Royal Law: Sicily, England, Normandy, France
THE PAPAL REVOLUTION gave birth to a new conception of kingship in Western Christendom. The king was no longer the supreme head of the church. The era of "sacral kingship" gradually came to an end.
In matters denominated as "spiritual," the bishop of Rome was supreme -- not only over kings but also over the most important sovereign of all, the emperor. For the first time emperor and kings were conceived to be "secular" rulers, whose principal tasks were, first, to keep the peace within their respective kingdoms, that is, to control violence, and second, to do justice, that is, to govern in the political and economic spheres. Even in these matters, moreover, the church played an important role.The reduction of royal authority in ecclesiastical matters was compensated, however, by a very large increase in royal authority in relation to other secular polities -- tribal, local, feudal, and urban. In Joseph Strayer's words, "The Gregorian concept of the Church almost demanded the invention of the concept of the State." 1_The very division into spiritual and secular polities led to the ascendancy of a territorial concept of kingship, in which the king was no longer primarily chief warrior of the clan (or federation of clans) and chief baron in the feudal hierarchy. Before, he had governed directly his "wise men" and tenantsin-chief and only indirectly, through them, local leaders, subvassals, and their subjects. Henceforth he governed directly -- through his officials -- the whole people, or at least all freemen, of the territory over which he was sovereign. This, too, was a gradual process, taking several generations in the case of the Norman rulers of southern Italy, England, and Normandy, and another several generations in the case of France and the German lands.
The new conception of kingship involved the recognition for the first time, in the twelfth and thirteenth centuries, of the lawmaking role of the king.
For the first time the kings of Europe began to enact laws-404- regularly, and to justify their legislation not merely as the writing down of ancient customs or as an extraordinary means of dealing with emergencies but as a normal exercise of royal functions, an essential part of a king's responsibility to keep the peace and to do justice. Royal lawmaking became distinct from royal administration, finance, military activities and politics in general.
Also, the conduct of royal government became professionalized and departmentalized -- in that sense, bureaucratized. Lawmaking was carried on through the medium of a new professional body, usually called the "king's council," which was smaller than and quite different from the older tribal consultative assemblies and the feudal great councils. Similarly, the traditional royal function of judging was professionalized. Central royal courts broke off from the king's council. The very name "king's court" (curia regis) was transferred from the royal household as a whole to royal officials acting professionally in a legislative or an administrative or a judicial capacity. The king's household officials became the heads of departments -- the secretary became the head of the chancery, the financial officer became the head of the treasury, and the like. 2_
The new legal concept of kingship owed much to the new legal concept of papal authority that had been proclaimed initially in 1075 by Pope Gregory VII in his Dictates of the Pope. Just as the pope was head of a corporate church, governed by a body of law to which he contributed by his legislation and his judicial decisions, so the kings sought to unify their respective kingdoms through a body of law, to which they contributed by their legislation and their judicial decisions. And like the popes, the kings legislated and adjudicated by means of professionally trained officials specially assigned to those tasks.
It is sometimes said that the new conception of the king as lawmaker arose as a result of the discovery of the Roman law texts of Justinian in the last years of the eleventh century and the subsequent development of the new science of Roman law in the European universities.
The grains of truth in this thesis are, first, that the supporters of the royal lawmaking authority did turn to the Roman texts to find justification for that authority, and second, that the kings did find in the vocabulary of the Roman law many of the terms for their own legislation. However, the supporters of papal lawmaking authority and urban lawmaking authority did the same. The "argument from Roman law," as it has been called, was chiefly just that -- an argument, a justification, not a motivation or a cause. That the motivation and the cause of the development of royal lawmaking authority cannot be substantially attributed to the discovery of Roman law is apparent from the fact that the royal lawmaking authority was most prominent in England, Normandy, and the Norman Kingdom of Sicily, where the revival of Roman law was weaker-405
than, say, in France, while in northern Italy, where the revival of Roman law was strongest, the lawmaking authority of the emperor remained rudimentary and kingship did not exist at all.
