THE GROWTH OF ROYAL LAW IN NORMAN ITALY

In the century and a half, roughly, from the accession of King Roger II in 1112 to the death of his grandson Frederick in 1250, the rulers of southern Italy remained among the most powerful, the wealthiest, and culturally the most sophisticated of the secular rulers of western Europe.

Moreover, the law by which the autocrat ruled was believed to have the function of maintaining not only order but also justice; and further, it was conceived as a continually developing system, one that grew over time. Roger's successors built on the foundations that he had laid, periodically issuing new laws to meet new circumstances, while maintaining the basic principles of the system as a whole.

Frederick, who inherited the throne of Sicily in 1197 at the age of three and began to rule in 1208 at the age of fourteen, completed the process of centralization and bureaucratization of state authority that his maternal grandfather, Roger, had begun. (His paternal grandfather was Emperor Frederick Barbarossa and his father was Emperor Henry VI; he himself was crowned Emperor Frederick II in 1220.) Among Frederick II's reforms was the confiscation of all the castles of his southern Italian kingdom, both on the island of Sicily and on the mainland, and their transformation from private fortresses and residences into government forts operated by a department of defense and occupied by small garrisons. ²⁵ He converted all the government officials into a royal civil service, and paid their salaries as well as other costs of royal government out of customs duties, taxes, and royal

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Frederick II was called by his European contemporaries immutator mundi ("transformer of the world") and stupor mundi ("wonder of the world"). He was indeed a man of extraordinary dynamism and stupendous abilities, probably one of the most talented persons who ever lived. In addition to being an outstanding military leader, statesman, and lawgiver, he was a skilled scientist, especially in the fields of mathematics, anatomy, and zoology; he was also a speculative thinker, an architect, a poet who wrote love songs in vernacular Italian two generations before Dante, and the author of what is said to be the most authoritative book on falconry ever written, The Art of Falconry. He spoke not only Italian but also French, German, Arabic, Latin, and Greek. These civilized qualities were combined, however, with an utter ruthlessness and barbarism which he practiced not only against his enemies but also against innocent people, sometimes only for the sake of satisfying his scientific curiosity. Frederick's ruthlessness was manifested also in his lust for power and his belief in his own destiny to be the absolute ruler of Christendom.

To one degree or another, many of these conflicting qualities are reflected in his codification of the law of the Kingdom of Sicily, promulgated in 1231, which he called the Augustan Laws (leges augustales, or constitutiones augustales). In modern times it has usually been called the Liber Augustalis (Augustan Book) and sometimes the Constitutions of Melfi.

The Liber Augustalis is a far more comprehensive and systematic codification than the Assizes of Ariano. It contains 253 articles (called "titles") and runs to some 150 pages in a modern printed translation. ²⁶ It is divided into a preamble and three "books," of which the first is devoted primarily to questions of public order, including substantive criminal law, administration of justice, and pretrial civil procedure, the second primarily to civil and criminal procedure, and the third primarily to substantive civil law, including royal and feudal property law, and to miscellaneous offenses.

The Western concept of law as an organically developing system is reflected in the fact that the Liber Augustalis included sixty-two articles expressly attributed to Frederick's chief predecessors on the Sicilian throne -- Roger II, William I, and William II. Moreover, it was later supplemented by new enactments of Frederick II, which were added under the heading "Novels."

An example of the way in which the Liber Augustalis built on the foun-

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dation of earlier legislation is found in two of its provisions concerning the legal status of women. The first is a law attributed to King Roger, which states: "We settle the equity of the laws for women who have been injured because of the weakness of their sex by ordering that they should be aided by us as well as by our officials to the best of their ability as is decent and necessary" (bk. 2, title 41). This i s followed by a much longer law of Emperor Frederick, which starts with the words, "In order to clarify the obscurity of the law that the divine King Roger, our grandfather, promulgated about the restitution of legal status for women, we order..." The new law then distinguishes between injury to women through the negligence or fraud of their guardians or attorneys and losses suffered by women w ho were adequately represented and which were not due to their weakness as women. It also lists specific types of cases in which women should be protected against the consequences of illegal acts committe d by them "through ignorance of the law" or "through ignorance on account of the weakness of their sex" (bk. 1, title 44).

Another example of continuity and development is the reproduction of a very brief law of King Roger forbidding nobles, both secular and ecclesiastical, to alienate or diminish royal property or royal rights (bk.

