IMPERIAL LAW

The empire, founded by Charlemagne ( 768-814), had been from the beginning a universal idea superimposed on a diverse multitude of

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tribal, local and lordship units. It was not a territorial entity but was the sphere of authority the imperium of the person of the emperor, who represented the religious unity of Western Christendom and its military resistance to Norse, Arab, Slavic, and Magyar attacks.

For two hundred years the "German" empire continued to be called the Empire of the Franks, or the Christian Empire, but only rarely the Roman Empire. Then in the early eleventh century the practice was instituted of giving to the heir selected to be the future emperor the title "King of the Romans" instead of "King of the Franks"; after the emperor's death, that son would normally proceed to Rome to be crowned by the pope as "Emperor of the Romans." This symbolized, above all, the Frankish emperor's claim to the theocratic authority of the Roman emperor Constantine and his successors as head of the church. In the twelfth century, the empire itself came to be called, for the first time, the Roman Empire; by then, however, papal supremacy over the church had been established, and the word "Roman" in the title of the empire symbolized its political and legal unity and authority in the secular sphere.

To appreciate the rudimentary character of imperial law prior to the Papal Revolution, one must recall that the empire had no capital city, no bureaucracy, no professional judiciary, not even an established fiscal authority. The emperor governed through his household, which moved with him continually throughout the empire. The chancellor was the emperor's secretary. The chamberlain was in charge of the emperor's household budget. Royal advisers were not permanent officials but were chosen ad hoc, from case to case. As Heinrich Mitteis has said, "The empire was only in full strength at the particular place where the king was staying; only through frequent appearances in the various parts of his empire was he able to be respected. That required a superhuman personal achievement and consumed the powers of the rulers prematurely: their early death was not a mere regrettable accident but the consequence of the grinding system of government." 1

This does not mean that there was no imperial law other than household law. There was, above all, the imperial prerogative of judging: wherever the emperor was, he held court, applying customary

-483- local or tribal or feudal law and also dispensing a universal justice and mercy in his capacity as vicar of Christ and supreme head of the imperium christianum. The emperor had the right to "evoke" (jus evocandi) a case from any tribunal, whether local, feudal, territorial, or ecclesiastical. Even more important, he had the power to pronounce the "ban" of the empire, which required accused persons to submit to imperial "high justice" or else be outlawed. The power of the imperial ban was also vested in the office of the count (in Latin, comes; in German, Graf); counts survived from Carolingian times, when they had been appointed by the emperor to perform judicial and administrative functions in his name in the localities (counties, Grafschaften).

In addition, the emperor exercised a substantial influence upon the development of ecclesiastical law, which was itself at that time (as in Roman times) considered to be one of the principal branches of imperial law. Prior to the Papal Revolution, of course, the emperors appointed abbots and bishops (including the Bishop of Rome), called and presided over church synods, and even occasionally promulgated ecclesiastical canons of both a theological and a legal character.

The weakness of imperial law on the secular side was reflected in the rule that the emperor had no power to tax his subjects but had to raise his revenues from his own estates, which were scattered throughout the empire. There were also severe limitations on his right to acquire new land by escheat. In the eleventh century the emperors succeeded in raising up a class of imperial servants (called ministeriales) by gifts of land; these were appointed to manage imperial estates and also, being armed and mounted, to serve as part of the imperial army. However, when lands escheated to the emperor from his vassals (princes and other nobles) because of lack of heirs, he was required by the imperial feudal law to convey them to other vassals. This so-called Leihezwang ("compulsory enfeoffment") sharply distinguished imperial feudal law from the feudal law of the duchies and other principalities of the empire as well as from that of France, England, Sicily, and the other emerging secular powers of Western Christendom.

The Papal Revolution significantly altered the nature of the imperial office, and with it the scope and character of imperial law. On the one hand, the emperor's constitutional role within the church was greatly reduced: he became a mere layman, albeit a powerful one since bishops and abbots, though no longer invested by him with their ecclesiastical powers, remained his feudal vassals.

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about the final settlement of the investiture controversy; in the deliberations that led to the Concordat of Worms in 1122 they had appeared, in Mitteis's words, "as guarantors of imperial rights," 2 mediating between the emperor and the papal legates. Many new princely houses of the twelfth and thirteenth centuries first became prominent during the civil wars that marked the course of the Papal Revolution, including the Hohenstaufen, the Wittelsbach, and the Wettin families. By th e midtwelfth century, again in Mitteis's words, the empire "no longer consisted of tribal territories (Stanimeslander) but of territories of a new type, ruled by dukes who were supposed to participate in the government of the empire." 3 _

Indeed, the emperor became wholly dependent on the dukes and other princes of the empire for his election. In 1077 the princes held a diet (Reichstag) in Forchheim at which they passed a resolution, approved by Pope Gregory VII, requiring election of the emperor by them; and in 1125 at a diet in Mainz this principle was applied for the first time when the heir of the deceased Emperor Henry V, Duke of Swabia, was rejected by a committee of princes, who instead elected Lothar, Duke of Saxony. In 1138, after Lothar's death, the princes again passed over the emperor's heir and elected Lothar's rival, Conrad of Swabia; and in 1152 they passed over Conrad's son in favor of his nephew Frederick ( Frederick Barbarossa). By the end of the twelfth century it had become established that emperors were to be elected by an electoral college of princes, in which the archbishops of Mainz, Cologne, and Trier and the Count Palatine of the Rhineland had a preferred place.

In addition, the emperor was supposed to summon the "princes of the realm" whenever decisions of fundamental importance were to be made.

The new empire developed new political and legal institutions. The secularization of imperial power impelled the emperor to develop a civil service that relied much less on ecclesiastical personnel and that was concerned much less with ecclesiastical affairs. Secular concerns, especially the maintenance of peace and justice, which by the very terms of the Papal Revolution remained within the emperor's supreme jurisdiction, acquired increased importance. The very division of Western Christendom into an "ecclesiastical" sphere and a "secular" sphere, and the legal demarcation of the boundaries between them, along with the heavy emphasis on the legal character of the ecclesiastical sphere under the papacy, made it inevitable that there would be a responsive emphasis on

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the legal character of the secular sphere under the emperor. The emperor found new forms for strengthening his government and for controlling violence. These new forms reflected a shift toward statecraft in the modern sense, though not to the same extent as in Sicily, England, and France.

