To be published in the Rivista internazionale del diritto comune 26 (2006)
The Birth of
the Ius commune: King Roger II’s Legislation
Charles Homer Haskins wrote about the Normans in Sicily as elegantly and
insightfully as anyone before or since. In
The Normans in European History he
expressed his admiration for King Roger II (1130-1154)[1]:
It is not too much to call the kingdom of Roger and his successors the first
modern state, just as Roger’s non-feudal policy, far-sightedness and
diplomatic skill have sometimes won for him the title of the first modern
king.
Haskins may have admired Emperor Frederick II even more but argued that many
of Frederick’s virtues had their origins in Roger’s cosmopolitan Palermo[2].
“No where else”, he observed, “did Latin, Greek, and Arabic civilization live
side by side in peace and toleration”[3].
He pointed out that Sicily was the “natural meeting-point of Greek, Arabic,
and Latin civilization, and a natural avenue for the transmission of eastern
art and learning to the West”[4].
The scattered artifacts and architectural monuments that remain of Roger’s
capital city, Palermo, provide startling and evocative evidence for Haskins’
generalization. Art historians have demonstrated that Roger exploited all
three cultures in his kingdom. They have argued that he imported objects,
craftsmen, and materials from all over the Mediterranean to build and decorate
his buildings. These multi-cultural artisans also provided him with his robes,
the symbols of his office, and even his tombs[5].
Historians have long known that Roger adopted Byzantine and Arabic practices
and utilized Greeks and Arabs in his court; he was indeed “a ruler between
East and West”[6].
Roger II produced a body of legislation that scholars have dubbed the
Assizes of Ariano. His legislation
was important for several reasons: no other secular European prince
promulgated such a sophisticated body of laws in the first half of the twelfth
century; no other ruler ordered his legislation compiled into a systematically
organized collection; his legislation reveals a close connection to the
teaching and study of Roman law in Northern Italy; his constitutions may be
the earliest example that we have of the nascent
Ius commune’s influence on secular
law; and, finally the Emperor Frederick II’s commission of jurists
incorporated more than half of his legislation into the
Constitutions of Frederick II in
1231 (also called The Liber Augustalis
or The Constitutions of Melfi in the
older literature[7])
that remained the law of the land in Southern Italy until the early nineteenth
century[8].
If one wished to join Haskins in signaling the importance of the Normans in
European history, one could do far worse than choosing Norman legislative
activity in Sicily as a milestone in European legal history[9].
Scholars have debated, disputed, or not recognized the reasons that I have
just given for the importance of Roger’s legislative activity. I will try to
justify all of them in this essay.
Roger’s Legislation, its Transmission, and Sources
The early years of Roger’s reign were turbulent. He was born in December 1095.
Although he ruled in his own name from 1112 as count of Sicily and Calabria,
his authority and rule were precarious. His fortunes improved in the late
1120’s. First he inherited Apulia from his cousin William in 1127, and in 1128
Pope Honorius II recognized his claim to the Duchy. Roger supported the wrong
pope, Anacletus II, against Pope Innocent II in the Schism of 1130 but
profited greatly. Anacletus granted him Sicily, Apulia, and Calabria. However,
he trampled on papal prerogatives when he had himself crowned King of Sicily
on December 25, 1130. His temerity led to a long dispute with the papacy. In
1139 Pope Innocent II led an army against Roger. The pope was defeated and
taken prisoner near Gallucio. Consequently Innocent was forced to recognize
Roger’s royal claims and dominions in the Treaty of Mignano.
Two passages from the chronicles have led scholars to believe that 1140 was a
key date for Roger’s legislation. Romuald of Salerno wrote that around 1140
King Roger ruled over a tranquil kingdom in which chamberlains and justiciars
maintained peace. The king promulgated new laws and abolished bad customs[10].
Historians have argued that an even more important piece of information is
contained in the chronicle of Falco of Benevento. He described a council in
the city of Ariano in which the king enacted “innumerable acts” and a
“terrible” edict in which coins from Rouen were banned from the realm[11].