A third example of the growth of law reflected in the Liber Augustalis has to do with the licensing of physicians. A law of King Roger provided that no one might become a physician without examination by royal officials and judges, "so that subjects in our kingdom may not be experimented on by inexperienced physicians" (bk. 3, title 44). To this Frederick added the requirement that the prospective physician be "approved in a convened public examination by the Masters of [the University of] Salerno," and, in addition, that he present certificates of trustworthiness and sufficient knowledge both from the masters and from persons appointed by the king, and that he obtain a "license for healing" from the king or, in his absence, from the person ruling in the king's place. The penalty for violation of this law was confiscation of goods and a year in jail.

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In addition to reflecting the Western concept of law as a growing body, a developing system, of principles, rules, procedures, and institutions, the Liber Augustalis also reflected the Western concept of law as a complex unity based on synthesis and reconciliation of opposing elements.

the laws which it contains were "compiled by Master Petrus della Vigna of Capua, judge of our great court," who is known to have studied at Bologna and to have been a protege of Archbishop Jacopo of Capua, himself a teacher at Bologna. Many of the legal terms and legal doctrines are derived from the Justinian texts as glossed and commented on by contemporary legal scholarship. "Still it would be a serious mistake"______ as James M. Powell has said__________ "to regard the Liber Augustalis as merely an

adaptation of Justinianic law. As a matter of fact, the manner of compilation suggests that this was not the case at all. The approach was one of seeking the law from the viri antiquores of the kingdom as well as from the practices of the court. As the constitutions make clear, it was the task of the compilers to find the common law of the kingdom and to transform it into a royal law.""But," Powell adds, "if no such law existed for the whole kingdom, and it did not, then the task was to create o ne." 28

The text itself uses the phrase "common law" to refer to both Roman law and Lombard law. In addition, as Powell emphasizes, the traditions of Norman law and of the canon law provided sources on which the compiler of the Liber Augustalis drew. Above all, however, he was "moved by the spirit of scholasticism that informed the intellectual life of the age to resolve differences within the existing legal tradition of the regno and to distill his legal knowledge and that of his associates, probably practical men of the courts, into a unified body of law... the active force in shaping the corpus sprang from the practical political needs and the internal social conflict faced by the Sicilian monarchy." 29_

A major political need of the Sicilian monarchy was to give legal expression to the vast increase in royal power that had taken place by 1231.

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to the emperor. Frederick not only defied the temporal power of the papacy but fought it with force of arms. In 1228 he launched his own crusade, against papal orders, and after capturing Jerusalem he returned to defeat a papal army that had invaded his southern Italian kingdom in his absence. He also fought the papal authority in the northern Italian cities over which he was emperor. In 1245 Pope Innocent IV formally declared him to be "rejected by God," deposed from imperial authority, and outlawed.

Nevertheless, despite the assertion of absolute royal authority, Frederick's legislation recognized the continued autonomy of feudal law and ecclesiastical law, though not of urban law.

With regard to feudal law, the Liber Augustalis provided: "So that due honor may be completely preserved for... counts, barons, and other knightly men, we reserve their judgments to their peers." Counts and barons were to judge "according to our sacred decrees or in their lack according to the approved customs of the kingdom" (bk. 1, title 47). Higher penalties were imposed for offenses against nobles by nonnobles, and greater weight was given to the oath of a noble in suits for debt (bk. 1, title 101.) In addition, dower rights of wives were protected against superiors in the feudal hierarchy (bk. 3, title 16). Aids could be exacted from vassals for the ransom of their lord, for the knighting of their lord's sons, at the marriage of his daughters and sisters, and also when he bought land for service to the king or for his army (bk. 3, title 20). A lord was authorized to disseise a vassal who was unwilling to give a pledge for him or make account for him in legal proceedings, or who committed a felony against him, his children, or his wife; and "in the contrary case, if a lord is not willing to give a pledge for his vassal who has been accused in a criminal matter in court that does not concern the royal majesty, or if he beats him without cause, or if he commits adultery with his wife, or if he violates his daughter against her will, the lord will lose his homage and the aforesaid man will belong directly to our court" (bk. 3, title 19).

With regard to the church, the Liber Augustalis retained the law enacted by King William 11 providing for a broad benefit of clergy. It provided that "if any cleric of our entire kingdom should be charged for something done openly for which a person ought to be tried and condemned, he should be judged not by us or by our court, but by the church and in the court of the church... Also, he should be condemned according to the canons and the ecclesiastical law, unless someone has charged him with treason or another major crime of this kind that belongs... in our court" (bk. 1, title 45). Civil suits against clerics involving church land held by them were likewise triable only in ecclesiastical courts; however, suits against clerics involving land not

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held of the church were to be tried in the court of him of whom the land was held (bk. 1, title 68).

