Kingdoms
Over a century before such arguments gained currency, however, the glossators routinely approached the lex regia in an exclusively Roman context.
Whatever their conclusions about the relationship between the Roman emperor and the Roman people, they were not obviously applicable to other relationships of rule and subjection such as those between a king and his subjects. To repeat: the glossators did not routinely see in the lex regia an instance of a general principle at work, but Roman law’s authoritative account of how the Roman republic had given way to the Roman empire. The Roman empire was universal. All smaller organizations such as kingdoms and city-states were accordingly within it. The prevailing conviction that the lex regia was revocable, which implied a strong endorsement of a residual popular authority over the ruler, applied to the whole but not necessarily to the parts.The one episode in Azo’s surviving jurisprudence which seems to challenge this interpretation turns out upon closer inspection to confilang=EN-US>rm it and is highly instructive in other respects. In a disputation on the handover by Philip Augustus, king of France, of his vassal Arthur of Brittany to king John of England — a legally contentious and for Arthur personally disastrous decision - Azo noted that Philip could do as he liked because ‘nowadays, any [king] appears to possess the same power in his lands as the emperor’.45 Azo’s comment is famous among historians of Roman law because it convinced Francesco Calasso that Italian jurists possessed the mental agility to accommodate their jurisprudence to national kingdoms, the real forces in modern politics, and so recognized that the Roman empire was no longer the only body worthy of juristic discussion. Azo’s quaestio thus appeared to furnish the decisive refutation of Francesco Ercole’s opposing thesis that the Italian glossators of the thirteenth century were too conservative in outlook to depart so far from the letter of Justinian’s law as to attribute the emperor’s powers to kings, and so to contribute to what Ercole insisted was an originally French notion that a king — typically and originally the king of France — was emperor in his own kingdom.46
Azo’s quaestio raises several questions.
First, as Calasso noted, the force of Azo’s formulation ‘nowadays’ is not obvious. Does it imply that at some earlier and unspecified point in history kings had not been free to do as they pleased because they were subject to the power of Rome? More importantly, Azo’s legal justification for his assertion is perplexing because it is so perfunctory. He cited D. 1.4.1, to the effect that what has pleased the prince has force of law because of the lex regia, which might be taken to imply that Azo conceived of the king’s power as the outcome of a grant or concession by his people.47 Since his comment is not restricted to the king of France, moreover, this passage might even embody the first known use by a civilian of the lex regia outside the nexus of Roman people and Roman emperor to cover all monarchies, showing that as early as the first years of the thirteenth century the glossators already conceived the origins of the relationship between kings and their subjects in much the same way as the Roman law portrayed the creation of the Roman emperor by the Roman people, with all the consequences for kings that the revocable lex regia implied for the emperor. What did Azo mean? One superficially attractive hypothesis is that if kings became kings thanks to a mechanism akin to the lex regia, then every king’s power became a revocable, delegated power in the same way and for the same reason that the emperor’s power was subject to revocation by the Roman people. If so, Azo would then owe an explanation of how such a people came by its powers, a discussion which might helpfully include an analysis of the exact relationship between that people and the Roman people. It would also be pertinent to ask why a king’s powers had to be the same as those of the emperor - would this not depend on the precise terms of the putative grant by his people?48 Yet to ask such stringently consequential questions is to succumb to the danger of forcing an isolated passage. Azo’s comment occurs in the course of a quaestio, a highly formalized genre of legal education in the early thirteenth century. A large part of the educational value of a quaestio consisted in its inclusion of arguments on both sides of the matter at issue. The objection which fatally undermines the hypothesis sketched above is that the claim is made as an argument supporting one side of this quaestio, whereas Azo favoured the opposite position. Since Azo’s solution to the quaestio does not address the opposing case point by point, there is little we can say about this cryptic comment on which so much has been written.Azo’s famous quaestio therefore represents a false start as far as glossa- torial meditation on royal power is concerned.49 Two distinct accounts emerged in thirteenth-century jurisprudence, neither of which is genetically related to Azo’s quaestio. In the course of a commentary on Institutes 4.6 (De actionibus § Praeiudiciales) the Burgundian jurist Johannes de Blanosco (Jean de Blanot), who had studied as well as taught for a while at Bologna,50 asked whether the vassals of major nobles were ipso facto vassals of the king in whose kingdom they were, or of the emperor in the case where such nobles were directly subject to him. He answered in the negative - the traditional response to this technical question in the jurisprudence devoted to lords, vassals, and fiefs was that my vassal’s vassal is not my own vassal - but went on to explain that although the vassals of such nobles were not in the king’s potestas by any right of homage, they were still bound by the king’s general jurisdiction in the kingdom.51 Just as everything pertained to the emperor as far as jurisdiction was concerned in so far as he was lord of the world, so everything in the kingdom pertained to the king in administration.52 The king therefore had imperium over everyone in his kingdom. Consequently, no baron of, say, the kingdom of France could oblige his vassals by virtue of their liege homage to him to take up arms against the king, for this would be to conspire in the death of a magistrate of the Roman people, one of several categories of treason defined by Roman law.