The coupling of the territorial and the legal concepts of kingship gave birth to a system of royal law within each of the kingdoms of Europe. Kings established central law courts with jurisdiction -- over certain types of cases -- throughout the territories over which they reigned, and they issued laws to be applied in those courts. In addition to applying the laws issued by the kings, the royal courts also applied legal principles and concepts and rules which were considered to be binding throughout the land -- "the law of the land" (lex terrae) -- and which were derived from custom, from reason, and from conscience, in accordance with the new legal science. This legal science was informed by the new Roman law of the universities and by the new canon law of the church.
In the various kingdoms of Europe the common law of the king and of the king's courts gradually replaced most of the disparate features of tribal, local, and regional law within the territory.
In England, for example, it replaced the law of Wessex, the law of Mercia, and the Danelaw, into which English law was still divided at the beginning of the twelfth century. In Sicily, the laws of the Greeks, the Arabs, the Lombards, and the Normans were subordinated to a common law by Roger II, who ruled from 1112 to 1154. Roger was the first of the great lawmaking kings of the twelfth century. He was followed in the second half of the twelfth century by Henry II of England ( 1154-1189), Frederick Barbarossa of Germany ( 1152-1190), Philip Augustus of France ( 1180-1223), and Count Philip of Flanders ( 1169-1190), and in the thirteenth century by Frederick II of Sicily and Germany ( 1208-1250), by Henry III ( 1216-1272) and Edward I ( 1272-1307) of England, by Louis IX of France ( 1226-1270), and by Ferdinand III ( 1217-1252) and Alfonso X ( 1252-1284) of Castile and Leon. In contrast to legislators of a much later time, these kings legislated primarily through the establishment of procedures and remedies to be applied in the royal courts; nevertheless, the list of important legislative acts promulgated by European monarchs in the twelfth and thirteenth centuries is impressive (see figure 2).Prior to the late eleventh and early twelfth centuries, kingdoms had been unified -- to the extent that they were unified at all -- not by a body of common law administered by royal officials but by the person of the king himself and the belief in his sacred character and thaumaturgic powers. This fact was dramatically illustrated by the peripatetic character of kingship in that earlier time: kings had continually to ride circuit throughout their kingdoms in order to quell uprisings and do justice. The great lords who were their vassals in the countryside governed not as their delegates or officials but as autonomous rulers.
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There were, of course, exceptions_____ one thinks of Charlemagne_____ but in general the emperors and
kings of the Germanic era represented chiefly the spiritual unity_______ in current terminology, the
ideological unity___ of their subjects, on the one hand, and, on the other hand, their military unity in
resisting the heathen invaders from north, east, and south; economically, politically, and, above all, legally, there was hardly any unity at all.
It was this situation that changed dramatically in the late eleventh and early twelfth centuries. Supreme guardianship over ecclesiastical unity became the prerogative of the papacy, while the kingship in many parts of Europe acquired vastly increased secular power______________ including economic and political and legal power______________ vis_a_vis the smaller secularpolities. The German historian Heinrich Mitteis was right in saying that "the twelfth century had not yet arrived at an abstract conception of the [secular] state as a corporate entity or 'legal person.'" He was also right in saying that "the Investiture Contest gave rise to a broader concept of the function and competence of the state." But he was not quite right in saying that "belief in the sacred character and thaurnaturgic powers of kingship, as inherited from the pagan past and preserved by the early medieval Church, survived the Investiture Contest." 3 This statement may be correct if the twelfth century is compared with a later time_say, the fourteenth century and thereafter. It is not correct when the comparison is between the twelfth century and the centuries prior to the Investiture Contest. One need only recall the contrast between John of Salisbury's
Policraticus and the Norman Anonymous. Mitteis himself added that "it is true that twelfth_century rulers tended to adopt an increasingly secular attitude toward politics," and that the concept of a secular state was reflected in the fact that "the officers of the royal household_______________________________________________ especially in France
and England___ tended to become a close council of specialized permanent administrators." 4_It was
more than that, however. The ruler himself became a constitutional figure, a legally defined officeholder, whose imperium __ as Azo said __ was limited, at least theoretically, by his iurisdictio, his legitimate authority. The power of the king was constitutionally limited also by the subject's right of resistance to a king's wrongful commands, extending even to the right and duty to kill a king tyrant (rex tyrannus).