Another law of King William II concerning the clergy that was retained in the Liber Augustalis provided that only those villeins were forbidden to become clerics who were in personal servitude, but that "if any who owe service by reason of a holding or a benefice desire to become clerics, they may do so even without the permission of their lords, after they have resigned what they hold from the lords into their hands" (bk. 3, title 3).

Urban law is referred to in the Liber Augustalis in only a few places, and then chiefly in negative terms. Towns (communes) that create podestas, consuls, or other officials, by authority of some custom or by election of the people, shall "suffer perpetual desolation, and all the men of that city should be held as perpetual forced laborers... [and] anyone who has received any of the aforesaid offices should be punished by death" (bk. 1, title 50). Also privileges previously granted to Messina, Naples, Aversa, Salerno, and other cities, and customs observed in such places, by which city residents were permitted to avoid the jurisdiction of the central or regional royal courts, were declared invalid and void (bk. 1, title 106). In addition, any commune that was sued had to respond or be punishable by fine for contumacy (bk. 1, title 107).

In prohibiting the establishment of autonomous municipal government, the Liber Augustalis stated: "We desire that everywhere through the kingdom there should be only those officials established by our majesty or by our command: master, justiciars, justiciars, chamberlains, bailiffs, and judges" (bk. 1, title 50). Of this list, all were judges except for the chamberlain, but he also, though he was primarily a financial officer, had some judicial duties. In fact, the establishment of a central royal government was closely connected in Norman Sicily, as elsewhere in Europe in the twelfth and thirteenth centuries, with the expansion of' the judicial office as well as with the rationalization of the central financial machinery. Here Frederick was building on what Roger had begun and what intervening rulers had continued.

Book 1 of the Liber Augustalis, which is concerned primarily with public order, starts (title 1) with a denunciation of heresy, which it classifies as a "public crime" comparable to treason. For some reason treason is not the subject of a special article; it is only referred to as being even "more horrible [than heresy] because it is recognized that someone has attempted injury to the divine majesty." The comparison is carried further in title 4, which makes it a crime "comparable to sacrilege" to "dispute about the... decisions, deeds, constitutions, [and] plans [of the king], and whether he whom the king has chosen is worthy." (This was a law of King Roger, carried over by his successors.)

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The other crimes dealt with in book 1 are crimes of violence and crimes against or by royal officials. There is a strong emphasis upon recourse to courts on the part of victims, instead of self_help. A right of self_defense is granted, but it must be exercised immediately and the defense must be proportionate to the attack. Also, one may kill a nocturnal intruder provided at the same time one raises a "clamor" against him. Otherwise the right of self_defense, "granted by the law of nations," is to be exercised by prosecution in court, either by the victim or by public authority.It is forbidden to carry sharp weapons (of which a list is given) or to wear a coat of mail, except that officials may carry such weapons to and from the king's court and knights and townsmen may carry swords when they ride on business outside the locality where they live. Striking a person with a prohibited weapon is punished by loss of a hand. Murder is punished by death by the sword when the murderer is a knight or higher, and by hanging when the murderer is of lower status than a knight. Infancy and insanity are defenses. Violent disseisin of land and other immovables incurs a fine of one_half the value of the property; of movables, four times their value. The disseised person has an action against the innocent transferee of the property.Persons who have suffered losses by stealth or fraud or force are entitled to restitution of their losses; if the perpetrators cannot be found, "or if, as so often happens, they are hidden by the inhabitants of the area," restitution is to be made by "men of the same area where the crime was committed." This law was intended partly to protect Jews and Saracens, "against whom we believe that the persecution of the Christians is too great at present." Torture, it is said, may be used as an exceptional measure to extract information concerning the concealment of the perpetrators of such crimes (bk. 1, title 27). (This is the only place in the Liber Augustalis where torture is mentioned.)Embezzlement of public monies by royal officials or judges is made punishable by death; neglect, loss, or diminution of public goods by an official is punishable b y lesser penalties "at the discretion of the royal clemency" (bk. 1, title 36, law of King Roger).The following important features of the Sicilian system of administration of justice were reflected in B ook 1 of the Liber Augustalis.