The emperor retained and regularized his position as supreme judge in the empire. He heard appeals against judgments of courts of princes and noblemen as well as of city courts. The procedure followed in such cases was the traditional Germanic procedure of group judgment, with the emperor sitting as presiding officer and the judges, drawn usually from among his courtiers, declaring their verdict. In cases involving feudal law (Lehnrecht), the judges had to be drawn from peers -- class equals -- of the defendant, and in cases involving local law (Landrecht), from fellow nationals (Stammesgenossen) of the defendant.

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represent the kingdom as a whole (the communitas regni), but rather each prince thought in terms of his own principality or, at most, his own class. 6 At the same time, the German emperor had less power over the Reichstag than the English king had over the parliament. In both cases, the periodic assemblies of notables symbolized a political structure in which power is divided among various estates or orders: higher nobility, lesser nobility, clergy, merchants, artisans. The institution of the diet, or parliament, was an expression of the interrelationship of monarch and estates; it constituted a characteristic feature of Western constitutional law in its formative era.

In addition, the emperors of the twelfth and thirteenth centuries greatly improved the administration of their own imperial landed estates, from which they derived most of their revenues, through expanding and strengthening the system of ministeriales. These became more like imperial civil servants and less like feudal vassals. Lacking, however, was the structure of departments -- especially treasury, judiciary, and chancery -- that characterized state-building in the other great kingdoms of Europe in the twelfth century, including some of the German principalities, as well as in the Roman Church. There was an imperial chancery, to be sure, but it embraced the entire staff of imperial household officers and did not serve as a separate coordinating department. As Mitteis has said, the empire failed, in comparison both with the German territories and with England, France, and Sicily, to create a modern royal bureaucracy. The imperial chancery was backward, "Germany had nothing remotely equivalent to England's financial administration," and there was no professional imperial central judiciary. 7_

Yet it would be a mistake to suppose that the German emperors of the late eleventh, the twelfth, and the early thirteenth centuries did not participate effectively in the law-creating enterprise that swept over Western Christendom in the wake of the Papal Revolution. They did so chiefly through legislative measures, often promulgated at imperial diets, usually under the title of a "peace statute" (constitutio pacis), but also called a "land peace" or "territorial peace" (pax terrae, Landfriede). These purported to contain new laws, declared by the emperor, and constituted the first example of German imperial legislation in the modern sense. Many scholars have discounted the importance of the peace statutes as legislation on the ground that the imperial authority was itself ineffectual, lacking adequate judicial and administrative machinery to enforce these laws. It is true, of course, that imperial power was relatively weak even in the late twelfth century when it was at its height, and that thereafter it deteriorated rapidly and almost disintegrated. Nevertheless, various imperial peace statutes enacted after 1150 contained much new law that was, in fact, enforced at the imperial level; and more important, they

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contained much new law that penetrated the territorial law of the duchies and other principalities as well as the law of the cities.

The emperor who, more than any other, was responsible for these imperial peace statutes was Frederick Barbarossa ( 1152-1190).

The personality and vision of Frederick Barbarossa. In 1152 when Frederick, at the age of twenty-eight, was elected "King of the Romans" at an assembly of German princes and bishops, Roger II ( 1112-1154) was still on the throne of Sicily and Henry II ( 1154-1189) would soon become King of England and Duke of Normandy; later in Frederick's reign, Philip Augustus ( 1180-1223) became King of France. These men were all builders of centralizing territorial states. They all shared many personal characteristics that were essential to the assertion of strong political and legal authority over the diverse villages, towns, and cities, the diverse clans, the diverse principalities, and the diverse estates, including the clergy, that constituted their respective realms. As a personality Frederick may be compared especially to Henry II. It is revealing that in 1165 the two discussed combining forces in a crusade at some future time -- a plan that did not materialize.

Like Henry, Frederick was a man of apparently inexhaustible energy and vitality. Having no fixed abode, he ruled from the saddle, so to speak, moving constantly from castle to castle and from city to city during his reign of thirty-eight years. As Henry had to travel continually to repress actual or potential threats to his authority throughout England, Ireland, Scotland, Wales, Normandy, Anjou, Aquitaine, Poitou, and other parts of his "empire," so Frederick had to do the same throughout Burgundy, northern Italy, and the many territories of Germany. To be a successful ruler in the twelfth century required a strong physical constitution. More than that, it required a tenacity of purpose, almost a ferocity of will. Rulers who lacked those qualities were overpowered and their territories were swallowed up.

Frederick's purpose was not merely conquest, although without conquest none of his other purposes could have been accomplished. It was primarily the construction of a well-ordered state based on law. That purpose was not unconnected with conquest, of course, since it was much more efficient to rule by law than by force: where one's judges were obeyed it was not necessary to be present with one's armies. Law was also closely connected with revenue: litigants paid high fees into the coffers of the emerging territorial rulers of Europe. Yet law was also an end in itself: the keeping of peace and the doing of justice were the two main justifications of royal authority, the two main sources of its legitimacy, and, beyond that, the two main criteria of the monarch's "success," as one would say today, or "salvation," as they said in the twelfth century. The twelfth-century European kings, and especially the emperor, were, to be sure, no longer the sacral rulers that their tenth­

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and eleventh_century forbears had been, but they nevertheless still ruled "by the grace of God" and, more than that, they claimed to have (and were recognized by others as having) important religious characteristics and functions. Frederick himself died in Asia Minor while on a crusade.

The accounts of Frederick's contemporaries give the impression of a man of great personal power, striking in appearance, with a fine physique and red beard, eloquent in speech, highly intelligent, moderate in his appetites and emotions, pious and respectful toward the church, a man who in general preferred to work within the traditional restraints that his society imposed on him -- but who also was capable of great anger and of violent excesses of cruelty that horrify the modern reader although they apparently shocked only a few of his contemporaries. His reputation for moderation was also belied by his enormously imaginative and bold policies, and especially by his dream of subjecting the northern Italian cities to the imperial authority. The total, systematic destruction of Milan by his army in 1162 was hardly an example of moderation.