Falco condemned Roger’s debasement of the currency[12].
Scholars have concluded from this passage in Falco’s
Chronicle that some form of a collection of laws preserved in
Vatican and Montecassino manuscripts was promulgated at Ariano ca. 1140[13].
The Vatican manuscript is a crucial piece of evidence for Roger’s legislative
activity and for legal culture in the first half of the twelfth century. Vat.
lat. 8782, has been generally dated to the late twelfth century[14].
The original text contained four works: fol. 1r-46vb: A collection of Lombard
law (Liber legis Langobardorum or
Liber Papiensis) with extensive marginal glosses[15];
fol. 47r-48v: <Excerpta Codicis>, constitutions taken from Justinian’s
Codex arranged systematically
according to their place in the Codex[16];
fol. 49r-91va: The text of Justinian’s
Institutes with several layers of glosses[17];
fol. 91rb‑94va: contains Roger’s legislation. A later hand – but not much
later – added two works to the end of the manuscript: fol. 94va-fol. 95rb: the
twelfth-century-jurist Bulgarus’ letter to the Papal Chancellor Haimeric, in
which he described the main parts of the procedure that should be used in
courts and also distinguished between the functions of a judge (iudex)
and an arbiter (arbiter)
[18].
Marginal glosses were added to Bulgarus’ text that alerted the reader to those
Roman law texts Bulgarus used and quoted in his work[19].
The final piece on fol. 95v-fol. 96v is another tract on procedure that dates
to the early twelfth century[20].
None of the texts in the manuscript was written later than 1141[21].
It was, beyond a doubt, a manuscript of a jurist. Although the age of
manuscripts cannot be an exact science I would date Vat. lat. 8782 to the
middle of the twelfth century at the latest. The crucial piece of evidence is
not the script, about which there can be disagreement, but the citations to
the Digest and the last two tracts
on procedure that were added to the manuscript. The paleographic evidence that
argues for a middle of the twelfth-century date is the siglum that the scribes
used to cite texts from Justinian’s
Digest in glosses to the Institutes
and in the glosses Bulgarus’ letter to Haimeric. By the late twelfth century
the jurists and scribes uniformly used ff. to signal a reference to the
Digest, but earlier they used a
capital D with a line though the center of the letter[22].
No late twelfth-century scribe would cite the
Digest using the archaic capital D with a line through it. The two
treatises on procedure also provide evidence of a mid-twelfth-century date.
Bulgarus’ treatise and the anonymous tract were quickly superseded by other
more detailed and sophisticated tracts on procedure. It is difficult to
imagine any jurist’s wanting to have these two texts appended to the
manuscript after ca. 1160.
Montecassino, Biblioteca dell’Abbazia, 468, on the other hand, is a composite
manuscript consisting of three parts. The last two sections clearly date to
the early thirteenth-century. The second part of the manuscript contains works
from the late twelfth and early thirteenth centuries and the legislation of
Roger II[23].
Furthermore, the texts of Roger’s constitutions are shortened and altered in
the manuscript; the textual tradition is almost always much inferior to the
Vatican manuscript[24].
When Frederick II’s commission of jurists compiled his
Constitutions they did not use a text of Roger’s legislation from
the Montecassino tradition but a text very close to the one in the Vatican
manuscript[25].
Consequently, Montecassino cannot be used as evidence for the transmission,
shape and form of Roger II’s legislation. Rather it is a much later “epitome”
of uncertain date and origin[26].
A significant piece of evidence for understanding the transmission of his
legislation is the text that we have in the Vatican manuscript. It was
composed in the standard format of a legal compilation or collection. By the
twelfth century, and even long before, collections of laws had a standard
structure. In contrast to the text of Roger’s legislation in the Montecassino
manuscript, the Vatican manuscript conforms to the standard format of a
compilation of laws in every detail. There is a prologue to the collection,
the work is divided into titles, the text is formatted in two columns – which
was almost universal by the twelfth century – and individual laws under each
title are distinguished by a large initial letter provided for the first word
of each law[27].
