The King's two bodies A Study in Mediaeval Political Theology

THE KING'S TWO BODIES A Study in Mediaeval Political Theology BY

ERNST H. KANTOROWICZ

PRINCETON, NEW JERSEY PRINCETÓN UNIVERSITY PRESS 1957

X40',5 Copyright © 1957, by Princeton University Press London: Oxford University Press ALL RIGHTS RESERVED L.C. Card No. 57-5448

Printed in the United States of America by Princeton University Press at Princeton, N.J.

PREFACE AT the beginning of this book stands a conversation held twelvc years ago with my friend MAX RADIN (then John H. Boalt Professor of Law, at Berkeley) in his tiny office in Boalt Hall, brimful floor to ceiling and door to window of books, papers, folders, notes-and life. To bait him with a question and get him off to an always stimulating and amusing talk was not a labor of Hercules. One day 1 found in my mail an offprint from a liturgical periodical published by a Benedictine Abbey in the United States, which bore the publisher's imprint: The Order of St. Benedict, Inc. To a scholar coming from the European Continent and not trained in the refinements of Anglo-American legal thinking, nothing could have been more baffling than to find the abbreviation Inc., customary with business and other corporations, attached to the venerable community founded by St. Benedict on the rock of Montecassino in the very year in which Justinian abolished the Platonic Academy in Athens. Upon my inquiry, Max Radin informed me that indeed the monastic congregations were incorporated in this country, that the same was true with the dioceses of the Roman Church, and that, for example, the Archbishop of San Francisco could figure, in the language of the Law, as a "Corporation sole"-a topic which turned our conversation at once to Maitland's famous studies on tirar subject, to the abstract "Crown" as a corporation, to the curious legal fiction of the "King's Two Bodies" as developed in Elizabethan England, to Shakespeare's Richard II, and to certain mediaeval antecedents of the "abstract King." In other words, we had a good conversation, the kind of talk you would always yearn for and to which Max Radin was an ideal partner. When shortly thereafter I was asked to contribute to a volume of essays in honor of Max Radin en his retirement, 1 could do no better than submit an essay on the "King's Two Bodies" (parts of Chapters I-III, and a section of Chapter IV), a paper of which he himself was, so to speak, a co-author or at least the illegitimate father. The Festschrift unfortunately never materialized. The contributions were returned to their authors, and though displeased by the fact that a well-deserved recognition was withheld from my friend, 1 was nevertheless not unhappy to see my manuscript back because in the meantime 1 had enlarged both my views Si

PREFACE PREFACE

and my material on Che subject. 1 decided to publish my paper separately and dedicare it to Max Radin (then a temporary mcmber of the Institute for Advanced Study, in Princeton) en his 7oth birthday, in the Spring of 1950. Personal affairs such as the exasperating struggle against the Regents of Che University of California as well as other duties prevented me from laying my gift finto the hands of my friend. Max Radin died on June 22, 1950, and Che study, destined to elicit his criticisms, his comments, and his broad laughter, serves now to honor his memory.

In its present, final form, this study has considerably outgrown the original plan, which was merely to point out a number of mediaeval antecedents or parallels to the legal tener of Che King's Two Bodies. It has gradually turned, as the subtitle suggests, into a ' Study in Mediaeval Political Theology," which had not at all been Che original intention. Such as it now stands, Chis study may he taken among other things as an attempt to understand and, if possible, demonstrate ltow, by what means and methods, certain axioms of a political theology which mutatis mutandis was to remain valid until the twentieth century, began to be developed during Che later Middle Ages. It would go much roo far, however, to assume that clic author felt tempted to investigare Che emergence of some of Che idols of modern political religions merely en account of Che horrifying experience of our own time in cvhich whole nations, Che largest and the smallest, fell prey to the weirdest dogmas and in which political theologisms became genuine obsessions defying in many cases Che rudiments of human and political reason. Admittedly, the author was not unaware of Che later aberrations; in fact, he became Che more conscious of certain ideological gossamers Che more he expanded and deepened his knowledge of Che early development. It seems necessary, however, to stress the fact that considerations of that kind belonged to afterthoughts, resulting from Che present investigation and not causing it or determining its course. The fascination emanating as usual from Che historical material itself prevailed over any desire of practical or moral application and, needless to say, preceded any afterthought. This study deals with certain cyphers of Che sovereign state and its perpetuity (Crown, Dignity, Patria, and others) exclusively from

Che point of view of presenting political creeds such as they were understood in their inicial stage and at a time when they served as a vehicle for putting Che early modern commonwealths on their own feet. Since in chis study a single strand of a very complicated texture has been isolated, the author cannot claim to have demonstrated in any completeness Che problem of what has been called "The Myth of Che State" (Ernst Cassirer). The study may be none the less a contribution to Chis greater problem although it is restricted to one leading idea, Che fiction of Che King's Two Bodies, its transfortpations, implications, and radiations. By thus restricting his subject, Che author hopes to have avoided, at least to some extent, certain dangers customary with some all-too-sweeping and ambitious studies in Che history of ideas: loss of control over topics, material, and facas; vagueness of language and argument; unsubstantiated generalizations; and lack of tension resulting from tedious repetitions. The tener of Che King's Two Bodies and its history served in Chis case as a unifying principie casing Che assemblage and selection of facts as well as their synthesis. The origin of Chis study will explain how it happened that the author swerved again (as in his study en Che Laudes) from Che normal tracks of Che mediaeval historian and broke through Che fences, Chis time, of mediaeval Law, for which he was not prepared by his training. For Chis trespass he owes apologies to Che professional jurist who, undoubtedly, will find many a flaw in Chis presentation, although Che author himself is aware of some of Che more likely shortcomings: overlaboring of texts en Che one hand, missing of salient points en the other. But those are Che hazards to which Che outsider will usually expose himself; he will have to pay the fine for intruding into Che enclosure of a sister-discipline. The incompleteness of sources is still another point in need of apology. Every student laboring in Che vineyard of mediaeval Láw will be painfully aware of Che difficulty of laying hands en even Che most important authors whose works, so far as they are published at all (there is, for example, no edition of Che most influential canonist of che late twelfth century, Huguccio of Pisa), are available only in Che both rare and antiquated sixteenth-century prints. Consultations of Che Law Libraries at Berkeley, Columbia, and Harvard; Che understanding kindness of Che head of Che Law

val ix

PREFA CE

PR EFACE

Collectiono f the Librar yo t Congress , Dr. V. Csovski; the suppl¡e.s of Princeton ' s Firestone Library, now enricl ied bv the eollection of C. H. Mclhvain : finally parchases made for thc author by the Library of the Institute for advanced Study and by the author himself gradually filleclsome of tu e most irritating gaps. Tire value of assistance through Interlib ary Loan, nortnally inestimable. was. however, considcrably reduced in tbe case of a studv which demanded a constant cltecking and re-checking and comparing of a large source-material, as the problems continually recurred. How much has been missed, how many texts become accessible too late to be used for the present task , will be known to none better than to the author himself. The reader will notice very quickly which authors were permanently available and which ones only oecasionally or not at all; whereas the fact that the same works are quoted not uniformly according to the same editions tells yet another story . Fortunately, however, a study intending, as this one does, to make problems visible rather than to solve them, would not have aimed at completenes s in any event . The same is true, though for different reasons, with regard to secondary literature which , on the wliole , will be quoted only when and where the author felt an immediate indebtedness , a procedure which does not rule out the possibility that relevant , and perhaps very valuable, studies may have been overlooked or come to the author's attention too late to be evaluated here. That the author has quoted his own studies and articles perhaps too frequently does not imply indebtedness to himself, but laziness : he felt disinclined , except in a few cases , to repeat what he had done before. The documentation has been kept rather full and may at times seem excessive. Since, however, much el the legal material will not be accessible in more tiran perhaps half a dozen libraries in Chis country, it seemed advisable in view of the necds el students in the history of political ideas to reproduce test passages lavishly rather than sparingly . Moreover , the material on tangential problems which could not be discussed in the text without encroaching upon its intelligibility and stifling tire main argument , was thrown into a footnote where eventually it may become useful to othersalthough admittedly the temptation el expanding on side-issnes was not always easy (and sometimes indeed too á eat) to resist. It may therefore happen that the reader will find more material

appealing to his taste and bis interests buried in the footnotes tiran resu.scitated in the text. It remained, however, the author's prime ambition to produce a fairly readable text, to chart a more or less clearly marked way through rarely explored thickets, and ro keep the reader's attention, if possible, awake instead el abandoning hiur to some jungle teeming with scholarly nene [lies. Wirether he succeeded or not, will he up to tlte reader to decide. Only hesitatingly and rarely did the author find it necessary to draw conclusions or indicate how the various topics discussed in these pages should be geared with each other; but the reader will find it easy enough to draw his own conclusions and himself combine the cogwheels, an operation facilitated by very numerous cross-referentes and a full index.* At any rate, the present study will have served its purpose el calling attention to certain problems if the reader detects many more examples or places relevant to the King's Two Bodies and many more interrelations with other problems than the author intimated. It may he regretted also that the dualities present in ecclesiastical offices have not been discussed coherently in a special chapter. While this would have been a subject in its own right, the author never lost sight of the ecclesiastical aspects and believes that in an indirect fashion the ecclesiastical side of the problem has not been neglected. A book that has been in the making over a long period of time naturally owes much to others. The author gladly confesses his indebtedness for various informations and courtesies to friends, colleagues, and other helpers whose contributions are gratefully acknowledged in the notes and in the List of Plates. His thanks, however, should go in the first place to his younger friends who, formerly his students at Berkeley, succeeded each other as the author's Assistants at the Institute for Advanced Study. Each, in his way, not only helped to put the manuscript finto shape and get it ready for the press, but also contributed by counsel, criticism, and advice, and by lively interest which in turn kindled the fiagging interest el the author. For these and other services che author is obliged to Professor Michael Cherniavsky, Mr. Robert L. Benson, Dr. Ralph E. Giesey, and Mrs. Margaret Bentley $evc`enko, whereas to Dr. William M. Bowsky goes a separate share 'of the • The cross-referentes referring to a footnote refer usually not onir to the footnote itself but also to the text, or even to che page, to which the note belong,,

x

xi

PREFA CE

PREFACE

author's gratitude because to him there fell the most uninspiring and unrewarding task of all, that of reading and re-reading the proofs, assembling the Bibliography, and helping to collect the Index. To other former students of his, Professor William A. Chaney and Dr. Schafer Williams, the author is grateful for calling his attention to important points, whereas Professor George H. Williams kindly read the first draft and contributed through his own publication.

his thanks but also his apologies wherever he may have misinter-

Others as well were kind enough to read the greater parí of the final manuscript: Professors Dietrich Gerhard, Gaines Post, and Joseph R. Strayer, who obliged the author by a considerable number of suggestions and additions, and, last not least, by their moral support. In this respect, the author's gratitude is due, aboye all, to Professor Theodor E. Mommsen, who loyally read the whole manuscript as-chapter by chapter-it emerged from the typewriter, who never withheld his opinion and made numerous corrections, and who gave the author a chance to discuss with him on many evenings the broader problems as well as countless details. The author, further, was in the fortunate position of being able to draw from the knowledge of his colleagues at the Institute for Advanced Study and plague them with his questions: Professor Harold Cherniss, who became the chief victim, carrying as he did the brunt of the author's queries in matters of ancient philosophy, and who patiently iterated his explanations of more complicated problems regardless of the tortures he himself suffered from the distortions which not only Plato had suffered at the hands of Aristotle, but also Aristotle at the hands of mediaeval scholastics; Professor Erwin Panofsky, upon whom the author could always rely when questions of art history arose and who would be untiring once the hunt was on; Professor Kurt Weitzmann, who called the author's attention to several items and was always ready to be helpful in tnatters of photos and plates; and Professor Andreas Alfóldi, of whose treasure of knowledge the author could avail himself in matters concerning Late Antiquity. To these names there has to be added that of the author's former colleague at Berkeley, Professor Leonardo Olschki, with whom the author discussed over a long period of time innumerable Dante problems and by whose fruitful criticisms the chapter on Dante profited in many respects. To all these friends the author extends not only xii

preted them: the mistakes are the author's own and perhaps most original contribution.

