Published in The Jurists’ Philosophy of Law from Rome to the Seventeenth Century, edd. Andrea Padovani and Peter G. Stein (A Treatise of Legal Philosophy and General Jurisprudence 7; Dordrecht: Springer, 2007) 157-211
Politics in Western Jurisprudence
Princeps legibus solutus est, Quod principi
Quod omnes tangit
In his work Politica methodice digesta that he published in 1603 Johannes Althusius defined politics as the “art of associating (consociandi) men for the purpose of establishing, cultivating, and conserving social life among them.” Althusius was an early modern German jurist who firmly believed that human social institutions were and should be regulated by law. “Common law (lex communis), which is unchanging, indicates that in every association . . . some persons are rulers (heads, overseers, prefects) or superiors, others are subjects or inferiors. For all government is held together by imperium and subjection.” “Local laws (leges propriae) are those enactments by which local associations are ruled.” Althusius did not think of politics as being primarily the art of conflict but the art of living together. Law provided the foundation of a community’s social structure.
Althusius lived in the waning years of the Ius commune, the common law that was taught in all of Europe’s law schools until the Protestant Reformation. It was not a set of statutes. Rather it was a set of norms and a jurisprudence that was based on ancient Roman, canon, and feudal law. It provided a rich source of principles for all European jurists. Although he was a Protestant, Althusius drew heavily upon legal traditions and sources of Pre-Reformation Europe. His Politics is studded with references to Hostiensis (Henricus de Segusio), Panormitanus, (Nicolaus de Tudeschis), Bartolus of Sassoferrato, Baldus de Ubaldis and many others. He summarized five centuries of jurisprudence in the Ius commune that dealt with all aspects of human concourse.
The Ius commune was born in the late eleventh century. In the early Middle Ages, Europe was a land without jurists. With the establishment of law schools, first at Bologna and then in other Italian, French and Spanish cities, jurists began to discuss issues that may be broadly defined as political. In the modern world we primarily think of politics as a continuing struggle between parties with differing ideological and economic beliefs. From the thirteenth to fifteenth the Italian city states did have competing, organized parties striving for control of political institutions of their communities. The rest of Europe, for the most part, did not. Medieval jurists dealt with political matters in two ways. They analyzed and developed legal rules for the governance of political institutions from the office of the prince to the corporate governance of cities, secular and ecclesiastical corporations (guilds, cathedral chapters, monasteries), and representative assemblies. The jurists were also called upon to render opinions on legal questions that arose from political conflicts in medieval society. They became experts who were asked to solve problems, answer questions, and advise princes. Law was established as an important branch of learning, and jurists became an indispensable class in the political life of European society.
1. The Jurisprudence of Sovereignty in the Twelfth and Thirteenth Centuries
Law became important in political debates of the second half of the eleventh century. The conflict between Pope Gregory VII (1073-1085) and the German Emperor Henry IV (1056-1106) generated a mountain of literature. One of the first signs that law would play a role in political disputes was a treatise written by a certain Petrus Crassus. He used Roman and canon law to defend Henry IV and cited Justinian’s Institutes to establish the principle that kingdoms cannot be ruled without laws.
As law became important in politics and in all other parts of medieval society schools were established to teach it. Stories circulated about how the teaching of law originated. Not surprising some of these tales credited rulers with encouraging the teaching of Roman law. One of the most intriguing is a report by a German chronicler, Burchard of Biberach, that Matilda, Countess of Tuscany, petitioned Irnerius to teach the books of Justinian’s compilation. Whether the story is true or not it reflects an assumption of the early twelfth century that rulers were interested in fostering the study of ancient Roman law and that the knowledge of law would enhance a ruler’s authority. In any case Irnerius was a major figure of the early twelfth century who taught law in Bologna, advised the Emperor Henry V (1106-1125), and served as a judge in Tuscany. Legal historians generally credit him and an even more shadowy figure, Pepo, for establishing Roman law as a field of study in Bologna.
The reign of the German emperor Frederick I Barbarossa (1152-1190) marked the beginning of the jurists' using their recondite knowledge in the service of the prince. Frederick recognized the importance of jurists and protected the Law School at Bologna with an imperial decree, the Authentica Habita (1155), that granted the students at Bologna special privileges. Three years later at an imperial Diet in Roncaglia (near Piacenza) Frederick opened the assembly with a with an oration that contained a remarkable number of references to texts of the libri legales, the textbooks used at Bologna. The emperor tacitly cited Justinian’s Digest, Code, and Institutes to justify his rule. The texts of the libri legales legitimized his authority but also protected the rights and liberties of his subjects. When he proposed new laws, as he did at Roncaglia, he promulgated them but, he said, the people confirmed them by accepting them through customary usage. He proclaimed that laws must be just, possible, necessary, useful, and suited to the time and place. He concluded by pointing out that one may not judge laws after they have been established. Rather one must judge according to the laws. All of these points were taken from the libri legales.
Frederick’s speech at Roncaglia was not an isolated example of the importance of law for imperial rhetoric and policy. Godfrey of Viterbo wrote a poem that exalted Frederick’s legislative authority and employed the standard metaphors of the new jurisprudence to describe the imperial office: the emperor was living law and could promulgate, derogate or abrogate law.
Frederick promulgated new laws that treated the emperor’s rights and prerogatives in Italy at Roncaglia. An Italian chronicler wrote that Frederick summoned law professors from Bologna to advise him on his imperial rights that were due to him. One of the laws is particularly instructive.
The prince possesses all jurisdiction and all coercive power. All judges ought to accept their administration from the prince. They should all swear the oath that is established by law.
This law was entirely based on principles of Roman law. Frederick did not know Latin and was not educated in law. He gathered men around him who were experts of the libri legales, the new legal science. European princes would follow Frederick’s lead for the next 700 years. They gave jurists positions of power and authority in their curiae and used them as trusted and advisors. The laws that were promulgated at Roncaglia began a long tradition of medieval jurists’ contributing to the formation of a jurisprudence of sovereignty.
It is instructive to compare the promulgation of King Henry II (1154-1189) of England’s Constitutions at Clarendon (1164) to Frederick’s legislative work at Roncaglia. Henry made no claim to have the authority to legislate. He gathered his barons and bishops together to “recognize” royal liberties and prerogatives. A “recognition” of law was the same term used to discover the facts of a case by jurors in early English writs. In England law was not a manifestation of royal prerogative; it was a fact that could be discovered by examining the customs of the realm. There is no trace of the new jurisprudence of monarchical authority in the rhetoric that justified the Constitutions. The English kingdom would only begin to be influenced by the legal theories of sovereignty of the Ius commune in mid-thirteenth century when the author called Bracton attempted to describe the prerogatives of the king using some of the same texts and language that were used to exalt Frederick Barbarossa’s authority at the Diet of Roncaglia.
A story that circulated among the jurists illustrates the authority that jurists began to exercise in medieval society. The setting of the story was the Diet of Roncaglia. It may or may not be true. The protagonists were two of the four great doctors and teachers of Bologna, Bulgarus and Martinus. Frederick had summoned these experts to Bologna to advise him. While riding with them on horseback on day, Frederick asked them whether according to law he was the Lord of the World (dominus mundi). The idea of the emperor's being the “dominus mundi” was probably inspired by a passage in the Justinian’s Digest. In a passage taken from a commentary on the Rhodian Law of the Sea, the Emperor Antonius declared that he was the “Master of the World” (tou kosmou kurios). Another text of Roman law became closely associated with the imperial title in the minds of the jurists. In a law that was included in his Code, Bene a Zenone, Justinian did not claim the title, Lord of the World, but he did assert that the emperor could be understood to own all things. If the emperor owned all things, it was a short step for the jurists to conclude that the emperor was, indeed, the Lord of the World.
Frederick must have heard from people in his court that the emperor had these grand titles. He asked the jurists what authority and prerogatives such titles bestowed upon the imperial office. “Am I legally the Lord of the World,” he asked. The tradition reported that Bulgarus declared that he was not the lord over private property. Martinus responded that he was, in fact, Lord of the World. Frederick rewarded Martinus’ sycophantic answer with a gift of a horse.
In the second half of the twelfth century the jurists who glossed Justinian’s codification dealt with these texts and others that touched upon the emperor’s prerogatives. They concluded that the prince did not have jurisdiction over his subjects private property under normal circumstances. Rights to private property were protected by natural law. One point should be emphasized. When Frederick asked whether he was Lord of the World, no jurist interpreted his question as asking whether other kings were subject to him. That question did not interest them. It would be left to Pope Innocent III to broach that question at the beginning of the thirteenth century. The twelfth-century jurists focused on the emperor's authority to take the rights of his subject away and his prerogative to abrogate law arbitrarily. In other words they were interested in the relationship of the prince to the law.
The Roman law libri legales gave the medieval jurists very fragmented texts upon which they could construct a theory of princely authority and of the prince’s relationship to the law. There is little in the Digest on a theory of law. A text in the Digest from the Roman jurist Gaius stated that natural reason established law that is observed among all human beings. It is call the Ius gentium or law of peoples. This law and the customs and laws of individual cities (civitates) constituted the laws under which human beings lived. The libri also contained some definitions of terms at the beginning of the Digest. The medieval jurist who began to study and comment upon ancient Roman law did not, however, have a coherent set of texts upon which they could create a jurisprudence that treated the nature of law. That task was taken up by Gratian who began to teach canon law at Bologna in the early twelfth century.
When Gratian began teaching at Bologna, Irnerius was teaching Roman law at about the same time. Until recently the only secure fact that we knew about Gratian was that he compiled a collection of canons that later jurists called the Concordia discordantium canonum. This cumbersome title was later shortened to the Decretum. It very quickly became the most important canonical collection of the twelfth century and later became the foundation stone of the entire canonical jurisprudential tradition. It was not replaced as a handbook of canon law until the Codex iuris canonici of 1917 was promulgated.
Since the work of Anders Winroth in 1996 we have learned much more about Gratian. Winroth discovered four manuscripts of Gratian’s collection that predated the vulgate text of the Decretum. Since then another manuscript of this early recension has been discovered in the monastic library of St. Gall, Switzerland. Although all five manuscripts must be studied in detail before we fully understand their significance, some conclusions can already be made. The first recensions of Gratian’s work were much shorter than the last recension. The differences between the recensions mean that Gratian must have been teaching at Bologna for a significant amount of time before he produced his first text that circulated. There was a significant period of time between when he began teaching and the final version of the Decretum. Most evidence now points to Gratian’s having begun his teaching in the 1120's. He continuously revised his text until the late 1130's or early 1140's. In spite of its defects — organization was its primary flaw — it immediately replaced all earlier collections of canon law in the schools.
Gratian became the “Father of Canon Law” because the last recension of his collection was encyclopedic and because with his “case method” he provided a superb tool for teaching. His vulgate version of the Decretum was a comprehensive survey of the entire tradition of canon law.
Gratian introduced jurisprudence into canonical thought. His first innovation was to insert his voice into his collection to mingle with those of the Fathers of Nicaea, St. Augustine, and the popes of the first millennium. He did this with dicta in which he discussed the texts in his collection. He pointed to conflicts within the texts and proposed solutions. His dicta made the Decretum ideal for teaching, and the Decretum became the basic text of canon law used in the law schools of Europe for the next five centuries.
In addition to the novelty of his dicta, Gratian created a collection of canon law that was organized differently than any previous collection. In his earliest version of the text, Gratian focused on 33 cases (causae). In each case he formulated a problem with a series of questions. He then would answer each question by providing the texts of canons that pertained to it. When the text of the canon did not answer the question without interpretation or when two canons seemed in conflict, Gratian provided a solution in his dicta. Gratian’s hypothetical cases were effective teaching tools that were ideally suited to the classroom. Gratian was the first teacher to use cases to teach law.
Perhaps the most important parts of Gratian’s work for the beginnings of European jurisprudence were the first twenty distinctions of the 101 distinctions (distinctiones) in the first section of his Decretum that he added to his original text. In these twenty distinctiones he treated the nature of law in all its complexity. Gratian must have realized that he could not teach law by looking only at cases and questions of fact. He had to make his students understand the sources of law. As I pointed out above, the libri legales did not discuss the relationship between the different types of law. Gratian did that in his first twenty distinctions. These twenty distinctions stimulated later canonists to reflect upon law and its sources.
Gratian began Distinction one with the sentence: “The human race is ruled by two things, namely, natural law and usages” (Humanum genus duobus regitur naturali videlicet iure et moribus). The canonists grappled with the concept of natural law and with its place in jurisprudence for centuries. Their struggle resulted in an extraordinary rich jurisprudence on natural law and reflections on its relationship to canon and secular law. Brian Tierney has noted that “natural law <did not> constitute a significant limitation on the legislative competence” of the prince. It was also not “a kind of detailed pattern of legislation laid up in heaven.” Rather, natural law provided a moral basis for deciding whether a given enactment was a good and just law. It was a set of norms that evolved in European jurisprudence through a long gestation in the arguments of the jurists. In some cases, the jurists found justifications in sacred scripture for their arguments about which norms were based on natural law. In others, they could discover no precedents in sacred scripture. Instead they relied on norms that had evolved in the Ius commune. These norms conformed to reason, reason so compelling that they expressed eternal truths. We shall see that the jurists used norms and principles that they defined as natural law to limit the authority and prerogatives of the prince.
Gratian concluded that natural law dictated that “Each person is commanded to do to others what he wants done to himself,” connecting natural law with the biblical injunction to do unto others what you would have them do unto you (Matthew 7.12). By defining natural law as the duty to treat other human beings with care and dignity, Gratian encouraged jurists to reflect upon a central values of natural law: the rendering of justice and the administering of equity in the legal system. The inspiration for Gratian's dictum was two texts in Justinian's Digest (Dig. 1.1.9 and 1.1.10). Most of the texts that Gratian used were taken from the Etymologiae of Isidore of Seville ©. 560-636). Isidore combined the various traditions of natural law that had circulated in the ancient world. He defined it as being the law common to all nations that was established by the instigation (instinctus) of nature, not by human legislation. Examples of natural law were marriage and the procreation of children, “one liberty of all human beings (una libertas omnium),” and the acquisition of property taken from the heavens, earth, and sea. Natural law was, as the Roman jurists had earlier concluded, natural reason. To define the contents of natural law Gratian placed Isidore’s definition of natural law on the first page of his Decretum (D.1 c.7). Together with the texts of Roman law in Justinian’s compilation, Gratian’s Decretum became one of the standard introductory texts for the study of law (the Ius commune) in European law schools, and Isidore’s definition became one of the most important starting points for all medieval discussions of natural law.