Of course, these constitutional rights of the subject were largely theoretical, in the sense that individual subjects were usually much too weak to assert them. Yet there were substantial practical limitations on royal power, imposed partly by practical difficulties of communication, which fostered delay, argument, and token obedience, and partly by the various communities to which the individual subjects belonged -- the feudal nobility, the townsmen, the merchants, the clergy, and also the local and regional and clan communities that continued to command the loyalty of their members. In later centuries these various communities
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eventually demanded representation in assemblies ("parliaments") that advised and sometimes opposed monarchs, and entirely apart from political representation, the various classes constituted "estates" or "orders" with which kings had always to reckon. Even where a theory of tyranny was asserted, as in the Norman Kingdom of Sicily, such practical limitations on royal power were substantial. One writer has correctly described the politics of Sicily_at the height of royal despotism in terms of a "dynamic tension between monarchy and classes of privilege that was productive of continuing renegotiation of the relationship between crown and community." 5 This description applies even more aptly to other secular territorial monarchies of that time.To summarize, in most parts of Western Christendom there emerged in the late eleventh, twelfth, and thirteenth centuries a new type of political community, the secular territorial kingdom, which had nine significant characteristics:
1. The king was no longer the supreme spiritual leader in his domain but was instead a secular (or temporal) ruler, subordinate in spiritual matters to the Church of Rome, headed by the pope.
2. The king was no longer merely first among his leading wise men and warriors and chief lord over his vassals, but instead had authority to rule directly all subjects within his territorial domain.
3. As temporal ruler of all his subjects, the king's principal tasks were to keep the peace and to do justice, which in practice meant, chiefly, to control violence and to regulate relationships arising from landholding.
4. These and other tasks the king performed through bodies of professional royal officials, including professional royal judges, and through staffs of professional royal servants, and not only by ruling (as before) through an autonomous feudal nobility whose authority derived from their own hereditary positions.
5. The king also asserted for the first time the right and duty to legislate, that is, to enact new laws more or less frequently as the need for them arose.
6. Like the ecclesiastical state headed by the Bishop of Rome, and like the city-states headed by mayors and consuls and other officials, so the royal state, with the aid of professional adjudication and legislation, developed its own body of law.
7. In political and legal theory, the power of the king was limited by constitutional restraints, including restraints upon his jurisdiction as well as upon the exercise of power within his jurisdiction, and these limitations went as far as to confer upon his subjects the theoretical right and duty to resist wrongful commands and even to use force against a king tyrant.
8. In political and legal practice, the power of the king was limited by the power of the various communities that lived within the kingdom, inВ
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cluding one class -- the clergy -- whose power transcended the territorial boundaries of the kingdom. The power of the mercantile class, too, had an international dimension.
10. Kings constituted an international professional elite. They were very often interrelated by blood, and it was somewhat unusual for a king to be married to anyone but a member of the royal family of another European kingdom. Such intermarriage within the network of royal families certainly strengthened the kings' common consciousness of what kingship meant in practice and in theory. Each watched the others, if only as potential sources of marital alliances. More than that, each derived his character as a king partly from the recognition of his legitimacy by the others. This was the first stage in the development of the modern European system of states, in which each state took its character as a state from its participation in the system of states and from the body of international law, produced by that system, which defined state sovereignty.
These general characteristics of the new type of kingship that emerged in western Europe in the late eleventh, the twelfth, and the early thirteenth centuries were manifested in many different ways in the various Western kingdoms: Sicily (including southern Italy), England, Normandy, France, the German duchies, Flanders, the northern Spanish kingdoms, Denmark, and Hungary. The list itself suggests that there were a great variety of species within the genus.