Because scholars had dated the Vatican manuscript to the late twelfth century,
some had attributed the compilation to the reigns of either William I or
William II[28].
Since Stürner’s edition of the
Constitutions of Frederick II it is indisputable that all the laws in the
Vatican manuscript are Roger II’s and not a mix of later Norman legislation.
Therefore, if I am right about the date of the Vatican manuscript the
compilation of Roger’s Constitutions
must date to his reign. We are dealing, in other words, with a precocious
royal compilation of laws.
Caspar and other older scholars have all concurred that Roger promulgated a
code at Ariano in 1140[29].
Recent scholarship has assumed that the collection was privately made; that is
Roger II did not order that his statutes be gathered together[30].
An argument for that conclusion might be that we do not have a single example
of a ruler ordering his laws to be compiled officially in the twelfth century[31].
If Roger had ordered his legislation to be compiled and officially published
his act would have preempted Frederick II’s
Constitutions as the first code of
laws promulgated by a secular ruler in Europe. It would have been an
extraordinarily early exercise of royal legislative prerogatives. Some
scholars have also advanced the argument that the collection of statutes in
the Vatican manuscript was late twelfth-century and was not the work of Roger
II’s jurists but of a later compiler, who perhaps worked during the reign of
King William I or II[32].
Any conclusions about the role that Roger may have had in producing the
compilation of laws in the Vatican manuscript must begin with the prologue.
The first thing that strikes the reader is the use of the imperial “We”. It
begins[33]:
It is proper and necessary, O barons, that we not presume concerning
ourselves, the state of our entire kingdom, and its riches[34].
We have received it from the abundance of divine grace. We may render our
thanks for the divine gifts from which we have our power with obedience , in
order that we may not seem completely ungrateful for so much grace.
The anonymous author(s) of the prologue who has given a voice to Roger II must
have been an official(s) of the royal chancellery[35].
The text has clues to his background and training. The phrase “Dignum et
necessarium” has legal resonances. The statute
Digna vox (Cod. 1.14(17).4) was one of the classic statements in
Justinian’s Codex defining the
authority of the prince[36].
“Necessitas” was, by the twelfth century, a key norm in law[37].
The prologue’s description of the king’s debt to God and of his obligations is
pictorially represented in a remarkable mosaic of Christ’s bestowing a crown
on Roger in the church of Santa Maria dell’Ammiraglio (La Martorana),
constructed during the 1140’s. The prologue and the mosaic might have been
crafted at roughly the same time[38].
Roger’s age in the portrait is congruent with his age in the 1140’s, ca. 45-50
years old. The prologue continues to gloss the portrait in that mosaic[39]:
This thing that he says, we are inspired by the gift of The Bestower, His
having said “Through me kings reign and law-givers render justice (Proverbs
8.15-16)”. We consider that nothing is more pleasing to God than if we simply
offer him that which we have known him to be, namely Mercy and Justice.
The author of the prologue made an important change in the biblical citation
by changing the Vulgate’s “iusta” to “iustitiam”. The passage from Proverbs
8.15-16 was compressed to emphasize the king’s duty to render justice[40].
The connection of mercy and justice had a long tradition in Christian theology
and in the legal tradition, but, as this prologue was written, jurists began
to understand that “misericordia” was flawed as a legal concept. During the
twelfth century “misericordia” was replaced by a much more rigorous concept,
“aequitas” in the jurisprudence of the jurists[41].
At this point, the author of the prologue switched from theology to law[42]:
A certain judicious man who was learned in law calls the interpreter of law
priests (Dig. 1.1.1)
[43].
And rightly so we who have been granted the authority of right and law through
His grace ought partly to re-establish and partly to reform laws[44]
to bring them into a better state. We who have known mercy should treat laws
more mercifully in all things and interpret them favorably (Dig. 1.3.18)
[45],
especially when their severity leads to inhumanity (Dig. 1.3.25)
[46].
We do not do this from arrogance as if to say that we are more just or <more>
moderate in promulgating and interpreting laws than our predecessors because
of our watchfulness (Inst. Proemium)[47].