Gratian also discussed the various types of human law: unwritten custom, civil law, the law of a city or of a people, including definitions taken from Roman law. Law was a hierarchy. Under Gratian’s schema laws were not simply reflections of different usages in various communities. All law had to be evaluated according to standards that transcended human institutions. Law was also intimately connected to people. The prince could not exclude his subjects from being an central source of law. The people could not only make law, they could approve it. Gratian ended his treatment of legislation by defining how law became valid: “Laws are established through promulgation and validated when they are approved by the acceptance of the people.” Remarkably, Frederick Barbarossa used these very words when he described his conception of his legislative authority at Roncaglia.
Gratian and Frederick marked the beginning, not the end, of the jurists' contemplation of the role of the prince in making law. The jurists read the texts in the libri legales that described the emperor’s supreme legislative authority and were uncertain how to reconcile the authority of the medieval prince with the powerful tradition of customary law. Customary law had dominated Europe for centuries. Almost all local legal systems were based on customary law in the twelfth century. Frederick Barbarossa’s legislation at Roncaglia is one of the few examples that we have in the twelfth century of a monarch’s consciously exercising his authority to make new law. The assizes of King Roger II of Sicily are another.
The twelfth-century jurists did not agree about the relationship of custom to new legislation. Irnerius wrote that custom that was established by long usage should be preserved, particularly if it were not contrary to reason and did not contradict written law. He did not, however, think that custom could abrogate the decrees of the prince. “All power of making law has been transferred to the prince.” Other jurists argued that under certain circumstances, particularly with the tacit approval of the prince, custom could derogate, if not abrogate, law. A maxim began to circulate in legal circles that “custom was the best interpreter of law.”
During the course of the twelfth century jurists focused much more on the power of the prince to make new law than on the right of the people to establish and be governed by their own customs. A few jurists noted that society needed new laws because change demanded them. By the end of the twelfth century canonists had created a new concept to describe the law promulgated by the prince or by governing institutions: positive law (ius positivum). The term remains a fundamental legal concept in our understanding of law.
The change from a legal system that recognized custom as the primary source of law to one that gave primacy of place to positive law was a difficult one. Southern European societies made the transition more quickly and easily than did those of Northern Europe. The Italian city states were the first to codify their customs and revise those codifications regularly as their institutions and courts evolved. Pisa, for example, produced a code of its laws by the middle of the twelfth century.
Gratian, Irnerius and the early jurists took most of their assumptions about law and it relationship to princely authority from Germanic customary law and feudal law. Customary law emphasized the contractual relationship between the people and the prince. Consequently for early jurists the prince had a sacred duty to defend the laws and customs of the land. The prince was bound by the law. They thought that law should be reasonable and just. Most importantly, the prince could not exercise his legislative authority arbitrarily.
At the beginning of the thirteenth century the jurists developed new ways of looking at law. Until then jurist focused on the content of law when they decided whether a law was just or not. They presumed that law must be moral, ethical, equitable, and, most importantly, reasonable. As new theories of legislation emerged from the Ius commune, the jurists began to look at the sources of human law and the institutions that produced positive law. It was then that they discovered the will (voluntas) of the prince as a source of law. When they introduced the will of the prince into political discourse, they created a new political language that became “the basis of a new philosophy of law with Marsiglio <of Padua> and <much later with> Hobbes and was the original kernel of the recently dominant theory of legal positivism.” The jurists were the first to look upon the will of the prince as being a primary source of law. A canonist, Laurentius Hispanus (ca. 1190-1248) was the first jurist to peer into the body of the prince to find his will.
Pope Innocent III (1198-1216) inspired Laurentius to reflect upon the will of the legislator. No pope or other medieval ruler shaped the political thought of the medieval jurists more than Innocent. In his decretals the pope exalted papal political power. Innocent emphasized the pope’s fullness of power (plenitudo potestatis) within the Church. Although the term was coined in the early Church, Innocent found it particularly useful for describing his authority. During the thirteenth and fourteenth centuries, secular rulers adopted papal terminology to describe their power and authority.
Innocent issued a decretal letter, Quanto personam, in 1198 in which he made an unprecedented pronouncement on the roots of papal authority. He claimed that the pope exercised divine authority when he granted a bishop the right to leave his church.
God, not man, separates a bishop from his church because the Roman pontiff dissolves the bond between them by divine rather than by human authority, carefully considering the need and usefulness of each translation. The pope has this authority because he does not exercise the office of man, but that of the true God on earth.
Laurentius quickly understood the implications of Innocent’s rhetoric. He believed that royal and papal authority was divinely ordained. That was a widely-held idea in late antique, medieval, and early modern political thought. Innocent, however, took this commonplace of medieval political thought and took it a significant step further. He asserted that the pope’s authority rested upon divine authority and also that the pope shared in God’s authority. That was a significant innovation. For the future it meant that the pope could exercise power that had hitherto been reserved only to God. Areas of law that had earlier been defined as based on divine law — marriage and vows especially — could now be subject to papal authority. If the pope shared authority and power with God, he could abrogate or derogate divine law that had been formerly beyond his jurisdiction. When Laurentius commented upon Quanto personam he defined a ruler’s legislative authority in a novel and unprecedented way:
Hence the pope is said to have a divine will . . . O, how great is the power of the prince; he changes the nature of things by applying the essences of one thing to another . . . he can make iniquity from justice by correcting any canon or law, for in these things his will is held to be reason (pro ratione voluntas) . . . And there is no one in this world who would say to him, “Why do you do this?” . . . He is held, nevertheless, to shape this power to the public good.
No jurist had ever made the claim that the prince could make laws that were unreasonable and unjust. The jurists always agreed that laws should be just and reasonable. Laurentius, however, asserted that reason was not the only standard by which law should be judged. The will of the prince and his will alone could be considered a source of human law. Earlier jurists had never distinguished clearly between the content of law and the source of law. Laurentius was the first jurist in European jurisprudence to argue that the content of law had no necessary connection to its source. It had been a doctrine of faith among the jurists who commented on Gratian’s tract De legibus that laws that were not reasonable were null and void. Laurentius, however, argued that the will of the prince must be supreme. He did not, however, argue that the prince could act arbitrarily. Later jurists did not use the maxim that he cited, “Pro ratione voluntas” (taken from Juvenal’s Satires) as a justification for tyranny.
Frederick Barbarossa’s jurists who discussed the authority of the emperor in the twelfth century had a different and more primitive view of monarchical authority. When they called the prince the “Lord of the World” and declared that he was “legibus solutus” (not bound by the laws), they focused on his status. The prince was sovereign, he was superior to the law, but he had to submit himself to the law. They did not explore the source of law or of the prince’s authority or the relationship of the prince and the law.
The reason for their reluctance to confront the issue of the relationship of the prince and the law was primarily because in the twelfth century the prince was not the only or even the main source of law in society. Only in the thirteenth century when princes began to legislate regularly did the jurists begin to think about the source the prince’s authority and to develop new definitions of the prince’s power.
Henricus de Segusio, or Hostiensis, († 1271) was one of the most important and influential jurists of the thirteenth century. His career took him to Paris, London, and Rome. He wrote the most extensive commentary on canon law produced by any jurist in the thirteenth century. His work is characterized by a deep understanding of the political world, secular and ecclesiastical, and a profound interest in the language of political power and authority.
Hostiensis was sensitive to legal questions that touched the structure of institutions. He developed a jurisprudence that described the power of secular and ecclesiastical princes in remarkably new ways. More than any earlier jurist he delved into the meaning of the terms that the jurists been accustomed to use when they described power and authority in medieval society. He extensively analyzed the traditional terminology. He explored the term “Plenitudo potestatis” (fullness of power) that had long been used to describe the power of the pope and that was beginning to be used to describe the authority of the secular prince in minute and careful detail.
Like Laurentius Hispanus, Hostiensis was inspired by Pope Innocent III. Even more than Laurentius he emphasized the divine foundations of papal power. He decorated Innocent’s claims in Quanto personam with extravagant rhetoric. While commenting on Innocent’s decretal letters he wrote that all political authority comes from God. All princes exercised their authority by divine mandate. The pope, he asserted, had a singular status. Hostiensis based his commentary on Laurentius’ but greatly enhanced the pope’s power. Whatever the pope does, he wrote, he acts on God’s authority. The pope is the vicar of God. The curia of the pope in Rome was God’s curia. Whatever the pope does is licit as long as he does not err in the faith. Whenever he acts “de iure” he almost always acts as God.
The pope exercised divine authority and presided over a consistory that reached from heaven to earth. Pope Innocent III might have thoroughly relished Hostiensis rhetoric. One inexorable conclusion that one might draw from Hostiensis commentary is that if pope’s authority is divine, then his law must also be divine. This logical conclusion did not escape Hostiensis. Divine law is the “Ars artium” (Science of sciences) that comprises human and canon law. Roman law is divine because the emperors created the rules of procedure by divine inspiration. The emperor is the living law (lex animata) whom the Lord has given to men and to whom He has subjected the law. Canon law was also divine. Theology was the head of the Church, canon law the hand, and Roman law was the feet. Sometimes the hand of the Church leads the head; sometimes the feet. Hostiensis did not create a new jurisprudence of law but outfitted traditional definitions with remarkable metaphors.
In one respect Hostiensis did break with previous jurisprudence. He insisted that canon law was a part of divine law and that the pope, as vicar of God, promulgated laws that should be considered divine. A similar metaphor for the secular prince circulated in canon law. When princes issue laws, they are divinely promulgated through his mouth (leges divinitus per ora principum promulgatae). This is true, concluded Hostiensis, only indistinctly. Only the pope could promulgate law divinely. “The pope, not the emperor, is the general vicar of Christ.”
Hostiensis’ most important and lasting contribution to the language of political thought was creating a new set of terms to describe sovereignty and the power of the prince. Ancient Roman jurisconsults introduced the jurists of the Ius commune to the basic language of sovereignty. The Roman jurisconsult Ulpian coined the most widely used definitions of the prince’s authority: “what pleases the prince has the force of law (quod principi placuit vigorem legem habet)” (Dig. 1.4.1) and “the prince is not bound by the law (princeps legibus solutus est)” (Dig. 1.3.31). Twelfth-century jurists used these two maxims to establish two principles: that the prince can legislate and that he can change law. The jurists also expressed the concept of legislative sovereignty with the maxim “an equal cannot have authority over an equal” (par in parem imperium non habet). This maxim expressed their conviction that a ruler could not bind his successor. No twelfth-century jurist permitted the prince to act or to legislate arbitrarily.
Roman jurists called the emperor’s power to legislate, command, and judge “imperium” or “potestas.” Ulpian wrote that the Roman people had transferred “imperium” to him (Dig. 1.4.1). Most medieval jurists thought that the people’s bestowal of power on the prince could not be revoked. Borrowing from theologians’ terminology describing the power of God, Hostiensis gave the pope a glorified new definition of his authority. The pope and God both ruled by a “potestas absoluta" and "potestas ordinata.” Since Hostiensis thought that the pope promulgated law divinely he followed the logic of his theory and concluded that terminology describing God’s power should also apply to the pope. The pope was the first human being to wield divine power, but jurists soon bestowed “potestas absoluta” on secular princes.
Like Laurentius before him Hostiensis blazed a new path for the jurisprudence of sovereignty. He separated legal thought from primitive Germanic ideas of kingship that law was custom and that the king was bound by the law. With his “potestas ordinata” the pope had the authority to exercise jurisdiction over positive law; “Potestas absoluta” enabled the pope to exercise extraordinary authority and jurisdiction. With this exalted power the pope could legislate in matters touching the law of marriage and vows, areas of the law that had been considered a part of divine law and outside papal jurisdiction.
“Potestas absoluta et ordinata” played a very important role in the future. Later jurists defined the prince’s power with these terms and sometimes concluded that the prince could take the rights of subjects away when he exercised his absolute power. In combination with Laurentius’ “pro ratione voluntas” the jurist used “potestas absoluta” to create more a sophisticated jurisprudence of sovereignty. The prince was the source of law. He was not always limited by reason or morality. Under some conditions the prince could promulgate laws that were contrary to reason. He could sometimes act contrary to the precepts of justice. The jurists justified these aberrations of political behavior by citing two other norms: the common good of society and great necessity. By the later Middle Ages the jurists could defend the prince who acted contrary to law, custom, and who violated individual private rights. Hostiensis laid the foundations for later jurists to embrace an absolutism that ignored the traditional rights of subjects.
Along side this development, however, medieval “constitutionalism” remained an important strand of thought in medieval jurisprudence. Many jurists were reluctant to adopt a theory of absolutism that did not limit the prince’s power. Their first line of defense against arbitrary power was the rights of subjects. From early in the twelfth century jurists asserted that property rights were founded on precepts of natural law or the “ius gentium.” Further, the prince did not have the right to alienate his lands. When the jurists argued that property rights were grounded in natural law they could claim that the prince could not violate those rights since he had no jurisdiction or sovereignty over natural law. It was a higher law that transcended human positive law.
The alienation of property was a key issue for the jurists. From the late twelfth century they realized that rights that attached to the office of the prince and not to his person belong not to the prince but to the common good. A forged document drew their attention to the issue. In the so-called Donation of Constantine the emperor was purported to have bewtowed his imperial rights on the Church. The document was a forgery of the late eighth or early ninth century. The text of the forgery was included into canon law by Gratian. In the early thirteenth century Pope Honorius III (1216-1227) issued a decretal letter, Intellecto, in which he asserted that the King of Hungary could not alienate royal lands that injured his kingdom and the crown. Honorius laid down the doctrine of inalienability in canon law. The canonists immediately expanded the principle to the ruler of the Church. A little later the Roman lawyer Accursius argued that the Donation of Constantine was not a binding document. The emperor, he concluded, could not injure the rights of future emperors (par in parem imperium non habet). The jurists established the doctrine of inalienability of rights as being a significant limitation on monarchical power.