1. Justiciars were given jurisdiction over robberies, grand theft, destruction of houses, intentional insults, arson, the cutting down of fruit trees and vines, attacks on women, duels, crimes of treason, sharp weapons, "and generally all crimes for which the person convicted might suffer the penalty of death or mutilation." They also had jurisdiction of civil cases where there was a denial of justice by chamberlains and bailiffs or by feudal lords. However, certain of the most important of these criminal and civil cases were reserved to the court of the king himself (title 44). -430-

Judges were to receive a salary from the court of the king and were to take nothing at all from litigants during the proceedings "save once for food and drink for themselves or for another." However, after decision or settlement of the case the judges were to receive one-thirtieth of the amount involved in the case or of the estimated value of the property involved, from both the litigants. There were also circumstances under which instead of one-thirtieth, or in addition to one- thirtieth, they were to receive one one-hundredth or one-sixtieth (title 73).

Only persons examined by judges of the king's court and approved by the king were permitted to plead as advocates in that court. Also, advocates were required to be examined and approved by regional justiciars (title 83).

Justiciars were required to swear an oath "that, with God and justice before their eyes, they will do justice without fraud to every plaintiff and will have care to expedite litigants as quickly as possible" (title 46). Chamberlains and bailiffs were required to swear much more detailed oaths (title 62).

Lawyers (advocati) in all courts were required, before being admitted and every year thereafter, to swear the following oath to their office, before the justiciars: "They will have care to aid the parties whose defense they accept with all trust and truth and without any subterfuge. They will not instruct them about the facts of the case. They will make no allegations counter to their true knowledge, and they will not take irremediable cases. If they do perhaps take cases that are distorted by the lies of one party, which at the beginning appear to them just and in the course of the judgment or of fact or law appear to them unjust, they will cease their defense immediately... They will also swear not to seek an increase in fees during the course of the judgment and not to enter into agreements concerning the party in the litigation." Any violation of this oath was punishable by a fine of "three pounds of the purest gold" (title 84).

Book 1 concludes with a series of provisions on commencement of court proceedings, especially in civil cases. Every trial, civil or criminal, was to begin with a writ, called a letter of summons, issued to the defendant or the accused by the justiciar or bailiff. "These letters should contain clearly before whom and by whom and for what matter, as well as the kind of litigation being brought, and the period should be expressed in which the person summoned should appear in court in person if it is a criminal action, or in person or through a representative if a civil complaint has been brought. There should be one... peremptory summons and the. limit of thirty days at most... If the person cited is living outside the kingdom, the summons should contain a period of sixty days" (title 97). If the whereabouts of the defendant were unknown or he would not allow access to himself, the summons could be served at

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the house where his wife or close relatives resided. "But if the house is not opened for the one desiring to serve the summons, we order that the summons should be placed at the threshold of the house in the presence of [a public person or two or three] witnesses" (title 98). Then follow several provisions on penalties for contumacy and contempt of established time limits.

The problems that were faced in the provisions on commencement of proceedings were among the most critical for new systems of royal justice in the twelfth and thirteenth centuries: how to bring a reluctant person into court, how to give him adequate notice of the charges made against him, how much leeway to allow two parties who were seeking to avail themselves of the official process of adjudication. What is particularly striking about the solutions provided by the Liber Augustalls of 1231 is their modernity. Frederick went far beyond what was achieved in other countries of Europe in his age. For example, in relation to peremptory summons, in England it took centuries to solve the problem of excuses ("essoins") for not responding to a civil action. In relation to a letter of summons stating "for what matter" the "kind of litigation" was brought, in England and America it took until the nineteenth and twentieth centuries to overcome the burden of stereotyped "forms of action." In relation to service of process by delivery at the threshold of the residence, one is reminded of the artful process server of a contemporary megalopolis who skillfully tosses the summons so that it lands at the feet of the unwilling defendant who may be ensconced behind some barrier.

Interrogation of witnesses and examination of written and other evidence constituted the sole mode of proof in civil cases; trial by combat and by ordeal were abolished for such cases. The novelty of the interrogatory, or inquisitional, mode of trial apparently raised some problems, for a special provision was introduced to discourage persons "who often disturb the proceedings of trials by their tumultuous cries.""We order that in the future litigants and any others present at trials should observe the peace of justice with reverence for the magistrate who is declaring the laws. They should not dare to assert their rights or to ask for something before they obtain permission from the one in charge of the trial... If a co-advocate or the principal party remembers some point of law or fact while the advocate is speaking, he should take pains to whisper what he is asserting in his ear... But if anyone who has been warned three times over a period of time by the bailiff or the judge and he will not be silent ... he should pay one augustalis to our court if he is a peasant. If he is a townsman, he should pay two. If he is a knight, four; a baron, eight; a count, sixteen. All our officials should know that if they dismiss this penalty out of favor for someone, we will, without

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doubt, except it in full from their own goods." "Respect for justice requires silence" (title 32).