Frederick's election to the German throne was the result of a compromise between the Staufen and Welf families, both of which had hereditary and political claims to rule. On his father's side Frederick was a nephew of Emperor Conrad III ( 1137-1152), a Staufen, while on his mother's side he was a nephew of Welf VI and a cousin of Henry the Lion. His mission was to provide stability in Germany after a period of great disorder -- which he did. Although almost nothing is known of his childhood or education, it may be assumed that he was probably not raised to be a king; nevertheless, the rapidity with which he seized the reins of government revealed a remarkable vocation for ruling. His fame as an arbiter spread rapidly and many resorted to him to seek justice. Within months of his election he issued his first peace statute asserting royal jurisdiction over violent crimes and disputes over seisin, and in the following year he concluded a treaty with the papacy providing for his coronation as emperor and regulating various matters of foreign policy. In 1155 he was crowned Emperor in Rome in a ceremony that was carefully controlled by him to symbolize his independence of papal political power.

Frederick very early recognized that law could play an important role in maintaining his authority -- not only vis-a-vis the papacy but also visa-vis the territorial rulers of Germany, the cities of Germany (Frederick himself founded many of them), the cities of Lombardy, and the feudal lords of his own domains. During his first journey to Rome, in 1155, to be crowned Emperor, he met with the professors ("doctors") of the law school in Bologna, where tens of thousands of students had already been trained for governmental posts throughout Europe. A few years later, in 1158, Frederick relied on the greatest of the Bolognese jurists -- "the four

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doctors," Martinus, Bulgarus, Jacobus, and Hugo______ to draft important legislation for the Diet of

Roncaglia.

Frederick's concern with law was not disinterested. He thought of law both as an instrument for maintaining the stability of his vast empire and as an instrument for strengthening his own power as emperor. He sought, therefore, to maintain the various customs of the various territories and at the same time to introduce new legislation that would enhance the central authority. Connected especially with the first goal -- the maintenance of stability -- were the various peace statutes that he promulgated. Connected especially with the second goal -- the increase of imperial power and authority -- were various other statutes that he promulgated, concerning royal powers (called regalia), royal control over subordinate government officials, and taxes, as well as feudal law generally.

Frederick's enlistment of the four doctors gives some important clues to his attitude toward law. He asked them to present to him a list of all the rights to be accorded to the emperor under the ancient laws of Lombardy as they had existed prior to the rise of independent cities. They replied cautiously that they could not give such a list without full consultation with the judges from all the cities. Frederick then formed a commission consisting of two judges from each of the major cities. The result was the promulgation at Roncaglia of a statute ("definition") of imperial powers which listed: (1) jurisdiction over and income from public ways, navigable rivers, ports, and tolls, as well as fish ponds and saltworks; from coinage; from exchange of money; from fines and amends, from ownerless property, and from lawful exactions from unworthy persons; from goods of persons who had entered into incestuous marriages or who had been condemned and outlawed or who had committed high treason; from services by manual labor, with teams or with carts or boats; from contributions for royal military expeditions; and from treasure trove; (2) the power to appoint magistrates to exercise justice; and (3) the maintenance of palaces in certain cities. Another statute adopted at Roncaglia in 1158 stated simply, "All jurisdiction and all judicial power belong to the prince, and all judges must accept office from the prince and must swear an oath as required by law." A third statute provided that the prince might have palaces and courts in any places he pleased. A fourth and last statute provided for specific head taxes and specific ground taxes.

Although the four statutes referred to Roman law, and although there were further traces of Roman law in the other legislation promulgated at Roncaglia, in fact the idea of listing specific royal or imperial powers was entirely alien to the law of Justinian as it had been understood before the late eleventh century; it was the Papal Revolution that gave birth to the very word "regalia". ^Moreover, the gist of the Roncaglia

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statutes___ namely, the emperor's right to income from certain commercial, judicial, and other

activities or situations, and his right to "jurisdiction and judicial power," that is, to high justice (bannus) was entirely Germanic and Frankish in origin and, again, received a great impetus from

the Papal Revolution. Frederick showed himself to be a man of his own time and his own culture in using some of the language of Roman law in order to legitimize his assertion of imperial powers. 9_ Perhaps the most extraordinary aspect of Frederick's policy at Roncaglia was its futility. The empire was not in a condition to become a strong, centralized territorial state; it was too big, too diverse, too disorganized, and it lacked the necessary bureaucracy. Yet Frederick attempted to make it strong and centralized: partly by military action, which proved ineffective for that purpose; partly by attempting to transform his corps of unfree administrators, the ministeriales, from vassals into imperial servants, which also proved ineffective for the larger purpose; !°and partly by legislation. The Roncaglia laws on taxation provide a good example of misguided faith in the power of legislation. Lacking an effective financial administration, Frederick could collect virtually none of the taxes he proclaimed.

Yet Frederick was far from being a failure. The imperial power did, in fact, increase substantially under his aegis and did acquire some of the characteristics of territorial statehood as he envisioned it. In addition, there were other, even more important aspects of his vision that were realized much more fully. Frederick was deeply concerned with the future not only of the empire in the narrow sense but also of the German territories that constituted its core. He envisioned and fostered the development of the political and legal identity and integrity of those constituent German territories. It was one of his main goals to keep peace among them. And in those policies he succeeded. Indeed, many of the provisions of his imperial law, especially of the peace statutes, passed over into the emerging German territorial legal systems. This is the other side of German political and legal development in the twelfth and thirteenth centuries: the principalities became modern states, or prototypes of modern states, surpassing the empire in this respect.

Here, too, the personality and vision of Barbarossa played an important part. Early in his reign he established Austria, Wurzburg, and Burgundy as separate autonomous polities bound to the emperor only by loose feudal ties. Later he established a new dynasty in Bavaria and encouraged that duchy, too, to develop its own political and legal institutions. He also fostered the autonomy of the German cities. Finally, in 1180 Frederick linked the principalities with the empire in a new constitutional relationship by creating an "order" of imperial princes (Reichsfurstenstand). The leading princes and bishops were constituted as a body of temporal and spiritual tenants-in-chief of the

-491- emperor; they were strengthened in their relations with him by their corporate unity, and at the same time they were strengthened individually in their relations with their own subjects by virtue of being the sole tenants of the emperor in their respective territories and thus the suzerain lords of their own vassals. The princes became princes of their territories rather than, as before, princes in their territories. 11

