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The principle of the mediæval, feudal state is to be found in the division of what we call "sovereign powers" among a great number of persons. These powers are chiefly the military, the judicial, and the financial. The military power includes not merely the defence of the country against a foreign enemy, but also the maintenance of order within the country or, in our modern usage, "police." The judicial power means the right and the corresponding duty to administer justice in all "civil" cases, – that is, cases involving questions of right as between one man and another, – and also to punish offences against the welfare of society, or, to speak technically, "crimes." The possession of judicial power implies also the existence of a sufficient military force to carry out the decisions of the court, whether this force be in the hands of the court itself or of some power on which it can depend to work in harmony with it.The principle of the mediæval, feudal state is to be found in the division of what we call "sovereign powers" among a great number of persons. These powers are chiefly the military, the judicial, and the financial. The military power includes not merely the defence of the country against a foreign enemy, but also the maintenance of order within the country or, in our modern usage, "police." The judicial power means the right and the corresponding duty to administer justice in all "civil" cases, – that is, cases involving questions of right as between one man and another, – and also to punish offences against the welfare of society, or, to speak technically, "crimes." The possession of judicial power implies also the existence of a sufficient military force to carry out the decisions of the court, whether this force be in the hands of the court itself or of some power on which it can depend to work in harmony with it.
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THE LATE MIDDLE AGES
by Ephraim Emerton
Published 2018 by Blackmore Dennett
All rights reserved. This book or any portion thereof may not be reproduced or used in any manner whatsoever without the express written permission of the publisher except for the use of brief quotations in a book review.
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TABLE OF CONTENTS
THE PRINCIPLE OF THE MODERN STATE
LOUIS IX AND THE FRENCH STATE
THE NEW EMPIRE
THE NEW PAPACY (1300-1409)
THE RISE OF A MIDDLE CLASS
THE ITALIAN REPUBLICS TO 1300
THE HUNDRED YEARS' WAR (1328 – 1453)
THE AGE OF THE COUNCILS
THE AGE OF THE DESPOTS IN ITALY
THE RENAISSANCE IN ITALY
THE NORTHERN RENAISSANCE
The principle of the mediæval, feudal state is to be found in the division of what we call "sovereign powers" among a great number of persons. These powers are chiefly the military, the judicial, and the financial. The military power includes not merely the defence of the country against a foreign enemy, but also the maintenance of order within the country or, in our modern usage, "police." The judicial power means the right and the corresponding duty to administer justice in all "civil" cases, – that is, cases involving questions of right as between one man and another, – and also to punish offences against the welfare of society, or, to speak technically, "crimes." The possession of judicial power implies also the existence of a sufficient military force to carry out the decisions of the court, whether this force be in the hands of the court itself or of some power on which it can depend to work in harmony with it.
The financial power means the right to tax the people for public purposes, and the variety of ways in which this can be done is infinite. In practice, of course, this power also cannot be applied without a sufficient working force to carry it into effect. It is by far the most difficult to regulate of the three attributes of sovereignty because it is never quite easy to define just what are public purposes or how far the financial superior may go in his demands. Under the feudal system of the Middle Ages these rights were generally combined in one hand. The same person was military leader, judge, and tax gatherer, and there was a vast number of such persons, separated one from the other by divisions of territory or by the gradations of rank. It is true that these scattered territories were held together in larger groups, the great principalities or kingdoms, and that the different ranks within such a larger territorial unit were bound to each other by a chain of allegiance to the prince or king at the head. In theory the king had the supreme military, judicial, and financial control of the kingdom. He appears as the head of the national army, he is the "fountain of justice" for all the people, and he has a right to demand from the people a contribution of their wealth to carry on the business of government. Or, to begin at the other end, in theory the people paid taxes to support persons who should see that justice was done them and who should defend them against their enemies or lead them out to war for their advantage. All this in theory; in practice the society of the Middle Ages felt but slightly the bonds of this larger association in what we call the "State." It felt very strongly the bonds which held individuals together in the smaller territorial groups or in the grades of social rank. It was a matter of comparative indifference to the mediæval man whether he were called a Frenchman, a German, or an Englishman. He might as well pay his taxes or serve in the army or get his justice under one of these names as the other; but it was a matter of great moment to him whether he were a Gascon, a Norman, a Picard, a Burgundian, a Swabian, or a Saxon. So, again, he was keenly conscious whether he was a freeman or a serf, a "villain" or a knight, a crown vassal or a vassal of the Church, and he felt a certain community of interest with all his brethren in rank, no matter under what ultimate sovereignty they might be living.
The story of Roger Bigod, Earl of Norfolk and Marshal of England, told in the quaint language of Walter of Hemingburgh, shows the temper of feudal independence. Called by King Edward I to serve in Gascony while the king was fighting in Flanders, he refused.
"At the feast of St. Matthew the Apostle, in the year 1297 the king summoned the lay chiefs of the realm to a parliament at Salisbury and called upon certain of the barons to go to Gascony; but they began, one by one, to excuse themselves. Then the king was wroth and threatened some of them that if they refused to go he would give their lands to others who would go. At this many were scandalized, and a division began among them. For the Earl of Hereford and the Earl Marshal made their excuse, saying that they would gladly pay the service to which they were bound by hereditary obligation and would go with the king's person. And a second time the demand was made of the Earl Marshal that he should go. Then he said: 'Freely will I go with you, O King! as my hereditary duty requires.' And the king said: 'Without me too you shall go with the rest.' He replied: 'To this I am not bound, and it is not my will to take the field without you.'
