
fender, 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 con-
demnation.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 to-
wards 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
174 Osvaldo Cavallar

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 estab-
lished 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 alleged-
ly 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 spend-
thrift ( 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 nec-
essary 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.
 Laesa Maiestas in Renaissance Lucca 175

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 prescrip-
tion. 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.
176 Osvaldo Cavallar

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 estab-
lished order, civil or religious. More important, it shows that laesa maies-
tas 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 em-
ployment 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 council-
lors cast a dissenting vote on his banishment – he was regarded with well-
founded suspicion.60 In 1490, he was induced by Francesco Gambini,
vicar of Ripafratta and an employee of Lorenzo de’ Medici, to partici-
pate 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.
 Laesa Maiestas in Renaissance Lucca 177

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 par-
ticularly 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 bene-
ficiaries 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 re-
tained one of his best jurists, Bartolomeo Sozzini, then teaching at the
Studio Fiorentino in Pisa. But it is also possible that other Lucchese con-
nections 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.
178 Osvaldo Cavallar

Sozzini’s second opinion also suggests that the early stage of the debate
was strictly focused on the fideicommissum and the conditions of its va-
lidity. 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 of-
ficials’ 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 maies-
tas 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 crimi-
nal 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 fi-
deicommissum and that the treasury could not invoke the argument of un-
worthiness. His starting point was the traditional teaching on laesa maiestas
and the limited range of its application – the Roman Republic and the em-
peror. 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.
 Laesa Maiestas in Renaissance Lucca 179

was invoked to reinforce his thesis. Further, as Nello reported, Baldus’s in-
tervention 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 munici-
pal 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 de-
bate, 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 au-
thoritative; 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 civi-
tatem et pacificum statum et non laesae maiestatis, quae crimina ut separata distin-
guuntur.’
67 Respectively, c. In poenis VI 5.13.49 and c. Odia VI. 5.13.15.
180 Osvaldo Cavallar

expert on judicial procedure.’ For Sozzini, this was a point that the presid-
ing 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 consequen-
tial 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.’
 Laesa Maiestas in Renaissance Lucca 181

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 cor-
porate 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 undeni-
ably 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 dis-
position 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.
182 Osvaldo Cavallar

day officials,’ he stated, ‘enjoy only that amount of jurisdiction that the
statutes give them.’76 However, while the statutes on proditio and rebel-
lion 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’ expres-
sion 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 main-
tained 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 fideicommis-
sum 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’ at-
tached 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 jurist-
consultor, birth, not conception, stood as the discriminating moment. Be-
cause 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 univer-
salis 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.
 Laesa Maiestas in Renaissance Lucca 183

(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 sub-
tlety 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 oppres-
sive legal constructs devised to repress dissent, ensure obedience, and pro-
tect 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 estab-
lished order and, though less frequently, that of the tyrant. Second, con-
trary 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 ana-
lytical 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 ini-
tial 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 wide-
spread 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 there-
fore 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) particu-

larly 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 com-
plex 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.
 Afterword 185

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 law-
yers 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 politi-
cal 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 mag-
isterial L’interpretazione dello statuto, published a year later. In the pres-
ent 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 po-
litical 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 neverthe-
less roundly confirms the productivity of the central interpretative thrust
of Lawyers and Statecraft, which remains unaffected by radically chang-
ing 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.

186 Lawrin Armstrong

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 consid-
eration 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 centu-
ries. But as Sara Menzinger shows in her essay on ‘lawmen’ in the popolo
regimes of Perugia, Bologna, and Siena, Martines’s approach can be fruit-
fully 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, re-
ferred both to an expert opinion composed by a team of jurists at the re-
quest 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 estab-
lishment of oligarchic, and later Medicean, dominance in late trecento
and quattrocento Florence. In contrast to the ‘consensus’ model of po-
litical order that currently holds sway in the Anglo-American historiog-
raphy, 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 require-
ments of the elite, contributed to elaborating an apparatus of violent re-
pression 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 prop-
rium 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.

 Afterword 187

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 sys-
tematically 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 compila-
tions, often in the form of successive layers of glosses augmented and ex-
panded 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 diffu-
sion beyond Florence in a model of historical detective work.
Perhaps the most striking characteristic of Martines’s book is its exten-
sive 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 pri-
vate 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 con-
cludes 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 in-
vocations 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 maies-
tas, properly an attribute of imperial authority. His answers, which insist
that the government adhere to its own statutory norms, considerably com-
plicate 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
188 Lawrin Armstrong

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 will-
ingness 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 meas-
ures evolved to quell dissent in oligarchic and Medici Florence.
Other contributors implicitly align themselves with the position elab-
orated 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 aristo-
cratic background transcended their class origins in the interests of a com-
mon 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 con-
clusions. For Cavallar, an emphasis on the elaboration of state power ob-
scures 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 ideo-
logical 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.’
 Afterword 189

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, thor-
oughly 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 po-
litical 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 repre-
sented 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 discus-
sions 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 tempta-
tion, 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 thirteenth-
century 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.
190 Lawrin Armstrong

Milanese signori.8 An Italian Renaissance Sextet (1994) and Strong Words:

Writing and Social Strain in the Italian Renaissance (2001) took the ar-
gument 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 radicaliza-
tion 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 crit-
ical 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 Uni-

versity 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
192 Contributors

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), co-
author 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 südeuropäis-
chen 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 pe-
riod. 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).
 Contributors 193

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 lib-
rorum 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 his-
tory 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).
This page intentionally left blank
Bibliography

Manuscripts Cited

Castiglion Fiorentino
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Statuto (1384)
Florence
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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
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Tratte 223; 576; 603
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C 2 73bis
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Vat. lat. 2258; 8069
Venice
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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 magis-
tracy), 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

consorteria (household community),
82, 100 – 4
consules (communal magistracy), 42
consulte e pratiche (advisory commit-
tees), 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 Con-
siglio 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 Conserva-
tori 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; restitu-
tion of, 128–39; succession to,
82–7, 97–100
due process of law, 60, 61, 65, 66
Index 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,

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 law-
maker), 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
Index 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 Pupil-
lorum), 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, zibal-
doni; 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; composi-
tion 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

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 mag-
istracy, 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 (Gonfalo-
niere 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; in-
terpretation 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 Lion-
ardo, 145; Tommaso, 147
syndication (sindicato), 43–4, 58–61, 62,
63, 64–6, 67, 71, 72, 73–5, 82, 186
Index 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 Editorial Board

LAWRIN ARMSTRONG 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