A striking example of the emperor's interest in maintaining princely authority within the principalities of the empire was his creation of the Duchy of Austria in 1156. Frederick raised the status of Austria from that of a subordinate border territory of Bavaria (the Ostmark, or Eastern Marches) to that of an autonomous duchy, with the heritability of ducal authority in both the male and the female lines. The duke was only required to attend diets in Bavaria and to render military service in neighboring lands -­otherwise he was freed from obligation to the empire. Most important, the charter finally establishing the duchy, the Privilegium Minus of 1160, provided that no one could exercise the right of justice in the duchy without the permission of the duke. Thus the ruler was to have ultimate control over the courts within his territory on the sole basis that he was the ruler of that territory, without regard to his position as feudal overlord or clan chief. Similarly, in 1168 the emperor issued a "Diploma" creating the Duchy of Wurzburg, whereby the Bishop of Wurzburg, as duke, received "all jurisdiction and full power of doing justice" in matters previously within the competence of local lords acting under a traditional imperial grant of authority. No competing jurisdictions could henceforth be exercised within the new duchy. To a certain extent this confirmed the preexisting powers of the Bishop of Wurzburg, but it also added imperial recognition of the title and the theory of ducal power. That theory rested, above all, on the postulate that the authority to rule -- sovereignty, as it would later be called -- was grounded in control over adjudication. This postulate was at the heart of the Western legal tradition in its formative era.

In laying the foundations of a new order in the German territories and in the empire, Frederick Barbarossa was guided not only by a political vision but also by a religious vision. His aim was the reformatio totius orbis -- "the reformation of the whole world." ¹² His uncle, biographer, and close adviser, Bishop Otto of Freising, had written a universal history in which he had portrayed the reformation of Pope Gregory VII as the beginning of a new historical stage, leading eventually to the triumph of the crusading ideal, on the one hand, and the monastic, contemplative ideal, on the other. This twin triumph would be carried out by the last emperor, after whom the Day of Judgment would arrive, then the Antichrist, and ultimately the posthistorical age of eternity. As Peter Munz has said, "We cannot avoid the conclusion that Frederick, well acquainted with the ancient prophecy, was confirmed in his belief that he

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was to be the last emperor." 13 It was a vision of this character which underlay Frederick's desire to undertake a new crusade to liberate Jerusalem and the Holy Sepulchre from the infidels; such liberation was an essential part of the apocalyptic drama. It was a vision of this character which also underlay Frederick's strong sense of the importance both of peace through law and of justice through law; the emperor's mission to secure peace and to do justice was the sign of his appointment by God to fulfill the divine plan of salvation, and in the new age introduced by Pope Gregory VII, law was the chief instrument for peace and justice that was available to secular rulers. Finally, there was the practical necessity of settling the affairs of the empire in order to have the time, the energy, and the resources to go on a crusade:

All through his life, Frederick had realized that the ultimate and most formidable task of the emperor of Christendom was to protect the church and defend the holy places in Palestine against the infidels. His belief in this ultimately trans-political end of empire had provided him with the detachment necessary to scrap one political plan after another and to view each of his political enterprises as a mere experiment, a means to an end. When, towards the end of 1187, he realized the extreme urgency of a new crusade, he must have considered himself fortunate that the latest experiment had succeeded sufficiently for him seriously to entertain the thought of a departure to the Holy Land. Given his age and his knowledge of the physical hardships that awaited him at the best of times, he cannot have had any great illusions as to the likelihood of returning to Europe alive. But his departure was not an afterthought indulged in when he happened to have nothing better to do. It was the crowning act of his reign, an act which he had planned all along, and for the sake of which he had undertaken experiment after experiment. And now that, finally, one of these experiments had proved comparatively successful, he was free to turn his mind to the real task that: lay ahead. ¹⁴

The imperial peace statutes (Landfrieden). The prominent use of the term "peace" in comprehensive statutes issued by emperors and dukes in the twelfth and thirteenth centuries(constitutio pacis, pax terrae, Landfriede) linked those statutes with the Peace of God movement which had been sponsored by the church since the latter part of the tenth century. The first German proclamations of a Peace of God were in the bishopric of Luttich in 1082, the archbishopric of Cologne in 1083, the province of Saxony in 1084, and at Mainz for the empire as a whole in 1085. Like the earlier Peace of God proclamations in southern France, Normandy, and elsewhere, each of the German proclamations was limited to certain times, places, and groups of people. They did not purport to make new law but rather to reinforce the preexisting law by exacting from the entire local population an oath to observe the peace and by imposing additional ecclesiastical sanctions, especially excommunication, for violations.

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The first secular peace statute (Landfriede, "peace of the land") issued by an emperor appeared in 1103. Before that, there had been two secular peace statutes issued by dukes together with the magnates of the duchy -- in Swabia in 1093 and in Bavaria in 1094 -- as well as one issued by a provincial assembly in Alsace, also in 1094. The 1103 imperial statute was followed by at least seventeen additional imperial peace statutes, in 1119, 1121, 1125 (two), 1135, 1147, 1152, 1158, 1179, 1186, 1207, 1208, 1221, 1223, 1224, 1234, and 1235. At least eight additional territorial peace statutes were issued in that period in Swabia, Bavaria, Saxony, Brixen, Hennegau, and Alsace, in 1104, 1127, 1152, 1156, 1171, 1200, 1229,

and 1233. 15

The imperial peace statutes of the twelfth and thirteenth centuries drew from the earlier Peace of God movement not only the word "peace," with its many connotations, but also, at first, the practice of exacting oaths from the population to adhere to the peace. They differed from the earlier movement, however, in many important respects. They were intended to bind all people within the respective jurisdictions of the rulers who promulgated them, without limit of time. Also the idea of a voluntary sworn peace disappeared; instead of asking their subjects to consent to renounce various forms of violence, rulers demanded that they obey a series of new laws which systematized and reformed the preexisting legal order. In addition, the scope and content of the peace statutes were gradually extended; they came to be concerned not only with the prevention of violence and of blood feuds and duels but also with the preservation of public order generally, including some matters of an economic and administrative nature. In that connection their sanctions were extended to include a much greater variety of criminal penalties and also some civil and administrative sanctions and remedies. In short, the imperial peace statutes of the twelfth and thirteenth centuries gradually developed into comprehensive legislative acts in the modern sense.

This process of transformation is revealed by comparing two very early peace statutes -- the Bavarian statute of 1094 and the first imperial peace statute of 1103 -- with the imperial peace statutes promulgated by Frederick Barbarossa between 1152 and 1186, and then by comparing the Barbarossa statutes with the one promulgated by his grandson Frederick II at Mainz in 1235.