This section of the prologue outlines a clear conception of legislative
authority based primarily on the first titles of Justinian’s
Digest. The author’s knowledge of Roman law was deep enough to adapt
language of Roman law and allude to key words that he took from the
Digest and the
Institutes, incorporating them into the prologue without simply
repeating the exact language of Justinian, but he did so with unmistakable
references to it. The legal language of the prologue also establishes Roger’s
status as a “princeps”, the prince of Justinian’s compilation, whose authority
to promulgate, abrogate, and derogate law was unlimited. The same symbolism
emerges from the disparate objects that still survive from his reign. In the
1130’s Roger had ordered the construction of the Cathedral in Cefalù and at
the same time commissioned two porphyry tombs for his corpse[48].
Porphyry had long been connected with the symbols of imperial rule and had
been incorporated into papal and ecclesiastical monuments[49].
The lions that supported one of the tombs are also traditional symbols of the
prince’s power. At the same time in which the tombs were sculpted, Roger
commissioned the royal mantle now in Vienna with the same symbolism of lions[50].
The author of the prologue then returned to his biblical allusions to reflect
on Christian mercy, a theme that was especially important in canonistic
thought of the early twelfth century:
But because we sin in many things (James 3.2)[51]
and are more prone to sin, we think that it is proper for us in our time to
have mercy on sinners with the appropriate moderation. Just as Christ has
instructed us saying: “Be merciful then as your Father is merciful (Luke
6.36)”[52].
And the king and prophet: “All the paths of the Lord are mercy and truth
(Psalm 24.10)”[53].
Without a doubt we shall be judged because a sentence without mercy will be
rendered on him who rendered judgments without mercy (James 2.13)[54].
Ivo of Chartres in his Prologue and Alger of Liège were two early
twelfth-century canonists who wrote extensively on the concept of mercy[55].
Luke 6.36, James 2.13 and James 3.2 appear in their works when they discussed
mercy and later in the dicta and chapters of Gratian’s
Decretum. Psalm 24.10 was also commonly cited in canonical
literature[56].
This evidence does not mean, I think, that the author of the prologue was a
canonist. He flaunted his knowledge of Roman law and did not cite any
canonistic texts. His biblical citations prove, however, that he knew the
canonical and theological literature in some detail, and, more importantly,
how to incorporate theological and biblical concepts into his thought. His
knowledge of Roman law and his use of biblical texts that circulated in
canonical collections probably indicate a general legal background that was
most likely formed in Northern Italy. Bologna was the only place in Europe
where both laws jostled each other cheek by jowl in the first half of the
twelfth century. I will present conclusive evidence for the compiler’s having
used an early twelfth-century Bolognese work to organize Roger’s
Constitutions in the next section of
this essay.
The prologue concluded with a statement of purpose and law[57]:
We want therefore and we command that you faithfully and quickly receive the
laws in the present body that we have made public whether they were
promulgated or compiled by us (Inst. Proemium)[58].
The first and most important point that we can conclude from this final
command is that Roger promulgated a body (corpus) of laws by adopting the
language of Justinian’s Institutes[59].
He called his laws “sanctiones”, which is exactly the same language used a
century later when Emperor Frederick II promulgated his
Constitutiones[60].
Unless we wish to dismiss the evidence of the prologue, the “sanctiones” in
the Vatican manuscript are the body of laws that Roger promulgated.
We will never know whether Roger promulgated this code in Ariano or somewhere
else. An assembly at Silva Marca in 1142 has also been suggested[61].
There is evidence that Roger issued “sanctiones” throughout his reign, but
none of the laws in the Vatican manuscript can be dated[62].
The evidence from the prologue would indicate that it was written in the late
1130’s or early 1140’s. The primary evidence for that dating is the author’s
focus on mercy in the prologue. That theme is much more compatible with the
first half of the twelfth century than later.
The only textual evidence for calling Roger’s collection or the statutes
themselves “assizes” is the thirteenth-century rubric attached to the statutes
in the Montecassino manuscript[63].
