Cities
Historical attention has focused less on the glossators’ attempts to account for the existence and powers of kingdoms than on cities. Once again, the locus classicus is by Azo.
The passage usually cited to prove that Azo endorsed the powers of cities occurs in book 3 title 13 of his Summa codicis, dedicated to the jurisdiction ofjudges and competence of courts. Explaining the concept of merum imperium, he rejected the opinion of some jurists that it pertained solely to the emperor; D. 5.1.1 strongly implied the contrary, while D. 1.18.6.8 explicitly gave it to provincial governors, so the emperor could not be the sole exponent of merum imperium. But this does not mean Azo thought cities had it: indeed, in the very next sentence he expressly denied that municipal magistrates possessed merum imperium. The emperor was still different: only he — in a formulation which is now familiar to us — could establish general equity, only he had full or the fullest jurisdiction and was the beneficiary of the lex regia (here called the lex Hortensia by Azo) by which the Roman people transferred all its imperium and potestas to him. Azo’s point here was that other magistrates categorized by Roman law as ‘sublime’ had merum imperium too. His comments certainly prompt further questions; if the Roman people had transferred all its imperium, by what route did it reach these other officers too? He might have thought that a category of higher magistrates (defined in Roman law as ‘sublime’) held the right of the sword simply by right of office — iure officii - rather than by direct imperial grant, but this is to speculate uselessly, all the more so since Azo argued elsewhere that the Romans had maintained a residuum of authority which would allow them to depose the emperor. What matters in the present context is that Azo conceded nothing to cities which jurists had not already accorded them: he allowed that every municipal magistrate could establish law in his own city. The twelfth-century theory of custom had done no less. Azo’s own resolution of the tension between the various passages we have already reviewed from the Corpus iuris civilis concerning the legislative capacity of emperor and people also turned on the distinction between the generally valid law of the emperor and local law. Cities are therefore not at the forefront of Azo’s jurisprudence at this point. His argument requires that municipal magistrates possessed jurisdiction by operation of law - the Roman law of the Roman empire. He did not explain what the relationship was between such magistrates and the people they ruled. Azo’s comments here are simply not part of any interesting story about cities; the theoretically heavy work in relation to civic or municipal powers was being done elsewhere.Marinus de Caramanico had referred in passing to a passage of the Digest which allowed the people of any municipality or city to legislate for itselfby creating its own civil law. This was D. 1.1.9, where the jurist Gaius famously declared that all peoples governed by laws and customs apply law which is partly their own and partly the law of all mankind — the latter being the law of nations or ius gentium, established by the natural reason common to all mankind. What each people legislates for itself is the law of that particular civitas and is known as its civil law. Even here, where Roman law spoke in the plural, at least one standard-setting jurist had interpreted the text in relation to the Roman people alone. A gloss to this passage in Azo’s apparatus on the Digestum vetus predictably signalled a tension with C. 1.14.12 which made the emperor the sole legislator. Perhaps this second text was a correction of the first, but to claim that one text corrected another within the Corpus iuris civilis was always a tactic of last resort, and Azo’s preferred solution was that the Digest passage referred to the period before the lex regia when the Roman people still possessed legislative capacity.67 This comes as something of a surprise after Azo’s espousal of Bassianus’ notion that the emperor was the only sole legislator whereas the people possessed that power corporately; this entire chain of thought had been intended to counter precisely the argument advanced by Irnerius and latterly by Placentinus from the lex regia, an argument which strongly resembles the gloss now under examination.