"Then the king in his wrath broke forth, it is said, in these words: 'By God, Sir Earl, you shall either go or hang!' And he: 'By the same oath, Sir King, I will neither go nor hang!'"
When the emperor Frederic Barbarossa was gathering his forces for his great struggle with the cities of Lombardy, he ordered, begged, entreated, even went on his knees to his subject, Henry the Lion, duke of Bavaria and Saxony, to persuade him to join his army, but Henry refused, and there was no process by which either he or his fighting men could be compelled to obedience. The crushing defeat of Barbarossa in the fatal day of Legnano (1176) was largely owing to this refusal.
It is evident that under such a system of government great national undertakings were impossible, and in fact the chief military achievements of the Middle Ages were either feats of arms under single princes, like the conquest of England by William of Normandy and that of Southern Italy by other Normans, or else they were great schemes having a universal character, such as the Crusades in the East and the overrunning of Languedoc in the early thirteenth century in the name of orthodox Christianity. The system could survive only so long as the sentiment of nationality remained weak. As soon as national limits became fairly well determined and men were beginning to feel themselves as belonging primarily within these territories rather than primarily as members of a race, then the instinct to express this territorial allegiance by service began to assert itself. That is what we mean by Nationality, and it is a sign of the coming of the modern world in distinction from the world of the Middle Ages. It takes a long time for this sentiment to become practical and to work itself out into institutions, but the thing itself is unmistakable from the first, and the growth of the institutions that embody it can be traced with entire distinctness.
Let us go back to one of our illustrations. After the return of Frederic Barbarossa from his defeat in Italy, he proceeded to punish Henry the Lion for his disobedience. He first called an assembly of the German princes, many of whom he had bought by great concessions of land and power, and gained from them as a court of peers a judgment against Henry for violating his feudal obligation. Then acting upon this as his authority he declared Henry to have forfeited his feudal estates. Finally, with the help of other princes who expected to share the spoil, he drove him from his dukedoms and divided these among his own fideles. That was the mediæval method. Henry was a traitor, not to Germany but to his feudal superior. He had violated the contract by which he held his principalities, and the penalty was the loss of these and their redistribution to more faithful vassals. But the price of victory for the crown was one that it could not often afford to pay. There could not be an unlimited supply of crown fiefs with which to buy the support of one vassal against another, and a crown dependent upon this kind of support would not be worth the having. The system worked only so long as there was not much for kings to do, and while society was constituted on this basis, it produced some very splendid results. The moment, however, that governments, royal or not, began to be conscious of their rights and duties, the weakness of it became unendurable.
It is obviously impossible to fix upon any point of time as marking the beginnings of modern government. They go well back into the period commonly described as "mediæval," but wherever they appear, we may be quite sure that the mediæval character is disappearing from the society that produces them. One of the earliest attempts at creating a modern out of a mediæval government is that made by the emperor Frederic II in his hereditary kingdom in southern Italy and Sicily. Frederic was the grandson of Barbarossa and the son of that emperor Henry VI who had married Constance, the heiress of the Norman kingdom. He had had ample opportunity in the years between his accession to the Empire in 1215 and the year 1231 to learn all the weaknesses of the mediæval system. He was an ambitious, energetic young prince, filled with the vast schemes of his Hohenstaufen ancestors for building up a real monarchy in Germany and Italy. Like his father and his grandfather he had found himself checked at every point by the Church. The Papacy had made itself the champion of local, especially of municipal, rights, and had fostered every combination against the Hohenstaufen policy. In 1230 the peace, or rather truce, of San Germano, had been patched up between the pope and the emperor, and Frederic improved the opportunity to carry out his idea of what a state ought to be in the only part of his dominion where he could have free hand, in his own southern lands.
It was a singular region in which this earliest modern constitution was put forth. The main element of its population was a graft of the Greek upon the more ancient Italic stock. During the whole Roman period the Italian portion had been known as Magna Graecia. When the center of gravity of the Roman Empire was transferred from Rome to Constantinople this country remained for centuries as an outpost in the West from which frequent attempts were made to recover imperial control. Byzantine culture dominated throughout Apulia and Calabria, and exerted important influence upon the learning and the arts of Europe. Sicily was repeatedly raided and conquered by the African Moors, who had left here permanent traces of their blood, their religion, and their civilization. Jews driven from other lands had found here a hospitable welcome. The great northern Germanic migrations had swept down into these far southern lands many a wandering fragment of Teutonic life. Lombard princes had occupied and governed the greater part from the sixth century onward. The armies of the Holy Roman Empire from Otto I (936-973) had ventured well down into the region southward from Salerno. Finally the Normans of Robert Guiscard (d. 1085) had come thither in force, had settled and conquered both the mainland and the island of Sicily, and had brought the country under an orderly administration. Here, more perhaps than in any other quarter of Europe, had been displayed that curious principle known as the "personality of law." According to Germanic traditions, represented here by the governing Normans, each of these widely differing populations, Greek, Arab, Jew, and Teuton, had a native right to be judged, as far as possible, by its own law. It was the duty of the government to see to it that this principle was respected so far as was consistent with safety to the state; but it is evident that it was a principle totally at variance with the whole idea of a powerful and united government. It was as if, in New York for example, Germans should claim the right to do business under German law, Italians under Italian law, and so on, while the government of the state should undertake to administer this medley of foreign laws through officers more or less under its own control. Such a system seems to us of the modern world very like organized anarchy and not very well organized at that. The only important remnant of it is seen in the "extra-territoriality" of certain districts lying outside the group of so-called civilized nations; as, for example, the territory under the direct control of European embassies in oriental countries. Within such districts the subjects of the European state are amenable only to the law of that state. The excuse for such an irregularity is the fear, justified or not, that such foreign subjects could not be sufficiently protected by the law of the land. So long as feudalism with its wide divisions of power went on, personality of law seemed quite in harmony with its spirit; but when feudalism began to give way before the growing sentiment of national unity, then the new idea of one law for all the inhabitants of a territory under one general government began to make its way. The "territoriality" of law was to take the place of its personality. Especially in a territory like this, where the variety of population was so great, the need of unity was sure to be felt earlier and more keenly.