As Book 1 ends with contumacy in civil cases, so Book 2 starts with contumacy in criminal cases. It goes on to the process of indictment, which was apparently by inquiry on the part of the master justiciar of the king's great court or the justiciars of the regional courts; such inquiry was made when persons were accused or suspected. It was facilitated by preservation in the archives of the king's court of the names of those who had been banned or exiled or were otherwise notorious, and of their sons (title 5). Deception or fraud in legal transactions, called calumny, was a punishable offense; "judges... should... condemn accusers or denouncers whom they catch in open calumny to the same penalty as the nature of the crime of their opponent required should be imposed on the accused if they had proved their accusation" (title 14).

Once issue was joined in a civil or criminal case, the plaintiff or accuser "should either offer in person or through his advocate or should propose in writing on the same day or at most on the following day everything that proves or supports his evidence... The defendant... should at the same time... propose all de facto competent defenses in person or... in writing... or through his advocate" (title 24). The litigants were then to be interrogated by the judge, who could, in his discretion, require a person who was being interrogated "to take on the sacred obligation of the oath, depending either on the rank of the person or the nature of the case or whether he has a suspicion that someone is lying" (title 31).

Trial by ordeal was entirely abolished (title 31). Trial by combat was abolished except for a very few cases (title 32), notably traitors, murderers by stealth, and poisoners (title 33). The number of witnesses required to prove a criminal accusation against a count depended on their class -- two counts, four barons, eight knights, sixteen townsmen; against a baron -- two barons, four knights, eight townsmen; and so on (title 33).

Book 2 ends with a provision entitled, "How evidence should be produced in appeals." The first words are, "We desire to make an end to the disagreements of lawyers." The gist of the provision is that evidence may not be introduced on appeal unless it is new evidence that the appellant was unable to present on trial.

Book 3 is concerned at the outset with the relation between royal property and feudal property. Needless to say, the royal restrictions on feudal property were substantial. Frederick forbade any count, baron, or knight, or any other who held a barony or fief as a chief tenant of the crown, to marry without royal permission, or to marry off any female or any son with movable or immovable property, "notwithstanding the contrary custom which is said to have been observed in some parts of the

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kingdom" (title 23). He also decreed that "when a count or baron has gone the way of all flesh, their sons or grandsons may not dare to receive oaths from the men [that is, from the decedent's vassals] unless they have first, as is the custom, obtained the license and mandate of our excellency for receiving these oaths"________________ under penalty of confiscation of the countship or barony and fief with all

remaining movables and immovables (title 24).The last fifty or so provisions of Book 3 of the Liber Augustalis deal with a variety of matters, many of which are of great interest.

1. To preserve the healthfulness of the air, it was provided that no one should be permitted to soak flax or hemp in water within a mile of any city or near a castle, that burials of the dead which were not contained in urns should be at a certain depth, that cadavers and filth should be thrown a quarter of a mile out of the district or into the sea or river (title 48).

2. Artisans were required to produce products fit for the use to which they were to be put, butchers and fishmongers were prohibited from selling adulterated meat or fish, tavern keepers and wine sellers were forbidden to sell watered wine as pure, and no one was permitted to work gold or silver that contained less than a certain amount of pure gold or pure silver per pound. In addition, a procedure for exposing such frauds was established, and graduated penalties for repeated offenses were set up, starting with a fine for the first offense (or a beating if the artisan or merchant was too poor to pay), loss of a hand for the second, and "death on the forks" for the third, with the same penalties for officials who because of influence or bribery failed to expose the frauds (title 49).

3. A uniform system of weights and measures was established for merchants throughout the kingdom (titles 50, 51).

4. Penalties against merchants selling corrupt and forbidden merchandise or selling at false measures and weights were doubled when foreigners were deceived by them (title 52).

5. Persons who dispensed love potions or harmful foods or who made illicit exorcisms were punishable by death, if people died or lost their minds as a result; but if the recipients were not harmed, the perpetrators were nevertheless punished by confiscation of goods and confinement in jail for a year. Frederick added: "Although it may seem frivolous to those knowing the truth and the nature of things... that the minds of men should be influenced by food or drink to loves or hates unless the guilty suspicion of the recipient induces these feelings, nevertheless we are not willing to leave unpunished the rash presumption by which they have at least desired to injure another, even if they cannot" (title 73).