A collaboration of a singular kind developed with Dr. Ralph E. Giesey whose own forthcoming study on "The Royal Funeral Ceremony in,Renaissance France" overlapped with some central problems dealt with in Chapter VII. As in all cases of a daily exchange of ideas and material, it would often be not at all easy to separare neatly the partners' contributions. The footnotes, however, will make it manifest how generously Dr. Giesey placed his own material-published as well as unpublished texts and photos-at the disposal of the author who had no qualms about using it, but remains for these sections a grateful debtor. Finally the author wishes to express his thanks to Dr. J. Robert Oppenheimer who, on the parí of the Institute for Advanced Study, generously subsidized the publication of this book, and to Princeton University Press for its willingness to comply in every respect with the author's suggestions and personal wishes. E.H.K. Princeton , New Jersey March 2, 1957

CONTENTS PREFACE INTRODUCTION 1. 'I'HE PROBLEM: PLOWDEN'S REPORTS II. SHAKESPEARE: KING RICHARD II

24

III. CHRIST-CENTERED KINGSHIP 1. The Norman Anonymous

2. The Frontispiece of the Aachen Gospels 3. The Halo of Perpetuity IV. LAW-CENTERED KINGSHIP

1. From Liturgy to Legal Science 2. Frederick the Second Pater et Filius Iustitiae Iustitia Mediatrix 3. Bracton Rex infra et supra Legem Christus-Fiscus V. POLITY-CENTERED KINGSHIP: CORPUS' YSTICUM i. Corpus Ecclesiae mysticum

2. Corpus Reipublicae mysticum 3. Pro patria morí Patria religious and legal Patriotic Propaganda Rex et Patria VI. ON CONTINUITY AND CORPORATIONS i. Continuity

Aevum Perpetua Necessitas 2. Fictio Figura Veritatis Imperium semper est Universitas non moritur xv

193 194 207 232 232

249 259 273 273 275 284 291 291 302

CONTENTS VII. THE KING NEVER DIES

314 1. Dynastic Continuity 2. The Crown as Fiction

317 336 336 342 347 358 364 372

Corona visibilis et invisibilis The Fiscal Crown Inalienability Crown and Universitas The King asid the Crown The Crown a Minar 3. Dignitas non moritur Phoenix Corporational Symptoms in England Le Roy est mort ...

383 385 401 409 419 437

Effl kex Instrumentum Dignitatis VIII . MAN-CENTERED KINGSHIP: DANTE IX.

451

EPILOGUE

496

LIST OF ILLUSTRATIONS 507 ILLUSTRATIONS

following 512

BIBLIOGRAPHY and INDEX

xvi

513

The King's Two Bodies

INTRODUCTION MYsitc1sM, when transposed frota the svarm twilight of rnydl and fiction to the cold searchlight oí fact and reason, has usually little left to recommend itsclf. lis language, unless resounding within its own magic or mystic dicte, will often appear poor and oven slightly foolisu , and its most baffiing metaphors and highfiown images, when deprived of their iridescent wings, may easily resemble the pathetic and pitiful sight oí Baudelaire's Albatross. Political mysticism in particular is exposed to the danger of losing its spell or becoming quite meaningless when taken out of its native surroundings , its time and its space. The mystic fiction oí the "King's Two Bodies," as divulged by English jurists of the Tudor period and the times thereafter, does not forro an exception to this rule. It has been mercilessly plucked by Maitland in a highly stimulating and amusing study on "The Crown as Corporation.", With a strong touch of sarcasm and irony, the great English historian oí Iaw has disclosed the follies which the fiction of the king as a "Corporation sole" could, and did, lead to, and has shown at the same time what havoc the theory oí a two-bodied king and a twinned kingship was bound to work in bureaucratic logic. Wittily Maitland puns about the king being "parsonified" and styles the theory oí the King's Two Bodies "a marvelous display of metaphysical-or we might say metaphysiological-nonsense." From his admirably stocked garner of juridical exempla Maitland was able to produce case alter case illustrating che absurdity oí that doctrine. He tells us the story about King George III who had to go to Parliament for permission to hold some land as a roan and not as a king, "since rights not denied to any of His Majesty's subjects were denied to liim." He adds that other delightful case concerning the tenants of one of the traitors oí the rebellion of 1715 whose barony had been confiscated and handed over to the king: the tenants were jubilant at this change of lordship, for owing to the fact that the barony now was "verted in His Majesty, his heirs and successors in his politick capacity, which in consideration oí law never dies," they believed that henceforth 'F. W. Maitland , Selected Essays ( Cambridge , 1936 ), 104-127, reprini from Lazo Quarterly Reviere , xvii (1go1 ), 131-146.

3

a

INTRODUCTION INTRODUCTION they were freed from paying the customary relief on the death of their (hitherto simply mortal) lord. Parliament, however, disap-

he may never judge despite being the "Fountain of Justice," he

pointed them by making the surprising decision that in this case

yet has legal ubiquity: "His Majesty in the eye of the law is always

che king was considered a private person who could die, and there-

present in all his courts, though he cannot personally distribute

fore che tenants continued to pay their Laxes as before. And Mait-

justice."e The state of superhuman "absolute perfection" of this royal persona ficta is, so to speak, the result of a fiction within a

land was even afile to bring evidente to show that Louis XIV's famous if apocryphal l'état c'est moi-or, for that matter, the scholastic papa qui potest dici ecclesia-was officially recognized also in England: a Statute of 1887 decreed that "the expressions

fiction: it is inseparable from a peculiar aspect of corporational concepts, the corporation sole. Blackstone gives credit entirely to the Romans for having invented the idea of corporation-"but

'permanent civil service of the State,' 'permanent civil service of

our laws have considerably refined and improved upon the inven-

Her Majesty,' and 'permanent civil service of the Crown' are

tion, according to the usual genius of the English nation: particu-

hereby declared to have the same meaning"-which, so Maitland remarks, "is a mess."2

only, of which the Roman lawyers had no notion."r

The challenge to ridicule the theory of the King's Two Bodies is indeed great when you read, without being prepared for it, the at once fantastic and subtle description of the king's superbody or body politic rendered by Blackstone in a chapter of his Commentaries which conveniently summarizes the achievements of several centuries of political thought and legal speculation. From his pages there rises the spectre of an absolutism exercised, not by an abstract "State," as in modern times, or by an abstract "Law," as in the High Middle Ages, but by an abstract physiological fiction which in secular thought remains probably without paral]el.' That the king is immortal because legally he can never die, or that he is legally never under age, are familiar stage properties. But it goes further than expected when we are told that the king "is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness."a Moreover, that king is invisible' and, though 21bid., 117. 'rhar such "mess" was not restricted lo England was of course not unknown lo Maitland, lince Otto ven Gierke, Deutsches Genossenschaftsrecht (Berlin, 1891), 111,294,n.148, quotes a striking parallel. Antonius de Butrio, a l4thcentury canon lawyer, claims that it made no difference concerning the ownership of ecclesiastical property "sive ditas Christum, sive praelatum, sive ecclesiam unfversalem, sive particularem possidere, sive episcopuin, sive alium praelatum, sive Papam vicarium Christi." s Sir William Blackstone, Comrnentaries en the Laws of England, t,c.7 (first published in 1765), 237ff. 4 Ibid., 1,246. s The king's invisibility is not mentioned directly by Blackstone, but it belongs co the standard definitions of che body politic; see below, Ch. 1, n. 2, for Plowden: ... the Body politic is a Body that cannot be leen or handled"; or Catvin's Case

4

larly with regard to sole corporations, consisting of one person

That kind of man-made irreality-indeed, that strange construction of a human mind which finally becomes slave to its own fictions-we are normally more ready to find in the religious sphere than in the allegedly sober and realistic realms of law, politics, and constitution; and therefore Maitland's often caustic criticisms are understandable and appear fully justified. However, the seemingly ludicrous, and in many respects awkivard, concept of the King's Two Bodies has not only those physiologically amusing traits. Maitland himself was fully aovare that this theorem, to say the least, provided an important heuristic fiction which served the lawyers at a certain time "to harmonize modern with ancient law," or to bring into agreement the personal with the more impersonal concepts of government.s Great mediaevalist that Maitland ivas, he knew perfectly well that the curious fiction of "twin-bot jesty" had a very long tradition and complex history whi.. would cake us deep into the legal and political thoughts of do Middle Ages."s This history, .i,as, has not been written by Maitland, even (1608), in Sir Edward Coke, The Reports, ed. George Wilson (London, 1777), vn, lo-loa: "... for che politic capacity is invisible and inmortal" (cf. 12a). s Blackstone, Comm., 1,270. 7 Ibid., ',c.,8, 469; Maitland, Sel.Fss., 75. s See Maitland's remarks in: Pollock and Maitland, The History of Engtish Loa (2nd ed., Cambridge, 1888 and 1923), 1,512, also 495, and Set. Ess., 1o5ff; further bis study "The Corporatlon Solea" Set. Ess., 73-103, with (p. 264) a valuable list of Year Book cases (reprint from LQR, xv, [1900), 335-354), in which Maitland with his upique mastership, discloses the effects of the early mediaeval Eigenkirchenrecht en later conditions, including the concept of che corporation sole. 9 Maitland, Se? Ess., 105.

5

INTROD UCIION

C 11 A P T E R 1

though he may Nave diopped more than one valuable hint in that respect. Nor will the writing of tliat history, especially with regard

THE PROBLEM: PLOWDEN'S

te the crucial hftcciitli centni}, cense to icmain an interesting and

REPORTS

promising task for onc of the many learned investigators of legal andconstitutional developincnt in England, Por the present studies do not pretend to hll the gap. 1hev merely propuse lo outine the historical problem as sudt, lo sketch in an all too perftmctory, casual, aud incomplete fashion the general historical background of the "King's Two Bodies," and to place thi.s concept, if possible, in its proper setting of mediaeval ttought and political theory.

collected and written under Queen IN EOMUND PLOWDEN'S Re ports, Elizabeth, Maitland found the first clear elaboration of that mystical talk witlt which the English crown jurists enveloped and trimmed their definitions of kingship and royal capacities' In order to describe convenienty both the problem and the theory of the King's Two Bodies it may be appropriate to choose as a starting point Plowden, himself a law apprentice of the' Middle Temple, and quote some of the most telling passages from the arguments and judgments made in the king's courts and epitomized in his Reports. concerning the Duchy of Lancaster, which the The cause célébre Lancastrian Kings had owned as private property and not as property of the Crown, was tried-not for the first time, lo be sure-in the fourth year of Queen Elizabeth. Edward VI, the Queen's predecessor, had made, while not yet of age, a lease of cerlands of the Duchy. Thereupon the crown lawyers, assembled tain at Serjeant's Inn, all agreed: that by the Common Law no Act which the King does as King, shall be defeated by his Nonage. For the King has in him two Bodies, viz., a Body natural, and a Body politic. His Body natural (if it be considered in itself) is a Body mortal, subject to all Infrrmities that come by Nature or Accident, to the Imbecility of Infancy or old Age, and to the like Defects that happen to the natural Bodies of other People. But his Body politic is a Body that cannot be seen or handled, consisting of Policy and GoJernment, and constituted for the Direction of the People, and the Management of the public weal, and this Body is utterly void of Infancy, and old Age, and other natural Defects and Imbecilities, which the Body natural is subject to, and for chis Cause, what the King does in his Body politic, cannot be invalidated or frustrated by any Disability in bis natural Body.2 It may be mentioned immediately that the pattern alter which og: "Whether this sort of talk was really new about the year 1 Maitland , Sel. Ess., 1550, or whether it had gone unreported until Plowden arose, it were not easy to say; but the Year Books have not prepared us for it." ( London, 1816 ), ssaa. The case is 2 Edmund Plowden , Commentanes or Reports referred to by Coke, Rep., visto (Calvin s Case).