Attribution is not entirely secure, but the gloss turns up in too many manuscripts of Azo’s apparatus to be ignored. Accursius thought differently: for him, Gaius in D. 1.1.9 only attributed general validity to the ius gentium as something which nature itself established between all people, in which sense it was not inconsistent with the general legislative capacity of the emperor. But the peoples Gaius allowed to legislate for themselves did so with local effect only, whereas the emperor could legislate with general effect for the entire empire. Accursius seems to have been thinking along the lines suggested by the jurisprudence he had inherited via Azo from the twelfth century on the relationship between custom and law, which, as we have seen, distinguished between the generally valid and the locally specific. For him, the force of D. 1.1.9 lay in its differentiation of local ‘peoples’ and the universal Roman empire; the peoples concerned were clearly part of the Roman people for Accursius, not outside it.68 This interpretation of D. 1.1.9 was commonly (although not universally) accepted in the second half of the thirteenth century. Some influential jurists, such as Odofredus, certainly agreed with it.69 Others seemingly did not: Jacobus de Arena, in a tantalizingly condensed passage, got far closer to Gaius’ original intent in treating these peoples explicitly as free peoples (populi liberi) not subject to the Roman empire.70 A third solution, much closer to the first, ran as follows: if D. 1.1.9 attributed local powers of legislation to peoples and then quickly switched to the vocabulary of cities, and if the contents of the Corpus iuris civilis enjoyed legal authority thanks to Justinian, its author, then the emperor himself emerged as the source of legislative authority in the cities.71 It remained true that the emperor could withdraw that permission by a stroke of the pen.72 The length and complexity of commentaries on D. 1.1.9 by the early fourteenth century should not obscure the fact that for most lawyers by about 1300, the people was the concept of principal significance when confronting the problems of the Italian cities,73 and the explanation of the people’s capacity to create its own civil law was rooted in the doctrine that D. 1.1.9 embodied an imperial concession.Both ideas were at work in the juristic treatment of the Italian problem par excellence: exile, and the partisan diminution of civic rights. After the popolo of Florence had expelled the faction of the Burdones from its ranks by declaring them to be magnates and as such subject to a variety of legal disadvantages under the Ordinances of Justice, a set of antimagnate statutes passed by the popolo between 1293 and 1295, Ricardus Malumbra defended the legality of the measure.74 His opening point was a paraphrase of D. 1.1.9: all peoples ruled by laws and customs can make their own laws — the Florentines were a people and the law effecting the contested change in status of the Burdones was therefore valid. Whoever had the authority to legislate could grant that authority to another; in just such a way the emperor had permitted the peoples to legislate - this of course being backed up by a reference to D. 1.1.9 - so that the Florentine people was within its rights to delegate its authority to the representatives responsible for the recent alteration to statute. It remained the author of the statute passed by its representatives, just as Justinian remained the author of the Corpus iuris civilis, the compilation of which he had delegated to Tribonian and others.75 Ricardus’ consultation extracted the last consequence from the fact that the Florentines constituted a people empowered by D. 1.1.9. His opponent, Cino da Pistoia,76 based his case on the formal insufficiencies in the technical terms of the delegation by the popolo to the Priors and the inadequacies in drafting of the resulting statute.77 He could not well deny the popolo’s primary right to legislate since he was urging that thanks to such errors of footwork by the popolo and the Priors, the Ordinances of Justice should be upheld in their original rather than amended form.78 Ricardus of course had to neutralize such objections but still founded a good part of his case on the mutability of civil law.
Digest 1.3.32 derived law’s power to bind from the people’s will; if its will changed, a people could not be bound by the laws it had once promulgated; nor could the princeps be so bound: as D. 1.4.1 famously put it, he was legibus solutus - released from the laws.79 This episode is so significant for two reasons. It demonstrates how robust the concept of the locallegislator people was even when, as Cino pointed out in the introduction to his consultation, the very word populus no longer preserved in common usage its strict legal meaning of the totality of the population such as to embrace magnates and commoners, but nowadays meant by the custom of almost all Italy only the commoners - that is, the popolo. Florence acted, when it acted, as the Commune and People of Florence, just as Rome had acted as the Senate and People of Rome. Secondy, Ricardus applies the lex regia as a normative model to determine disputed points of law at the local level of a city. The Roman people had not excepted any pre-existing legislation from its grant of imperium and potestas to the new emperor; accordingly, the grant of baylia by the Florentine popolo to the reformers of the statutes should be interpreted expansively so as to include, and not except, the Ordinances ofJustice.It is clear, then, that cities understood as peoples were uncontrover- sially the beneficiaries of D. 1.1.9, which in turn was construed as an imperial concession of the authority to legislate. Under these postulates, a city could make and alter its laws, delegate its legislative power to committees responsible for drafting fresh legislation, and could not be bound by its own laws any more than Justinian himself. But such capacities really were only explicable under the postulate of imperial concession by means of D. 1.1.9: the logic came under pressure when for political reasons cities could not or would not readily accept the emperor as their superior. The jurist who addressed this problem in all its intractable modernity was Bartolus of Sassoferrato.