If we stick to the evidence of the early twelfth century, the titles “Assizes
of Ariano” or “Assizes of Roger II” should no longer be used to describe
Roger’s legislation because the term was not used during Roger’s reign[64].
A better title would be Roger II’s
Constitutions, which I will use for the rest of this essay. I think that
the prologue provides quite good evidence that at sometime during his reign
Roger had a trained jurist or jurists compile a collection of his laws that he
had promulgated since he had been crowned king in 1130. The result was a
precocious example of legislation, and another piece of evidence for the
Norman’s extraordinary capacity to govern.
In the next section of this essay I will demonstrate that only a trained
jurist could have drafted Roger’s constitutions. If I am right, then the
author or authors of the prologue were probably responsible for the
compilation and the drafting of the
Constitutions as well – although they might not have been the same
person(s).
One final point should be made about the prologue. It is similar to the
oration that Otto of Freising reports Emperor Frederick I gave at the Diet of
Roncaglia in November 1158. Frederick’s “speech-writer” did not use the same
texts from Justinian to support his rhetoric. Nor did he quote the Bible
extensively. He did, however, clearly use the expertise of jurists from
Bologna to draft his speech[65].
Roger II anticipated him by, perhaps, almost two decades.
Roger’s Constitutions and the Emerging Jurisprudence of Roman Law
The fundamental question that I wish to address in this section is the state
of legal learning and expertise at Roger’s court. Ennio Cortese has written
that the traces of Justinian in Roger’s constitutions leaves one rather
perplexed. During the reign of Roger II there was no southern school of law
that might have spread the learning of Justinian’s codification in his kingdom[66].
When, however, we consider the architectural and artistic remains from his
reign we can see that he exploited local artisans and materials and also
imported other craftsmen from as far away as Constantinople. Art historians
have granted Roger and his court a broad, cosmopolitan culture that was more
sophisticated than any other princely court in Western Europe. In that context
Bologna was not very far from Palermo.
Scholars have been divided in their judgments about his legislation. Erich
Casper waxed eloquent. The Normans, he wrote, had a natural legislative talent
and a grand political talent. Everywhere they settled they left a mark of
their presence in the juridical life of the people. In England the most
impressive example of their talent was the Domesday Book. In Italy their
capacity to govern can be seen in Roger’s legislation[67].
Zecchino has no doubts that Roger’s court was a flourishing home to jurists
from Bologna and elsewhere[68].
However, other scholars have diminished the Sicilian Norman juridical
achievements for various reasons. Since it has been generally assumed that the
Vatican manuscript dated to the late twelfth or even the thirteenth century,
scholars have attributed the compilation and editing of the text to jurists
who worked during the reigns of Kings William I and II, or even during the
reign Emperor Frederick II[69].
Donald Matthew has recently given the most negative assessment of Roger’s
legislation[70]:
The texts were cobbled together unsystematically from a variety of sources...
two-thirds of them are in substance not original at all, since they are
derived from either Books 1 and 9 of Justinian’s Codes or from Book 48... of
the Digest... The most plausible explanation for the two manuscripts <of the
constitutions> is that in the second half of the twelfth century, an
ecclesiastical institution with legal jurisdiction, such as Cassino or the
archbishopric of Salerno, itself made a collection of <Norman> legal rulings.
I have already tried to demonstrate that the Vatican manuscript dates to the
middle of the twelfth century. I have also argued that the prologue in the
Vatican manuscript must be for the collection of legislation that follows it
and that a skilled jurist with a broad background must have drafted it. In the
following section I will not analyze all of Roger’s legislation but will
examine a few constitutions in detail to illustrate the jurist’s professional
competence and learning. I shall also provide evidence that Roger’s jurist
used an important tract of procedural law that the famous teacher and jurist
Bulgarus wrote between before 1141.
Roger’s Constitutions have been
described as “not being an organic whole” and as having “imperfections”[71].