7 6

THE PROBLEM: PLOWDEN'S REPORTS

THE PROBLEM: PLOWDEN'S REPORTS

the King's body politic-"void of Infancy and old Age, and other natural Defects and Imbecilities"-has been modelled, can be gathered readily from Sir John Fortescue's tractate on The Governance of England, where he writes:

been raised to angelic heights, a fact which is worth being kept in mind. The judges, alter thus having gained a foothold on, so lo speak, firm celestial ground, continued their argumenta in the case of the Duchy of Lancaster. They pointed out that, if lands which the King has purchased before he was King, namely "in the capacity of his Body natural," later were given away by him, such gift, even when made during his nonage, had to be recognized as the King's act. For-so the Elizabethan judges declared, and herewith their "mysticism" begins-

... it is no poiar to mowe synne, and lo do ylle, or to mowe lo be seke, wex olde, or that a man tnay hurte hym self. Flor all thes poiars comen of impotencie ... wherefore che holy sprites and angels that mey not synne, wex old, be seke, or hurte ham selff, have more poiar than we, that mey harme owre selff with all thes defautes. So is the kynges power more... 3

The passage has not been adduced here in order lo prove that the Elizabethan jurists "borrowed" from Fortescue, or that his treatise was their "source," although in other respects this possibility should not be excluded. What matters is that John Fortescue's passage shows how closely the legal speculations were related to theological thought, or, lo be more specific, to the mediaeval concept of the king's character angelicus.* The body politic of kingship appears as a likeness of the "holy sprites and angels," because it represents, like the angels, the Inmutable within Time. It has 3 Sir John Fortescue, The Cavernance of England, cm, ed. Charles Plummer (Oxford, 1885), 121; cf. 218f, and the quotation from the Song of Lewes (p.217). See also Fortescue 's De Natura Legis Naturae, cxxvi, which S. B. Chrimes quotes in extenso in his admirable edition of Fortescue 's De Laudibus Legum Angliae (Cambridge , 1942), 154. See also De Laudibus, c.xlv, ed. Chrimes, 34a7f , for related ideas. *The king's character angelicus has been mencioned in modero literatura quite frequently-see , e.g., Eduard Eichmann , " K6nigs- und Bischofsweihe ," Sitz. Ber. bayer. Akad. ( Munich, 1928 ), No.6, p.8; Max Hackelsperger, Bibel und mittelalterlicher Reichsgedanke (Munich diss., 1934), 28,0.35; E. Kantorowicz, Laudes Regiae (Berkeley, 1946), 49,n.126-but the whole problem has as yet not been investigated. The places decisive for that idea are found not only in the Bible, e. g., II, Sam. 14: 17 and 2o ; of equal or greater importante is probably the Hellenistic strand. See, for the concept according te which the king and the sage represent a distinct third class, intermediary between gods and meo, Erwin R. Goodenough, The Poli. tics of Philo Judaeus (New Haven, 1838), 98ff, and the lame author 's "The Political Philosophy of Hellenistic Kingship ," Yate Classical Studies, 1 (1928), 55-102, esp. 7611,wof; the treatises discussed by Goodenough have more recently been ediced and commented by Louis Delatte, Les traités de la royautd d 'Ecphante, Diotogine et Sthénidas, Bibliothéque de la Faculté de Philosophie et Lettres de l'Université de Liége , xcva (Liége, 1942); see also Actor Steinwenter , NOMOE EM'FT% OB: Zur Geschichte ciner politischen Theorie," Anzeiger der Akademie der Wissenschaften in Wien, phil: hist. Kl., Lxxxm (1946 ), 250-268, esp. 259ff. For the early Christian concept, see , e.g., Günther Debo, "Engel und Obrigkeic," Theologische Aufsdtze Karl Barth zum So. Geburtstag (Munich, 1936), golf; see also the criticism by Harald Fuchs, Der geistige Widerstand gegen Rom in der antiken Welt (Berlin, 1938), 58f.

8

although he [the king] has, or takes, the land in his natural Body, yet co this natural Body is conjoined his Body politic, which contains his royal Estate and Dignity; and the Body politic includes the Body natural, but che Body natural is the lesser , and with Chis the Body politic is consolidated. So that he has a Body natural , adorned and invested with the Estate and Dignity roya]; and he has not a Body natural distinet and divided by itself from the Office and Dignity roya], but a Body natural and a Body politic together indivisible; and chese two Bodies are incorporated in one Person, and make one Body and not divers, that is the Body corporate in the Body natural, et e contra the Body natural in the Body corporate. So that the Body natural, by Chis conjunction of the Body politic to it, «which Body politic contains the Office, Government, and Majesty royal) is0magnified , and by the said Consolidation hath in it the Body politic.°

The King's Two Bodies thus form one unit indivisible, each being fully contained in the other. However, doubt cannot arise concerning the superiority of the body politic over the body natural. "Three Kings [Henry IV, V, VI] heid the Duchy of Lancaster in their Body natural , which is not so ample and large as the other, and the fourth [Edward IV] held it in his Body politic, which is more ample and large than the Body natural."a Not only is the body politic "more ample and large" than the body natural , but there dwell in the former certain truly mysterious forces which reduce, or even remove, the imperfections of the fragile human nature. His Body politic, which is annexed to his Body natural, takes away s Plowden, Reports, 213; sea helow , Ch.vu,nos.3o2ff, for the Case of the Duchy of Lancaster. o Plowden, Reports, 22oa, likewise a case referred co by Cake (aboye, n.2). For [he Duchy of Lancaster, see helow, Ch.vn,nos.3o2ff.

1

9

THE PROBLE.A1: PLOIFDFN'S REPORT.S

the Imbecility of Iris Body natural, and draws the Body natural, which is the lesser, and all the Effects thereof ro itself, which is the greater, gtda magis digntnr. Irnkit ad Sr. minus di,gnurn? The Latin legal maxim saving that "tire worthier draws lo itself the less worthy" seas conimon among mediacval julists. It was regularly invoked when a persona mixta (or, for that matier, a res mixta) was tire issue. Baldus, tire great Italian lawyer and legal authority of tire fourteenth century, for example, linked that maxim most fittingly lo the two sexes of an hermaphrodite: according lo the Digest, the more prominent qualities were lo determine the sex, for (summarizes Baldus ) " if a union of two extremes is produced, while the qualities of each extreme abide, then the one more prominent and striking draws to itself the other one."8 What 7Plowden, Reports , 2ria. The Latin maxim (see ncxt note) was later repeated,

e.g., by Sir Edward Coke, The Second Part of the Instilures of the Lavs of England (London, 1681 ). 307: "Omne maius digno n trahit ad se minus dignum." The maxim itself must have been known in England lince the rsth centurv at tire latesn sea Matthew Paris. ad a, 12x6, ed . f.uard ( Rolis Series), 0,657, who reproduces the opinion of Pope Innocent III against French barons venturing co condemn King John: ".. , per barones , tanquam inferiores , non ponrit ad mortero condemnari, quia maior dignitas quodam modo absorbe r minorem." For legal maxims in English legal language at large, see David Ogg , Joanis Seldeni " Ad Fletam Dissertatio" (Cambridge , 1925 ), Introd., pp . xlii-xivi. s For the hermaphrodite , see D.,,S,io . Baldus refers to [his decision o£ Ulpian when discussing the Gregorian decretal on the right of advowson which, having both a laical and a clerical character , appeared as quid mixturo comparable to the hermaphrodite—or te tire King 's Two Bodies. See Baldus' gloss on c.3 X 2,1,n.7, In Decretalium volumen ( Venice, '58o), fol.l5sv , with many other allegations and the conclusion : " ítem guando ex duobus extremis fit unjo, remanentibus qualiratibus extremorum , magis principale et magis notabile aliud ad se trahit" See further tire (also medically interesting ) legal opinion concerning the hermaphrodite in tire house of Malaspina ; Baldus, Consifia (Venice, 1575), m,2g7,mt, fol . 67v. The Glosa ordinaria ( Bernard of Parma) on c.3 X 2,1, alludes alsn to chat maxim: "Nota quod causa mixta ínter spiritualem et civilem magis sequitur natura[m] spiritualis quam civilis . . , et sic quod ea minas dignum in sui tubstantia , maioris est efficaciae quo ad iurisdictionem ." Baldus laimself referred lo that maxim repeatedly; seo, e.g., on Cg,t,5 , n.4, Commentaria in Codicem ( Venice, 2,86), fol.194v, or on C6,43. 2,0.1, fol .1 57v, which firs tire later English theory ' not badly: "Nota quod in unitis ad invicem , dignius trahit ad se minus dignum. Item quod plurimwn potos i, trahit ad se quod nimium potosi et communicar illi suam propriam dignitatem et privilegia." See also the Glossa ordinaria en the Decretals ( Johannes Teutonicus), on c.3 X 3qo, where the maxim is applied to the holy oils : " ítem oleum non consecratum potest commisceri oleo consecrato et dicetur tocara consecratum ," to which the glossator remarks, v . consecratum : " Et ita sacrum tauquam dignius trahit ad se non sacrum ." ( I owe the knowledge of this passage as well as that from Lucas de Penna [below ] to tire kind interest of Professor Gaines l'ost .) Further, and once more in connection with advowson , lohannes Andreae , Novella in Decretales , on can. VI 3.19,0.12 (Venice, 1612 ), fol.126; and , referring to delegare judges, Hostiensis (Henry of Segusia ), Summa aurea , on X 1,29,11 .11 (Venice, 1,86), col297; seo also Oldradus

10

THE PROBLPAI: PLOIVDEN'S REPORTS

fitted the two sexes of an hermaphrodite, fitted juristically also the two bodies of a king. Hence, the Tudor jurist proceeded logically and in conformity with the roles of bis tiade cohen on that oecasion he referred lo the proper legal maxim. The undcrlying idea was emphasized no less s-igorously ¡ti tire case Willimt y. BerleleY, which was argued in the preceding year (3 Elizaheth) in Common Bench. The subject seas a trespass of Lord Berkley en certain lands for which he claimed to have paid a tax to the court of King Henry VII and which he considered as parcel in his demesne as of fee tail. The judges pointed out that although the law should adjudge that King Henry 7. took it in his Body natural, and not in his Body politic, yet they [the judges] said that he [the King] is not void of Prerogative in regard lo Things which he has in his Body natural.... For when rho Body politic of King of this Realm is conjoined to the Body natural, and one Body is made of diem both, the Degree of the Body natural, and of the things possessed in that Capacity, is thereby altered, and the Effects thereof are changed by its Union with the other Body, and don't remain in their former Degree, but partake of the Effects of the Body politic. . . . And the Reason thereof is, because the Body natural and the Body politic are consolidated into one, and the Body politic wipes away every Imperfection of the other Body, with which it is consolidated, and makes it to be another Degree than it should be if it were alone by itself.... And the Cause [in a parallel case] was not because the Capacity of his Body natural was drowned by the Dignity roya] .... but the Reason was, because te the Body natural, in which he held the land, the Body politic was associated and conjoined, during which Association or Conjunction tire Body natural partakes of the Nature and Effects of tire Body politic.° o de Ponte, Consilia, xvu,n.r (Lyon, 2550), fol.7v. For the civilians, see, e.g, the Neapolitan jurist Lucas de Penna, Commentaria la Tres Libros, on G.2o,5,r,n.i7 (Lyon, 1597 )• P. 33: "Quoticns enim maius minori coniungitur , maius aahit ad se minus ...Seo also, for the related idea of the superior judge engulfing the poseer of the inferior, Frederick II's Liber augustalis, 1,41 (Edition: Cervone, Naples, 1773, which contains the gloss), 93: ". . minori lamine per laminare maius superveniens obscurato," a passage to which the i3th-century glossator Marinos de Caramanico (ibid., 93) remarks: "maior causa trahit ad se minorem," with a referente to D.5,1,54; see also, for the lame idea in tire form of an hexamcter, Nicolaus de Braia, Gesta Ludovici Octavi , lino 643. in Bouquet, Recueil des historien , xvn,3de "Ut maiore minas cecetur lumine lumen ." See also, en che gloss of Marinas de Caramanico, Matthaeus de Afflictis , In utrlusque Sieiliae . . . Constitutiones novissirna praelectio (Venice, 2562 ), t, fol.167. The maxim seems to stem from Paulas, Sententiae , t,r2,8: 'maior enim quaestio rninorem causam ad se trahit ", seo Fontes inris romani anteiustiniani , ed. S. Riccobono et alfi (Florence , 1940), n,33o, and D .5,s.54, 9 Plowden, Reports , 238, a case later referted to by Coke , Reports, v1 , 32. That tire body politic " wipes away imperfection " was common opinion; see , e.g., Bacon, Post-