The Norman predecessors of Frederic had already done much in the way of unifying legislation, and Frederic was careful to reënact such of their laws as seemed to work in his direction. In addition he published in the form of a revised code what amounted to a complete re-casting of the form of government. The spirit of this legislation is well indicated in the preamble. Here the king sets forth his conception of the royal function. Man, he says, was originally created pure and free from selfishness, but by the fall of Adam he became greedy for gain and hence arose contentions, and so, "by the very necessity of things and by the impulse, of the divine foreordination the princes of the nations were created, through whom the licence of the wicked might be controlled; who, as arbiters of life and death for the people, should establish what fortune, what portion, and what station each one should hold, executors, as it were, of divine Providence." This is a declaration of the divine right, but also of the absolute responsibility of kings. To carry out such a proclamation it was necessary above all things that the king should have no rivals. The execution of justice by every mediæval king was always hampered by two competing jurisdictions: that of the clergy and that of the feudal lords. Frederic cleared the way for himself by limiting both these jurisdictions as far as the conditions of the place and the age would bear.
The abuses of clerical jurisdiction had come to be a danger to any self-respecting state. Beginning with the theory that good Christians ought to keep out of the public law-courts and submit their differences to the arbitration of their clergymen, the Church had supported the clergy in building up a widespread system of courts. The states, with their feebly defined notions of their own rights, had allowed this to go on. The people in times of confusion had been more than willing to submit to a jurisdiction that was at least as likely to be equitable as was that of their lay lords, and so it had grown. In Frederic's time ecclesiastical courts claimed exclusive jurisdiction over the persons of clergymen. Over laymen they claimed control in so far as the case in hand could in any way be described as involving religion. In a day when most human actions had a more or less religious character there was serious danger that the rights of lay courts would be so far diminished as to lose all influence. Frederic met this danger with great fairness. He did not attempt to abolish the clerical courts, but rather to restrict them to purely religious matters and to clerical persons. He renewed a law of King William II (1166-1189) that a clergyman accused of a crime for which his person was in danger should be tried by the Church and according to the canon-law, excepting, however, cases involving treason or any crimes affecting the king's majesty, for which the clergyman must appear in the king's court. On the other hand, a clergyman sued on account of landed property not held of the Church must answer in the court of the lord in whose territory the lands in dispute lay; but his person could not be taken or imprisoned on this account. If any person, cleric or layman, should bring before any other court matters belonging to the king's court, he was to be punished with confiscation of his property, real or personal, feudal or hereditary.
An ancient provision of the Norman kings, grown antiquated in the troublous times before Frederic and now renewed by him, provided that no person, lay or clerical, should convey landed property to the Knights of the Temple or of the Hospital or to any other religious house which was not bound to pay a definite revenue to the crown. If such property should be left by will, the religious house receiving it was bound to sell it within a year on pain of confiscation to the crown. This was a so-called "law of mortmain," designed to prevent the Church or even a semireligious corporation from receiving land that was not bound to a definite service to the king. It was bitterly complained of by Pope Gregory IX, but Frederic defended it on the ground that to require taxes from clergy and laity alike, from both hereditary and feudal property, could not be called an abuse, but only a due enforcement, of law. When Gregory complained of certain confiscations of the property of Knights Templar, Frederic replied that if the Templars were to be allowed to acquire the property of citizens without restraint, it would not be long before they would own the whole kingdom of Sicily. It was, further, a distinct invasion of the clerical jurisdiction when Frederic undertook to legitimate the children of clergymen. He defends this action as justified by his supreme royal right, in order that these unfortunates may inherit the property of their parents and thus become useful servants of the state. If clergymen must have children contrary to the church law, at least they must pay for the privilege. Thus, on the one hand, clergymen were compelled in a great range of cases to seek the lay courts; on the other hand, laymen were completely exempted from the clerical jurisdiction except in the one case of adultery. Frederic's fairness of intention toward the Church is witnessed by an enactment relating to churches deprived of their pastors.
"Whereas it has come to our knowledge that bailiffs who formerly were placed over churches without pastors to hold and preserve the church property have not so faithfully discharged their duty as was directed by our court, but have abused their trust and kept back the goods of the Church,
"And whereas we hold all the churches of our kingdom, but especially those which lack pastors, under the protection of our own hand, and it is our will that the property of these churches shall in no wise be diminished,
"We order and decree that henceforth, whenever an archbishop or bishop of the kingdom shall die, the property of that church shall be entrusted to the care of three of the best, the wisest and the most trustworthy men of that church to be guarded and held for the benefit of the church until a pastor be provided. So much of the income as is reasonably necessary for the use of the clergy there shall be paid over to them for the good and reasonable service of the church; the remainder shall be held safe and undiminished by the guardians until a pastor be appointed. When that is done whatever remains, both principal and income, shall be paid over to the pastor and a full accounting made."