The jurists of the Ius commune created another powerful limitation on the power of the prince: the “ratio iuris” (reason of law) and the norms of law. They coined legal maxims that were taken from Roman law, early medieval legal thought, and from their own analysis. These maxims were touchstones of justice and equity in law and can be found in their commentaries, the decretals of popes, and secular laws. They provided benchmarks with which the acts of the prince could be judged.
In the thirteenth century the jurists began to discuss monarchical power and authority and create a jurisprudence based on contemporary secular law. The Emperor Frederick II (1212-1250) issued the first royal code of laws in 1231, the Constitutions of Melfi, also known as the Liber Augustalis. In the prologue to his codification he (or more likely, his jurists) discussed the authority of the prince. The prince is an instrument of God. His duty is to establish laws, to promote justice, and to correct and chastise wrongdoers.
Thus we, whom God has elevated beyond any hope man might have cherished to the pinnacle of the Roman empire and to the singular honor of all other kingdoms at the right hand of divine power, desire to render to God a two fold payment for the talents given to us, out of reverence for Jesus Christ, from whom we have received all we have.
In a later constitutions Frederick contrasted his authority with that of the ancient Roman emperors.
It is not without great forethought and well-considered planning that the Quirites [Roman citizens] conferred the right and imperium of establishing laws on the Roman prince through the Lex regia. Thus the source of justice might have its source from the same person that defends justice. He who ruled through the authority established by Caesar.
The descriptions of authority that we find in the Liber Augustalis resonate and reverberate with the doctrine that we have describe in the Ius commune.
The pope was a ruler who claimed universal jurisdiction over all Christendom. When Frederick Barbarossa asked Martinus and Bulgarus if he were the Lord of the World, the jurists ignored the obvious meaning of the question: did the emperor hold a higher office and exercise jurisdiction over kings? Martinus and Bulgarus interpreted Frederick’s question as being whether he could take the rights of his subjects away. Could the emperor take away the property rights of his subjects?
Frederick Barbarossa may have had more interest in his status in relationship to other kings than the jurists did. The English King Henry II wrote a letter to Frederick in which he bestowed the title “Dominus mundi” on the emperor. Henry might have thought that he pleased the emperor with that title. However, modern historians have found the question whether this indicated that the emperor claimed superiority over kings much more interesting than the medieval jurists did. They have argued that the national monarchies could not be sovereign until they had been freed from the yoke of imperial universal jurisdiction. Yet this question did not seem to be important to the jurists. None of them broached the question whether the emperor exercised e de facto or de iure sovereignty over other European Christian princes.
Some modern historians have asserted that the “state” did not exist in medieval Europe because local authorities and kings could not exist under the umbrella of these two universal rulers. How could states exist when jurists argued that the pope had the right to judge princes and their subjects in a number of different matters? A true state could not exist if its sovereignty was not untrammeled. Some jurists did present an exalted view of imperial power and prerogatives. The canonist Johannes Teutonicus wrote in a gloss that eventually became a part of the Ordinary Gloss of canon law:
The emperor is over all kings . . . and all nations are under him . . . for he is the Lord of the World . . . even Jews are under him . . . and all provinces are under him . . . unless they can show themselves to be exempt . . . none of the kings can have prescribed an exemption, since prescription has no place in this . . . A kingdom cannot have been exempted from imperial authority, since it would be without a head . . . and that would be monstrous. Rather all must give the emperor tribute, unless they are exempt . . . All things are in the power of the emperor.
If Johannes had been in the emperor’s company at Roncaglia, Frederick would have probably given him a stable of horses for his glorious summary of imperial authority.
Not all the jurists found Johannes’ glorification of imperial power edifying. Sometimes their reaction was clearly based upon a nascent sense of national identity. In reaction to Johannes’ gloss the canonist Vincentius Hispanus (ca.1180-1248) would have none of his exaltation of Teutonic virtue.
Make exception, Johannes Teutonicus, of the Spanish, who are exempt by the law itself. They did not admit Charlemagne and his peers into their lands. I, Vincentius, say that the Germans lost their imperium through their own stupidity . . . Only the Spanish have obtained imperium through their virtue.
Oddly, Pope Innocent III (1198-1216) was the first to state categorically that the kings were independent of the emperor. Innocent issued a decretal letter, Per venerabilem in 1202 in which he stated that the king of France recognized no superior in temporal affairs. Innocent’s decretal was included into canonical collections, and the jurists began to analyze Innocent’s comment. Some concluded that kings were subject to the emperor de iure, but not de facto. Others argued that kings were entirely independent and free from imperial jurisdiction. They created a maxim to describe royal independence: “Rex in regno suo imperator est” (A king is emperor in his kingdom). By the middle of the thirteenth century this maxim had become a commonplace.
Modern historians have argued about the maxim’s precise meaning. Some historians have pointed out the maxim is not an unambiguous justification for royal independence from universal imperial rule. In the period from ca. 1270-1330, the jurists of the Ius commune used the maxim to argue three different points. First that every king is independent of the emperor and that every king can exercise the same prerogatives within his kingdom as the emperor. The king was, in other words, the prince of Roman law. Second that the kings were not independent of the emperor but that they did have the same prerogatives as the emperor in their kingdoms. Third, that kings were independent of the emperor but could not exercise the same prerogatives as the emperor in their kingdoms. They were not princes. Whatever the case, by the late Middle Ages the jurists had created a sophisticated and nuanced jurisprudence of sovereignty that shaped the political arguments of early modern European thinkers.
2. The Importance of Feudal Law for Political Institutions in Medieval Society
The jurists created a vigorous doctrine of kingship and defined the relationship of the prince and the law with originality and creativity. Roman law provided them with their terminology, but Christian conceptions of justice and duty shaped their thought. Feudal law revealed to the jurists another side of the prince’s nature: his limitations and duties to his subjects.
Feudal law was born in an age without jurists. It was customary, unformed, and existed in a wide variety of texts. There was no pervasive paradigm of European feudal law as there was for Germanic customary law. The sources from all over Europe in the period 800 to 1000 contain the terms lord (dominus), vassal (vassalus), fief (beneficium or feudum). Later jurists would carefully analyze and define their meaning. Historians, however, have learned that when they find these words in early medieval sources, they cannot simply assume that these words describe the lord and vassal relationship that often is found in later feudal law: that a lord had bestowed a fief upon a vassal in return for military service. The vassal had sworen homage and fealty to the lord. This was the basis of the feudal contract and established a complicated set of norms that governed the prince's duties and obligations to his vassals. It also defined a vassal's duties to his lord.
The word that described a fief in the tenth and eleventh centuries (sometimes, but not always, a piece of land) a was generally beneficium. Although the word, “feudum,” from which the English word feudal is derived, is found in early sources, it replaces beneficium as the standard word to describe a fief only during the twelfth and thirteenth centuries. For political relationships the feudal contract had several advantages over a contract in Roman law. The feudal contract could be inherited and broken for political reasons. When a feudal contract passed from one generation to another, the bonds that the contract cemented were renewed in public ceremonies that reminded each party of its obligations, rights, and duties.
Law can exist without jurisprudence, but law without jurisprudence creates ambiguities that can be destructive of the public good. Unless there are jurists to interpret the law, the rights of persons and institutions are never secure. Although Roman and canon law had standard libri legales there were no books or standard texts for feudal law. By the twelfth century feudal customary law began to define far more than just the relationship between and lord and his vassal. Secular and ecclesiastical institutions were involved in legal relationships that were feudal. Clerics took oaths to their bishops; kings took oaths to the pope. There was a need for written law and a jurisprudence that would provide an interpretive tool to understand what these oaths meant. Monasteries had feudal ties with persons and institutions. Bishops had feudal relationships with men and towns. Towns had feudal contracts with other towns and persons. The nobility had traditional feudal contracts with vassals but also with towns. Feudalism, in other words, had become much more than contract that regulated and defined a relationship between a “lord” and a “vassal.” Lawyers who studied the new Ius commune at Bologna and other schools realized that texts were needed to make feudal law a discipline.
The books of feudal law were finally formed in the second half of the twelfth century out of disparate sources. Obertus de Orto, a judge in Milan, sent his son Anselm to study law in Bologna ca. 1154 and 1158. Anselm reported to his father that no one in Bologna was teaching feudal law. Obertus wrote two letters to his son (that may be rhetorical conceits) in which he described the law of fiefs in the courts of Milan. It may be that the primary reason why Obertus wrote these two letters was that a compilation of customary law was being undertaken by the commune of Milan. Whatever the case may have been, Obertus’ two letters became the core of a set of texts for the study of feudal law. Obertus put his letters together with other writings on feudal law, especially from Lombard law, to create the first of three “recensions” of the Liber feudorum (in the manuscripts the book was named Libri feudorum, Liber usus feudorum, Consuetudines feudorum, and Constitutiones feudorum). The manuscripts of the first two recensions reveal that there was no standard text. Some of them included eleventh and twelfth-century imperial statutes of the emperor’s Conrad II, Lothair II, and Frederick I. The second recension often contained a letter of Fulbert of Chartres and additional imperial statutes. Typical of legal works in the second half of the twelfth century the jurists and scribes added texts of various types (extravagantes) to this recension. Almost no two manuscripts contain exactly the same text. The jurists did not comment on the Liber feudorum of Obertus. The text’s entry into the schools must have been slow. The first jurist to write a commentary on the Liber was the jurist of Roman law, Pilius. He wrote his commentary on the second recension of the Liber feudorum ca. 1192-1200, probably while he was a judge in Modena. He did not comment on all parts of the Liber. Although the letter of Fulbert of Chartres circulated in many manuscripts he did not gloss it. He left the interpretation of Fulbert’s letter to the canonists (Gratian had placed the letter in his Decretum). This fact illustrates an important point about feudal law in the twelfth century: its jurisprudence was not the product of one area of law but of the Ius commune.
The final or vulgate recension of the Liber feudorum added constitutions of the Emperor Frederick II, the letter of Fulbert, and other texts that had circulated in the twelfth-century manuscripts. Accursius, the most important jurist of Roman law in the thirteenth century, wrote a commentary based on Pilius’ in the 1220's. It may have gone through several recensions, not all by Accursius. Accursius also wrote the Ordinary Gloss on the rest of Roman law at about the same time. His authority and the importance of feudal law combined to give Liber feudorum with Accursius’ Ordinary Gloss a permanent place in the Ius commune.
Feudal relationships generated legal problems and court cases in the later Middle Ages. The earliest reports of court cases involving feudal disputes and using feudal law date to the late twelfth century, and their numbers proliferate during the thirteenth and fourteenth centuries. As the number of these cases increased, jurists were called upon to write consilia (legal briefs) to solve them. I shall discuss some of the consilia that jurists wrote for feudal legal problems in section four below.
The feudal oath was the central element in the feudal relationship. The use of oaths to cement political and social relationships was not peculiar to European society. In almost all human societies oaths embedded in rituals created social bonds. The feudal oath of fidelity that a vassal took to his lord is almost emblematic of the popular and scholarly image of medieval social relationships. In the Liber consuetudinum Mediolani, a compilation of the customs of Milan that was promulgated in 1216, there is an oath that the vassal should take to his lord:
I, <James>, swear that henceforward I will a faithful man or vassal to my lord. I will not lay open to another what he has entrusted to me in the name of fealty to <my lord’s> injury.
The text of the custom enigmatically concludes: “Many things are contained in these words, which are difficult to insert here.” The sentence would have been puzzling, however, only to those who did not know feudal law. A thirteenth-century jurist reading this text would have recognized immediately that the compilers of the customs were referring to a letter of Bishop Fulbert of Chartres (1006-1028).
By 1216 Fulbert’s letter had been the most important legal text for defining the oath of fealty for a century. The letter’s origins lie in a request that William V, count of Poitou and duke of Aquitaine, made to Fulbert asking for advice about the obligations and duties that a vassal owed to a lord. William had troubled relationships with his vassals. In his reply (ca. 1020) Fulbert wrote a short treatise on feudal relationships that circulated fairly widely. Gratian treated clerical oaths in Causa 22 and placed it in the earliest version of his Decretum (C.22 q.5 c.18) ca. 1124. It became a locus classicus for canonistic discussions of the feudal contract and the relationship of the lord and vassal.
Fulbert told William that when a vassal took an oath to his lord six things were understood to be contained in it whether explicitly expressed or not: to keep his lord safe, to protect him from harm, to preserve the lord’s justice, to prevent damage to his possessions, and to not prevent the lord from carrying out his duties. Fulbert alleged that he got this list from written authorities, but his exact source, if there were one, has never been discovered. For the next four centuries jurists cited Fulbert’s list of obligations and duties as being central to the feudal oath of fealty. The text in Gratian’s Decretum reads:
The form of fidelity that anyone may owe to a lord and vice versa, may be found in a letter of Bishop Fulbert.
Since I was asked to write something about the oath of fidelity, I have noted for you these things which follow from the authority of books. Whoever swears fidelity to his lord should always have six things in mind: safe, secure, honest, useful, easy, possible. Safe, namely, lest he injure his lord with his own body. Secure lest he not injure his secret interests or his defenses through which his lord can be secure. Honest lest he not injure his lord’s justice or in other matters which seem to pertain to his honesty. Useful lest he injure his lord’s possessions. Easy or possible, lest that the good, which his lord could easily do, he would make difficult, and that what would be possible, he would make impossible for his lord. A faithful man should pay heed to these examples.
It is not sufficient to abstain from evil, unless he may do what is good. It remains that he faithfully give his lord counsel and help in the aforementioned matters, if he wishes to be worthy of his benefice (fief) and safe in the fidelity that he has sworn. The lord also ought to render his duty to his faithful man in all things. If he does not, he may be thought of as faithless, just as he, who in consenting or telling lies will be perfidious and perjurious.