As we have seen, Bartolus shared the prevalent hierocracy of his colleagues and could not therefore avail himself of the Neapolitan argument by denying the legitimacy of the empire in the first place. He was also too honest to call the exercise of governmental power by cities in defiance of the empire by any other name than usurpation.82 At least one jurist of the previous generation had argued that merum imperium was subject to prescription by certain people,83 so it was not merely out of pedagogic thoroughness that Bartolus as a teacher had to devote column after column to the arguments pro and contra. Although Bartolus was prepared to discuss prescription as the potential source of a city’s merum imperium, his deployment of the vocabulary of usurpation implicitly bars recourse to this mechanism. His final resolution of the problem was traditional in all its components but revolutionary in its ensemble. It was straightforward to build on the principle of nonrecognition of a superior, which was by his time a crux in the juristic analysis of royal power. Cities which recognized no superior in temporal matters should be acknowledged as their own superiors - each would be emperor unto itself or civitas sibi princeps.84 A second traditional quantity in the equation was Bartolus’ insistence that usurping cities which had possessed merum imperium since time out of mind should be accorded the de facto right to do so. Juristic discussion of the kingdom of France in particular had exploited the vocabulary of de facto exercise of merum imperium, prompted no doubt by an originally canonistic stimulus.85 Bartolus’ masterstroke was to escape the legally rigorous juxtaposition which had characterized such debates in the thirteenth century - between the de iure as legitimate and the de facto as implicitly illegitimate - by according legitimacy to de facto claims to rule. Some such juristic periphrasis was a theoretical necessity: Bartolus’ formulation preserved the empire whole and intact in the shape Christ had approved, for the emperor was still de iure lord over all; de facto exercise of power by others did not impinge upon his universal dominion. The notion had immense practical traction too. In situations, common enough in central and northern Italy, where neither contending party could cite irrefragable imperial or papal concession, competing claims could be adjudicated by reference to comparative not absolute strength of title. But the second revolutionary aspect of Bartolus’ theory concerned the city itself. A city which recognized no superior became a free city, a term convertible - thanks in part to that same slide in vocabulary by Gaius from populus to civitas at D. 1.1.9 - with the expression ‘free people’. The city or people became its own superior not merely via a felicitous and memorable stroke of Bartolus’ pen: rather, it emerged as an abstraction capable of explaining and maintaining effective governance. Bartolus himself mentions two powerful examples. In such a city, who shall be the judge of appeals made from the court of the rector appointed by the city? The answer is the people itself, or the particular ordo in the city which appointed the rector, because the people or this particular echelon of it is alone superior to the people itself.86 Again: an attempt to snatch power by a clique or would-be signore in a city which is itself already a usurper of the emperor’s merum imperium could now be condemned as an offence against a public person, because it is an attempt to wrest the res publica from the res publica itself.87 Language is under stress, but the point is nevertheless clear. Of course not every corporate organization could qualify as a people in the required sense. Bartolus prohibited corporations or universitates which were too small from effectively setting up on their own as autonomous governing and governed entities, and thus provided an empirical if not especially impressive juristic defence of the local lordships of free cities over smaller communities; freedom as an outcome of non-recognition was only intended to serve certain, large interests in Bartolus’ jurisprudence.886.