So far as the powers of the lay lords were concerned, this Norman kingdom in the South had followed largely the theory of its sister state in England. The monarchy, because it was a new one made to suit a new set of conditions, had been able to assert itself decidedly more than in countries where, as in France, it had to get on with a group of longestablished feudatories, stronger than itself and fiercely jealous of their rights. The formal rights of the Sicilian feudatories were limited by many enactments of the kings before Frederic, but since the time of the powerful King Roger (d. 1154) these great vassals had become more and more dangerous rivals of the crown. They were living, each according to the law of his fathers – Lombard law, Frank law, or new Norman law, as it might be. An attempt had been made by King Roger in 1140 to reduce the system to unity by making careful registers of fiefs, a work somewhat resembling Domesday Book in England, and passing measures to restrict sub-infeudation, a process whereby the rights of the crown over the land were continually endangered. Frederic had, therefore, a precedent for the much stricter measures which he had in mind. His aim was to take away from the barons as much jurisdiction as possible. In criminal cases he claimed absolute control for his royal courts, and in civil cases he required proof that the baron in question had a good title for his right. In every way he tried to diminish the power of resistance of the nobles, while at the same time he exacted from them the utmost service in the defence of the state. It was an act of surprising courage to require that all baronial castles built since the death of King William II (1189) should be straightway demolished. Such strongholds were, of course, the natural resort of all feudal holders who desired to bring pressure upon their immediate subjects. Within his own domain or crown lands Frederic forbade the building of any strong places that might hinder free entrance or exit, adding, "We believe that our own defences will furnish sufficient protection to our subjects."
One of the most precious privileges of the mediæval gentleman had been that of righting his own wrongs. To bring a suit in a court had seemed to him, as it seems still to some semibarbarous communities, to be a dishonorable confession of weakness. Frederic positively forbade all such self-help. " Any count, baron, knight or any other person who shall openly make war within the kingdom shall be punished with death and the confiscation of all his goods. He who shall undertake to make reprisals shall forfeit the half of his goods." All quarrels must come before the royal courts. Still more curious is the prohibition against carrying weapons. It illustrates as well as any other measure the singular mixture of mediæval with modern notions that marks all this transitional legislation. He desires, the king says, rather to prevent evils than to remedy them after they have happened, and therefore he forbids all men to carry weapons of offence or defence which are made rather for causing injury than for serving any lawful purpose. He exempts, however, officers of the court engaged in their proper business and also knights or citizens journeying on their own affairs; but these must lay aside their swords immediately on entering an inn or on reaching home. Strangers coming into the kingdom are to be warned of these rules and are then subject to the same penalties for violating them. If a man draw a prohibited weapon on another without injuring him, he is to pay a double fine; if he hurt him, but not fatally, he must lose his right hand, "for it is just that the offender be punished in that part of his body with which, in contempt of law and government, he has committed the offence." If the man attacked were killed, the murderer, if he were a knight, was beheaded; if a commoner, he was hanged. The new laws, however, expressly recognize the right of self-defence and provide that a person attacked by superior force may defend himself by calling on the king's name. This process was technically called a defensa, and it was extended to cases in which any one feared an injury to his person or his property from a superior. All royal officials were enjoined to see to it that such appeals to the royal protection were promptly answered, "so that we, since we cannot be everywhere present in person, may be held to be everywhere present by our power."
These declarations suggest at once a comparison with the numerous mediæval proclamations of the Landfrieden, or the "king's peace," but the difference is a most important and vital one. Those earlier manifestoes of mediæval kings and princes were hardly more than protests against a lawlessness they had no real power to control. The purpose of Frederic went far beyond any mere proclamation. It is expressed in one title as follows: "Not without great care and deliberation did the ancient Roman people hand over to the Roman Prince by the Lex Regia the right and power of making laws, so that the source of justice might reside in the same person from whom its defence proceeded. So it can be shown that not so much from expediency as from necessity it was provided that these two things, the source and the maintenance of justice, being in one person, force should not be lacking to justice, nor justice to force. Cæsar must therefore be both the father and the son of justice, its lord and its servant; father and lord in publishing justice and preserving it after it has been published; but in reverencing justice its son and in administering it in its fullness its servant. Taking counsel, therefore, of these reasons, we who have received from the hand of God the sceptre of the Empire and the rule of the kingdom of Sicily, declare of our own will to all our faithful subjects of the kingdom, that we propose in our heart to deal justice to them one and all without respect of persons, with ready zeal, so that they may find justice in plenty everywhere through our own officers, to whom we have committed its administration, some in civil, others in criminal affairs."
