Private Property and Public Power
It is evident, from these sources, that a medieval city is organized as a corporaĀtion in practice as well as in theory, even if one cannot encounter the famous fictio of the persona before Innocent ιv.
The personality of a city is not only a matter of fact, but it is also an achievement of legal theory, as it developed in the framework of the new urban civilization. Considered as a subject of rights, a city could deal with other subjects. Merely to raise taxes and impose duties on citizens was never enough to obtain that a city became a subject; it had to be described as a subject in public law. This is what Roland does in such an explicit way, to an extent that one cannot find emulated even in a great later jurist like Jacques de Revigny.One particular point of divergence between these two legal thinkers is espeĀcially worth noticing here: that is, the commentary on the so-called dominium mundi of the emperor, which Jacques - writing in France between 1263 and 1280 - clearly likens to that of the French king. As Ken Pennington has shown, the discussion about the ownership of all the world by the emperor had its mythic origins in the story of Bulgarus and Martinus disputing on a passage of the Digest as they rode on horseback in the company of none other than FredĀerick Barbarossa.[479] The story is, in my opinion, false.[480] [481] [482] But the problem was real, and it was a problem of legal interpretation. Some unclear passages of Justinianās law, in fact, could be interpreted as attributing to the prince a priĀvate ownership of all the goods in the world. During the twelfth century, when the very passage of the Digest which hails the prince as ā?dominus mundiā had not yet been translated from Greek into Latin by Burgundio of Pisa, an area of controversy involved the interpretation of the law Bene a Zenone (C. 7.37.3), which established a particular procedure for the sale of goods by fiscal officers. As goods of the Emperor and of the Queen were also regulated by the same procedure, the law justifies this saying that ā?everything belongs to the Princeā (omnia Principis esse intelliguntur). The legendary account tells that Frederick asked if this should mean that everything belongs to the emperor, to which Bulgarus answered his lord by distinguishing a public authority (iurisdictio and protectio) from a private ownership (proprietas). Only in the first sense could one attribute to the emperor an authority over the whole world. Bulgarus atĀtempted, then, to separate the private from the public sphere. Looking at the glosses attributed to him, Pennington has shown that probably even Martinus, as a glossator, did not interpret this passage exaggeratedly, by extending the meaning of the phrase to every good in the worlds1 But it is surprising to note that even Roland, the only jurist of the twelfth century who declared himself openly for the imperial side, did not accept the idea of a private ownership of the emperor over the worlds2 For many technical reasons, even a supporter of the emperor like Roland could not accept such a distortion of the legal system described by Roman law. But one point touched by Roland is particularly interesting, because it marks the difference with the later account by Jacques de Revigny. Among other reaĀsons, Roland says that it would be impossible to assign to the emperor an emiĀnent property-right on the things of private persons, because the Roman law (an imperial law) reserves a particular remedy precisely to the owner for reĀstoring his right: the rei vindicatio is in fact a very important action and is given only to the dominus, the only person having a full right of property in a thing. If everything were the property of the prince, nobody would be in a position to use this action, which would be absurd.[483] Inasmuch as the Roman Law foreĀsees a particular action given only to the full-right owner (dominus), it cannot range the dominium of the prince in the field of private law. In other words, the glossators want to stress the difference between a public power, given to the emperor as to the small res publicae, and a private one, given to private subjects over their goods. In this sense, one cannot identify the dominium of the emperor with a private ownership over the persons and goods of his subjects. The relationship between empire and citizens could be based on the rights of both sides, as Roland states already in the introduction of his Summa. As he put it, it was worth knowing the fiscal rights found in the possesĀsion of ā?our Emperor', equally that we do not offend against his rights and ownĀership, and as we do not want him to lay hands on our things: valde expediat scire iura fiscalia que debeantur Cesari nostro, ut eum in suis non offendamus, sicut eundem nostra nolumus invadere, precipi- ente nobis Domino ut Cesari sua reddamus.54 Now, this separation between public and private, as a contrast between the rights of the king and those of his subjects, seems to have become forgotten in the space of a few decades, by the time of Jacques de Revigny. Consider a pasĀsage of the Lectura Institutionum by Jacques de Revigny, written in Orleans in the second half of the thirteenth century. The eminent ownership and the rei vindicatio are recalled again, but with a completely opposite conclusion. The French jurist's argument starts with the statement that for every good in the Kingdom of France a tribute must be paid to a lord or to the king himself. This obligation reveals that this good is subject to an eminent ownership, a dominiĀum directum, and that every lower property right is only a dominium utile.55 This means that, for Jacques, every tax imposition is not a sign of public power, being on the contrary the recognition of a real property right enjoyed by the private person of the king. And in France, says Jacques, there is no place which is not submitted to taxes, which means that an eminent property of the king affects all the valuable goods of the realm. 7