The Bavarian peace statute of 1094 had been adopted at the initiative of the duke, but in order to take effect it needed to be sworn to by the Bavarian magnates assembled at a diet (Landtag); 16_it also needed the oaths of the people. It contained seven very short articles. The first stated that the duke had sworn peace to all churches, clergy, and mer- -494-

chants ("except those who sell horses outside our kingdom"), and also to those who "swear, have sworn, or will swear to us this peace," and that "we will maintain this oath from now until Easter and after that for two years." The second article, which was also confirmed by an oath, required that anyone who committed a theft of things worth one shilling "shall be punished and shall pay double". Article 3 provided that if anyone broke the peace by stealing things worth five shillings, or raped a virgin, he should lose his eyes or a foot or hand. Article 4 provided that if one raped a virgin and was besieged in a castle, the castle should be destroyed and the fugitive captured. Article 5 provided that if oath takers pursued a peacebreaker, or if "our army" went somewhere to enforce the peace, they should take only what they and their horses needed and should leave all else undisturbed. Article 6 provided that on every such journey hay, grass, and uncut wood for construction might be taken at will. Finally, in article 7 the duke reserved to the jurisdiction of his own officials disputes concerning allodial lands and fiefs (benefices).The first imperial secular peace statute, issued at Mainz in 1103, was roughly similar in style, scope, and content to the 1094 Bavarian peace statute. 17It also required the oaths of the magnates and of the people. It was to last for four years. It forbade the invading or burning of another's house, seizure of a person for money, wounding, beating, and killing, and declared them punishable by loss of eyes or of a hand. It repeated in a modified form some of' the provisions of' the Bavarian peace concerning theft. In addition it forbade pursuing one's enemy into the house of another.The imperial peace statutes promulgated by Frederick Barbarossa a half-century later differed from these two early statutes in at least eight respects.

1.

2.

3.

There was no mention in them of the magnates of the realm, except as addressees. His first peace statute, issued in 1152, began: "Frederick, by the grace of God emperor of the Romans and ever august, to the bishops, dukes, counts, margraves, and officials who receive this document." ¹⁸

The meaning of the word "peace" had changed; it no longer meant something that came into being by being sworn to, a kind of social nonaggression compact, but rather something that existed independently of the consent of magnates or people. The peace of the land was, in effect, the king's peace. No time limit was set for it. There was no mention of oaths.

Sophisticated legal concepts appeared for the first time. Such words as leges and jus, which had been absent from the 1103 imperial peace statute as well as from all the territorial statutes, were stressed. "We wish to preserve to all persons their right (jus)," Frederick stated in the preamble to the 1152 statute.

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4. The earlier peace statutes had said nothing specific about means of enforcement of their provisions, except that they were to be sworn to, whereas Frederick's peace statutes emphasized repeatedly the procedures for administering them. Thus article 2 of the 1152 statute provided that movable property of contumacious peacebreakers was to be seized by the judge (Richter) and divided by him in favor of the people, while their hereditary property was to be seized by the count ( Graf) and under certain circumstances was to escheat to the king; article 4 provided that certain fines for minor offenses were to be collected and distributed by the judge; article 6 provided that the count was to pursue the peacebreaker to the lord's castle. Other articles defined the procedures to be followed in trials by the judge and the count, respectively. 19

5. The scope and content of the 1152 peace statute went far beyond anything envisioned in the earlier statutes. While control of violence remained an important motif, other kinds of ordering were also included. Thus article 11 provided that the count in each locality was to choose seven men of good repute to set grain prices for the year. Article 17 stated that one who improperly performed his duties as lay patron of a monastic foundation or as administrator of a benefice, and who was warned by his lord but nevertheless persevered in his waywardness and was ousted by a judicial proceeding, and who thereafter attempted to regain his advowson or benefice, was to be treated as a peacebreaker. These provisions represented new law. Other important innovations were limitations on the use of the duel, the establishment of a system of financial security for money fines and seized land, and the establishment of royal jurisdiction over clergy who broke the peace and over servants of a lord who engaged in a feud.

6. Innovations were also introduced to increase the emperor's economic and judicial power. It was provided that allodial fiefs confiscated from offenders were to be converted into fiefs of the empire. This was especially important in view of the requirement of compulsory enfeoffment of feudal land that escheated to the crown because of absence of heirs. It was also provided that possessory disputes between two vassals of the same lord were to be dealt with in the emperor's court by means of a sworn inquest, although baronial courts retained jurisdiction over the rarer cases where the issue was not seisin but ownership. "Thus," as Mitteis has said, "like Henry II of England, Frederick Barbarossa attempted to establish possessory assizes under royal auspices, which had the effect of restricting baronial justice." ²⁰

7. In contrast to the earlier statutes, the 1152 peace statute defined the procedures to be applied in various types of proceedings. In the court of the count, if two men disputed over a fief, and one claimed to have been enfeoffed, the count was to receive the testimony of the feoffor (article 8).

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But if several men disputed over a fief and various enfeoffors were named, the court of the judge was to question under oath two persons of good reputation who lived in the province of the litigants, in order to determine which of them had possessed the fief without force (article 9). Article 10 set forth the different types of proof needed when men of different estates were accused of peacebreaking; if a knight accused a peasant, the peasant could prove his innocence through divine or human judgment (that is, by ordeal or oath helpers), or else by seven suitable witnesses chosen by the judge; if a knight accused a knight and challenged him to a duel, the person challenged could avoid the duel by proving that he and his parents were of legitimate knightly heritage.

9. Finally, the 1152 peace statute, though equally concise in style, is approximately seven times longer than the Bavarian peace statute of 1094, and probably almost seven times longer than the imperial peace statute of 1103.

It seems highly probable that the 1152 peace statute of Frederick I was influenced by his knowledge, or the knowledge of his advisers, of the Sicilian legislation of Roger II, or at least by the common education and experience of Frederick's and Roger's advisers. Indeed, exiles from Sicily were at the court of Frederick. In any event, similarities may be found between the treatment of felony in Frederick's peace statute and in an 1129 peace statute of Roger, and between the law applicable to knights in the 1152 peace statute and in Roger's 1140 Assizes of Ariano.