There could hardly be a better expression of the relation of a strong government to the whole problem of justice. A government, to be of any use, must have the force to compel its subjects to live according to the law; but in doing this it must itself be subject to the higher law of justice. That is the keynote to Frederic's whole plan of administration. The feudal jurisdiction was restricted at every point, yet not so much by denying its legality as by keeping watch over it and controlling it by the royal courts. For example, in the very difficult subject of claims on land, injustice of a baron toward his vassal was made less easy by requiring first the approval of a royal court before action could be taken and by keeping always open a way of appeal to the king himself. As to criminal matters, here, as in the case of the Church, all jurisdiction was taken from the barons, excepting only such of them as could show a clear title to it. No crown vassal could marry or give in marriage his children or any person over whom he had nuptial rights without the royal permission. Upon the death of a vassal, his lord must at once notify the king, giving a full inventory of the vassal's property, and the king would then direct to whom the fief was to be assigned. Thus the whole mechanism of the feudal society was to be directed by royal control. We must not, however, suppose that it lay within Frederic's intention to abolish the feudal principle. On the contrary, he provided for its indefinite continuance by allowing succession in the female line, assuming charge of daughters in the absence of sons and seeing to it "in the sight of God" that at a suitable age they be married without diminution of their father's goods. So also he permitted collateral succession to the third degree, a measure calculated greatly to increase the fixity of feudal landed rights. That Frederic could afford to do this in express terms shows the confidence he had that his new system in general would be strong enough to keep the barons in check.
Another interesting illustration of Frederic's respect for the feudal traditions is in his guarantee of trial by his peers to "any count, baron or other military person." If such an one be brought to trial on either a criminal or a civil charge, he is not to be condemned except by a court of counts, barons, or royal tenants in capite (that is, tenants holding directly from the crown). Even where a case of this sort has been heard in first instance by a royal judge, he is bound to lay it before a court of peers, who in their turn are bound to render a decision, "according to our sacred constitutions, or, in default of these, according to approved customs of the realm and according to principles of law not contrary to our statutes or those of our predecessors, and finally when the opinion of our Eminence has been given – if the uncertainty of the case require this – according to God and to justice." In other words, the laws of precedent and of statute were to be followed as far as they would go; but beyond all this there was always to be an appeal to abstract justice or equity, of which the divinely ordained king was the sole interpreter.
In regard to the cities Frederic's problem was a very difficult one. On the one hand, here was evidently his best ally against a too powerful nobility and clergy. On the other hand, the experience of his grandfather, his father, and himself with the cities of northern Italy had shown him what dangers must come from too great encouragement of civic freedom. Cities were of two kinds: royal cities, in which the king was the direct overlord, and feudal cities, where a lord, either lay or clerical, had immediate sovereign rights. As to the first class the king's course was clear; he could place his officers in the town by the side of the local officials and deal directly with these if they seemed to be gaining too much freedom of action. In the feudal cities he could only set up what we call a "concurrent jurisdiction"; that is, place his officials as a watch on those of the lord and keep open a way of appeal to his higher courts and finally to himself. He confirmed the cities in their right to a "communal" organization (universitas), represented by a council of some sort; but, reverting to the same point for which Frederic Barbarossa had contended in vain in Lombardy, he positively forbade that "any podestdà, consul, or rector should be set up in any place, or that any person, relying upon any precedent or by choice of the people, should usurp any office or jurisdiction; but it is our will that everywhere throughout our kingdom officials be established only by ourselves or by our order and that they administer as well our law as that of our vassals, Whatever commune (universitas) shall in future take any such action shall be made desolate forever, and the citizens thereof shall be held in servitude. But he who shall accept any such office shall be punished with death." Frederic, we see, had learned all too well the lesson of Legnano. He even tried to apply it in Lombardy, but the hard-won victory of Cortenuova (1237) showed that success there was to be had only at a price he could ill afford to pay. In the South, on his own ground, the situation was different, and although in this same edict he alludes to attempts at independence in some places, we hear of no serious difficulties until after Frederic's death (1250), when several cities improved the resulting confusion to assert political rights of their own.
The modernness of Frederic II is evidenced by his care for the great laboring, peasant class. He hears, he says, that many lords, both lay and clerical, are abusing their power to exact arbitrary taxes from their peasantry. He therefore renews a law of King William II fixing the occasions on which a lord might ask such "aids"; namely, to ransom his person if he were captured while fighting in the king's service, at the knighting of his son, at the marriage of his daughter or his sister, in case of special services for the king requiring a purchase of land. The clerical lord might exact aids only at his consecration, when summoned by the pope to a council, when engaged in the service of the king either in war or peace, or when called upon to entertain the king in his territory. But in all these cases the lords are to be moderate in their demands. It meant very much in that day that Frederic opened freely the way into the clerical life for all except the lowest orders of the peasantry, and even here, a lord refusing permission for the ordination of a serf especially qualified for the clerical office might be compelled by the king to give it; but the son of such an ordained serf remained in the servile condition. It seems to have been Frederic's intention to relieve the half-servile population everywhere by regulating the demands which the lord might make upon them; but it was only within his own "domain" that he could carry out one measure which marks him as a man ages ahead of his time; namely, the complete abolition of serfdom. Slavery, in the strict sense of the word, seems not to have existed in the kingdom, but that there was danger of its revival is shown by a law of Frederic prohibiting under severe penalties the sale of a free man. The economic measures in which he took great interest were also calculated to affect in every way favorably the great agricultural class, provided only that it could have effectual protection against its natural oppressors.