11

THE PROBLEM: PLOWDEN'S REPORTS

The dilhculties of defining the effects as exercised by the body politic-active in the individual king like a deus absconditus-_on che royal body natural are obvious. In fact, Elizabethan jurists sometimes had to proceed with che caution and circumspection of theologians defining a dogma. It was anything but a simple task to remain consiscent when one had co defend at once the perfect union of the King's Two Bodies and che very distinct capacities of each body alone. It is a veritable sword-dance that the jurists perform, when they explain: Therefore, when the two Bodies in the King are become as one Body, co which no Body is equal, Chis double Body, whereof che Body politic is greater, cannot hold in Jointure with any single one.ro Yet [despite tire unity of the two bodies] his Capacity to take in che Body natural is not confounded by che Body politic, buc remains still." Notwithstanding that [hese two Bodies are at one Time conjoined together, yet che Capacicy of che one does not confound that of the other, buc they remain distinct Capacities. Ergo

che Body natural and che Body politic are not distinct, buc united, and as one Body.12 Regardless of che dogmatic unity of che two bodies, a separation of one from the other was nevertheless possible, co wic, that separaNati, in: Works of Sir Francis Bacon, ed. J. Spedding and D. D. Heath (London, 1892). v.1.668: "The body politic of che Crown indueth the natural person of the King with [hese perfecciona :... t hac if he were attainced before, the very assump[ion of che Crown purgeth it." See also Blackstone , Comm., t,c7,248: "If che heir lo [he crown were attainded of creason or felony, and afterwards che crown should descend co him, this would purge che attainder ipso facto ." The theory was fully developed in England by 1485 when , curred with regard co Henry VII "q in che Exchequer Chamber, che justices conue le Roy fuist personable et discharge dascun attainder co facto que il prist sur le Raigne el escre roy .. :' See Chrimes, Const. Ideas, Appendix 74, p, 378, cf, p. 51. This doctrine is in fact che secularization of [he purging power of che sacraments . See, for Byzantium , che opinion of Theodore Balsamon (PGr, cxxxvt1 , 1156), who held that che emperor ' s consecra [ ion had che same effects as baptism , so that in [he case of che Emperor John Tzimisces ( 969-978) [hat act did away with all che crimes and sins of his former life. The same idea was advocated in France, under King Charles V, by jean Golein: [he king by ment ta telement nettoid des ses his anointp echiez chat he likens a newly baptized ; see Marc Bloch, Les rois thauataturges ( S[rasbourg, 1924)• 483; also George H. Williams, Norman Anonymous ( below, Ch.m , n.i). 159f. See , for a few related cases (Ma[rimony, Hoty Orders ), Kantorowicz , " fuori le Mura ," Late Classicat and The Carolingian King in che Bible of San Paolo Medioeval Studies in Friend, Jr. ( Princeton, 1954). 293. Honor of Albert Mathias 1, 10 Plowden , Reporta, 238a . Ibid., 242 . 121bid., 233a, 242a.

12

THE PROBLEM: PLOWDEN'S REPORTS

tion which, with regard co common man, is usually called Death. In che case Willion v. Berkley, Justice Southcote, seconded by Justice Harper, proffered sume remarkable arguments to that effect, as che Law Report shows: The Kingohas two Capacities, for he has two Bodies, the one whereof is a Bpdy natural , consisting of natural Members as every other Man has, and in Chis he is subject co Passions and Death as other Men are; che other is a Body politic, and che Members thereof are his Subjects, and he and his Subjects together compose che Corporation , as Southcote said, and he is incorporated with them, and they with him, and he is che Head, and they are che Members, and he has the sole Government of them; and Chis Body is not subject co Passions as che other is, nor to Death, for as to chis Body che King never dies, and his natural Death is noc called in our Law (as Harper said), che Death of che King, buc che Demise of che King, not signifying by che Word (Demise) that che Body politic of che King is dead, buc that there is a Separation of che two Bodies , and that che Body politic is transferred and conveyed over from che Body natural now dead, or now removed from che Dignity royal, co another Body natural . So that it signifies a Removal of che Body politic of che King of chis Realm from one Body natural to another.13 This migration of che "Soul," that is, of che immortal part of

kingship, from one incarnation co another as expressed by che concept of che king's demise is certainly one of che essentials of the whole theory of the King s Two Bodies. It has presea-ved its validity for practically all time to come. Interesting, however, is che fact that Chis "incarnation" of che body politic in a king of flesh hot only does away with che human imperfections of the body natural, but conveys "immortality" to che individual king as King, that is, with regard to his superbody. In che case Hill Y. Grange (2 and 3 Philip and Mary) che judges argued as follows: And then when che Act gives Remedy co che Patentees . . , and Henry S. is mentioned before co be King, and so the Relation is to him as King, he as King never dies, buc che King, in which Name it has Relation co him, does ever continue.14 13 Ibid., 2g3a, quoted by Blackstone, Comm., 1,249. In common speech, [he idiom of che king 's demise, signifying in a technical serse "a Removal of [he Body politic ... from one Body natural to another;' hard[y antedates che era of che Wars of che Roses in che 15ch century when each transfer of power from Lancaster [o York and back was legal [ y interpreted as che demise of che defeated king. The word , however, was used before , e.g., in 1388 , when a pica was said co have gone " without day" (that is, in tour[ ) par demys le Roy ( Edward III). See below , Ch.vn,na95. 14Plowden, Reports, 177a. The mentioning of che ti[le was essential and often

13

THE PROBI.J.11 PLOII'DIiN'.S REPORT.S

In this case, King 1lenrv VIII was still alive" though Henry Tudor had been dead for ten years 11 In other words, whereas the manhood of the individual incarnation appeared as negligi^le and as a matter of indifferent importante, the eternal essence or "godhead" of the monarch tras all tllar counled he[ore the tribunal of those "monophysite" judges. Contraritvise, the'mauhood or the king's body natural might become of great importante tou, as in Sir Thomas Wroth's Case (15 Elizabeth).36 Sir Thomas had been appointed by Henry VIII as Usher of the Privy Chamber to the entourage of Edward VI, when Edward was not yet king. At Edward's accession to the throne, Sir Thomas ceased to receive his annuities because his service, though suitable with a prince, was noc considered befitting the estate of the King. Justice Saunders argued that the continuance of service after the king's accession would have been justified, for example, with regard to a Physician or Surgeon for his Counsel and Service to the Prince; and if the King dies, and the Prince becomes King, there the Service is not discharged .... for the Service is to be done in respect of the natural Body, which has need of Physic and Surgery, and is subject to Infirmities and Accidents as well alter the Accession of the Estateroyal to it as before, so that the royal Majesty causes no Alteration as to the Service in this case. And so is it in other like Cases, as to teach the Prince Grammar, Music, et tetera, where the Service to be done has Respect merely lo the Body natural, and not to the Majesty of the Body politic.lt

The least that can be raid is that there was logic in the argumenta of the lawyers. No less logical, though far less simple, were the arguments in Calvin's Case (16o8) reported by Sir Edward Coke 1s Here the judges reasoned that every subject sworn to the king is decisive because legally it made a great dillerence whether persona celebrati son! nomine dignitatis or by their proper narres; see Baldus, Consilia, tn,,59,n.5 (Venice, 1575)• 45v, or, for England, Maitland, Se!. Ess., 77, where a chaplain uses only his corporate name, that is, that of his chantry. See helow, Ch.vn, noss98f. See also Year Books, 8 Edward II (1315), Y. B. Series, xviii (.Selden Society, xxxvu; 192o), 202f. 15 One is reminded of Leo the Great's Ad Flavianum (ep. xxenl,c3), PL, u`,765: . et mori posset ex uno, et mori non poset ex altero." 16 Plowden, Reporta, 4553. 17 See, for a parallel case, Bacon, PostNati, 657f: Sir william Paulet, on account of his offices, would have been entitfed m hace i l chaplains: "he had but one soul, though he had three offices." 13 Goke, Reports, vu,lo toa.

14

THE PRORLEM: PLOWDEN'.S RLPORTS

sworn to bis natural person, just as thc king is sworn lo his subjects in his natural person: ''for the politic capacity is invisible and immortal, nay, the politic body hath no soul, for it is framed by che policy of man."19 Moreover, treason, that is, ' to intend or compass mortem et destruclionem domini Regis, must needs be understood of his natural body, for his politic body is immortal, and not subject to death." Those arguments certainly reflect sound rcasoning, although an attack against the king's natural person was, at the lame time, an attack against the body corporate of the realm. Justice Southcote, in the passage quoted (aboye, p. 13) from che case IVillion v. Berkley, referred to the simile of the state as a human body, a "Corporation" whereof the king is the head and the subjects are the mcmbers. Of course, that metaphor was very old; it pervaded political thought during the later Middle Ages 20 Nevertheless, the form in which Justice Southcote couched that old idea-"he is incorporated with them, and they with him"-points directly towards the politico-ecclesiological theory of the corpus mysticum which actually was quoted with great emplrasis by Justice Brown in the case Hales v. Petit. The court, en that instance, was concerned with the legal consequences of a suicide, which the judges tried to define as an act of "Felony." Lord Dyer, Chief Justice, pointed out that suicide was a threefold crime. It was an offense against Nature, since it was contrary to the lave of selE-preservation; it was an offense against God as a violation of the sixth commandment; finally it was a crime committed "against the King in that hereby he has lost a Subject, and (as Brown termed it) he being the Head has lost one of his mystic Members."21 "Body politic" and "mystical body" seem lo be used without great discrimination . In fact, Coke, when discussing the politic body of the king, added in parenthesis: "and in 21 E.4 [1482] it is called a mystical body."Re It is evident that the doctrine of theology 19 That the body politic had no soul was a current argument of the lawyers; see, e.g., Coke , Rep., vu,loa (" of itself it hath neither soul nor body"). The argument is very old and goes back to the beginning of corporational doctrines; see Cierke, Gen.R., 111,a8a,n.u2. 25 Gierke , GenR., 111,517,546ff; Maitland, in the introduction to his translation of Gicrke (Political Theories of the Middle Ages [Cambridge, 1927], p , xi,n.1 ) styles Plowden's quotations " a late instante of this old concept." 21 Plowden , Reports, 261; cf. Maitland , Sel. Ese., no. 2 Cokc, Rep., yuso (Calviris Case). See below, Ch. vu,n.31e.

15

THE PROBLEM: PLOWDEN'S REPORTS

and canon law, teaching that the Church, and Christian society in general, was a "corpus mysticum Che head of which is Christ," has been transferred by the jurists from the theological sphere to that of the state the head of which is the king.2a It would be easy to extract from Plowden's Reports, and from the writings of later lawyers as well, a not too modest number of similar passages.24 New places, however, would not add new aspects to the general problem; and the passages referred to, rendering, as they do, the pith of the doctrine, will suffice to illustrate the leading idea, the trend of thought, and the peculiar idiom of the Tudor lawyers to whom, understandably, "a king's crown was a hieroglyphic of the laws."25 Any reader of those passages in the Law Reports will be struck by the solemnity to which the legal language occasionally rises, notwithstanding the seeming drolleries of logic in their argumentations. Nor will Che reader have the slightest doubt as to the ultimate source of that parlance which has a most familiar ring to the ear of the mediaevalist. In fact, we need only replace the strange image of the Two Bodies by the more customary theological term of the Two Natures in order to make it poignantly felt that the speech of the Elizabethan lawyers derived its tenor in the last analysis from theological diction, and that their speech itself, to say the least, was crypto-theological. Royalty, by this semi-religious terminology, was actually expounded in, terms of christological definitions. The jurists, styled by Roman Law so suggestively "Priests of Justice,"21 developed in England not only a "Theology of Kingship"-this had become customary everywhere en the Continent in the course of the twelfth and thirteenth centuries-but worked out a genuine "Royal Christology." This observation is not entirely new, though hitherto hardly evaluated. Maitland made the very appropriate remark that there English jurists were building up "a creed of royalty which shall 23 For tire state as a corpus mysticum, see below, Chapter v.

2* In Coke's Repares much information can be found , especially in Calvin's Case; see also Rep., vi1,32. It is, however, noteworthy tirar Coke refers in most of ehose cases to Plowden 's Reports as evidente. 25 Coke, Rep., vil,' la. 2d D.s,s,i ("... quis nos sacerdotes appellet. Justitiam namque colimus ') was, of course, a frequently quoted passage; see, for England , e.g., Bracton , De legibus et consuetudinibus Angliae, fol.g, ed. G. E. Woodbine ( New Haven , 1922), 11,24; Fortescue, De Laudibus, c.in, ed. Chrimes , S. See below , Ch.ly, nos.94ff.