Indeed, it would be to conspire directly against the emperor himself because the king of France was the emperor in his own kingdom, on the grounds that he recognized no superior in temporal matters.53 Blanot’s crucial step was therefore to claim that the king of France was not a representative of the emperor but the emperor himself within the confines of the kingdom of France. Non-recognition of a superior as a means of grounding royal power was almost certainly suggested to Blanot by the canon law,54 rather than Azo’s quaestio, which did not mention non-recognition but hinted instead and in the most oblique manner possible at a sort of French lex regia. However, Blanot’s discussion contains a hint towards a Roman law explanation which goes beyond the argument from non-recognition of a superior. If called upon by the king of France to defend the kingdom against attack by the king of Germany, vassals of the Duke of Burgundy should assist the king, even if their duke demands their service in his own private war against the Duke of Lorraine. The distinction between the public good of the kingdom and the private good of a feudal lord practically seals the debate, but Blanot observed in addition that the king bore the administration of and issued orders in the name of the patria or kingdom - a turn of phrase which surely implies some priority of the kingdom over the king - which the vassals in question were bound by the law of nations to defend. His authority was D. 1.1.2, which mentioned ‘religious duties towards God, or the duty to be obedient to one’s parents and fatherland’ as obligations arising from the ius gentium.55 This discussion was further developed by Jacques de Revigny, who asked whether one’s local patria took precedence over the communal patria of Rome, the head of the world.The doctrine of non-recognition of a superior did not bring civilians any closer to a general set of reflections on the relationship between kings and their subjects; quite the opposite: it absolved lawyers from rendering a separate account of royal power in a given kingdom as the outcome of a specific transaction or negotiation between ruler and people.
In fact, it explained nothing: not the origin nor the content nor the extent of royal powers in general or specific terms. Royal power simply appeared as an outcome of not recognizing the pre-existing authority of the emperor, and thus emerged as a geographically circumscribed splinter of imperial power. The powers of a king would on this reading be those of the emperor such that Roman law would provide the template for kingship. Kenneth Pennington is certainly right to suggest that in asking whether a king was princeps, thirteenth-century jurists were trying to ascertain whether he possessed the same powers of governance as the emperor.56 However, evidence is very hard to find of Romanists who accepted that a king might be independent of the emperor without enjoying in his own kingdom the powers of the emperor.57Two frustratingly brief comments by Jean de Blanot hint at currents of thought below the surface of jurisprudence, but do not provide answers to these questions. The second juristic account of royal power was - paradoxically - rooted in Roman law at the same time as implicitly undermining its authority.58 Digest 1.1.5 (Hermogenian) stated that kingdoms were founded - regna condita - according to the law of nations (ius gentium), that part of natural law which related exclusively to human or rational nature. In the late thirteenth century, lawyers in the service of the Angevin kings of Sicily exploited this passage in order to argue that the Roman empire was illegitimate because it had been spread by violence at the expense of pre-existing kingdoms which were legitimately in existence thanks to the iusgentium.59 A free king - so said the main author of this argument, Marinus de Caramanico - could pass laws for his subjects which contradicted Roman law, ‘and no wonder because any people, of any municipality that is, or city, can make its own law... which municipal law is called the civil law, as if the specific law of that same city, as in Digest i.1.9’.
0size=2 face=Arial> Marinus did not explain how a text attributing such capacities to a people could benefit the king: his argument had the sole purpose of demonstrating that the king of Naples was not subject to the Roman emperor. What the Roman people had perpetrated on others it was now suffering itself: quod fecit, passus est.1 As the tide of history turned, kingdoms were now reasserting their long-lost liberty against the decrepit and decaying empire such that — in a legal commonplace — ‘the matter reverted to its original condition’.In a splendidly manipulative passage Marinus concludes that his counter-argument to the usual claims of Roman universality is the more persuasive as it favours liberty, for people are thus restored to liberty and their proper nature. 2 All Marinus had in mind was that peoples who had been illegitimately subjected to the Roman people now returned to their ‘liberty’ under their own kings: his turn of phrase had no implications for the relationship between king and people.63 Although his argument was in part a response to the description of iusgentium in D. i. i. 5, Marinus gave no account of how the kingdoms which had preceded the Roman empire had actually been established. Only fragmentary and partially contradictory evidence survives of what the other glossators thought about this, in the shape of their glosses to D. 1.1.5. Accursius observed that kingdoms had been founded by the single nations who elected their kings, a position which goes back at least to his teacher Azo,64 but neither explored the relationship between such kingdoms, which were established under the ius gentium, and the empire.65 Marinus also subverted Azo’s claim that the Roman people had reserved or held back some jurisdiction when it established the emperor by means of the lex regia. In Marinus’ Neapolitan re-setting of this argument, Azo’s comment is used to explain how it is that the feudal lord of the kings of Naples — the pope — could still be said to retain some right in the kingdom which he had bestowed as a fief upon his vassal, the king, even though the king had thanks to that grant full exercise ofjurisdiction.66 A language of dominium in its proprietorial aspect pervades the rest of Marinus’ commentary: the king owns the universitas of the kingdom, which is indeed a corporation but not of people: it is a corporation of goods and chattels. The king derives jurisdiction from his status as owner — jurisdiction coheres with the corporation which is the subject of the papal grant. Not even the corporate people of the twelfth-century glossators survives in Marinus’ vision of the kingdom.
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