Let us now see by what official machinery these class restrictions were to be enforced. In Sicily we find the earliest modern attempt at bureaucratic government; that is, the administration of public affairs by means of a specially created official class distinct from the existing orders of society, owing its existence to the king, receiving its maintenance from him alone, and therefore owing to him a kind of fidelity wholly different from that of the landholding aristocracy whether lay or clerical. Throughout the Middle Ages no such official class had existed anywhere on the Continent. Where we find beginnings of one, as in the case of the Missi of Charlemagne or of the Pfalzgrafen under the Ottos, it had failed to develop, because under mediæval financial arrangements the only way to pay such officials was by grants of land, and thus they were in their turn converted into local landlords and so made ineffective servants of the king. We shall see how Frederic contrived to get around this difficulty. In the first place he tried, as far as possible, to recruit his officials from outside the dominant classes. The mediæval ruler had by preference employed clergymen for his royal purposes, partly because of their learning, partly because they were provided for by the income of their benefices. Frederic, in excluding clergymen from the office of bailiff (bajulus), expressly says, "Clergymen, whose clerical character excludes them from public business, are not admitted to the function of bailiff, and we extend this same prohibition to the judices." So, again, in regard to the higher official, the "justiciary":
"What belongs to the special dignity and the very sovereignty of our Eminence, we will not have usurped by any one through unlawful presumption. We therefore by royal and perpetual edict positively forbid prelates, counts, barons, knights, and corporations of towns from holding the office of justiciary within their lands and from appointing any one to such office; but let them obey the supreme justiciary and the justiciaries appointed by our Excellency."
This intention of Frederic was furthered by the rapid growth since the middle of the twelfth century of a class of men educated in the law, a class practically unknown in the Middle Ages. These were largely men of burgher origin, sons of prosperous tradesmen in the cities, and they were now offering themselves everywhere as the ready agents of governments in their struggle against the landed aristocracy. It was mainly out of this class that King Frederic gathered the men who were now to serve his turn. Chief among them was Petrus de Vinea, his legal adviser in the preparation of his code of laws.
Then, again, to keep this army of functionaries regular salaries were necessary, and that was a thing almost unknown to the mediæval world. In place of salaries there had been incomes derived from land or from some endowment like a church benefice, which generally went back to land as its foundation. Frederic regulates with painful exactness the sources of these salaries. All moneys coming from legal fines or fees are to be paid into the royal treasury, and from this fund a suitable monthly payment is to be made to the officials. Ready money is to take the place of diverse and uncertain incomes, and thus the official class is to be bound up with all the financial interests of the crown. There could hardly have been a more effectual device to secure loyalty and faithful service. At the bottom of the official hierarchy we find (1) the officer called bajulus, corresponding, as we shall see later, to the French prévôt and closely related to the English "sheriff." The bajuli were the fingers of the king's hand, reaching out into the remotest corners of the kingdom. Their function had already been defined by a law of King William II. They had jurisdiction in all civil cases concerning persons or property which had no reference to fiefs or to feudal questions; also in lesser criminal cases not involving loss of life or limb; but the bajulus was bound to capture greater criminals and hand them over to the superior judge. He had the powers of a royal representative in many legal matters. He was chief of police in his district, with control of weights and measures and the regulation of trade. He had to collect the taxes and give account of them to the royal treasury. He was personally responsible for his function, but, like every other official, was advised at every turn by a judex and a notary. (2) The chamberlain (camerarius) was the superior of the bailiff in all matters not pertaining to criminal jurisdiction. He was the chief royal representative in a larger district, as the bailiff was in a city or more limited locality. There were six of these chamberlains in the kingdom. (3) The justiciary (justitiarius) was equal in rank with the chamberlain. He had charge of the criminal business and also of lesser feudal cases. There was one justiciary in each of eleven provinces. (4) The royal proctor (magister procurator curiae) was a provincial officer specially intrusted with the care of all royal properties or sources of revenue within his province. It was his business to manage all the king's farms, vineyards, forests, fisheries, cattle, warehouses, etc., to rent these, collect rents, and keep account of them. (5) The castellanus was, as his name implies, the responsible guardian of a royal castle, with the especial duty of keeping prisoners of state. If he allowed a prisoner to escape through negligence, his goods were to be sold, and he was to be imprisoned for a year; but if he had connived at the escape, he should lose his head. These five officials were local in scope and function. They were the nearest to the people in general and hence, on the one hand, more likely to oppress them and, on the other, more likely to connive with them to their own profit and the disadvantage of the crown. Frederic provides against both these dangers. In almost every law relating to his lower local officers he speaks of the welfare of the people as his chief aim. No official is to receive gifts of any kind from parties to a case, except food and drink for two days, on penalty of a fourfold fine. At the close of the administration of a justiciary or of a chamberlain he must remain fifty days in the province and hold himself liable to answer all complaints of injustice to subjects or infidelity to the king. If guilty he must restore the amount of damage done and be punished besides, at the king's discretion.
"As we order the wrongdoer and the unjust man to be accused by the voice of complaint and punished by the force of our reproof, so it is our will that officers who are specially fair and watchful be rewarded by public approval and decorated with the prizes of our generosity."
All of these officials who had judicial functions were to hold office but one year, in order that this revision and oversight might be as effective as possible. All were aided in their duties by persons known as judices, that is, men learned in the law, and by notaries, men trained in the technical forms of legal procedure and owing their appointment, which was permanent, directly to the king.