16

THE PROBLEM: PLOWDEN'S REPORTS

Cake no shame if set beside the Athanasian symbol."27 The comparison which Maitland probably made in a half joking, half serious mood, is perfectly sound and actually hits the main point. Indeed, in Che argumenta of the Tudor lawyers-"one person, two bodies"-there seem to echo and reverberate the well known definitions of the Symbol: ". . . non duo tamen, sed unus.... Unus autem non conversione divinitatis in carnero, sed assumptione humanitatis in Deum.... Unus omnino, non confusione substantiae , sed unitate personae." And it may be recalled in this connection that the Athanasian Symbol remained extraordinarily popular among the English laity, since at Cranmer 's suggestion it was incorporated into the Book of Common Prayer. Contrariwise, this Creed was not adopted by the continental Protestant Churches and fell somewhat into oblivion even among the members of the Reinan Church when it ceased to be recited regularly on Sundays and when the mediaeval Livres d'Heures, which usually contained it, went out of fashion.2B Referente, admittedly, might be made to other Creeds as well. The legal arguments are reminiscent, aboye all, of the "Unconfounded, unchanged, undivided, unseparated" of the Chalcedonian Creed." And generally speaking, it is of great interest to notice how in sixteenth-century England, by the efforts of tire jurists to define effectively and accurately the King's Two Bodies, all the christological problems of the early Church concerning the Two Natures once more were actualized and resuscitated in the early absolute monarchy. It is revealing, too, to examine seriously that new Creed of Royalty en its "orthodoxy." Any move in the direction of "Arianism" may be excluded almost a priori, since the coequality of the king's body natural with the body politic during their "Association and Conjunction" is beyond any question; en che other hand, che inferiority of the body natural per se to the body politic is not "Arian," but is in perfect agreement with the minor Patre secundum humanitatem of the orthodox Creed and recognized dogma. The danger of a royal "Nestorianism" was certainly great at all times. However, it may be said that the judges 27 Pollock and Maitland, History, 1,511. 28G. Morin , "L'origine du Symbole d'Athanase ," Journal of Theological Studies, mi (lqs s ), 169,n.2. 29August Hahn, Bibliothek der Symbole und Glaubensregeln der alten Kirche (3rd ed., Breslau , 1897), 174ff, for the Athanasian , and s66ff, for tire Chalcedonian Creed.

17

THE PROBLEM: PLOIVDEN'.S REPORTS

took pains to avoid a split of the two bodies by stressing continuously their unity, whereas the other hidden rock of ",Nestorianism"-the concept of a herolike meritorious advancement from humanitas to divinitas-was not a problem at all in a hereditary monarchy in which the predestination to rulership of the blood roya] was not doubted. The frequent asscrtion that only the king's body natural could suffer from the "Infirmities that come by Nature or Accident," and that his body politic "is not subject to Passions or Death as the other is," does away with any possibility of a royal "Patripassianism" or "Sabellianism," as was proven in 1649. Q uite orthodox is also the attitude towards "Donatism," since the king's acts are valid regardless of the personal worthiness of the body natural, its "nonage or oíd age," which imperfections "are wiped out by the Body politic"; en the other hand, the sacramental problem of the king's character indelibilis would always remain a matter open to controversy.a° A touch of "Monophysitism" has been indicated aboye and should probably not be denied: it resulted from the relative indifference to the mortal "incarnation" or individuation of the body politic. The cry of the Puritans "We fight the king to defend the King" clearly points in the monophysitic direction, and the concept of the jurists concerning the continuity of repetitive incarnation of the body politic in exchangeable bodies natural suggests anyhow a "noetic" interpretation of kingship. Considerable also was the danger of a royal "Monotheletism," since it is difficult to establish a clear distinction "between the will of the Crown and what the king wants"; it must be admitted nevertheless that the crown lawyers sometimes found an opportunity to distinguish also between the two wills, which became the rule of the revolutionary Parliament in the seventeenth century.at The implication of all this is not that the lawyers consciously borrowed from the acts of the early Councils, but that the fiction of the King's Two Bodies produced interpretations and definitions so See below , Char, n.22. sr See Kenneth Pickthorn, Early Tudor Covernment: Henry VII (Cambridge, 1934) , 359, with referente to the Abbot of Waltham's Case; for the case itself, see T. F. T. Plucknett, "The Lancastrian Constitution," Tudor Studies, ed. by R. W. Seton -Watson (London, 1924), lyaff; see also , concerning the "will" of corporations, Cierke, Cen.R., nt,so81i ,3goff, and Maitland 's Introduction to Gierke, Political Theories, p.xi. For Puritan slogans, see helow, n.42.

18

THE PROBLEM: PLOWDEN'S REPORTS

which perforce would resenlble those produced in view of the Two Natures of the God-man. Anyone familiar with the christological discussions of the early centuries of the Christian era will be struck by the similarity of speech and thought in the Inns of Court on the one hand, and in the early Church Councils on the other; also, by the faithfulness with which the English jurists applied, unconsciously rather than consciously, the current theological definitions to the defining of the nature of kingship. Taken all by itself, this transference of definitions from one sphere to another, from theology to law, is anything but surprising or even remarkablg. 'The quid pro quo method-the taking over of theological notions for defining the state-had been going on for many centuries, just as, vice versa, in the early centuries of the Christian era the imperial political terminology and the imperial ceremonial had been adapted to the needs of the Church?' The religious strand within political theory was certainly strong during the age of the Reformation when the divine right of secular powers was most emphatically proclaimed and when the words of St. Paul "There is no power but of God" achieved a previously quite unknown importante with regard to the subjection of the ecclesiastical sphere to the temporal'' Despite all that, there is no need either to make the religiously excited sixteenth century responsible for the definitions of the Tudor lawyers, or to recall the Act of Supremacy through which the king became "pope in his realm." This does not preclude the possibility that corporational and other concepts defining the papal poseer were directly transferred and purposely introduced into Tudor England to bolster the royal power. However, the jurists' custom of borrowing from ecclesiology and using ecclesiastical language for secular purposes had its own tradition of long standing, for it was a practice as legitimate as it was oíd to draw conclusions de similibus ad similia. It may be added that the crypto-theological idiom was not the personal spleen of any single one among the Tudor lawyers, nor was it restricted to a small coterie of judges. Individual judges, 32 The numerous studies of A. Alfüldi (esp. in Mitteilungen des deutschen archdologischen Instituís: Rdmische Abteilung, vols. xiix and n, 1934.35) and, more recently, a study by Th. Klauser, Der Ursprung der bischd/tichen Insignien und Ehrenrechte (Bonner Akademische Reden, t; Krefeld, 1048), base shed much light en that development. as Gierke, Johannes Althnsius (Breslau, 1913), 64.

19

THE PROBLEM: PLOWDEN'S REPORTS

such as Justice Brown, perhaps were inclined to push very far finto the mystic regions. However, Plowden's Reports disclose the names of a respectable number of lawyers indulging in the quasi-theological definitions of the King's Two Bodies. Plowden tells us, for instance, how at "Spooner' s," that is, Spooner's Hall in Fleet Street, the justices, serjeants , and apprentices were eagerly discussing the case of the Duchy of Lancaster and arguing about whether the Duchy had been vested in Henry VII in his capacity as king body natural or as King body politic.'* This, therefore, must have been the ordinary and conventional terminology of the English jurists of that period and of the generations to follow. It is true that continental jurisprudence, loo, arrived at political doctrines concerning a dual majesty, a maiestas realis of the people and a maiestas personalis of the emperor, along with a great number of similar distinctions .85 Continental jurists, however, were unfamiliar with parliamentary institutions such as those developed in England, where "Sovereignty " was identified not with the King alone or the people alone, but with the "King in Parliament ." And whereas continental jurisprudence might easily attain lo a concept of the "State" in the abstract, or identify the Prince with that State, it never arrived at conceiving of the Prince as a "corporation solé'-admittedly a hybrid of complicated ancestry-from which che body politic as represented by Parliament could never be ruled out. At any rate, to the English "physiologic" concept of the King's Two Bodies the Continent did not offer an exact parallel-neither terminologically nor conceptually. From English political thought, however, the idiom of the King's Two Bodies cannot easily be dismissed. Without those clarifying, if sometimes confusing, distinctions between the King's sempiternity and the king's temporariness, between his inmaterial and im34 Plowden , Reports, 252a ; cf. 220a, for Spooner's Hall. a5 See, e.g., Gierke , Gen.R., tv,219,3151 and passim ; also 2471€ Neither the doctrine of the "Dual Sovereignty " ( people and king) nor the distinction between the king as King and as private person, which of course was well established also en the continent , matches exactly the English " physiological " fiction of the King's Two Bodies. Moreover , English custom apparently tried to reduce the king's "privacy" so far as possible by recording all royal actions once the hody natural "has the Estate royal united to it, which can do nothing without record"; cf. Plowden, Reports, 213a. Some of these differences have been touched opon by Maitland, in Iris Introduction to Gierke, Political Theories , p.xi and passim.

THE PROBLEM: PLOWDEN'S REPORTE

mortal body politic and his material and mortal body natural, it would have been next lo impossible for Parliament to resort to a similar fiction and summon, in the narre and by the authority of Charles I, King body politic, the armies which were lo fight the same Charles 1, king body natural.30 By the Declaration of the Lords and Commons of May 27, 1642, the King body politic was retained in and by Parliament whereas the king body natural was, so lo say, frozen out. It is acknowledged [can the parliamentary doctrine] that the King is the Fountain of justice and Protection, but the Acts of Justice and Protection are not exercised in his own Person, nor depend upon his pleasure, but by his Courts and Iris Ministers who must do their duty therein, though the King in his own Person should forbid them: and therefore if Judgment should be given by them against the King's Will and Personal comnand, yet are they the King's Judgments. The High Court of Parliament is not only a Court of Judicature .... but it is likewise a Council ... lo preserve the publick Peace and Safety of the Kingdom, and to declare the King's pleasure in those things that are requisite thereunto, and what they do herein hath the stamp of Royal Authority, although His Majesty ... do in his own Person oppose or interrupt the same....at Shortly alter the May resolutions of 1642, medallions were struck showing the King in Parliament. We recognize, in the lower section of the reverse, the Commons with their Speaker; in the upper, the Lords; and uppermost, on a dais of three steps, the royal throne on which the king, visible in profile, is seated under a canopy (fig. i).98 He is clearly the King body politic and head of the political body of the realm: the King in Parliament whose task it was to stand together with Lords and Commons, and, if need be, ss For the Dedaration, see C. Stephenson and F . G. Marchara, Sources of English

Constitutional History (New York, 5937), 488; C. H. McIlwain, The High Court of Parliament (New Haven, 1934), 352f and 389f. See also S. R. Gardiner , The Fall of the Monarchy of Charles 7 (London, 1882 ), 11,42o and passim . David Hume, History of England (New York, t88o), v,1o2 (Year 1642), interestingly overrated the originality of Parliament when he assumed that it was "inventing a distinction hitherto unheard of, between the ofhce and the person of the king." The distinetion , all by itself, was many centones old and known in England as well (Declaration of the Barons in 1308); but Parliament pushed it to extremes in view of its application. 27 See Mcllwain , High Court, 389f, including his quotation from John Allan: "... it is obvious that the two houses not only separated the politic from the natural capacity of tire King, hut transferred to themselves the sovereign authority attributed te him by lawyers in his ideal character." 35 E. Hawkins, Medallic Illustralions of the History of Great Britain and Ireland (London , 1911), pl . xxv,5-6; also E. Hawkins, A, W. Franks , and H . A. Grueber,

20 11

THE PRORLEM PLOIVDEN'S REPORTSS

THE PROBLEM: PLOWDEN'S REPORTS

even against the king body natural. In this fashion, the parlia-

Earl of Essex (fig. Id), whereas once more the reverse side, the King body politic in Parliament, survived without change. In other words, the king body natural in Oxford had become a nuisance to Parliament; but the King body politic still was useful: he still was present in Parliament, though only in his seal image-an appropriate illustration of the concept justifying the Puritan cry of "fighting the king to defend the King.""2 Nor can the fiction of the King's Two Bodies be thought of apart from the later events when Parliament succeeded in trying "Charles Stuart, being admitted King of England and therein trusted with a limited power," for high treason, and finally in executing solely the king's body natural without affecting seriously or doing irreparable harm to the King's body politic-in contradistinction with the events in France, in 1793. There were very great and serious advantages in the English doctrine of the King's Two Bodies. For, as Justice Brown on one occasion explained:'a

mentary King did not tease being included in the body of Parliament, nor was the king ''in his own Person" as yet excludcd. PRO RELIGIONE •LEGE•REGE•ET•PARLIANIENTO said, on the obverse of one of those medallions, the legend surrounding the portrait head of Charles 1, king body natural. At the ame tinte, however, this body was admonished (on the portrait side of a similar medallion [fig. 1f]) by the telling inscription: SHOULO HEAR BOTH HOUSES OF PARLIAMENT FOR TRUE RELIGION AND SURJECTS FREDOM STANDS. This inscription was a verbatim quotation from the Houses' Declaration of May 19, 1642, when Lords and Commons called upon the king "to be advised by the wisdom of both Houses of Parliament." aa But the king body natural no longer could take advice from parliamentary wisdom; he had ]eft Whitehall and London to take his residente finally at Oxford. Another medallion, issued later in that year, epitomized a fuller story (fig. 2).40 From the obverse of the new medallion the king's personal itnage disappeared; we see instead the picture of a ship-not the customary "Ship of the State," but a battleship: the Navy, since 1642, adhered