Six years later, in 1158, at the Diet of Roncaglia, Frederick promulgated another peace statute as well as three other related pieces of legislation.

The Roncaglia peace statute, which contained only eleven articles, began as before, "Frederick, by the grace of God emperor of the Romans and ever august," but this time it was addressed to "all the subjects of his empire." It started with the words, "By this decreed law, which is to prevail in perpetuity, we order..." All subjects of the empire, it continued, were to observe true and perpetual peace among themselves. All persons from eighteen to sixty years of age were to bind themselves by oath to keep the peace, and such oath was to be renewed every five years (article 1). This was a return, in form, to the oath procedure of the past, but the substance had changed since the oath was no longer voluntary even in theory and the peace to be kept was a preexisting legal order that had no limit in time. A violater was therefore punishable even if he had not sworn the oath.

Article 2 contained a general prohibition of self-help. It provided: "If anyone believes that he has a right against anyone in any cause or transaction, he shall resort to the judicial power and through it he shall pursue his appropriate right." Article 3 imposed heavy financial penalties

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on "anyone who by a rash reckless act presumes to violate the aforesaid peace." Thus "the peace" consisted in the enforcement of rights by "the judicial power" and not by violence.

Article 4 stated in broad terms a general legal prohibition against major crimes: "Violation of rights and theft shall be legally punished. Homicide and mutilation and any other wrong shall be legally vindicated."

Article 5 made judges and other magistrates appointed by the emperor or his subordinates liable to compensate losses suffered by anyone as a result of their neglect to do justice and their failure to vindicate legally a violated peace. Additional penalties could also be imposed in grievous cases, and those magistrates who could not pay because of poverty were to suffer corporal beating and to be exiled for five years to a place fifty miles from their residence. ²¹

It is noteworthy that these and the remaining provisions of the Roncaglia peace statute do not, in general, repeat the provisions of the 1152 peace statute but instead presuppose their continuance in force while adding to them. In this, too, they have the character of legislation, in the modern sense, rather than that of a general recapitulation of customary law.

In addition to the peace statute several other legislative acts were promulgated at the Diet of Roncaglia, including a statute concerning the mutual rights and obligations of lords and vassals and another statute concerning the rights and obligations of scholars. The statute on feudal obligations forbade vassals to alienate fiefs without the consent of their lords, recited various circumstances in which a vassal could be ousted by his lord, and dealt with problems created by subinfeudation. One article of this statute begins with the words: "We firmly establish both in Italy and in Germany..." ("Italy" -- Italia -- refers to the cities that formed the Lombard League; "Germany" -- Alemannia -- refers to Swabia, Bavaria, Saxony, and the other German Lander.) The last article (article 10) states: "We also order that in every oath of fealty the emperor shall be excepted by name." The Roncaglian statute on scholars goes even further to make clear that it is intended to be legislation and not merely a restatement of customary law, for it concludes with the instruction: "We order that this law [lex] be inserted among the imperial decrees under the title 'Nefilliuspro patre, etc.’ " This was a reference to a Roman imperial decree excluding the liability of a son for the debts of his father. Similarly, Emperor Frederick's lex excluded the liability of traveling scholars for the debts of their countrymen. ²² Barbarossa's instruction was obeyed by contemporary jurists who inserted the 1158 statute in the appropriate place in their manuscripts of Justinian's lawbooks.

The legislative process that was reflected in Frederick I's statutes of 1152 and 1158, as well as in his statute on arson, issued in 1186, ²³

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reached a high point in the Mainz peace statute promulgated by his grandson, the Emperor Frederick II, in 1235. 24 This was, of course, the same Frederick II whose other grandfather, King Roger II, had promulgated the Assizes of Ariano in 1140, and who himself in 1231, as King of Sicily, had promulgated the Liber Augustalis. In governing his vast empire, Frederick II concentrated on attempting to subdue the cities of northern Italy and largely neglected his German territories;

indeed, by the end of his reign in 1250 the empire as a whole was divided and weakened beyond recovery. The peace statute issued at Mainz in 1235 was a deliberate use of law reform as a means of reviving imperial unity in Germany, but it did not succeed in that respect and therefore did not have very great significance for the future development of imperial law as such. It did, however, have very great significance for the development of the law of the various principalities and other territories within the empire, as well as for the development of the law of the various cities, whether imperial, princely, or independent.

In the preamble to the 1235 peace statute Frederick II declared that "since those who dwell throughout all Germany now live, in their lawsuits and private transactions, according to age-old customs and unwritten law, and because some important reforms contributing to the general state and tranquillity of the empire have not yet been specially introduced, and when a case is considered that concerns some part of this the judgment is determined more by arbitrary opinion than by established law... therefore, with the advice and consent of the beloved ecclesiastical and secular princes in solemn assembly at Mainz, we have caused to be promulgated certain decrees." There followed twenty-nine articles, which in a modern edition occupy some five hundred printed lines.

The first article stated that the liberties and rights of the churches should be liberally fostered, and it commanded that no one should "unjustly resist" ecclesiastical jurisdiction. Article 2 ordered that patrons of all churches should protect them diligently and should be reasonable in administering their property, "so that no serious complaints concerning this may come to us." Article 3 dealt with breach of a promise made by two people to keep peace, sealed by a handshake; such a breach was to be tried before a judge and proved by oaths of two witnesses.

Article 4 stated that the office of judge should be filled by persons worthy of it, "since one who examines the charges of others should excel in his manner of life." It provided further that princes and others who held court directly or indirectly of the emperor should decide cases "by just judgment according to the reasonable custom of the lands," and "whoever does not do so we will punish severely, as is just." Article 5 continued this theme: "Magistrates and rights are established for this, that no one may be the avenger of his own grief, since where the authority of law

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ceases, arbitrary cruelty abounds. Therefore we establish [statuimus______________________________________________________________ the word from which statuta,

"statute," is derived] that no one... shall avenge himself before bringing his complaint before his judge and pursuing it according to law to a definitive judgment; except that for the protection of his body or goods he may immediately repel force by force, which is called nothwere [in modern German, Notwehr, 'necessary defense']."

Article 6 provided that if one had brought a complaint before the judge but the law had not been followed (presumably because the defendant had not obeyed the order of the court), the complainant had the right to "defy" his enemy, that is, publicly challenge him to a duel. However, he must do this in the proper way or else he was to be declared without honor and without right.