Above all this local machinery Frederic constituted a complete system of higher central administration in three main departments: (1) A Supreme Court with a chief justice and four associates, whose business it was to hear appeals from all the lower courts in both civil and criminal cases; to protect all miserabiles, that is, all such persons as on account of poverty or for any other reason could not obtain justice elsewhere; to answer inquiries from the lower courts; and to represent the interest of the state in all legal controversies. (2) The Royal Chamberlains, one for Sicily and one for Naples, whose function it was to represent the king in all matters pertaining specially to his royal rights and interests. They were the immediate superiors of the bailiffs and provincial chamberlains, overlooked their actions, and attended to whatever was not specifically intrusted to these. They had, for instance, the care of treasure trove, of abandoned property, of the goods of shipwrecked strangers; it was their duty to see that responsible persons were appointed to administer vacated church property; they had the oversight of harbors and the general conduct of the public monopolies, which under Frederic's system began for the first time to play a considerable part in providing revenues for the state. Their functions might be compared to those of a Secretary of the Interior and of the Treasury in one. (3) The Magna Curia Rationum, or Supreme Chamber of Accounts, resembling our Boards of Auditors or Comptroller's office. All the accounts of the lower officials passed through this bureau and had to be approved by it before they could be settled.
In short, we have here, so far as it could be secured by legislation, a complete bureaucratic system, devised with great ingenuity and with remarkable adaptation to the conditions of the country, resting upon a broad basis of local subordinates and culminating in the person of the king. In all the enactments of Frederic the same principles of duty and responsibility are constantly referred to which we have noticed in his conception of his own royal function. The officials are presented to the people as, in their degree, a kind of sacred class. Offences against them are to be punished by a double fine. The old mediæval distinction of rank on the basis of birth is here extended to degrees of official dignity. A new nobility resting upon the notion of public service is rising into view. On the other hand, the same idea of personal honor which underlay the distinctions of feudal society is here transferred to the new hierarchy of officials. The local official might not acquire land, create debts, or take a wife within his district. He owed to the people of that district an account of his administration, and the king would see that this account was strictly rendered. He must present every year to his superior an elaborate report of his doings, and the superior must do the same to the supervising board which stood for the king. The king reserved the right to appoint frequent committees of inquiry into the stewardship of suspected officials, and for any defect of duty the official must answer with his whole property and even that of his wife if she had married him before he entered upon the office.
Frederic's system has often been harshly criticized as a despotic scheme for getting the most money out of his subjects to advance his own personal and family interests. An argument for the opposite opinion may be found in the plan for a series of regular assemblies to which it would hardly be an exaggeration to give the name "popular." Under feudal arrangements everywhere there had been occasional gatherings of the privileged orders, the clergy and the nobility, ordinarily to give their approval and promise their aid in the military undertakings of the kings. Nowhere as yet had the great industrial and commercial elements of the people, the real producers of wealth, been called upon to share in the responsible work of government in any fashion. Frederic provided that twice a year, in five cities of the realm, there should be held parliaments (parlamenta), at which the privileged orders, the clergy and the nobles, should appear in person and the cities should be represented by chosen men, four from the larger, two from the smaller, and one from the villages. These assemblies were to be under the presidency of a royal commissioner, and all officials, high and low, were entitled to be present. Every member had the right freely to criticize the actions of the royal officers and to make propositions of reform. We are not for a moment to suppose that any action of these parliaments had the force of law or could go beyond a mere suggestion which the king might or might not adopt. The important thing is that here, for the first time in human history if we except certain rather strikingly similar local attempts in Norman England, we have an attempt to govern a country by the aid of a representation of its constituent parts. It is doubtless true that taxation was the most important question to come before them, but so it has been in all representative bodies. Their significance in any given case depends upon the degree to which they could improve the occasion of granting money to gain other important rights. When we remember that the first English Parliament is to be set in the year 1265, and the first meeting of the French Estates General in 1302, we realize how greatly Frederic was in advance of his age. Certainly the plan of free criticism of government officials, in a true representative assembly not divided into separate bodies like the French Estates but deliberating together in the presence of representatives of government, is in a high degree enlightened and forward-looking.
All these institutions depended in the last resort upon the possession by the king of a sufficient military force upon which he could implicitly rely. No such force had ever been at the disposal of a mediæval ruler. The defect in mediæval military service had always been that the relation of the king to the fighting man had been an indirect one; between him and the soldier had always stood the baron, the middleman in the most important of mediæval industries. Frederic met this difficulty as he had met those of Judicial and financial independence by attaching the fighting force to himself by the only permanent tie, that of money payment. He created in addition to the troops bound to him by feudal ties a solid body of mercenary soldiers, whose term of service was not limited, who owed no allegiance to other lords, and who looked to this service for the honors and rewards of their lives. It was an especial scandal to the clerical enemies of Frederic that a great part of these mercenaries were Saracens, some 20,000 of them, held together in a permanent camp at Lucera and ready to be employed at any moment against any adversary. To this criticism the king replied that these men were none the less good subjects because they were not Christians, and that as subjects of the state they might properly be employed in the service of the state. The whole doctrine of modern, individual citizenship is contained in this defence. Further, the Sicilian kings were the earliest of modern rulers to create a naval force permanently employed in the defence of commerce and the protection of the coast from public enemies. Frederic's measures to this end are recorded in his dealings with the coast towns of the kingdom, which were exempted from many of the ordinary forms of taxation in consideration of their supplying ships, provisions, and sailors for this new navy.