This conclusion asks not only the wrong question but also gives an
anachronistic answer. Roger’s was not comprehensive like Justinian’s
codification, but no twelfth-century jurist would have thought to compile such
a code. When Frederick II promulgated his
Constitutions a century later, it
too was far from comprehensive. Secular codifications would remain disjointed
segments of mosaics that only partially pictured the legal systems for which
they were designed. Comprehensive codes belong to the modern world and the
jurisprudence of Austinian sovereignty. Modern civil law codes do attempt to
cover all parts of the legal system, but law in the Middle Ages could be found
in many cupboards, not just in the legislative authority of the state. In a
society in which customary law still played such an enormous role, in which
large areas of the law were in the hands of ecclesiastical courts, and in
which whole areas of the law such as procedure and law merchant were not
thought of as being within the purview of the legislator, no jurist would ever
have attempted to compile a code that incorporated every jot and tittle of the
law of the land[72].
Roger’s Constitutions do look
strange to modern eyes. The last sentence of the prologue declared that the
Constitutions contained statutes promulgated and compiled by him.
What appears unusual to us is the number of constitutions that were taken from
Justinian’s Codex, reworked, and
promulgated by Roger as law in the Kingdom of Sicily. Scholars have continued
to maintain that Roger’s legislation was simply taken from pre-packaged
excerpts of Roman law (of which there is not a single surviving manuscript
that might provide evidence for such an assertion)
[73].
Of the 69 statutes in the Vatican manuscript nine have close verbal
similarities to texts in the Codex
and seven take their inspiration from texts in the
Digest – although none of Roger’s constitutions is taken word for
word from Justinian’s codification[74].
The list of “borrowed or excerpted” texts from Roman law (terminology that we
will see is not an accurate description) comprises only 17 of the 69
constitutions. There are many other conceptual and verbal borrowings in
Roger’s legislation from Roman law, but the rest of the constitutions cannot
be called “excerpts” from Roman law. Rather they were influenced by Roman law
terminology, concepts, and jurisprudence.
This point is particularly important for understanding the sources for Roger’s
legislation. Scholars have conjectured that various existing collections or
other unknown epitomes of Roman law must have been Roger’s jurists’ sources.
This conjecture assumes that no one at Roger’s court could navigate
Justinian’s complex codification. That might have been a reasonable conjecture
if his jurists had only used the Codex.
However, they used the Digest
intensively. That book was not for amateurs or dilettantes. A person needed
extensive legal training to exploit the
Digest. In any case, the Digest
never circulated as an epitome in the West.
Consequently, the general assumption that has pervaded the literature until
now — that Roger’s jurists used abbreviated versions of the
Codex or excerpta from the
Codex and Digest — cannot be sustained. Until now no link has been shown between any
earlier abbreviated Codex[75].
More importantly, if one consults Gero Dolezalek’s comprehensive survey of
Roman law manuscripts one finds that there are no collections of excerpts or
florilegia from which a non-jurist might have drawn his material[76].
It is time, I think, to stop citing mythical and improbable sources that
Roger’s jurists might have used.
The evidence of Roger’s legislation clearly shows that his jurists had access
to and used the entire Codex and
Digest. They incorporated the last
section of the Digest to have been
rediscovered, the Digestum novum,
into his legislation; this part of the
Digest was used and cited as early as the 1110’s in canonistic sources[77].
Roger’s jurists borrowed from Justinian’s codification extensively; that was
common practice in the first half of the twelfth century. Gratian’s
Decretum, which was finished in its
final form ca. 1140, incorporated a large number of texts word for word from
Justinian’s Codex and
Digest[78].
Like Roger’s jurists, Gratian adapted and edited the Roman law texts in
creative ways. In part he was simply following a long tradition of
incorporating Roman law into canonical texts, but like Roger’s jurists Gratian
shaped Roman jurisprudence to fit his needs. From this perspective Roger’s
jurists were not doing something unusual when they shaped Roger’s legislation
with Roman texts and norms; they were doing what compilers of legal
collections commonly did in the first half of the twelfth century.