Huguccio (ca. 1190) was the first canonist to give Fulbert’s letter a close reading and extended commentary. At the beginning of his commentary he noted that many things are tacitly understood when someone took an oath, vow,or made a promise. He then discussed each of the six tacit obligations listed by Fulbert. The first, that a vassal could not injure his lord’s body without cause or unjustly, Huguccio interpreted through the norms of the jurisprudence of the Ius commune. If there were cause or reason (causa et ratio) a vassal could injure his lord. These two norms (cause and reason) were, perhaps, the most powerful in medieval jurisprudence and generally trumped any rule, law, custom, or statute. If the vassal were a judge or a magistrate — a social situation into which only urban vassals would probably fall — he could punish his lord if he merited it. According to Huguccio, Fulbert’s principle of honesty encompassed two points. A vassal could not injure a lord’s justice or his women. First he observed that according to customary law, even though it was unwritten, a vassal could not testify against his lord in court. Again he looked to others norms of the Ius commune to qualify the prohibition. If justice and cause demanded it, the vassal could testify against him because his lord had no justice. Then Huguccio turned to sexual morality. Perhaps he had read too many French lais about the sexual misconduct of the nobility. He defined vassal’s honesty as not violating the women who surrounded his lord. The lord’s wife and daughter were, understandably, not to be touched. Huguccio, however, also included any other woman in the lord’s home. In sum, the vassal should not do any dishonest thing in his lord’s house. This may be another example of Huguccio’s propensity to embrace moral absolutes, what later canonists called the “rigor of Huguccio.” In any case Johannes Teutonicus placed only his lord’s wife and daughter outside a vassal’s predatory field.
Huguccio then turned to the vassal’s obligation to give his lord counsel and help. His first point was the vassal was only obligated to give aid when the lord needed help in licit and honest affairs. If the lord was injured a vassal should respond immediately, but within reasonable limits (moderatio inculpatae tutelae) and with attention to the admonition of Saint Paul in Romans 12:19: an enemy should be treated with respect; disarm malice with kindness. The concept of justifiable defense that Huguccio cited (moderatio inculpatae tutelae) is taken from Roman law and slowly penetrated the Ius commune during the twelfth century. It was typical of twelfth-century jurists to combine Roman and Biblical precepts to establish a legal norm.
Huguccio then turned to the question of the moral and legal responsibility of a vassal to defend others. Nobody should sin for himself or for another, he reflected, but at the same time everyone has an obligation to defend anyone from injury. Huguccio’s presumption is completely contrary to the norms of British and American common law where the doctrine of nonfeasance has held sway. Under the influence of the Ius commune, however, most civil law legal systems have a duty-to-assist other persons in their jurisprudence. Huguccio had no doubt that every man had a duty to assist another person. For him the duty to render aid reflected in some way a person’s commitment to the common good. If everyone has an obligation to render assistance, he wondered, what is the legal force behind the vassal’s duty to help his lord? How would a vassal’s duty to a lord differ from his duty to aid others in distress? He found the answer to that question in a conciliar canon: “I say that the vassal is bound to his lord <by the oath of fealty> more willingly and more specially — just as in the conciliar canon from the Council of Toledo in Gratian’s Decretum. That canon stated that oaths to uphold promises make the breaking of those promises to be feared.” Huguccio quoted a phrase from the canon and expected that his readers would supply the complete quotation: “specific promises are more to be feared than general vows.” Later canonists followed Huguccio's lead and insisted that a vassal must do more than just defend his lord when he is in danger. Alanus Anglicus (ca. 1200) formulated a lapidarian expression of the precept: “Although the oath of fealty does not expressly state it, a vassal should give heed that his lord may not be injured.” Tancred (ca. 1215) and following him, Bernardus Parmensis in the Ordinary Gloss (ca. 1245), insisted that persons who swore oaths of faithfulness and obedience must not only protect them from attack and harm but they were bound to protect them from plots and dangerous plans. This principle remained an important part of the oath of fidelity. It also shaped the mores of political action in European society for centuries.
A vassal’s obligation to aid his lord militarily was Huguccio’s next topic. He formulates several hypotheticals. What if the lord wishes to seize his fief or his property? The vassal must not obey his lord unless his lord’s war were just. The vassal is not bound to obey if his lord moved against him personally. What, however, if his lord attacked his son or his father? Huguccio’s answer relied on juridical distinctions drawn for the family, kin, and vassals of excommunicates. The vassal did not have to obey his lord when his son and father lived under the same roof. Otherwise, if his lord were waging a just war against his family, the vassal was held to obey his lord.
Huguccio addressed his final topic at the end of his commentary. Fulbert’s letter laid down the norms that a vassal must adhere to if he were worthy of his fief. Huguccio noted that the other side of the coin was that if a vassal showed himself unworthy by violating these principles, his lord could take his fief (beneficium) away from him. He then linked the rules governing a vassal’s loss of his fief to the ecclesiastical sphere. What if, he asked, a cleric offered legal protection and assistance (patrocinium) in a case against his own church or against his bishop to whom he has sworn fidelity? Huguccio thought that the cleric should lose his benefice unless he was pursuing his own legal case or that of his own people. He concluded by noting that while their lords are excommunicated, those who have sworn oaths of loyalty are not compelled to obey them.
The canonists who wrote after Huguccio expanded upon the jurisprudence that he created for the oath of fealty. Importing another definition from Roman jurisprudence, Alanus commented that a vassal who betrayed his lord fell under the Roman law of treason. The jurists liked that connection. A number of them repeated it. Johannes Teutonicus copied this gloss into his Ordinary Gloss where it remained a principle of feudal law until the end of feudalism. The Roman law of treason specified the death penalty for the crime. The canonists transformed a traitor from a perjurer into a capital felon. It was no small step. They marked a stage in the development of law in which the rights and honor of the lord became identified with much more than another person. He became the symbol of the territorial state. The Chansons de geste had long emphasized a warrior’s faithlessness as the ultimate betrayal (“trahison”) in a world of honor. At the beginning of the thirteenth century the jurists of the Ius commune followed the poets.
Fulbert of Chartres’ letter in Gratian’s Decretum provided the canonists with an opportunity to enter directly into the feudal world. The church had long used oaths of obedience, and, as we have seen, the canonists saw the ecclesiastical oath as an institution governed by the same rules as the secular feudal oath of fealty. Canon law continued to contribute to the jurisprudence of feudal law after the twelfth century but did not produce any legislation as central as Fulbert’s letter. Pope Innocent III (1198-1216) touched upon feudal matters in many of his letters. Two of them entered the official collections of canon law under the title De feudis. One of these letters shaped feudal law in an important area: the right of a lord to bestow a fief when he had taken an oath not to bestow a fief on someone else. Feudal law in the later Middle Ages found its jurisprudential roots in Roman law, canon law and in secular legal systems. This cross-fertilization accounts for the vigor of feudal law until the end of the sixteenth century. As we shall see in part four of this essay the jurists used the norms of feudal law to define political relationships until the seventeenth century.
3. The Jurisprudence of Secular and Ecclesiastical Institutions
Monarchy was the primary form of government in the Middle Ages. Although the Italian city states established republican forms of government in the twelfth and thirteenth centuries, by the fifteenth century most had reverted back to princes. As were most medieval jurists, Dante was convinced that monarchy was the proper and legitimate form of government when he wrote Monarchia in the early fourteenth century. The legitimacy of monarchies was rarely seriously questioned.
It was typical for medieval people to think of themselves as belonging to various collective organizations. Some of these groups were local. Others occupied a larger stage. In the twelfth century the jurists began to define the relationships of these organizations to one another and the legal rights of the individuals within them. The jurists named these organizations, secular and ecclesiastical, “universitates.” A good example of their thought is the canon law of ecclesiastical corporations, especially the legal status of the bishop to his chapter. The cathedral chapter constituted a “universitas” or corporation that represented the local church. By the thirteenth century, a bishop’s power and the exercise of his office was limited by a new conception of the bishop’s juridical personality that embraced the joint authority of the bishop and the cathedral chapter. The jurists of the Ius commune used rules and norms that the canonists developed and applied them to other corporate entities from secular gilds to church councils and, in part, even to the Roman curia.
In the period between ca. 1180 and 1300, the canonists generally concurred that the bishop and chapter together constituted the basic administrative unit of the diocese. The canons of the cathedral chapter usurped the rights of the lower clergy and spoke for the people and the clergy of the entire diocese. To describe this new juridical entity, the canonists worked out corporate theories. In canonistic thought, the relationship of the bishop and the cathedral chapter divides into three categories: What the bishop can do in the name of the church; what the chapter may do without the consent of the bishop; and what the bishop and chapter ought to do together. The canonists limited both the bishop and chapter considerably in what they could do alone. Normally a bishop and chapter had to alienate property , to confer benefices and offices, to ordain priests and to judge cases in the episcopal court jointly. One canonist, Johannes Teutonicus, asked whether the consent of the parish priests was necessary in some cases, a question that may have still been asked by recalcitrant conservatives in the early thirteenth century. In the late twelfth century Huguccio and Laurentius thought that in some cases parish priests ought to be consulted by the bishop and chapter. Johannes and the later canonists were not, however, inclined to let the parish priests share in the governance of the diocese.
One can detect attitudes about the proper governance of the universitas in a letter from late in the pontificate of Innocent III. The bishop of Vic, Guillem, ruled over a difficult and contentious cathedral chapter. While on a visit to Rome he must have complained to the pope about his canons and pleaded for papal intercession to support episcopal authority. Innocent issued a decretal letter to the bishop in which he laid down the general rule that reasonable enactments of the cathedral chapter should not be thwarted by a few canons. He mandated that when the bishop and the “potior et sanior” members of chapter ordained something that unless the smaller part of the chapter’s objections were supported by reason, the will of the bishop and chapter should prevail. Innocent concluded that if the canons refused to come to the chapter’s meeting or if they left during disputes that their absence could not be considered grounds for appealing the decisions of the bishop and maior et sanior pars of the chapter. Since the beginning of the twelfth century jurists and popes had used the phrase “maior et sanior pars” to describe the members of a monastic community or of a cathedral chapter who had the legal right to rule and to consent to measures established by the universitas (corporation) with the abbot or the bishop. As we will see below, the same terminology began to be used to describe a majority of electors when secular corporations chose their rectors. These principles of reason and of majority became cornerstones of the jurists’ political thought in the microcosm and the macrocosm.
If the participation of the entire clergy in the governance of the diocese represented the old world, we can discern a tension in canonistic electoral theory between the rights of the local cathedral chapter and the expanding claims of papal power. Electoral theory is important for understanding the relationship of the person of the bishop and his territorial domain, his diocese. The bishop gradually became a stranger in a strange land during the thirteenth and fourteenth centuries. They were no longer native sons who were born in the local diocese; they were not even committed to a stable, monogamous marriage with their churches. We can see in the jurisprudence of thirteenth-century electoral theory a reflection of the old and new order of episcopal power.
The key to the canonists views on election is their opinions on what constitutes a numerical majority in an election. The canonists adopted the term maior et sanior pars from the rules governing the governance of the universitas and used it to describe a majority of the electors in a corporation. The maior et sanior pars was not a numerical majority — although it could be — but was the most important part of the corporate body. Geoffrey Barraclough has written optimistically that “it is striking enough that the church had the wisdom to reject the democratic fallacy of ‘counting heads,’ and to attempt an estimate of the intelligence and enlightened good faith of the voters.” What may have seemed wise in the context of 1934 does not resonate as well today. Nonetheless, Barraclough’s generalization is off the mark for the Middle Ages because the Church did not have the wisdom to reject fallacious democratic reasoning until the first half of the thirteenth century. The double papal election of 1159 had demonstrated to the canonists the dangers of rejecting democracy. In this case the papacy and the canonists quickly concluded that elections based on the principle of majority rule avoided schism and fostered stability. At the Third Lateran Council of 1179 a conciliar canon established the rule that a pope-elect must have the consent of a two-thirds majority in the college of cardinals.
In the early thirteenth century Johannes Teutonicus propounded a theory of election that advocated a clear numerical majority in ecclesiastical elections. But Johannes was one of the last of the Old School. His theory was rejected by Bernardus Parmensis and, most importantly, by Pope Gregory IX, who stated in the decretal, Ecclesia vestra, that the maior et sanior pars must not always be a numerical majority. The most interesting aspect of Johannes’ electoral theory is his view on electing an “extraneus,” a foreigner, as bishop. As we have seen, until the twelfth and thirteenth centuries, most bishops were local men. Although Johannes was a fervent democrat in ecclesiastical elections, he was a committed oligarch when an ecclesiastical corporation wanted to elect an extraneus. Johannes may have been reacting to the increasing presence of foreign shepherds among local flocks. He believed that an extraneus could be elected only if there were no worthy candidates to be found locally, and only if the election were almost unanimous. Almost unanimous in this case means all but one. If the chapter elected an extraneus but two canons favored a local candidate, the two canons become the maior et sanior pars no matter how many canons voted for the other candidate.
Johannes’ electoral theory reflects his conviction that foreign shepherds should not care for local flocks. He believed that an extraneus could be elected only with great difficulty, and he believed that even the pope could not provide a bishop to an unwilling flock. Johannes firmly rejected the constitutional structure of the church that was slowly evolving during his lifetime.
Johannes Teutonicus was in a minority. All the later canonists agreed that the cathedral chapter could elect an extraneus if the bishop had been elected by the maior et sanior pars. Johannes, the old conservative, conceived of the church as being a local institution, serving local interests, and controlled by local people. In general his ecclesiology emphasized local rights. His idea that local rights were important remained an important element in the medieval Ius commune.
Johannes’ jurisprudence of the norms governing the “universitas” was kept alive in the secular sphere if not in the ecclesiastical, especially in the governments and guilds of the Italian cities. By the later Middle Ages the church was moving steadily towards centralization. The bishop became a prince who ruled over his territory. His territory was more clearly defined than it had ever been, and his jurisdiction over institutions within his territory was more vigorously defined than it had ever been. The bishop, however, became less a creature of the diocese. The bonds between a bishop and his flock were attenuated and the legal relationship between them diminished. By the later Middle Ages, when bishops were often appointed by papal mandates rather than elected by local cathedral chapters, the metaphors that had traditionally described the bonus pastor often became more and more rhetorical embellishments rather than descriptions of reality. The diocese and the bishopric were the forerunners of the modern state. Bishops, like secular princes, exercised increasingly centralized jurisdiction over their territories. What happened within the structure of the Church was replicated in the Italian city states where despotism in one form or another replaced communal, corporate rule.