So we come lastly to mention with a word the system of taxation by which all this elaborate machinery of government was to be upheld. Feudal taxation in distinction from modern may be described as irregular, uncertain, and costly in the collection. It consisted of an infinite variety of special contributions, mostly in kind, due at irregular intervals, greatly affected by special circumstances, such as failure of crops, disorders in the land or the inevitable shiftings of trade. What Frederic needed above all else was ready money to pay his officials and his mercenary troops, on whom the success of his scheme of government absolutely depended. Without, therefore, changing the form of the earlier contributions, he tried as far as possible to convert them into cash and added from time to time special new demands to meet new emergencies. The change in this regard was not so much in the nature of the obligations of his subjects as in the means he had ready to enforce them. Where most mediæval kings had been thrown upon the good will of their people, he was able, by means of his official system, to watch over the tax-producing powers of the land at every point. It is this feature of Frederic's administration which has brought most severe criticism upon it by modern writers. It has been described as a mere machine for squeezing the last penny out of an oppressed people and has been contrasted unfavorably with the greater freedom of mediæval arrangements. The real question, however, must be, not whether Frederic was able to get more out of his subjects, but whether the use he made of their payments was a proper compensation for their sacrifice. We may have what opinion we like as to the wisdom of paternal government and the divine function of kings; but it seems clear that the only way out of the confusions of the mediæval state into the freedom of the modern democratic societies in the same countries was through a period of strong royal governments. The test of any one of these experiments must be sought in the loftiness and sincerity of the purpose which dictated the policy of the monarch.
In this regard the legislation of Frederic II is especially instructive. To express in one word the peculiar quality which makes his work best worth studying, we may call it above all else a work of "enlightenment," meaning by that a purpose to do whatever he did because it seemed to him the best thing to do, not because it had always been done. A striking illustration of this is seen in his directions as to the method of gaining evidence to be employed in the courts of justice. Throughout the Middle Ages evidence had been curiously connected with the notion of a divine supervision of human affairs which would not allow wrong to go unpunished, but would declare the right by some mysterious divine process. With all its braggadocio about "honor," the feudal period had little confidence in the word of a man. It professed to have great respect for oaths, but the oath of a man in his own case must be supported by the oaths of a considerable number of other persons to the effect that they believed him to be a truthtelling person – not at all that they had any knowledge of the point in question (compurgation). Besides this method of getting at the truth two others were especially popular, the ordeal and the wager of battle. The underlying principle in both these was the same: that the forces of nature and the power of a man's right arm were alike expressions of that mysterious divine will which was the last appeal of human justice. In both cases the issue had a certain miraculous character, which to the mediæval kind of mind in all ages has seemed to carry with it a deeper conviction than the mere working of a natural law. Like everything else in the Middle Ages this sort of appeal to divine justice had specially belonged to the rights of the higher classes of society; but in one or another form it had extended itself through the whole structure of judicial administration. Not only had one party in a case the right to fight with the other or with his or her champion, but the witness might challenge the opposing witness, and the losing party was supported by public opinion if he challenged the judge who had decided against him. To decline such a challenge was felt to involve a loss of honor, just as it is to-day regarded by a German student or an officer in most continental armies.
Frederic abolished at a stroke this whole fabric of superstition. He decreed that henceforth judicial truth should be esablished by the simple method of personal witness and by documents. The word of a witness was, to be sure, still measured partly by his social rank, the lower person requiring the corroboration of several of his kind to make his word outweigh that of a superior; but the principle was established, and it was placed upon the broad ground that the mediæval methods were a tempting of Providence and an insult to common sense. The same idea runs through various other reforms by which Frederic sought to get rid of many superstitious practices, long officially opposed by the Church, – necromancy, potions designed to affect the emotions of another person, and all that class of practices in which the mysterious powers were called upon in the service of man. That he at the same time kept an astrologer and consulted him in important affairs may fairly be taken as proof that he was a man of "scientific" spirit, for astrology was in that day the nearest approach to a scientific basis of life as related to a continuous divine governance. Frederic's enlightenment is further witnessed by his foundation of the new university of Naples. He had the experience of Paris, Bologna, Salerno, and Oxford to work upon, and we find him anticipating many of the difficulties that had come up in these places in the course of a long history. The students and teachers were endowed with many privileges and exemptions. A commission of citizens and students fixed reasonable rates of house rent, thus preventing the uproars that had to often endangered the very existence of the older schools. The most distinguished teachers were called from every quarter. Even the doubtful method of "fostering infant industries" was attempted by an order that young subjects of the king studying at other universities should come back and study at the home school.
It could not, of course, fail to happen that a man so independent of the traditions of the past should incur the charge of heresy, even of infidelity. Frederic's lifelong struggle with the Papacy as a political institution has given a handle to his critics in all times for accusations of this sort. He has been called a Mohammedan, a Jew, a mere scoffer at all religion. For all this, there seems to be no further basis than his willingness to allow to men of another religion their right to believe and worship as they pleased, and a certain quality of originality which was likely to lead him into dangerous experiments. One of his most severe critics, the Franciscan chronicler Fra Salimbene, sums up one aspect of his indictment in the word curiositates, that is, an inordinate desire for novelty, good evidence, from this critic's point of view, of an excessive self-appreciation. We shall find this same charge often made against the leaders of Renaissance thought. In short, it is hardly too much to say that Frederic was "the first modern man."
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