In order to justify some of the statements that I have made in the last two
paragraphs, let us look at several constitutions in Roger’s codification and
compare them to their Roman law sources. One point should be made clear at the
beginning. We have to distinguish between the jurist(s) who compiled Roger’s
legislation and his learning, and the jurist(s) who drafted his legislation
(although he [they] might have been the same in some or in all cases). We are
evaluating the level of legal learning of the people who drafted his
legislation and the competence of those who compiled his code. From now on I
shall refer to Roger’s jurists in the singular, but we should remember that we
may be speaking about a group of them, not a single person.
Roger’s Constitutions (= RC) are
organized almost exactly according to the arrangement of topics in Justinian’s
Codex. The jurist who arranged RC in
the Vatican manuscript had to know the entire
Codex in order to do that. The first
titles of RC, 1-16, deal with the authority of the lawgiver, the rights and
privileges of the church, ecclesiastical crimes and persons. RC’s Titles 17 to
43 deal with criminal law, malfeasance in office, and marriage law. I shall
begin with a straightforward example, which is one of the few constitutions
that is taken almost word for word from Justinian’s codification. As will
become clear, however, the changes that the jurist made in the text prove that
he did not just lift them out of a body of excerpts or a florilegia. RC 14.1
is a constitution that the Emperors Theodosius and Honorius promulgated in 394
A.D. On the basis of the constitution Roger ordained:
Entertainers and others who earn money using their bodies in public
performances shall not wear the habits of those virgins who are dedicated to
God. They may also not wear the monastic or clerical clothing. If they do,
they will be beaten publicly.
The Latin texts are:
|
Vat. Lat. 8782, fol. 92rb
RC 14.1
De ioculatoribus
<1.> Mimi et qui ludibrio
corporis sui questum faciunt, publico habitu earum uirginum, que deo
dicate sunt, uel ueste monachica non utantur, nec clericali; si fecerint
uerberibus publice afficiantur.
|
Cod. 1.4.4
Mimae et quae ludibrio corporis sui quaestum faciunt publice
habitu earum virginum, quae deo dicatae sunt, non utantur. |
“Mimi” first appear in Roman sources during the time of Cicero. The word is
derived from the Greek and always had an equivocal meaning. In the ancient
world it meant an actor in mimes, who had a questionable status in society.
The title that the jurist chose for RC 14 tries to give the word a wider
definition. In medieval Latin “ioculatores” could mean a jester, musician, or
minstrel. We get a glimpse of their ambiguous role in medieval society from
Abelard’s rant in his Theologia
Christiana. He accused bishops and doctors of the Christian religion of
inviting entertainers, tumblers, magicians, and singers of shameful things to
their palaces on solemn feast days, the same people whom Plato had banned from
his city[79].
These prelates then rewarded them with money robbed from ecclesiastical
benefices and from the alms for the poor[80].
Roger’s constitution had a broader application than the statute in Justinian’s
Codex. Entertainers were forbidden
to wear any clerical grab whatsoever. Further, a public and harsh punishment
was imposed on those who violated the law.
The inspiration for the punishment may have come from canon law. There is no
punishment in Justinian’s codification that calls for a public beating – the
Romans loved beatings – but never prescribed public beatings. However, Pope
Gregory the Great declared that crimes against clerics should be punished with
public beatings and exile[81].
It seems likely that Roger’s jurist knew this letter of Gregory that is found
in 15 extant canonical collections and decided that a public beating was just
what fitted those who publicly demeaned the clerical habit[82].
Even this fairly uncomplicated example illustrates the skill and considerable
learning of whoever drafted this constitution in Roger’s chancellery.
Another example. RC 17.1 was a constitution on sacrilege and royal
prerogatives. It may seem at first to be similar to RC 14.1. However, Roger’s
jurist significantly altered the Roman law text on which it was based. RC 17.1
mandated that:
No one may dispute a judgment, legal opinions, laws, or deeds of the king; it
is similar to a sacrilege to dispute his judgments, laws, deeds and legal
opinions, and whether anyone he has chosen is worthy or judges <worthy>.
Like RC 14.1 from the first few words the statute looks as if it had been
taken almost directly from Justinian’s
Codex:
|
|