In ancient Roman law a “universitas” was an association of persons in both public and private law. The jurists used the terminology of Roman law to describe medieval corporations but expanded the scope and importance of corporate theory in law. Already in the twelfth century an anonymous jurist called the “people” a “universitas.” Although the norms governing corporate governance were established by the jurists of the Ius commune, these norms were modified by local custom and practice. From their thorough analyses of corporate law, the jurists created a doctrine of community. In particular they defined the relationship of the head of the corporation to the members. What was particularly significant was that corporate theory began as a juridical description of small groups but became a tool that the jurists used to describe the secular state and the entire church. As Brian Tierney has put it:
The decretalists themselves, down to Innocent IV, certainly had no intention of providing arguments for critics of papal sovereignty; but in fact a more detailed analysis of the structure of corporate groups was precisely what was necessary to provide a sounder juristic basis for the rather vague “constitutional” ideas that occur in decretist works.
Consequently, for a complete understanding of the political thought of the medieval jurists one must delve into their corporate theory of representation.
The bishop’s position in the “universitas” could be seen from two perspectives. He could be seen as the sole ruler of the cathedral chapter and the diocese. He could also be seen as a ruler who shared his authority with the canons of his chapter. In the early twelfth century Gratian had put some texts into his Decretum that stipulated that a bishop must govern with the consent of his chapter. In later canonical collections there were two titles that touched directly upon the relationship of the bishop and his chapter: “Concerning those things which a prelate may do without the consent of his chapter” and “Concerning those things which a greater part of the chapter may do.” A number of papal decretals under these two titles established the norms by which cathedral chapters should be governed. The bishop could not alienate ecclesiastical property, he could not unilaterally grant clerics benefices and stipends, he could not make any important decision without the advice and consent of his chapter. After reading these papal decretals no canonist could have possibly concluded that a bishop could act alone without his chapter in all matters.
A much more authoritarian bishop was attractive for a few canonists. Pope Innocent IV (1243-1254) was a distinguished canonist. He rejected the model of corporate governance supported by most canonists.
Rectors who govern corporations have jurisdiction and not the corporations. Some say that a corporation may exercise jurisdiction without rectors. I do not believe it.
Innocent put forward a simple, absolutist theory of corporate government that may have been influenced by Roman law. The Roman jurists did not have a sophisticated theory of corporations. The model of rulership that emerges in the texts of Roman law is that the people bestow authority on the prince but do not share in his rule.
When the canonists described corporate governance within the Church they developed a much more complex model of governance. The question of authority arose most often when ecclesiastical property and stipends were at issue or when the corporation was involved in litigation. The jurists created rules that dictated when a rector and the members of a corporation should act together or when they could or should act separately. They constructed a model of rulership in which sometimes the rector would sit in the corporation and act with the members and when the rector would act independently. Hostiensis, for example, argued that when the bishop sat in his chapter as a canon his vote was equal to that of any other member of the chapter. If, however, the chapter was negligent, then the bishop could exercise all the rights of the chapter alone. If the bishop acted in matters that touched his prerogatives, his vote was equal to all the members of the chapter. In this case, the bishop could make decisions with the vote of one other canon. The bishop and one other canon constituted the “maior et sanior pars.” Hostiensis was careful to protect the rights of the church against negligent prelates and canons. When the “status ecclesiae” (state of the church) was at stake, that is fundamental rights and duties that touched the well-being and prerogatives of the entire local church (universitas), the bishop must have the consent of the maior et sanior pars of the entire chapter.
Medieval political thought was influenced in two ways by the jurists’ theory of corporations. The jurists described the complicated relationship between the prince and his subjects in the macrocosm with the same rules that they applied to the microcosm. Their ideas about the proper relationship of the bishop to his chapter, the pope and his curia, the prince and his court, and, ultimately, the prince in his representative assembly (council or parliament) became fundamental norms for a just and proper doctrine of rulership.
The juridical personality of the group quite naturally became a concern of the jurists. During the late twelfth and early thirteenth century the jurists began to realize that the corporation could be represented by a delegate that they named a procurator, syndicus, or advocatus. This delegated official could defend the interests of the universitas in court. His actions, the jurists decided, would be binding on the members of the universitas. The delegate possessed “plena potestas” or “generalis et libera administratio.” With proper mandates the official could sell, buy, lease, make contracts as well as represent the interests of the universitas in court. The jurists placed two significant limitations on the exercise of his authority. He could not exceed the terms of his mandate and could not injure the rights of the universitas.
The jurisprudence of representation entered European society through the Church. As we have seen, the cathedral chapter became a larger part of ecclesiastical governance in the early thirteenth century. When Pope Innocent III convened the Fourth Lateran Council he instructed bishops to inform members of their chapters to “send good men to the council.” After having been summoned to the Fourth Lateran Council, chapters were not shy about asserting their new rights to participate in councils. They quickly claimed the right to be represented by procurators and through those representatives to be voting members of local synods.
Archbishops and bishops were not universally happy with the claims of chapters, and the issue was joined. In 1216 the archbishop of Sens refused to permit representatives of the cathedral chapters in Sens to participate in a provincial synod. The chapters appealed to Pope Honorius III. The pope supported their claim decisively in the decretal Etsi membra. The pope’s arenga was a stirring sermon on the corporate body of the Church and the interdependence of each individual member.
Although the members of Christ’s body, which is the Church, do not have one function but diverse ones . . . He placed each person in that body so that the members constitute one body. The eye cannot say to the hand “I don’t need what you do” or the head to the feet, “you aren’t necessary to me.” Still more important, the weaker members of the body seem to be necessary.
Honorius instructed the archbishop and his suffragans that he intentionally wrote his arenga for them as an admonition. The archbishop had denied representatives (procuratores) of the cathedral chapters admittance to comprovincial councils in which matters touching their interests were treated. The archbishop had defended his position in a letter to the pope. Honorius, however, did not find his reasons, whatever they were, convincing.
We and our brothers the cardinals were in complete agreement that those chapters ought to be invited to such councils and their nuncios (nuntii) ought to be admitted to the business of the council, especially those about matters that are known to concern the chapters.
Further, Honorius concluded, the archbishop should follow the mandate of this decision in the future. “When the head gives the members their due the body shall not experience the ravages of schism but will remain whole in the unity of love.”
Richard Kay calls Honorius’ decretal “a landmark in the development of representative government.” He is absolutely right. The canonists immediately expanded the right to attend provincial councils by representatives of cathedral chapters into a more general right of persons whose interests were affected by the business of the council. During the thirteenth century provincial synods included representatives of cathedral chapters as a matter of course. Etsi membra became a key legal justification that persons and ecclesiastical institutions had the right to send representatives to assemblies that dealt with issues pertaining to their interests and that they, through their representatives, had the right to consent to new legislation. The decretal also justified claims of representation in the secular realm.
Honorius III’s decretal became a part of canon law, and canonists commented on it for the next four centuries. Shortly after Honorius promulgated Compilatio quinta in 1225, Jacobus de Albenga alluded to the fundamental but unarticulated principle that lay at the heart of Etsi membra, a norm that was decisive when the pope and his cardinals decided to support the canons and not their archbishop and bishops. Honorius, he wrote, embraced the right of cathedral chapters to participate in councils “because what touches them ought to be decided by them.” In the middle of the thirteenth century Bernardus Parmensis explicitly quoted the maxim in his Ordinary Gloss to the decretal that Jacobus alluded to: What touches all ought to be approved by all (Quod omnes tangit ab omnibus approbari debet). Jurisprudential norms of the Ius commune were powerful tools for shaping institutions in medieval society. Etsi membra is a splendid example of how a legal principle could inform a judicial decision and regulate the rules governing the calling of a council. The logic of the decretal’s argument could be understood as meaning that any council should invite persons who were not normally present in the deliberations of the council when it dealt with matters touching their interests. Jacobus de Albenga saw the logical implications of the decision and explained that although lay persons were not normally invited to church councils, if the issues that were to be decided by the council touched their interests, they too should be summoned. Such issues could be matters of faith and of marriage
Not every pope was as sympathetic to Honorius III’s conception of the Church as an interdependent body with mutual rights. As Brian Tierney has noted many years ago:
The canonists’ tendency to personify the individual churches, to discuss problems of their internal structure in terms of anthropomorphic imagery, did not influence the actual content of their doctrines so much as is sometimes supposed. The head-and-body metaphor could so easily be adapted to support any constitutional solution.
Tierney demonstrated that Pope Innocent IV, who was also a great jurist, had an unitary vision of the corporation, the papacy, and the Church, and he conceived each as “regimen unius personae.” When Innocent came to gloss Honorius’ Etsi membra he did not want to deal with a text with which he had so little sympathy. “Repeat what we have said in our commentary above on the canon of the Fourth Lateran Council Grave.” And if his readers or listeners did as they were instructed they learned again the pope’s uncompromising “strict authoritarianism.” In Grave Pope Innocent III had decreed that prelates and chapters who are convicted of bestowing ecclesiastical benefices upon unworthy candidates more than two times should lose their authority to confer benefices. Provincial councils were to investigate and judge these cases. First Innocent distinguished between episcopal and provincial councils. He noted that only bishops of the province must be summoned to the provincial council that would judge these cases of irresponsible electors but that abbots, priests, and the clergy of the city should be summoned to episcopal councils. Innocent conceded that cathedral chapters ought to be summoned to provincial councils when matters that concerned them were treated. Otherwise they were not admitted to provincial councils unless it were a matter of “honesty” or “counsel.” Advice, however, was very different from a legal right to participate in conciliar affairs. Innocent’s silences speak even more clearly about his conception of the Church than what he does say. He completely ignores the earlier discussions about the rights of laymen, cathedral chapters, and others to participate in councils. His vision of his Church did not include the idea of representation and consent in the body politic. Later jurists, however, accepted the right of corporations to be represented in church councils and secular assemblies. Pope Innocent IV’s views remained in abeyance until the sixteenth century when “strict authoritarianism” had a revival in the ecclesiastical and secular realms.
As the jurists explored and developed a jurisprudence that governed the universitas, they created norms that regulated the political life of medieval and early modern society. Perhaps the most significant norm that they established was “Quod omnes tangit, ab omnibus approbari debet” (What touches all ought to be approved by all). Consent and counsel of the members of the universitas, whether it was a guild or a kingdom, became a cornerstone of juristic thought. As time went on these principles were applied to the pope and the college of cardinals, the bishop and his chapter, the rector and his universitas, and the prince and his realm. The doctrines of corporate governance became a counterweight to the old and still powerful theories of monarchical rule. They were not just alternatives to monarchical rule. The jurists argued that these norms of corporate governance should be integrated into princely government. They were a powerful force for limiting the power of the prince. The jurists, more than any other group, created “medieval constitutionalism.”
4. The Jurists’ Role in Shaping the Political Thought from 1250 to 1500
If one were to look at only the commentaries of the jurists on Roman, canon, and feudal law of the late Middle Ages one would be struck by the great continuities in political thought from the twelfth to the seventeenth century. Many of the issues that the jurists discussed were the same. They discussed the authority of the prince and the rights of his subjects. They continued to elaborate and expand their understanding of corporate theory. They responded to contemporary political institutions. The city states of Italy made them consider the relationship of small local states to the empire and national monarchies. Many questions were raised about the juridical structures of these new states. Could they legislate? Did their rulers have the same authority as the prince? Did the rights and duties of the rectors and members of the universitas apply to them? In the end the jurists answered yes to all these questions.
The jurists developed their political ideas when they explicated the texts of ancient Roman, canon, and feudal law. Although they commented on these texts with a constant eye on the structures and institutions of the societies in which they lived — their jurisprudence was not desiccated academic law — their greatest contributions to political thought came as recognized experts from whom European rulers sought legal advice. The literary vehicle that they used in their work was the consilium. Jurists wrote consilia (legal briefs) at the request of clients who ranged from princes to city states, from judges to litigants. They presented the facts of the case and then solved it after having presented both sides of the argument. For some jurists writing consilia became a significant source of income. One of the most prolific jurists, Baldus de Ubaldis, was said to have earned 15,000 ducats just for writing consilia on testamentary substitutions. Early the jurists also began complaining about the pay they received for their efforts. Between 1246 and 1312, Jacobus Palliarensis of Siena wrote a consilium for Amadoris de San Gimiignano and noted that “his small payment was transformed into a large stipend by the affection of the judge who had sent it to him.” As we have seen princes sought the opinions of jurists in the twelfth century. Although Frederick Barbarossa did not, it seems, ask Martinus and Bulgarus for a written opinion about the breadth of his political authority, the emperor’s question reflected the rising status and importance of jurists for medieval politics.
By the end of the twelfth century we have some evidence that judges turned to jurists for professional opinions about legal cases. The earliest examples demonstrate that judges and institutions turned to famous teachers of law for opinions. These teachers applied their expert knowledge and the principles and norms of the Ius commune to questions of law and questions of fact in the local courts. This process demonstrates that the jurisprudence of the Ius commune transcended the practices of the local courts and at the same time was seen as a set of authoritative norms that served as guideposts and benchmarks for legal practice. The jurists could not know the customary and statutory law of all the local jurisdictions where they were asked for opinions, but their knowledge of the norms of the Ius commune was seen as indispensable for bringing local practice into concordance with universal principles of justice, reason, and equity.
We have a singular example of Pope Innocent III issuing a consilium in a political matter in 1203. The tract was included in his register, was later included in collections of canon law. In his register it has the rubric Consilium quod dominus papa Innocentius misit crucesignatis sine bulla. No other letter in the entire corpus of Innocent’s letters was labeled a consilium. That fact is remarkable for two reasons. As we have seen a consilium had become the term designating a response written by jurists to a particular legal problem. A consilium was not a judgment nor a binding statement of law on those for whom it was written. Even if it written by the pope, a consilium was advisory and not normative. The rubric stated that Innocent sent the consilium to the crusaders “sine bulla.” Consequently, his consilium was not a definitive judgment, and we may understand “sine bulla” as underlining that point.
The contents of the consilium reflect Innocent’s attitudes and motivations at a key moment during the Fourth Crusade in which the Venetians and the crusaders were taking a course that would lead them to the walls of Constantinople. It was a military and political decision that Innocent opposed but that he could not hope to control. Innocent permitted the crusaders to sail with the Venetians until they reached the lands of the Saracens or the province of Jerusalem. Innocent compared the Venetians to an excommunicated paterfamilias. In the Ius commune a paterfamilias was the head of a family. Family members did not have to shun contact with him if he were excommunicated. Innocent warned the crusader, however, not to wage war with the Venetians after they reached the lands of the Saracens unless the Venetians had been absolved. When the crusaders received Innocent’s consilium they certainly understood that the pope issued it for political purposes with the help of his curial jurists. The document warned them indirectly not to attack Constantinople and not to collaborate with the Venetians after they reached the Holy Land. This is the first political consilium that we have in the Ius commune. Bulgarus and Martinus gave Frederick Barbarossa oral opinions. From the early thirteenth century the jurists regularly responded to questions in writing.