Articles 7 to 10 dealt with tolls and other obstructions to travel. All tolls imposed in travelers by land or water without the permission of the emperor were declared to be abolished. Protection of foreigners against such tolls was emphasized.

Articles 11-13 prohibited certain violations of imperial law (counterfeiting of coinage), feudal law (sale of safe conducts by persons who did not "hold of the empire, by feudal law, a right of safe-conduct") and urban law (asserting the rights of a citizen while living outside the city, or asserting the protection of a feudal lord while living within the city).

Article 14 stated that no one had the right to take another as security without permission of the judge, and that whoever did so should be punished as a robber.

Articles 15-21 dealt with offenses of sons against fathers, particularly patricide and the ousting of a father from his land.

Articles 22-27 dealt with punishments, especially outlawry. Outlawed persons were to be prosecuted as for a "public crime" and were not to be allowed the option of composition or penance. Thus a sharp distinction was made between crime and tort or sin. An outlaw of the emperor was subject to be declared without honor and without right. The same penalty was applicable to high treason, perfidy, and "homicide, which is called mord." Those who harbored an outlaw were subject to the same penalty as that imposed on the outlawed person, and a city that "collectively and knowingly" harbored an outlaw was subject to severe penalties, including the destruction of its walls. Also, the receiver of stolen goods and the harborer of a thief were equally punishable with the thief -- as under "the civil laws" (a reference to the Roman law of Justinian as interpreted by contemporary Western scholars). However, for a first offense the receiver or harborer was to be required to pay double the amount stolen, and only for a second offense was he to be punished as a robber or a thief.

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Article 28 provided that a justiciar should be appointed to preside over the imperial court in place of the emperor when the emperor could not preside personally. He should be "a man of proved trust and of honest opinion... of free condition, who shall remain in such office during good behavior for at least one year." The justiciar was to conduct the court every day except Sundays and major holidays, "doing right to all complainants, except princes and other noble persons, in cases that touch their persons, right, honor, fiefs, property, or inheritance, except the greatest cases, whose investigation and judgment we reserve to our own highness." The power to outlaw or absolve from outlawry remained with the emperor.

The justiciar was to "swear that he will accept no matter for judgment because of love or hate, favor or reward, fear or grace, and that he will not judge on any other basis than what he knows or believes to be just according to his conscience, in good faith without fraud or wrong." The justiciar was to receive the fees that were paid for absolution of outlaws, "which are popularly called Gewette," "so that he will judge with greater willingness and will not receive gifts from anyone."

Finally, under article 29 the justiciar was to have a special notary to receive and keep writs containing complaints, to make records of judicial proceedings, to keep records of outlawry and absolutions from outlawry, to write down all judgments in major cases in the imperial court, especially when they took the form of contradictory judgments, which were popularly called gesamint urteil -- in modern German, Gesamturteil, or "collective judgment," that is, one which arises by collecting the votes of the judges -- "so that in the future in similar cases the ambiguity will be removed and the land according to whose custom the judgment was rendered will be expressly named." The notary was to be a layman, so that he could write down judgments of blood, which clerics were forbidden to do, and further, so that he could be punished appropriately if he was delinquent in his office. The notary was to swear an oath that he would "behave faithfully and legally in office," and would "write and do nothing against right and obligation, according to conscience, in good faith, without any wrong or fraud." ²⁵

The Mainz peace statute of 1235 was intended primarily for the German parts of Frederick II's empire; it was, in fact, the first imperial law to be issued in both Latin and German. It was meant to be German law. Yet its author was the same King of Sicily, Duke of Apulia, and Count of Calabria who four years earlier had promulgated the comprehensive Sicilian law code called the Liber Augustalis, which greatly overshadowed the new German statute not only in length but also in sophistication. How could the same ruler have produced such different pieces of legislation at more or less the same time?

There are, to be sure, some signs of common authorship. Both

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documents are presented as royal legislation. Both are directed against private vengeance, self-help, and violence generally. Both emphasize adjudication as the primary means of keeping public order. Both have the same vision of a society governed by law. The Mainz provision for an imperial justiciar and a notary to assist him is derived directly from Sicilian experience. Both statutes contain many similar basic legal concepts and institutions. Certain substantive rules of law, such as the right to kill in necessary defense of person or property, are the same in both. ²⁶

Yet the differences are more striking. The Mainz statute provides only the barest framework of rules, a selection of those few that were presumably the most important from the emperor's standpoint; the Augustalis is a comprehensive code. In dealing with crimes, for example, the Mainz statute specifies only a few, and its provisions on punishment are confined chiefly to outlawry, whereas the Augustalis specifies a great many crimes and makes applicable to them a variety of punishments. Moreover, the Augustalis deals with a host of noncriminal matters that are not even suggested in the Mainz statute. Why did not Frederick simply present to the solemn assembly at Mainz in 1235 the

magnificent code of laws that he had promulgated at Palermo in 1231?

The answer, though simple, is revealing: each of the two pieces of legislation was intended to serve the function of expanding, rationalizing, and systematizing the legal order that existed within the polity for which it was designed. Each built on existing foundations. These were not castles in the air. The royal legal order that existed in the Norman kingdom of Sicily in the early thirteenth century was quite different from the legal order that existed in the German parts of the empire. Sicily -­southern Italy -- had had a sophisticated royal law for ninety years; it had effective, centralized judicial and administrative and financial institutions. In the German parts of the empire, by contrast, imperial institutions were weak. For almost forty years there had been almost no effective imperial government in the north. There was not even a central imperial judiciary; the emperor himself judged in person as he traveled from place to place -- and in those years he rarely traveled north of Rome. From a political point of view, the Mainz peace statute may be viewed as the last gasp of imperial power in the German territories. ²⁷

Yet in some respects the Mainz peace statute was more innovative than the Liber Augustalis. The Sicilian code went back again and again to the legislation of "our grandfather Roger II" and of William I and II, whereas the Mainz statute studiously ignored "our grandfather Frederick I" and his 1152, 1158, and 1186 peace statutes. More significantly, the provision in the Mainz statute for an imperial justiciar and notary meant that for the first time imperial court decisions were to be collected and kept in a single place, so that a body of imperial legal

502- norms could be established. 28 In fact, however, this did not come to pass for a very long time: after 1235 imperial power rapidly declined, and, indeed, almost all imperial activity disappeared. The new imperial justiciar did not sit at a fixed place or a fixed time. When the Habsburgs acquired the imperial title in the last decades of the thirteenth century, they confirmed the Mainz peace statute in 1281 and again, with some additions, in 1287, and once again in 1292. However, imperial law declined once more in the fourteenth and fifteenth centuries, and was revived only in 1495.