King is a Name of Continuance, which shall always endure as the Head and Governor of the People (as the Law presumes) as long as the People continue ... ; and in this Name the King never dies.

to the parliamentary canse. The reverse remained seemingly un-

12 See , for the Puritan slogans ( some in poetical form ), Ethyn Kirby, ü'illiam Prynne, a Study in Puritanism ( Harvard, 1931 ), 6o, and, for the badges of Essex, Hawkins, pl .xxv,io-i1, and 1,p295, No.i13. aa Plowden , Reports, 177a.

changed. Again we find the two Houses of Parliament and the King. The King, however, no longer is seated on a dais. Visible to the knees only, he likens a picture framed by the canopy curtains, very much like an apparition of che image of the Great Seal, or of its central part (fig. 3).41 It was, alter all, by the authority of the Seal that Parliament acted against the individual Charles I. The legend PRO: RELTGJONE :GREGE:ET:REGE, "For Religion, Flock, and

King," says plainly enough for whom Parliament was fighting; and that remained true also alter Charles I's portrait, as well as the ship, had been eliminated to be replaced by the portrait of the commander-in-chief of the Parliamentary forces, Robert Devereux, Medall ic Illustrations ( London, 1885), 1,292f, Nos.io8f . Fig.1,r, is a medallion (no reverse image) in the Collection of the American Numismatic Society, in New York. 1 am greatly obliged to Dr. Henry Grunthal for calling my attention to [his piece and providing me with a photo. ss Ibid., 292, No.lo8, and, for the other legend, No.to9. 4 0 Ibid., pl.xxv , 7, and p.292. 41 Trdsor de numismatique es de gli,ptique: Sreaux des rois el reines d'Angleterre (Paris, 1858), pl.xx; W. de Grav Birch, Catalogue of Seals in the Department uf Manuscripis in the British Mtueum (London, 1887), t,63,No.597, descrihing che Fifth Seal, which is identical with the Fourth used 16go-1614 .

22

1

13

SHAKESPEARE: KING RICHARD II

CHAPTERII

by the phrase "The case is altered, quoth Plowden," which was used proverbially in England before and alter 16oo.e The suggestion that Shakespeare may Nave known a case (Hales v. Petit) reponed by Plowden, does not seem far-fetched,' and it gains strength on the ground that the anonymous play Thomas of Woodstock, of which Shakespeare "had his head full of echoes" and in which he may even Nave acted,a ends in the pun: "for I have plodded in Plowden, and can find no law."2 Besides, it would llave been very strange if Shakespeare, who mastered the lingo of almost every human trade, had been ignorant of the constitutional and judicial talk which went on around him and which the jurists of his days applied so lavishly in court. Shakespeare's familiarity with legal cases of general interest cannot be doubted, and we have other evidence of his association with the students at the Inns and his knowledge of court procedure.-

SHAKESPEARE: KING RICHARD II TWIN-BORN with greatness , subject lo the breath Of every fool, whose sense no more can feel But his own wringing . What infinite heart's case Must kings neglect that private men enjoyl .... What kind of god art thou, that suffer'st more

Of mortal griefs than do thy worshippers? Such are, in Shakespeare's play, the meditations of King Henry V on the godhead and manhood of a king.1 The king is "twin-borrt" not only with greatness but also with human nature , hence "subject lo the breath of every fool." It was the humanly tragic aspect of royal "geminatiort" which Shakespeare outlined and not the legal capacities which English lawyers assembled in the fiction of the King's Two Bodies. How-

Admittedly, it would make little difference whether or not

ever, che legal jargon of the "two Bodies" scarcely belonged to the arcana of the legal guild alone. That the king "is a Corporation

Shakespeare was familiar with the subtleties of legal speech. The poet's vision of the twin nature of a king is not dependent on constitutional support, since such vision would arise very naturally

in himself that liveth ever," was a commonplace found in a simple dictionary of legal tercos such as Dr. John Cowell's Interpreter (1607);1 and even atan earlier date the gist of the concept of kingship svhich Plowden's Reports reflected, had passed finto the writ-

from a purely human stratum. It tlierefore may appear futile even to pose the question whether Shakespeare applied any professional idiom of the jurists of his time, or fry to determine the die of

ings of Joseph Kitchin (1580)' and Richard Crompton (1894).' Moreover, related notions were carried finto public when , in 1603,

Shakespeare's coinage. It seems all very trivial and irrelevant, since

Francis Bacon suggested for the crowns of England and Scotland, united in james 1, the narre of "Great Britain " as an expression of

eral, was most genuinely Shakespeare's own and proper vision.

the image of the twinned nature of a king, or even of man in genNevertheless, should the poet have chanced upon the legal definitions of kingship, as probably he could not have failed lo do when

the "perfect union of bodies, politic as well as natural."5 That Plowden's Reports were widely known is certainly demonstrated

conversing with his friends at the Inns, it cvill be easily imagined how apropos the simile of the King's Two Bodies would have

r King Henry V. 1V.i.254ff.

seemed to him. It was anyhow the live essence of his art to reveal

a Dr. John Cowell , The Interpreter or Booke Containing the Signification of Words ( Cambridge , 1607), s.v. "King ( Rex)," also s.v . " Prerogative ," where Plowden is actually quoted. See , in general , Chrimes, "Dr . John Cowell ," EHR, Lx1V ( 1949), 483. a Joseph Kitchin , Le Court Leete et Court Baron ( London, 1580), fo1.1r-v, referring te the case of the Duchy of Lancaster. 4 Richard Crompton , L'Authoritie et Jurisdiction des Courts de la Maiestie de la Roygne ( London, 1594 ), fol. 134'-v, reproducing on the basis of Plowden the theory ahout the Two Bodies in connection with the Lancaster case. 5 See Bacon 's Brief Discourse Touching the Happy Union of the Kingdorns of England and Scotland, in J. Spedding , Letters and Lifé of Francis Bacon ( London, 1861-74 ), m,goff; see, for the print of 1603, S. T. Bindoff, "The Stuarts and their Style," EHR,Lx ( 1845), 2o6,n.2 , who (P-207) quotes the passage.

24

thehumerous planes active in any human being, to play them off 6A. P. Rossiter , Woodstock ( London, 194,238-

7 Ahout Sñakespeare and Plowden , see C. H. Norman , " Shakespeare and the Law," Times Literary Supplement , June 30, 1950 , P. 412, with the additional remarks by Sir Donald Somervell , ¡bid., July 21, 1950, P. 453. For the case, see ahoye , Ch.t, n.2'. s John Dover Wilson, in his edition of Richard II ( below, n.12 ), " Introduction," p. lxxiv; see pp, xlviii ff , for Shakespeare and Woodstock in general. 9 Woodstock , V.vi.34f, ed. Rossiter, 169. lo See, ¡ir general , George W. Keeton , Shakespeare and His Legal Problema (London, 1930); also Max Radio, "The Myth of Magna Carta," Harvard Law Review, LX (1947), ,o86, who stresses very strongly Shakespeare 's association " with the turbulent students at the Inns."

1

°y5

S'HAKESPEA RE: KING R/CIJARD 11

against each other, lo confuso them, or lo preserve their equilibrium, depending all opon the patcern of life he bore in mind and wished to creare anees. l-lote convenient then lo find thosse ever contending planes, as it were, legalised by the jurists' roya) "christology" and readily served to him! cCThe legal concept of the King's Two 13odies cannot, for orher reasons, be separated from Shakespeare. For if that curious iglage, which from modere constitutional thought has vanished, al] but completely, still has a very real and human meaning today, this is, largely due to Shakespeare. It is he who has eternalized that metaphor. He has made it not only the symbol, but indeed the very substance and essence of one of his greatest plays: The Tragedy of King Richard II is the tragedy of the King's Two Bodies,> Perhaps it is not superfluous to indicate that the Shakespearian Henry V, as he bemoans a king's twofold estate, immediately associates that image with King Richard H. King Henry's soliloquies precede directly that brief intermezzo in which he conjures the spirit of his father's predecessor and to the historie essence of which posterity probably owes that magnificent ex-voto known as the Wilton Diptych.11 Not today, O Lord! OI not to-day, think not upon the fault My father made in encompassing the crown. 1 Richard's body have interr'd anew, And on it have bestow'd more contrite tears, Than from it issu'd forced drops of blood. (I V.i.3 t 2ff)

Musing over his own royal late, over the king's two-natured being, Shakespeare's Henry V is disposed lo recall Shakespeare's Richard II, who-at least in the poet's concept-appears as the prototype of that "kind of god that suffers more el mortal griefs thin do his worshippers." It appears relevant to the general subject of chis study, and also otherwise worth our while, lo inspect more closely the varieties of royal "duplications" which Shakespeare has unfolded in the three 11 V. H. Galbraith, "A New Life of Richard 1I;' History, xxvt (1942), 237ff: for che artistic problems and for a full hibliography, see Errvin Panofsky, Early Netherlandish Painting (Cambridge, Mass., 1953), 11S and 404f,n.5, and Francis Wormald, "The Wilton Diptych," irarburg Journal, xvii (1951), i91-2o3.

26

SHAKESPEARE: KING RICHARD II

bewildering central scenes of Richard II11 The duplications, all one, and all simultaneously active, in Richard-"Thus play 1 in one person many people" (V.v.gt)-are those potentially present in the King, tire Fool, and the God. They dissolve, perforce, in the Mirror. Those three prototypes of "ttvin-birth" intersect and overlap and interfere with each orher continuously. Yct, it may be felt that che King" dominates in the scene en the Coast el Wales (1II.ii), the "pool" at Flint Castle (III.iii), and the "God" in the Westminster scene (IV.i), with Man's wretchedness as a perpetual companion and antithesis at every stage. Moreover, in each one of those three scenes we encounter the same cascading: from divine kingship to kingship's "Narre," and from the narre to the naked misery of man. Gradually, and only step by step, does the tragedy proper of the King's Two Bodies develop in the scene en the Welsh coast. There is as yet no split in Richard when, on his return from Ireland, he kisses the soil of Iris kingdom and renders that famous, almost too often quoted, account of the loftiness of Iris royal estate. What he expounds is, in fact, the indelible character of the king's body politic, god-like or angel-like. The balm of consecration resists the power of the elements, the "rough rude sea," since The breath of worldly man cannot depose The deputy elected by the Lord. (III.ii.54ff) Man's breath appears lo Richard as something inconsistent with kingship . Carlisle, in the Westminster scene, will emphasize once more that God's Anointed cannot be judged "by inferior breath" (IV.i.128). It will be Richard himself who "with his own breath" 12 The authoritative edition of Richard II is by John Dover Wilson, in the Cambridge Works of Shakespeare (Cambridge , 1939). Mr. Wilson's "Introduction," pp, vii-lxxvi, is a model of literary criticism and information . I confess my indebtedness ro those pages on which I have drawn more frequently than che footnotes may suggest. In the same volume is a likewise most efficient discussion by Harold Child, "The Stage - History of Richard 77," pp. lxxvii-xcii . The political aspects of the play are treated in a stimulating fashion by John Leslie Palmer, Political Characters of Shakespeare ( London, 1945 ), nSff, from whose study, roo, I have profited more than my acknowledgments may show. See also Keeton , op.cit., i63ff. With regard to che historical Richard 11 , the historian finds himself in a leas fortunate position. The history of this king is in che midst of a thorough revaluation of hoth sources and general concepts , of which the numerous studies of Professor Galbraith and others hear witness. A first effort to sum up the analytic studies of the last decades has heen made by Anthony Steel, Richard II (Cambridge , 1941).

