Éléments d’une définition juridique de l’exil : le Tractatus de bannitis de Bartolo da Sassoferrato (1314-1357)

Abstract

Exile and banishment, often closely linked, show an evident political character and they endured through a long period of European history, from the Middle Ages to the modern era, leaving a trace in times even closer to our days. Around the middle of the 14th century, the most representative jurist of the tradition of common law, Bartolo da Sassoferrato, devotes a Tractatus to banishment. Given the authority and originality of the author, the text will mark the entire juridical reflection that follows in Italy and elsewhere, in particular thanks to the broad diffusion of Bartolo’s printed texts in the 16th century. Starting from a reflection that stems from the doctrinal tradition developed over the centuries, the author refuses to conform to a casuistic dispute that would be so detailed as to become sterile. He prefers to focus on elaborating principles that builds on the authority of the sources of common and civil law. These allow to define the characteristics of a banished citizen and to recognize in fact the unquestionable power of banishment as a penalty inflicted by the cities and local governments, while preserving the universal authority of the common law that allows, concurrently, to recognize to the banished citizen of a city all the rights and the duties enjoyed by the cives Romani imperii. With the rise of the national states, the idea of a civitas able to escape the boundaries of a territory and the power exercised within those boundaries will be progressively erased.