The Mainz peace statute, like the earlier imperial peace statutes, nevertheless survived as part of^, the "common law" of Germany. Technically, there was no "German law" in the twelfth and thirteenth centuries, but only the law of the empire, the law of the several territorial polities, and the law of the cities-just as there is, technically, no "American law" today, but only the federal law and the law of the several states. Yet in Germany there was a common body of legal institutions, concepts, principles, rules, which was universally accepted in the imperial and the territorial and the urban polities. Many parts of the Mainz peace statute and its predecessors found their way into that common body of German law.

The Mirror of Saxon Law (Sachsenspiegel). One important channel through which the earlier peace statutes became part of the German common law was a book written by a Saxon lawyer in the early thirteenth century (probably the 1220s) called the Sachsenspiegel. Its author, Eike von Repgau (c. 1180- c. 1235), was a well educated (though not university-trained) assessor of the knightly class, who first wrote the work in Latin and later translated it into German.

The Sachsenspiegel is a systematic collection of legal rules and principles. It is divided into two parts, one called Landrecht, "law of the land," and the other called Lehnrecht, "law of fiefs," or "feudal law." Each part is divided into some hundreds of numbered sections and subsections. In a modern edition the Landrecht takes up approximately 140 pages and the Lehnrecht approximately 100 pages. The subject matter is chiefly (1) the customary law of Saxony, for the first time written down and systematized, and (2) the royal law of the German king-emperor, both customary and enacted, applicable in Saxony and elsewhere. The author was predominantly concerned with certain aspects of civil law (especially property and inheritance), criminal law, the judicial system, constitutional law, and, in the second part, with lord-vassal relations. The law of the cities is omitted. The law merchant is omitted. There are some references to canon law, especially those parts of it that were applicable to papal jurisdiction, family law, and some other matters. There are virtually no references to Roman law. There are a few references to legal rules prevailing in other German territories, notably Swabia,

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where they differed from the Saxon; otherwise the author seems to have assumed that Saxon law corresponded in a general way to legal rules and principles common throughout the German territories.

The rules and principles are presented with very little conceptual analysis and with very few concrete illustrations. For example, it is provided that one who aids another to commit a crime is himself liable to punishment, but no definition of complicity is given and no effort is made to distinguish various forms of complicity. Similarly, several rules are stated concerning one who injures another in necessary defense, but the concept of necessary defense is not defined or analyzed. Indeed, the whole book is written in the style of a concise summary of rules, doctrines, principles, and precepts, some of them, to be sure, of considerable breadth.

The Sachsenspiegel contains many provisions relating to the constitutional law of the empire. Implicit in those provisions are three fundamental, interlocking concepts which are traceable directly to the Papal Revolution of the late eleventh and early twelfth centuries.

The first is the concept that the empire-indeed, society itself-is based on law. This is implicit in a statement which the author makes in the prologue: "God is himself law; therefore law is dear to him." The idea of the rule of law goes so far in the Sachsenspiegel as to include the express right of a person "to resist a lawless decision of his king and of his judge, and also to help another to do so if he is his relative or his lord." ²⁹

The second fundamental concept of the imperial constitution is that of the duality of the spiritual and secular polities -- of church and empire as corporate political entities. This is implicit in the formulation of the "two swords" doctrine, which is stated in the very first article of the first book of the text: "God has left two swords on earth to protect Christendom. To the pope is given the spiritual sword, to the emperor the secular... What stands against the pope, what he is unable to compel by spiritual judgment, the emperor is to compel by secular judgment to be obedient to the pope. So the spiritual power should also help the secular judgment when it is in need." In a later article it is further provided that the church has ultimate jurisdiction over the emperor in matters of heresy (doctrine), divorce (family law), and security of the house of worship (church property). ³⁰ Nevertheless, it is also provided that the church must enforce its will, ultimately, through the imperial power. ³¹

The third concept, which interlocks with the first two to form the foundation of the constitutional law of the empire, is that of plural, interacting secular polities. This is expressed in many provisions concerning the respective territorial and imperial jurisdictions and concerning the application, in

appropriate cases, of territorial law by courts exercising imperial jurisdiction. It is also expressed in provisions concerning the election of the king by the princes and bishops of the territorial polities. Here the Sachsenspiegel built on Frederick Barbarossa's institution of the imperial order of princes. Indeed, the author went so far as to list and rank___________________________ for the first time_________________________________________________ three ecclesiastical

electors (the bishops of Trier, Mainz, and Cologne), and three lay electors (the Count Palatine of the Rhine, the Duke of Saxony, and the Margrave of Brandenburg). On the authority of the Sachsenspiegel these six continued to be the electors from that time forward. *33

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The constitutional law of the empire made it inevitable that many provisions of the imperial peace statutes, as well as of other imperial legislation, would pass over into the law of the territorial polities. One important vehicle for this reception of imperial law was the Sachsenspiegel itself. One of its articles expressly referred to "the old peace, which the imperial power confirmed for the land of Saxony with the assent of the nobility." ³⁴ This was a reference to one of the early Peace of God compacts. In the tradition of those compacts, the Sachsenspiegel gave permanent protection to priests and clerics, women, Jews, churches and church property, cemeteries and hedges of villages, ploughs and mills, and the king's highways and waterways. Other articles adopted specific rules of criminal and civil law that had been promulgated in imperial peace statutes. ³⁵ One such rule was that any person who killed or wounded a peacebreaker was not liable to make amends if he could prove that he had done so on the spot or in pursuit. 36

Very early, the Sachsenspiegel was treated as though it was itself authoritative. Many of its provisions passed directly into city law and into the law of other territories. It was glossed by learned jurists. For centuries it was considered to be a subsidiary law, which could be used to supplement the prevailing city, territorial, or imperial law. ³⁷ The fact that it was in German was of great significance, for it virtually created a common German legal language for all German-speaking parts of the empire. 38- Other "mirrors of the law" were written in imitation of it -- the Schwabenspiegel, the Deutschenspiegel, the Frankenspiegel. ³⁹