Although Innocent III’s consilium was a precocious anticipation of a rich genre, it differed from the consilia that began to flourish in the fourteenth century in significant ways. First, and most importantly, the consilia were written by private, professional jurists. They were not written by princes and popes. If rulers who possessed legislative and judicial power and authority had written consilia their purpose would have been obviated. They would have been considered legislation rather than advice. In the case of Innocent’s consilium the canonists included it into the collections of canon law. They transformed the document from advisory to depositive. Consilia were primarily meant to be advisory. Their purpose was to counsel the great and the small about the juridical norms that were significant for a particular legal problem. Consilia became an important literary genre because they were written by jurists who attempted to persuade, not to mandate. They became authoritative because of the prestige of the jurist who wrote them but even more from the power and force of the arguments contained in them. The reason of the law was far more important than the status of the jurists.
The second half of the thirteenth marked the beginning of the Age of Consilia that would last for the rest of the Middle Ages. By the sixteenth century consilia rivaled commentaries as the most important genre of legal writing. We do not have copious numbers of consilia from the period from 1250-1300. In this period, jurists wrote consilia for private clients. They were paid modest amounts. Their consilia became part of the court archives. They did not circulate. They were not collected.
The jurists were soon asked to render opinions on delicate political matters. An early example is a consilium written by Jacobus de Belvisio (ca. 1270-1335) and Jacobus de Butrigariis (ca. 1274-1347) who were doctors of civil law at the Law School in Bologna. Belvisio had been an advisor to the Angevin king who ruled the Kingdom of Naples, Charles II of Anjou († 1309). Sometime around 1309 both jurists were asked to write a consilium about the feudal rights and obligations contained in a feudal contract. The podestà of Castello di Monte, in the territory of San Gimignano, had sworn a feudal oath to the representative of Charles I of Anjou, the King of Naples (1225-1285), John Britaud, the Vicar of Tuscany. Forty years later the jurists were asked to define the terms of the contract between the Angevin king and the Castello and its men (universitas et homines castri Montis). This relationship between a prince and a city is a splendid example how the obligations of feudal law and concepts of representation in canon law melded together in medieval society.
The two jurists began with a prologue in which they indicated their purpose. A consilium demands justice and truth. Justice means that rights should be granted to everyone. Truth means that the God guides them to seek the truth in law and in rights. The universitas and its heirs had sworn an oath of fealty and homage to the king and his heirs. The jurists saw their task as exploring what this meant in the Ius commune. To define what a vassal’s obligations were from having sworn the feudal oath they cited texts and jurisprudence from canon law.
The question remained, however, what the obligations of a person who swore a feudal oath were if he were not a vassal, courtier (domesticus), or familiaris regis (a special dignity at the Angevin court) and if he were not placed under perpetual and continual jurisdiction of the king. The feudal contract stated that the men were to “defend and preserve royal property to the best of their ability against all other communes (universitates) and persons.” However, the jurists did not think that their obligations extended beyond the borders of Tuscany. Nonetheless, the vassals were obligated to wage war against the enemies of the king in Tuscany if the king waged war there. The jurists insisted that vassals were not bound to the terms of the contract and do not have a duty to serve their lord beyond reasonable jurisdictional limitations established by written documents. Furthermore, the “bonus dominus” must protect and preserve the rights and property of his vassals. They concluded by stating unequivocally that the rights in the feudal contracts could not be prescribed.
Jacobus Belvisio and de Butrigariis used the norms and principles taken from canon, Roman, and feudal law to interpret the feudal contract concluded forty years earlier. They repeated several times the six key concepts for understanding a feudal contract: incolume, tutum, honestum, utile, facile, et possibile (uninjured, safe, honest, useful, easy, and possible). These concepts were not taken from Roman or feudal law. As we saw in section two, they were contained in a letter of Fulbert, bishop of Chartres († 1028), in which he had defined the obligations of the vow of fealty. That chapter of Gratian’s Decretum had become the locus classicus for discussions of the feudal contract. The two jurists also used corporate law to understand the relationship between the feudal lord and his subjects. As in the case of Castello di Monte procurators with full power (plena potestas) could bind the universitas not only in the present but also in the future. Oaths of fealty bound corporations as firmly as they bound persons. At the end of their consilium the jurists noted how much they were paid for their work: eight gold Florins.
One of the first jurists to produce a collection of his consilia was Oldradus de Ponte. He was a professor of law and advocate in the Roman curia in Avignon. He was born in Lodi and died sometime after 1337, probably in Avignon. Oldradus studied law in Bologna at the end of the thirteenth century. He was a layman, married with three sons, one of whom became a jurist. Lay canonists were not unusual in the fourteenth century. He entered the entourage of Cardinal Peter Colonna in 1297 for a short time, and later he taught law at the University of Padua until ca. 1310. He left Padua for the papal court in Avignon. Oldradus served as an auditor and judge in the Rota (papal judicial court) at Avignon. He may have also taught in the law school at the court in Avignon. From the evidence of his consilia Oldradus was the most important jurist at the papal court from ca. 1311-1337. An Englishman at the curia, Thomas Fastolf, wrote that Oldradus was still discussing cases with auditors in the Rota ca. 1337. That is the last certain notice we have of his life. He met the Petrarch at Avignon, and the poet called him the most famous jurist of the age.
His consilia dealt with a wide range of political problems. Many of them do not name litigants and do not describe a particular court case. They seem to have been written in response to legal questions that had been posed at the papal court in Avignon. He wrote consilia on the rights of non-Christians, Jews and Muslims. Although he thought that it was legal to wage war against Muslim’s in Spain, he argued that when they lived peacefully in Christian society their rights should be protected. Oldradus’ life and consilia illustrate the position that jurists had achieved in medieval society. Their opinions were sought and paid for. A knowledge of law was seen as a valuable tool for analyzing and solving political problems.
A conflict that arose between the Emperor Henry VII (1309-1313) and King Robert of Naples (1309-1343) raised a number of complicated problems for the papal court, Oldradus de Ponte, and the jurists. Henry demanded Robert’s support for political plans in Northern Italy. After Robert had thwarted Henry’s plans to be crowned emperor in St. Peter’s, the two rulers became implacable enemies.
Henry’s conception of his office was as elevated as Frederick Barbarossa’s. In a letter that he sent to the kings of Europe he declared that God had established him as the one prince to whom all men should be subject. The city of Rome was the seat of ecclesiastical and imperial power. Pope Clement V (1305-1314) entered the fray. He demanded that Henry promise not to invade Robert’s kingdom and asked him to submit his dispute with Robert to papal arbitration. In 1312 Henry broke with Robert and issued a public denunciation of him. He accused Robert of treason and summoned him to the imperial court. He threatened that the would proceed against Robert even if the king did not appear in his court.
A number of jurists wrote tracts that defended Henry’s actions. Others wrote tracts and consilia in support of Robert. Clement V turned to the most distinguished jurist in his curia, Oldradus de Ponte, and asked him to write two consilia on the legal issues of the dispute. In the first, Oldradus dealt almost exclusively with the question of due process. He posed a series of questions about the legitimacy of Henry's summons of Robert to his court. Is a summons issued to a place where a defendant has notorious enemies invalid? If so, is a subsequent trial and judgment also invalid? Oldradus argued that two considerations must be taken into account when examining a summons: the "execution of intent" and the manner through which the summons is brought. The execution of intent is the defendant's knowledge of the summons and his ability to defend himself. This element was a principle of the Ius commune and cannot be omitted. Oldradus observed that the right of self-defense is granted to everyone in extrajudicial matters by natural law, and consequently, a person has the right to defend himself by natural law. There can be no defense without knowledge. If the prince would render a judgment without all necessary knowledge, he would take a defense away from a man that is granted by natural law. This is also a principle of the Ius commune, concluded Oldradus, and the prince may not violate it. A summons is the means by which knowledge is brought to the court. The means by which a summons is delivered is not established by natural law. A summons can be delivered by a nuncio, letter, or edict. The means are regulated by positive law, and the prince can, therefore, summon anyone as he wishes.
In the second consilium Oldradus grappled with the other issue raised by the dispute: did the emperor exercise jurisdiction over other kings and over the king of Sicily? He drew his arguments from many sources and decisively rejected the emperor's claim that he was “dominus mundi.” The Roman people could not have bestowed more power on the emperor than they themselves held. They did not exercise authority over other nations, therefore they could not make him lord of the world. God did not establish imperial rule since there were no scriptural justifications for it. He cited a metaphor of the bees that imperialists had used to justify the emperor’s authority. “One bee who is king,” he wrote, “is not king of all bees.”
One feature of Oldradus's consilium is particularly striking: he did not deny the universality of the emperor by subjecting him to the pope. Oldradus was no hierocrat. His comment at the end of the consilium is telling. After reviewing the arguments of the canonists for the emperor's sovereignty, he concluded that their thought was a result of their nationalities: Johannes Teutonicus was a German, the others were Italians, therefore, as subjects of the emperor, they supported his claims of sovereignty. Only the Spanish opposed German claims. Oldradus's consilium became a focal point for considering the universal authority of the emperor in the later Middle Ages. Jurists and publicists incorporated it into their works, and supporters of the late medieval empire debated his thesis.
In these consilia Oldradus put forward two arguments to justify Robert of Naples' position. The first was new and had slowly evolved in the thought of the jurists during the previous fifty years. The prince could not deny a subject his right of due process when this right was grounded in natural law. The second argument was not as new and had been debated for two centuries. Oldradus maintained that the emperor was not “dominus mundi” and did not exercise jurisdiction outside the borders of the German empire.
Oldradus’ consilia marked a new stage in the role of jurists in politics. In earlier political disputes the opinions of the jurists were ephemeral documents written for a particular dispute, at a particular time, in a particular place. Oldradus’ consilia, however, were compiled into a collection of his consilia. They circulated widely in manuscript form. With the advent of printing they circulated even more universally. His consilia were reprinted numerous times in the fifteenth and sixteenth centuries. Oldradus’ and the jurists’ consilia were transformed from temporally limited legal arguments on particular cases to general political statements about the right order of medieval political institutions. They articulated the political principles developed by the jurists of the Ius commune and provided concrete examples of how these norms could be applied. Jurists read and cited Oldradus’ consilia for the next three centuries. Consilia became one of the main vehicles for the circulation of the political principles of the Ius commune.
After Oldradus every major jurist who wrote consilia collected and published them. The great majority were devoted to the mundane affairs of everyday life: wills, doweries, contracts, and marriage cases. Jurists wrote consilia for individuals, corporations, and princes. When the jurists wrote consilia about the institutions of medieval society they often provide insights into the political life of communities that no other sources offer.
Bartolus of Sassoferrato (ca. 1313-1357) was one of the most revered jurists in Italy during the fourteenth century. His fame has endured until the present day. His career as a teacher and jurist was at the dawn of the Age of Consilia. He produced ca. 400 consilia, which are many fewer than the large numbers of consilia that later jurists would write. Although most of his consilia did not treat political problems, one that does offers an example of his political thought.
In ca. 1258 the commune of Spoleto granted some inhabitants of Arrone a place that came to be called Montefranco. The commune granted these men and their heirs liberty and a privileged legal status as free men (libertas et franchisia). They would have the same liberties as the citizens of Spoleto. In return the men promised the commune to build a fortification and to render annual services. These services probably included the defense of Spoleto. Montefranco was on a hill 400 meters high and was a splendid position to defend Spoleto from the South. The men of Montefranco lived there for forty years and never paid taxes to Spoleto. In the 1330's Montefranco and other fortified towns surrounding Spoleto resisted the commune’s attempts to integrate them into the political life of the commune. In particular they resisted paying taxes. Montefranco asked Bartolus to write a consilia that was probably presented in the communal court of Spoleto. Bartolus posed two questions: Could Spoleto impose taxes on Montefranco and would their immunity from taxation extend to goods that they had subsequently acquired?
Bartolus first broached the question of citizenship: were the men of Montefranco citizens of Spoleto or inhabitants of the city? If Montefranco were part of the territory of Spoleto Bartolus had no doubt that any person who was born there was a citizen of the commune. Bartolus argued that the commune granted the men of Montefranco the right to build a fortification. When Spoleto concluded that pact the commune bestowed all rights of lordship and jurisdiction on Montefranco. Therefore Montefranco was no longer a part of the territory of Spoleto. However, Bartolus then noted that this argument was not valid because it was a principle of the Ius commune that no one could alienate lordship and jurisdiction unless it were returned to a higher authority from whom they received it. Bartolus finished this part of his consilia by stating that Montefranco is part of the territory of Spoleto, but not simply a part. Spoleto’s jurisdiction was limited by contracts, conditions, and privileges (immunitates) that were given to the men who established Montefranco.
What are the people of Montefranco obligated to? Bartolus quoted from the original agreement: They must serve in the army, take part in the parliament, “hold a friend for a friend,” receive a podestà, and pay a certain amount annually. The original inhabitants of Montefranco promised that and no more. Bartolus cinched his argument with a norm from testamentary law: “those things that one wants to be bound by makes clear that in other things one does not want to be obligated.” Since the men of Montefranco did not obligate themselves to pay taxes, Spoleto cannot impose taxes on them. Bartolus noted that even though Spoleto promised to treat them as citizens one may not conclude that they had the authority to impose taxes on them as if they were citizens. Bartolus asserted that when Spoleto promised to grant the men of Montefranco the same liberty and franchise as the citizens of Spoleto, the commune cannot now claim that they are obligated to more than what was contained in their contract. “It is certain,” Bartolus concluded, “that the men of Montefranco believe with just reason that they are free from the burden of paying taxes. They have not paid taxes for forty years and more. They are free and cannot have new taxes imposed upon them.”
When Bartolus turned to the issue of whether the commune could tax the property acquired since the contract had been made, he turned to the jurisprudence of canon law. The canonists had argued that papal privileges that exempted monasteries from tithes could be interpreted as exempting future property from tithes. Bartolus applied the same norms and cited the same papal decretals to argue that the new property of the men of Montefranco was also exempt. “The men of Montefranco are exempt, their heirs are exempt, the heirs of their heirs are exempt to infinity,” trumpeted Bartolus at the end of the consilium.