27

SHAKESPEARE : KING RICHARD II

releases at once kingship and subjects (IV.i.21o ), so that finally King Henry V, after the destruction of Richard' s divine kingship, could rightly complain that the king is "subject lo the breath of every fool."12 When the scene ( III.ii ) begins, Richard is, in the most exalted fashion , che "deputy elected by the Lord" and "God's substitute ... anointed in his sight' (I.ü.34). Still is he the one that in former days gave "good ear" to the words of his crony , John Busshy, Speaker of the Commons in 1397, who, when addressing the king, "did not attribute lo him titles of honour, due and accustomed, but invented unused termes and such strange names, as were rather agreeable lo the divine maiestie of God, than to any earthly potentate."" He still appears the one said lo have asserted that the "Laws are in the King's mouth, or sometimes in his breast ," 15 and 13 See also King John, II1 iii.,47f: What earthly name lo interrogatories can task the free breath of a sacred king? 14 This is reponed only by Holinshed; see W. G. Boswell-Stone, Shakespeare's Holinshed ( London, 1896), 130; Wilson , " Introductioo ," p. Iii. The Rotuli Perliamentorum do not refer te the speech of John Busshy, in 1,397. Te judge , however, from the customary parliamentary sermons, the speaker in 1397 may casily have gone far in applying Biblical metaphors to the king ; see, c.g., Chrimes , Consl.Ideas, '6,ff. as "Dixit expresse , vultu austero et protervo , quod leges suae erant in ore suo, et aliquotiens in pectore suo: Et quod ipse solus posset mutare et condere leges regni sui." This was one of the most famous of Richard 's so-called " tyrannies" with which he was charged in 1399; see E. C. Lodge and G. A. Thornton, English Constitutional Docnments 1307-1485 ( Cambridge , 1935), 28f. Richard II , like the French king (below, Ch.lv,n.a93), merely referred to a well known maxim of Roman and Canon Laws . Cf. C.6,23,19, 1, for the maxim Omnia iura in scrinio (pectoris) principis, often quoted by che glossators , e.g., Glos.ord ., en D.33,to.3 , v. usum imperatorem, or on c.16 ,C.25,q.2, v. In iuris, and quoted also by Thomas Aquinas ( Tolomeo of Lucca), De regimine principum, II,a-S, IV,c., . The maxim became famous through Pope Boniface Val; see c., VI 1,2, cal. Emil Friedberg, Corpus iuris canon¡,¡ (Leipzig, 1879-8, ), 11,937: "Licet Romanus Pontifex, qui iura omnia in scrinio pectoris sui censetur habere, constitutionem condendo posteriorem , priorem . . . revocare noscacur ...." (probably the place referred to by Richard if the correctness of the charges be granted). For the meaning of the maxim (¡.e., the legislator should have the relevan [ laws present to his mind ), see F . Gillman, "Romanus pontifex iura omnia in scrinio pectoris su¡ censetur haberes" AKER, xcn (1912), 3ff, ev1 ( 19,26), r56ff ( also cvnr [ 1828], 5 34; ca [1929 ], 249f); also Gaines Post, "Two Notes,' Traditio, rx ( 1953 ), 311, and "Two Laws," Speculum , XIX (1954 ) , 42.5,n.35 . See also Steinwenter , " Nomos," 256ff ; Erg.Gd., 85; Oldradus de Ponte, Consilia , ul,n.l (Venice, 1571 ), fol. tgr. The maxim occasionally was transferred also to the judge (Walter Ullmann, The Mediaeval Idea o f Lau, as Represented by Lucas de Penna [London, 19461, 107) and to the fisc (Gierke, Gen . R., 111,3594 ,7 ) as wetl as to the council (ser below , Chav,nos.t91f, 1g4f). For Richard ' s other claim ( mutare et condere leges), the papal and imperial doctrines likewise were responsable ; see Gregory VII's

lié

SHAKESPEARE: KING RICHARD II

to have demanded that "if he looked at anyone, that person had lo bend the knee."16 He still is sure of himself , of his dignity, and even of the help of the celestial hosts, which are at his disposal. For every man that Bolingbroke hath press'd .... God for his Richard hath in heavenly pay A glorious angel.

(III.ii.6o) This glorious image of kingship "By che Grace of God" does not las[. It slowly fades, as the bad tidings trickle in. A curious change in Richard ' s accitude-as it were , a metamorphosis from "Realism" co "Nominalism"-now takes place. The Universal called "Kingship" begins lo disintegrate ; its transcendental " Reality," its objective truth and god-like existence, so brilliant shortly before, pales into a nothing, a nomen.'' And che remaining half-reality resembles a state of amnesia or of sleep. 1 had forgot mysclf, am 1 not king? Awake thou coward majesty! thou sleepest, Is not the king's name twenty thousand names? Arm, arm, my narre! A puny subject strikes

At chy great glory. (IILii.83ff) This state of half-reality, of royal oblivion and slumber, adumbrases the royal "Fool" of Flint Castle. And similarly the divine prototype of gemination , the God-man, begins to announce its presence, as Richard alludes co judas' treason: Snakes, in my heart-blood warm'd, that sting my heart! Three Dudases, each one thrice worse [han judas! (III.ii. 131)

Dictatus papae, § VII, ed. Caspar ( MGH, Epp . sel., u), 203; also Frederick II's Liber aug,, 1,38, ed. Cervone, 85, with che gloss referring co C., 17,2,18. 16 For the genuflection , see Eulogium Historiaron , ed. Hayden ( Rolas Series, 1863 ), 111,378; see Steel , Richard II, 278. The annalist mentions it in connection with "Festival Crownings " ( which thus were continued during the trigo of Richard) and gives an accounc of che king 's uncanny deportment: In diebus solemnibus, in quibus utebatur ale more regalibus, iussit sihi in camera parar¡ thronum , in quo post prandium se oscencans sedere solebat usque ad vesperas , nulli loquens, sed singulos aspiciens . Et cum aliquem respiceret, cuiuscumque grados fuerit, oporto¡[ genuflectere, 17 For the body politic as a mere name , ser, e.g., Pollock and Maitland , History, 14go,n.8: "le corporacion . n'est que un nosme, que ne poic my estre vieu [see aboye, Ch.t , nos.2-3], et n'est my suhstance." See also Gierke , Gen.R., 111,28,, for corporate bodies as nomina iuris, a nomen intellectuale , and the connections with the philosophic Nominalism.

29

SIIAKFSPICARG:

SII A KFSPFA RP,: KING RICIIARD II

KING RICIIARD 11

inock not tlesh and blood With solemn reverente, throw awav respect, Tradition, forro, and cc'cnionious duty, Por you have buc mistook me all this while: 1 live with bread like vou, feel want,

It is as though ir has dawned opon Richard that bis vicariate of the God Christ might imply also a vicariate of che man jesus, and that he, che royal "deputy clecied bv che Lord," tnight have to follow his divine Master also in his human humiliation and take the cross.

Taste gricf, need friends-subjected chas, How can vou sar co tne, 1 atn a king?

However, neither the twin-borro Pool flor the twin-born God

(II I.i i.t7ctl)

are dominant in that scene. Ouly their ncarness is forecast, while to che fore there steps che body natural and mortal of dte king:

The fiction of the oneness of the double body breaks apart. Godhead and manhood of che King's Two Bodies, both clearly outlined with a few strokes, stand in contrast to each other. A first low is reached. The scene now shifts to Flint Castle. The structure of the second great scene (III.iii) resembles che first. Richard's kingship, his body politic, has been hopelessly shaken, it is trae; but still there remains, though hollowed out, the semblante of kingship. At least this might be saved. "Yet looks he Iike a king," states York at Flint Castle (III.iii.68); and in Richard's temper there dominares, at first, the consciousness of his royal dignity. He liad made up his mind beforehand to appear a king at the Castle:

Let's talk of graves, of worms and epitaphs .. .

(III.ii.145ff) Not only does the king's manhood prevail over the godhead of the Crown, and mortality over immortality; but, worse tiran that, kingship itself seems to have changed its essence. Instead of being unaffected "by Nonage or Old Age and other natural Defects and Imbecilities," kingship itself comes to mean Death, and nothing but Death. And the long procession of tortured kings passing in review before Richard's eyes is proof of that change: ° For God's sake let us sit opon che ground, And tell sad stories of che death of kingsHow some llave heen deposed, some slain in war, Some haunted by che ghosts they have deposed, Some poisoned by their avives, some sleeping killed; All murdered-for within the liollow crown That rounds the mortal temples of a king, Keeps Death his courc, and there the antic sits Scoffing his state and grinning at his pomp, Allowirig him a breath, a little scene, To monarchize, be feared, and kill with looks, Infusing him with self and vain conceit, As if the tlesh which walls about our lile, Were brass impregnable: and humoured tluts, Comes at the last, and with a little pin Bores through his castle wall, and farewell king! (IILff. t 55ff)

A king, woe's slave, shall kingly woe obey. (III.iii.z r o)

He acts accordingly; he snorts at Northumberland who has omitted che vassal's and subject's customary genuflection before his liege lord and the deputy of God: We are amazed, and thus long have ave stood To watch the fearful bending of thy knee, Because we thought ourself thy lawful king: And if ave be, how dare thy joints forget To pay their awful duty to our presente? (III.iü.73ff) The "cascades" then begin tu fall as they did in the first scene. The celestial hosts are called upon once more, this time avenging

The king that "never dies" here has been replaced by the king that always dies and suffers death more cruelly than other mortals. Gone is the oneness of the body natural with the immortal body politic, "this double Body, co which no Body is equal" (aboye, p. 12). Gone also is che fiction of royal prerogatives of any kind, and all that remains is the feeble human nature of a king: 30

angels and "armies of pestilente," which God is said to muster in his clouds-"on our behalf" (II1.iii.85f). Again che "Name" of kingship plays its part: O, that 1 were as great As is my grief, or lesser than my neme! (IlLiii. 136)

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31

SHAKESPEARE: KING RICHARD II

SHAKESPEARE: KING RICHARD II

Must (the king) lose

woven in Richard's answer, reflects the "splendour of the catastrophe" in a manner remindful of Breughel's Icarus and Lucifer's fall from the empyrean, reflecting also those "shreds of glow.... That round the limbs of fallen angels hover." On the other hand, the "traitors' calls" may be reminiscent of the "three Judases" in the foregoing scene. In general, however, biblical imagery is unimportant at Flint Castie: it is saved for the Westminster scene. At Flint, there is another vision which, along with foolish Phaethons and Icari, the poet now produces.

The narre of king? a God's narre, let it go. (IILiii.148f) From the shadowy narre of kingship there leads, once more, the path lo new disintegration. No longer does Richard impersonate the mystic body of his subjects and the nation. It is a lonely man's miserable and mortal nature that replaces the king as King: I'll give my jewels for a set of beads: My gorgeous palace for a hermitage: My gay apparel for an almsman's gown: My figured goblets for a dish of wood: My sceptre for a palmer's walking-staff: My subjects for a pair of carved saints, And my large kingdom for a little grave, A little little grave, an obscure grave.

1 talk but idly, and you laugh at me,

remarks Richard (IIl.iii.171), growing self-conscious and embarrassed. The sudden awkwardness is noticed by Northumberland, too:

(Ilhiii.r47ff)

Sorrow and grief of heart Makes him speak fondly like a frantic man.

The shiver of those anaphoric clauses is followed by a profusion of gruesome images of High-Gothic macabresse. However, the second

(III.iii. t 85)

scene-different from the first-does not end in those outbursts of self-pity which recall, not a Dance of Death, but a dance around one's own grave. There follows a state of even greater abjectness. The new note, indicating a change for the worse, is struck when Northumberland demands that the king come down into the base court of the castle lo mee[ Bolingbroke, and when Richard, whose personal badge was the "Sun emerging from a cloud," retorts in a language of confusing brightness and terrifying puns:

Shakespeare, in that scene, conjures up the image of another human being, the Fool, who is two-in-one and whom the poet otherwise introduces so often as counter-type of lords and kings. Richard II plays now the róles of both: fool of his royal self and fool of kingship. Therew'ith, he becomes somewhat less than merely "man" or (as on the Beach) "king body natural," However, only in that new róle of Fool-a fool playing king, and a king playing fool-is Richard capable of greeting his victorious cousin and of playing lo the end, with Bolingbroke in genuflection before him, the comedy of his brittle and dubious kingship. Again he escapes into "speaking fondly," that is, into puns:

Down, down 1 come like glist'ring Phaethon: Wanting the manage of unruly jades.... In the base court? Base court, where kings grow base, To come at traitors' calls, and do them grace. In the base court? Come down? Down court! down king! For night-owls shriek where mounting larks should sing.