Bartolus’ consilium illustrates interplay of institutions and rights in medieval society. The jurists mediated and controlled relationships in society by bringing their knowledge and expertise to bear on political questions. The norms of the Ius commune provided them with the tools to analyze political problems. Their status as respected and valued experts made their opinions important in European courts and also in the schools. The case law in the Ius commune had been confined to the appellate decisions of the popes in canonical collections. By the end of the fourteenth century the proliferation of consilia provided secular and ecclesiastical courts with additional authoritative statements of law that were cited in the courts and pondered in the schools.
Baldus de Ubaldis (1327-1400) succeeded Bartolus as the most renowned European jurist. Baldus taught at the law schools of Perugia, Florence, and Padua. He began teaching at the university of Pavia in 1390. The powerful ruler of Milan, Giangaleazzo Visconti, had appointed him to the post, and he remained there until his death in 1400. When Giangaleazzo summoned him, he was the most distinguished Italian jurist of his time, and his fame had begun to rival that of his old teacher in Perugia, Bartolus.
Baldus wrote several thousand consilia, many of which have never been printed. After arriving in Pavia, he rendered several important political opinions for his new lord. Legal historians have long known of these consilia that Baldus composed for Giangaleazzo. In his sixteenth-century biography of Baldus, Diplovatatius mentioned consilia touching upon Giangaleazzo's affairs. In one of these consilia, Rex Romanorum, Baldus discussed the legal questions revolving around Giangaleazzo's assumption of ducal authority in Lombardy. Baldus struggled with, and slowly began to resolve, the issues that touched fundamental legal prerogatives of the Visconti's signoría. Rex Romanorum offers us a rare glimpse of how a medieval jurist wrote, and then rewrote, a consilium treating a delicate political and legal problem.
Baldus began to write Rex Romanorum in response to the objections of some Italians to the German Emperor Wenceslaus's bestowal of Lombardy on Giangaleazzo as general imperial vicar in 1395. With his privilege in hand, Giangaleazzo claimed the ducal title for himself and argued that all cities and lordships were now subject to him as their feudal lord. Wenceslaus had granted Giangaleazzo all imperial rights and lordships in Lombardy. He declared that he made this grant with certain knowledge and from his fullness of power, notwithstanding any concessions, constitutions, immunities, liberties, and privileges that anyone might possess.
The privilege raised several legal problems. It encroached upon the rights of imperial vassals in Lombardy and broke longstanding diplomatic ties between the emperor and local authorities. Some German princes claimed that the emperor did not have the authority to grant such a privilege because it injured the imperial patrimony.
Baldus raised two questions in the beginning of the first version of Rex Romanorum. In the first, he asked whether a nobleman, who held a city not mentioned in the privilege, but whose city contained a part of a diocesis that Wenceslaus had bestowed upon Giangaleazzo, must acknowledge Giangaleazzo's lordship. The second question was whether Wenceslaus had granted all jurisdiction and power to Giangaleazzo and whether he could recognize who was or who was not an imperial vassal according to his will.
In fact, if we may judge from the space that he allotted to each question, the second was of far greater importance to Baldus. He devoted only a few lines to the first question. In his earliest draft of the consilium, he concentrated on whether Wenceslaus could transfer all imperial jurisdiction and power to Giangaleazzo. If Giangaleazzo had seen this early version of the consilium, he might not have been pleased. Baldus restricted Wenceslaus's privilege considerably. Could the emperor order a vassal who holds him as his liege lord to swear allegiance to another lord? Baldus concluded that it would be dangerous to believe the emperor had this authority. Further, if one thought that Wenceslaus could revoke earlier privileges, then his successor might do exactly the same. Giangaleazzo and his children might lose everything that Wenceslaus had granted them. Echoing the constitutional provisions of Magna Carta, he noted that if a feudal lord wronged his vassal, he should appeal to his peers at the lord's court. If this failed, he could wage war against his lord.
Baldus concluded his argument with a hope and a proverb. His hope was one that he would repeat several times later on in the consilium: that Giangaleazzo would listen to opinions that might not please him. In his proverb, Baldus quoted a King who wished that he would not bestow a larger but a more stable kingdom upon his son. Baldus's message to Giangaleazzo was clear: treat the rights of imperial vassals in Lombardy with respect.
After discussing these issues, Baldus ended the first draft of the consilium with a remark that seems an afterthought: all this is true if one presupposes that the emperor-elect can bestow such a privilege.
In the next stage of composition, Baldus tackled other problems connected with Giangaleazzo’s ducal rights. In his first analysis, Baldus dealt with the emperor's authority to derogate or abrogate legislation: could the emperor abrogate or derogate imperial privileges that his predecessors had bestowed upon the princes of Lombardy? Since then he read consilia of Christophorus and Paulus de Artionibus in which they argued that the pope could neither revoke a fief nor change its terms to a vassal's detriment. These two consilia raised an issue that Baldus had not considered. When Wenceslaus had granted Giangaleazzo lordship over Lombardy, he broke his feudal contracts with his Lombard vassals. The jurists who commented on feudal law had developed a very sophisticated theory of how contracts bound the prince. By the end of the thirteenth century, most jurists agreed that the prince could not unilaterally break a contract with his vassal. Baldus sat down and added a short treatise on contracts. He argued that feudal contracts could only be changed with the consent of the parties. A contract with the prince could not be valid if its force were dependent on his will alone. The prince is a rational creature and ought to be subject to reason. He should not break contracts without cause. In doubtful matters, one should never assume that the prince wishes to dispossess someone of their rights.
Baldus continued his discussion of whether a prince could transfer an unwilling vassal to another lord. Drawing analogous examples from marriage, slave, and contract law, he argued both sides of the issue. In his conclusion, he did not resolve the issue but raised an entirely different question: did Wenceslaus diminish imperial authority by granting his privilege? To this question, Baldus could give a confident, if somewhat irrelevant answer: No.
Baldus turned next to feudal oaths. Vassals in Giangaleazzo's lands are obligated to render the feudal oath to him, but if they refuse, they should lose only their fiefs and should not be punished further. In the end, however, Baldus again affirmed his position that the prince should not force an unwilling vassal to accept a new lord and made a plea that Giangaleazzo should understand that any right he wished to exercise must be based on equity. If not, it was unjust.
Baldus made another important addition to the first part of the consilium at the very end. A contract, he wrote, was different from a privilege. The prince is bound to observe a contract by natural law, and this is one case in which the prince is not presumed to have acted with cause if he were to break a contract. In his earlier statement on contracts, Baldus had not treated the issue of cause — a key element in the jurists' theory of contracts — nor had he based his argument on natural law. Now, however, he formulated a general statement on the inviolability of contracts with which almost every jurist between 1200 and 1700 might have agreed.
In this consilium Baldus touched upon almost every element of the jurists’ ideas of princely authority. The task was not an easy one for him. Although he had treated many of the questions separately in his commentaries on the Corpus iuris civilis and in his commentaries on canon and feudal law, when asked to analyze Giangaleazzo's rather straightforward problem, he did not find it easy to bring what he had written about the emperor together. Naturally, he was sensitive to the political dangers of giving Giangaleazzo an unsatisfactory answer. He had lived for most of his life in republican city states, and their constitutional problems undoubtedly attracted his attention more than those of the prince. He had written other consilia that touched upon the political problems in Europe, most notably on the Papal Schism of 1378. His consilia treating the rights of Giangaleazzo and the Papal Schism underlines a fundamental point about the literary genre. The jurists were forced to synthesize the rich, fecund, and complex traditions of the Ius commune when they treated a complicated political case. This task was one that they had never faced in their great commentaries, but it was a task that played an important role in shaping European political thought.
At the end of the Middle Ages the Age of Consilia was in full swing. Most jurists produced few works of commentary but many consilia. By the end of the fifteenth century it was the most important genre in law. Great political events were often subjected to minute analysis in consilia commissioned by princes. The dramatic events surrounding the murder of Giuliano de’ Medici compelled the supporters of the Medici to commission a number of jurists to write consilia on the issues of the case. The protagonists in Giuliano’s murder were worthy foes. On the one side stood the pope, Sixtus IV, the spiritual leader of Christendom and temporal prince of Central Italy; on the other, Lorenzo, first citizen of Florence.
Sixtus had excommunicated Lorenzo after he had escaped the assassins whom the pope had probably hired. Lorenzo had no doubts about the injustice of pope’s duplicity. On 19 June 1478, he wrote to René of Anjou:
I know that the only crime I have committed against the pope is, and God is my witness, that I live and that I did not suffer death . . . On our side we have canon law, on our side we have natural and political law, on our side we have truth and innocence, on our side God and mankind.
Sixtus’s bull of 1 June, 1478 had condemned Lorenzo as a son of iniquity and a rebel against the Church. Sixtus used the new printing press to give his bull the wide circulation. The Signoria of Florence responded to Sixtus’s letter on 21 July, in an apologia probably written by Bartolomeo Scala. They rejected Sixtus’ allegation that Lorenzo was a tyrant. The pope had the authority, they observed, to wage war against the Turks, but to wage war against a Christian ruler was quite another matter. Both Sixtus’ original bull and the Signoria’s response to it were pieces of propaganda aimed at a larger public.
Lorenzo and his advisors must have been aware that they needed more than propaganda to discredit Sixtus’ excommunication and interdict, and a number of jurists were called upon to defend Lorenzo. They quickly responded with detailed rebuttals and provided Lorenzo with a formidable defense. By the end of July, 1478 he had already received tightly argued and lengthy consilia.
Four consilia have been preserved from this controversy. Each consilium contains extensive discussions of the political and the legal ramifications of the Pazzi Conspiracy. Bartolomeo Sozzini (Socinus) (1436-1507), the doctors of Florence who represented the entire college of doctors (undoubtedly the doctors of law), Francesco Accolti, and lastly, Girolamo Torti (Hieronimus de Tortis) wrote consilia defending the Medici.
When Lorenzo wrote to René of Anjou in the middle of June, he must have known about the main arguments that could be made in his defense. The rhetorical flourish of his elegantly cadenced litany --- that canon law, natural law, and God supported him --- should not obscure the essential truth of his statement. All the consilia make the same argument: two centuries of Romano-canonical procedural law supported Lorenzo, and these procedural rules were not just a part of positive canon law but were based on a higher law, natural law. Each jurist made the same fundamental point: even the prince’s (in this case the pope’s) “potestas absoluta” could not subvert the judicial process. They established that when Sixtus condemned Lorenzo, he had violated procedural rules to which even the pope must adhere. There was no longer any doubt that the supreme prince of Christendom was bound by the procedural rules of the Ius commune.
The jurists’ defense of Lorenzo de’ Medici provides remarkable illustration of the political role that the jurists played in medieval society. By the end of the fifteenth century, Lorenzo’s dramatic rhetoric in his letter to René of Anjou was more than just rhetoric. Law was staunchly on his side. Jurists inside and outside Florence leant their legal expertise to his defense. In their consilia, the lawyers summarized two centuries of juristic thought about the relationship of the prince and the law. Their task was not daunting. In their commentaries the jurists had created a sophisticated doctrine of “due process” that Pope Sixtus violated when he condemned Lorenzo without a hearing. A defendant’s right to present his case in court had become so embedded in juristic thought that even the prince’s absolute power could not dislodge it.
The writings of these jurists transmitted the jurisprudence of due process into the early modern period. Due process of law became part of the intellectual baggage of every jurist who studied the Ius commune, and natural law continued to be the sturdy foundations upon which key elements of judicial procedure rested. Bartolomé de Las Casas, Jean Bodin, Samuel Pufendorf, Johannes Althusius, and Benedict Carpzov incorporated these norms of procedure created by the medieval jurists into their works.
5. Law and Political Thought 1500-1700
The Renaissance is not a meaningful concept in the history of law and jurisprudence nor in the history of political thought. The jurists of the sixteenth and seventeenth centuries dealt with the same problems, used the same texts, were shaped by the same norms and jurisprudence as the jurists of the fourteenth and fifteenth centuries. The jurisprudence of the Ius commune was too potent an intellectual construct to be significantly distorted or completely dismantled by developments in philology and religion. Recent scholarship has demonstrated that the Protestant Reformation had only a modest impact on law. In his fine study of Lutheran jurisprudence in the sixteenth century, John Witte Jr. concluded that:
It must be emphasized that there were dozens of other Evangelical moralists and jurists <besides Melanchthon, Eisermann and Oldendorp> in the first half of the sixteenth century who wrote on law, politics, and society. Sometimes their views echoed those of Melanchthon, Eisermann, or Oldendorp. Sometimes, they adhered more closely to the traditional teachings of medieval canonists and civilians. The Lutheran Reformation did not produce a single or uniform jurisprudence.
Witte has shown that the Protestant jurists’ conception of politics was virtually the same as their predecessors. They believed that magistrates must obey their own laws. Natural law limited their authority and power. The Ius commune was the font of legal reason (Witte illustrates this very well in his discussion of their conception of equity). Protestant jurists adopted a key element of prior political thought and incorporated it fully into their work: the common good.
The same may be said of the great jurists of the sixteenth and seventeenth centuries. The Northern jurists who practiced what has been called the “mos gallicus” used the tools of philology to recover the texts of Roman law. They used the same tools that Erasmus used to study the Bible and that Lorenzo Valla and others employed to produce texts that were cleansed of detritus of centuries. Some scholars have contrasted this “Humanistic Jurisprudence” with the “mos italicus.” In Italy, they generalize, law remained trapped in the grip of medieval jurists. These generalizations have a grain of truth but obscure several important points. When they wrote about political power the humanists discussed many of the same issues in exactly the same language as their medieval and Italian colleagues. They depended on the same set of norms embedded in the Ius commune. The practicioners of the “mos gallicus” were just as interested in the practice of law and in the foundation of political life in law as their southern counterparts. They were not scholars who distanced themselves from the real world. Perhaps the most significant difference between these jurists (North and South of the Alps) and their predecessors was their interest in systematically exploring subjects. Jean Bodin’s De republica, Prospero Farinacci’s Praxis et theoricae criminalis, and Hugo Grotius’ and Samuel Pufendorf’s works all illustrate a commitment to creating comprehensive surveys that treated certain aspects of law.
Not all or even the most important humanist jurists produced systematic treatments of political thought. Perhaps the most important French jurist of the sixteenth century, Jacques Cujas (Cujacius) (1522-1590) scattered his remarks about the authority of the prince, the structure of society, and the sources of law throughout his works in good medieval fashion. His most important conclusions about the prince and the state echo the thought of the medieval jurists. Reason and the common good are the foundation stones upon which society rests. There can be no people without law, and the people must consent to the law for it to be valid. He concluded, in traditional fashion, that the prince is bound by the laws. A medieval jurist would have found nothing strange in his conclusions or in his reasoning. His political thought may have been cloaked in the refined language of the humanists but his conclusions resonate with older discourses.
Indeed, during the sixteenth century, jurists described the authority of the prince with the same terminology that their predecessors had used since the thirteenth. The prince had “plenitudo potestatis,” “potestas absoluta” — “ordinata,” and was “legibus solutus.” Historians cannot, however, agree whether the jurists in the sixteenth century changed the meanings of these terms. A key issue that has sparked much debate is whether medieval jurists attributed “true” sovereignty to the prince and whether sixteenth-century jurists interpreted these terms as granting the prince absolute power, untrammeled by any limitations. Did absolutism replace medieval constitutionalism?
It is beyond the scope of this essay to solve this problem. We have seen that medieval jurists interpreted the authority of the prince in a variety of ways --- from what might be described as “constitutional” to “absolutistic.” A brief comparison of medieval and early modern definitions of absolute power might illustrate the range of meanings that absolute power had in the writings of the late medieval and early modern jurists.
The great Italian, Protestant jurist turned Englishman, Albericus Gentilis, wrote a tract in 1605 in which he discussed the nature of monarchy. He observed that royal power is absolute, that is without limits. The prince is “legibus solutus,” and what pleases the prince has the force of law, for his will is held to be reason. No medieval jurist would have quarreled with Albericus. However, he continued in a different vein: “And they define absolute power as that through which he can take away a right of another, even a great right, without cause.” Most of his predecessors would have parted company with him at this point. The jurists of the Ius commune were not, for the most part, absolutists.
Sixteenth-century political thought has a rich variety and texture. William Barclay, a Scotsman, studied law on the continent and subsequently became a professor of Roman law at Pont-à-Mousson and Angers. His most significant work of political theory was De regno et regali potestate. Although some scholars have called him an absolutist and staunch proponent of divine right monarchy, if one reads him carefully, his language and thought is simply a statement of the Roman law principle “princeps legibus solutus est,” — the prince may transcend positive law through his absolute power — and he borrows extensively — often with direct quotes — from the glosses of the canonists. He did not depart significantly from the norms of “medieval constitutionalism.”
Perhaps the best-known commentary on a ruler's authority and power in the sixteenth century is Jean Bodin’s De republica. Some scholars have summarized sovereignty in Bodin's De republica as “high, absolute, and perpetual power over citizens.” The prince “gives laws to all his subjects” without seeking anyone's or any group's consent. Bodin's prince was absolute “and even if his commands are never ‘just or honest,’ it is still ‘not lawful for the subject to break the laws of his prince’.” If they are right, Bodin seems to have broken sharply with traditional definitions of political power, and his prince was absolute as few others before him were.
Bodin created an exalted and rarified vision of political power, but in his prefatory letter he denied that his De republica broke with the past. He discussed the prince’s authority in Book one, chapter eight of the De republica and adopted the terminology of power that the jurists had created in the jurisprudence of the Ius commune. “Maiestas,” he wrote, cannot be limited by time, by a greater power, nor by any law. “Maiestas” meant that the prince was not bound by the law. In other words, Bodin equated “maiestas” with the prince's absolute power to change, abrogate or derogate positive law. He explained that the kings of France were loosed from the law and possessed absolute power. As a justification of his contention, he cited a famous consilium Oldradus de Ponte in which Oldradus had equated kings with the emperor and insisted that European kings were not subject to imperial jurisdiction. Bodin defined absolute power with language that is redolent with echoes of the past:
What is absolute power, or rather power that has been freed from the law? No one has yet defined it. If we define absolute power as that which is above all laws, then no prince possesses the rights of sovereignty. All princes are bound by divine, natural, and the common law of all nations [Quid autem sit absoluta, vel potius soluta lege potestas, nemo definiit. Nam si legibus omnibus solutam definiamus, nullus omnino princeps iura maiestatis habere comperiatur, cum omnes teneat lex divina, lex item naturae, tum etiam lex omnium gentium communis, quae a naturae legibus ac divinis divisas habet rationes].
Any late medieval jurist could have written this definition of political authority. Natural law had traditionally limited the prince.
Medieval and early modern jurists always used natural law and the norms of the Ius commune to limit the prince. They also used amorphous concept that they called “status regni” or, in the church, “status ecclesiae.” The state of the realm or the state of the church was an inviolable body of law, custom, and tradition that was not subject to the authority of the prince. Bodin declared that all laws from which the prince derives his “imperium” cannot be arrogated or derogated. An example, he noted, was the Salic law from which French kings derived their authority and which was the very foundation of the kingdom. Assemblies of the people, he argued, could not limit the prince’s sovereignty.
Natural law was the kernel of medieval jurisprudence that blossomed into a coherent intellectual system harnessing the will of the prince. Bodin adopted all the limitations of the prince's sovereignty that the jurists had developed during the prior three centuries:
Those who state that princes are loosed from laws and contracts give great injury to immortal God and nature, unless they except the laws of God and of nature, as well as property and rights protected by just contracts with private persons [Qui autem principes, legibus et pactis conventis solutos esse statuunt, nisi Dei praepotentis ac naturae leges, tum etiam res ac rationes cum privatis iusta conventione contractas excipiant, maximam immortali Deo, ac naturae iniuriam inferunt].
To support his allegation, he cited Accursius's famous gloss to Princeps [Dig. 1.3.31(30)] in a marginal footnote, reaching back three centuries for an authority to define princely power. As Brian Tierney brilliantly demonstrated when he dissected Accursius's gloss thirty years ago, although modern historians have misread him, Bodin would have understood Accursius's references and allusions as no modern reader can. Accursius held contracts to be inviolable and secure from the arbitrary power of the prince. His commentary on Princeps is an extended discourse on the prince's obligation to submit himself to positive law. Bodin reached back into Accursius’ Ordinary Gloss on Justinian’s Digest and adopted his thirteenth-century principles.
Medieval and early modern jurists distinguished between contracts that the prince made with private citizens and those he concluded with other princes or cities. They also noted that contracts between citizens and non-citizens had a different legal status. Bodin did not use these distinctions to augment princely authority by arguing that the prince could render some contracts invalid but not others. The prince could not break any contract he entered into; he was bound to uphold the law. He cited a recent event in French history to support his contention. The French parlement had vigorously maintained that Charles IX could not sunder his agreements with the clergy without their consent. Bodin rejected the views of those canonists like Panormitanus, Antonio de Butrio, Francesco Zabarella, and Felinus who had argued that the prince's contracts were “natural obligations” and only validated by civil law. Although Bodin may not have understood his predecessors’ thought on contracts accurately, he vigorously rejected any attempt to enhance the authority of the prince to break contracts arbitrarily. Who can doubt, he asked rhetorically, that obligations and contracts have the same nature?
In the preceding pages we have discussed the intricate development of juristic ideas about a just trial and fair legal procedures — what in Anglo-American common law is called due process of the law. We have noted that when earlier jurists discussed due process, they invariably raised the issue whether the prince could subvert judicial procedure through his absolute power or “plenitudo potestatis.” We have also seen that early modern jurists embraced medieval conceptions of due process. When we turn to Bodin's Republic, we find no discussion of due process or the prince's role in the judicial process. The explanation for this omission is simple. Bodin limited his prince much more than any medieval jurist would have thought possible: he barred him from the courtroom. Medieval jurists had understood that when the prince presided over a court, he violated basic legal principles that forbade a judge to participate in cases that touched his own interests. In Book 4, Chapter 6 of the Republic, Bodin proves that the prince should not serve as a judge in his kingdom. In contrast to his discussion of the prince's absolute power in Book 1, Chapter 8, he cited very few legal citations and gave only a few references to earlier jurists. His reticence is not inexplicable. No earlier jurists had ever argued that the prince could not preside over his own court. The key question is whether Bodin would have adopted the principles of due process that we have discussed, even if he banned the prince from the courtroom. He referred to judicial procedure in one brief, but telling passage:
Therefore, if a contract is natural and common to all nations, then obligations and actions have the same nature. No contract and obligation can be conceived that is not common to nature and all nations [Igitur si conventio naturalis est ac gentium omnium communis, obligationes quoque et actiones, eiusdem esse naturae, consequens est. At nulla fere conventio, nulla obligatio cogitari potest, quae non sit et naturae et gentium omnium communis].
Bodin cited three texts of Roman law to justify his statement. One of them, Ex hoc iure, was the key passage in the Digest that discussed the origins of judicial procedure.
Bodin's theory of contracts is one of the keys to understanding his relationship to past jurisprudence. He noted that although some contracts might arise from the positive laws of a city, the prince would still be obligated to observe those agreements even more than a private person. Furthermore, the prince cannot abrogate pacts even with his most exalted power. All the most important jurists, observed Bodin, agreed on this point.
Like many other late medieval jurists, Bodin considered Angelus de Ubaldis a prime example of those jurists who granted the pope, emperor, and kings inordinate, unrestrained power. Angelus's opinion was not as straightforward as his interpreters imagined, but Bodin dubbed him one of those “pernicious adulators” of the prince's power. Nonetheless, he noted that most jurists — citing Cinus, Panormitanus, Baldus, Bartolus, and others — believed that the prince could not arbitrarily expropriate the goods of private citizens. Bodin concurred. Bodin delivered a ringing condemnation of absolute power as an arbitrary and tyrannical authority in De republica :
Since the jurists abhor that plague and dispute many things of that sort brilliantly, nevertheless they make an absurd exception. They say that if the prince wishes to use his highest, absolute power, that <he may expropriate private property> as if they would say that it is in accordance with divine law to dispossess citizens with force and arms. The Germans call the right of the powerful to despoil the weak the law of pillage. Pope Innocent IV, who was an extraordinarily learned jurist, defined this power as the authority to derogate ordinary law. They claim that this great power of the prince can abrogate divine and natural law ["Sed cum pestem illam abhorreant, ac multa in eo genere praeclare disputent; illud tamen absurde, quod hanc exceptionem subiiciunt, nisi summa, et ut ipsi loquuntur, absoluta potestate uti velit, quod perinde est, acsi dicerent, vi et armis oppressos cives diripere fas esse. Potentiores enim hoc iure adversus inopiam tenuiorem uti consueverunt, quod praedatorium ius rectissime appellant Germani. At Innocentius iiii. pontifex Romanus, iuris utriusque peritissimus, summam illam, sine legibus, solutam potestatem definiit, ordinario iuri derogare posse. Illi vero summam potestatem ad legum divinarum ac naturalium abrogationem pertinere voluerunt]..
Bodin did not embrace (what he thought was) Innocent IV's absolutism. He accepted the commonly held limitations on the prince's absolute power and rejected the arguments of Angelus de Ubaldis and others who granted the prince great power to subvert the established order. Bodin concluded, just as so many of his predecessors had also concluded, that the prince could not expropriate property without a just cause.
Bodin raised the question whether the prince was bound by the contracts of his predecessors. The jurists had discussed this issue in connection with the Donation of Constantine and had generally agreed that the prince was bound to observe the contractual and testamentary provisions of his predecessors. Bodin pointed out that the prince's hereditary obligations must be upheld. Why must we discuss this distinction, he asked, since wills and contracts are a part of the law of nations? For Bodin the answer was simple. The law of nations is not inviolable, unless it is also supported by divine and natural law. The prince may revoke iniquitous laws even if they are part of the law of nations — such as the law of slavery.
What should be clear by this point is that Bodin's conception of sovereignty was unthinkable without the work of his predecessors. His definition of absolute power was taken from earlier jurists, and the limitations that he placed upon the prince were adopted from their thought. His argument that contracts, private property, and actions were based on natural and divine law were items that he easily took from the shelves of medieval jurisprudence. He did not cite the opinions of medieval and Renaissance jurists arbitrarily or willfully, but he knew their thought and their idiosyncracies well. We may conclude that Bodin's conception of sovereignty that he expounded in Book 1, chapter 8 of the De republica would not have offended the most constitutionally minded jurist of the Middle Ages.
Bodin's contribution to the history of political thought was conceptual rather than substantive. The medieval and Renaissance jurists rarely wrote systematically about sovereignty. When they referred to the loci classici of the prince's authority, the glosses and commentaries on these texts did expound a coherent doctrine. But not a coherent work which could be entitled “On sovereignty.” They were content to paste their glosses together in their minds rather than writing an extended commentary on the Prince's maiestas. In this sense, Bodin was right when he wrote that no one had ever defined the prince's power — no one had written a systematic tract describing sovereignty. That was Bodin's contribution to political thought. And it is an example of the importance of sixteenth- and seventeenth-century jurists. In the next century, Hugo Grotius (1583-1645) and Samuel Pufendorf (1632-1694) would develop and refine the genre of the legal treatise with numerous tracts on war, peace and politics. Even a casual reading of their work reveals there deep and profound debt to the jurisprudence of the Ius commune. When Grotius, a Protestant, wished to define the “supreme power” that ruled society he quoted Pope Innocent IV’s Commentary on the Decretales of Gregory IX (just like Jean Bodin) and cited three legal maxims that he took from the Ius commune to illustrate how the prince’s authority was limited by legal norms. The age of the Ius commune was waning, but its persuasive force was not yet spent. It would be another century before the rise of national legal systems, the balkanization of legal education, and the triumph of the vernacular languages over Latin in these systems would transform a decline into a death rattle.
To end where this essay began: with Johannes Althusius. When Althusius defined politics as the “art of associating (consociandi) men for the purpose of establishing, cultivating, and conserving social life among them,” he described the task that the jurists of the Ius commune had accomplished in the prior four centuries. They used a dead legal system (Roman law), canon law, and feudal law to define and measure the political bonds in European society. Many of the norms that they created still shape our political thought and thinking today.