Fair cousin, you debase your princely knee, To make the base earth proud with kissing it....

(III.iii .178ft)

p. xii, n.3, and, for possible predecessors using that badge, John Gough Nichols, "Observations on the Heraldic Devices en the Effigies of Richard the Second and his Queen," Archaeo[ogia, xxtx (1842), 47f. See, for the "Sun of York" (K. Richard I71, Li.2), also Henry Green, Shakespeare and the Emblem TVriters (London, 1870), 223; and, for the Oriens Augusti problem, see my forthcoming study.-_The "suene arysing out of the clouds" was actually the banner borne by the Black Prince; Richard II had a son shining carried by a white hart, whereas his standard was sprinkled with ten suns "in splendor" with a white hart lodged; see Lord Howard de Walden, Banners, Standards, and Badges from a Tudor Manuscript in the Cotlege of Arma (De Walden Library, 1904), figs. 4, 5, 71. I am greatly obliged to Mr. Martin Davies, of the National Gallery in London, for having called Chis ms to my attention.

It has been noticed at different times how prominent a place is held in Richard II by the symbolism of the Sun (fig. 4), and occasionally a passage reads like the description of a Roman Oriens Augusti coin (III.ü.36-53; cf. fig. 32c).11 The Sun imagery, as interne For Richard's symbol of the "Rising Sun," see Paul Reyher, 'Le symhole do soleil dans la tragédie de Richard IL" Revise de l'enseignement des langves vivantes, xi. (1923), 254-260; for further literature on the subject, see %Vilson, " Introduction,"

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SHAA'ESPEARE: KING RICHARD II

SIIAL'IESPEARF.: FING RICHARD 11

Up, cousin, up-)our hcart is up, 1 know, Thus high (touching his own head) nt least, although your knee be low.

king with che humbled Christ. Yet, it is che bishop who, as it viere, prepares the Biblical climate by prophesying future horrors and

(IIl.iii.igoff) The jurists had claimed that the kiná s body politic is utterly void of "natural Defects and Imhecilities." Here, hors^ever, ''Imbecility" seems lo hold sway..Ancl vet. the very bottom has not been reached. Each scene, progressicely, designates a new low. "King body natural" in the first scene, and "Kingly Fool" in the second: with those two twin-boro beings there is associated, in the halfsacramental abdication scene, the twin-born deity as an even lower estate. For the "Fuol" marks the transition from "King" lo "God," and nothing could be more miserable, it seems, than the God in the wretchedness of man. As the third scene (IV.i) opens, there prevails again-now for the third time-the image of sacramental kingship. On the Beach of Wales, Richard himself had been the herald of the loftiness of kingship by right divine; at Flint Castle, he had made it his "program" lo save at ]east the Pace of a king and to justify the "Mame," although the title no longer fitted his condition; at Westminster, he is incapab]e of expounding his kingship himself. Another person will speak for him and interpret the image of God-established royalty; and very fittingly, a bishop. The Bishop of Carlisle now plays the logothetes; he constrains, once more, che rex imago Dei to appear: What subject can give sentence on bis king? And who sits here that is not Richard's subject? ... And shall the figure of God's majesty, His captain, steward, deputy-elect, Anointed, crowned, planted many years, Be judged by subject and inferior breath, And he himself not present? O, forfend it, God, That in a Christian climate souls refined Should show so heinous, black, obscene a deed! (IV.i.12 tff)

Those are, in good mediaeval fashion, the features of the vicarios Dei. And it likewise agrees with mediaeval tradition that the Bishop of Carlisle views the present against the background of the Bib]ica] past. True, he leaves it lo Richard lo draw the final conclusions and to make manifest the resemblance of the humbled

34

foretelling England's Golgotha: Disorder, horror, fear, and mutiny Shall herc inhabit, and Chis land be called The ficld of Golgotha and dead nren's skulis. (IV.i.11 sfl)

The bishop, for his bold speecis, was promptly ancsted; ])lit uno the atmosphere prepared by him there enters King Richard. When led into Westminster Hall, he strikes che lame chords as the bishop, those of Biblicism. He points lo the hostile assembly, to the lords surrounding Bolingbroke: Did they not sometimes cry 'all hall' lo me? So judas did lo Christ: But He, in twelve, Found truth in all, but une: 1 in twelve thousand, none. (IV.i.16g) For the third time the narre of judas is cited lo stigmatize the lees of Richard. Soon the name of Pilare will follow and make the intplied parallel unequivocal. But before being delivered up to tris judges and his cross, King Richard has lo "un-king" himself.

The scene in which Richard "undoes his kingship" and releases his body politic into thin air, leaves che spectator hreathless. It is a scene of sacramental solemnity, since the ecclesiastical ritual el undoing the effects of consecration is no less solemn or of less weight than the ritual which has built up che sacramental dignity. Not to mention the rigid punctilio which was observed at the ousting of a Knight of the Garter or the Gulden Fleece,"B there liad been set a famous precedent by Pope Celestine V who, in the Castel Nuevo at Naples, had "undone" himself by stripping off from his body, with his own hands, the insignia of the dignity was, on the whole, faithfully observed; is The ecclesiastical Forma degradationis see the Pontifical of William Durandus (ca. 1293-96), 111,c 7, §§21-24, ed. M. Andrieu, , Rome, 1940), u1,6o7f and Le pontifical romain au moyen-dge ( Studi e teso, txxxvnt has to appear in full pontificals; Appendix 1v, pp. 68of. The person to be degraded acid; finally " seriatim et then the places of Iris chrismation are rubbed with some sise sacra ornamenta, que in , illi omnia insignia [episcopus] sigillatim detrahit See also ordinum susceptione recepit, et demum exuit illum habitu clerical¡ ...:. and Degradation of S. W. Findlay, Canonical Norms Governing the Deposition , see Otto Carteltieri, Am Hoja der Herzdge Clerics ( Washington . 1941 ) . For knights also Du Cange , Glossarium, van Burgund ( Base¡, 1926 ), 62 (with notes un p. 272); s.v. "Arma reversata."

35

SHAKESPEARE: KING RICHARD II

SHAKESPEARE: KING RICHARD 11

which he resigned-ring, tiara, and purple. But whereas Pope Celestine resigned his dignity lo his electors, the College of Cardinals, Richard, the hereditary king, resigned his office to GodDeo ius suum resignavit.20 The Shakespearian scene in which Richard "undoes himself with hierophantic solemnity," has attracted the attention of many a critic, and Walter Pater has called it very correctly an inverted rite, a rite of degradation and a long agonizing ceremony in which the order of coronation is reversed.21 Since none is entitled lo lay finger on the Anointed of God and royal bearer of a character indelibilis,2 1 King Richard, when defrocking himself, appears as his own celebrant:

With mine own hands I give away my crown, With mine own tongue deny my sacred state, With mine own breath release all duteous oaths: All pomp and majesty do I foreswear....

(IV.i.2o3ff) Self-deprived of all his former glories, Richard seems lo fly back to his old trick of Flint Castle, to the role of Fool, as he renders to his "successor" some double-edged acclamations.R3 This time, however, the fool's cap is of no avail. Richard declines to "ravel out his weaved-up follies," which his cold-efficient foe Northumberland demands him lo read aloud. Nor can he shield himself behind his "Name." This, too, is gone irrevocably:

Am I both priest and clerk? well then, amen. 1 have no narre.... And know not now what name to call myself. (IV.i.254ff)

(IV-i-173) Bit by bit he deprives his body politic of the symbols of its dignity and exposes his peor body natural to the eyes of the spectators:

In a new flash of inventiveness, he tries to hide behind another

screen . He creates a new split, a chink for his former glory through

Now mark me how I will undo myself: 1 give this heavy weight from off my head, And this unwieldy sceptre from my hand, The pride of kingly sway from out my heart; With mine own tears 1 wash away my balm,

which to escape and thus to survive. Over against his lost outward kingship he sets an inner kingship, makes his true kingship to retire to inner man , to soul and mind and "regal thoughts":

20 For Pope Celestine V, see F. Baethgen , Der Engclpapst (Leipzig, 1943), 175; for Richard, Chronicle of Diculacres Abbey, ed. M . V. Clarke and V. H. Galbraith, "The Deposition of Richard II," Bulletin of the John Rylands Library, xiv ( 1930), 173, also 146. 21 Walter Pacer, Appreciations (London, 1944), 2o5f; Wilson, xv f; Palmer, Political Characters, 166. 22 Cf. Chrimes , Const. Ideas, 7, n. 2, quoting Annales Henrici Quarti, ed. Riley (Rolls Series), 286: "Noluit renunciare spirituali honori characteris sibi impressi et inunclioni , quibus renunciare non potuit nec ab hffs cessare." The question as te whether or nel the king, through his anointment , ever owned in a technical sense a character indelibilis is too complicated te be discussed here. In fact , the notion of the "sacramental character " was developed only at the time when the royal (imperial ) consecrations were excluded from the number of the seven sacraments; cf. Ferdinand Brommer, Die Lehre vom sakramentalen Character in der Scholastik bis Thomas von Aquino inklusive ( Forschungen zur christlichen Literatur- und Dogmengeschichte , vur, 2 ), Paderborn, igo8, For the attitude of the Pope, Innocent III, see below, Ch. vii, nos, ,4f, also 18. A different matter is the common opinion about the sacramental character of royal anointings and the inaccurate use of the term sacramentum ; see, for the latter, e.g., P . E. Schramm , "Der Kdnig von Navarra (1035.1512 )," ZfRG, germ. Abt., txvnt ( 1951 ), 147, n. 72 ( Pope Alexander IV referring to a royal consecration as sacramentum ). See, in general , Eduard Eichmann, Die Kaiserkrónung im Abendland ( Würzburg, 1942 ), 1, 86ff, go, 2o8 , 279, n, 304; Philipp Oppenheim, " Die sakralen Momente in der deutschen Herrscherweihe bis zum Investiturstreit ," Ephemerides Liturgicae , s.vnt (1944 ), 42ff; and, for England, the well known utterances of Peter of Blois (PL, ccvn, 44oD) and Grosseteste (Ep., cxxiv, ed, Luard, 350). Actually, the lack of precision was great at all times.

36

You may my glories and my state depose, But not my griefs, still am 1 king of those. (1V.i.192ff) Invisible his kingship, and relegated to within: visible his flesh, and exposed lo contempt and derision or co pity and mockerythere remains but one parallel to his miserable self: the derided Son of man. Not only Northumberland, so Richard exclaims, will be found "damned in the book of heaven," but others as well: Nay, all of you, that stand and look upon me, Whilst that my wretchedness doth bait myself, Though some of you, with Pilatc, wash your hands, Showing an outward pity; yet you Pilates 1-Iave here delivered me co my sour cross, An41 water cannot wash away your sin. (IV.i.237) It is not at random that Shakespeare introduces here, as antitype of Richard, the image of Christ before Pilate, mocked as King of 2a IV.i.2,4ff.

1

37

SHAKESPEARE: KING RICHARD II

the Jews and delivered to tire cross. Shakespeare's sources, contemporary with the events, had transmitted that scene in a similar light. At [his hour did he (Bolingbroke) remind nie of Pilare, who caused our Lord Jesus Christ to be scourged at thc stake, and aftenvards liad him brouglit before the multit ide of the Jcies, saving, "Fair Sirs, behold your king '' who replied, Tei hiui be tiucified!" Then Pilate washed his hands of it, saving, "I ani innocent of the just hlood." And so he delivered our Lord tinto them. Mude in the likc manner did Duke Henry, when he gave up his rightful lord to the rabble of London, in order that, if they shonld put him to death, he might say, "l am innocent of this deed."24

The parallel of Bolingbroke-Richard and Pilate-Christ reflects a widespread feeling among the anti-Lancastrian groups. Such feeling was revived, to some extent, in Tudor times. But this is not important here; for Shakespeare, when using the biblical comparison, integrares it into the entire development of Richard's misery, of which the nadir has as yet not been reached. The Son of man, despite his humiliation and the mocking, remained the deus absconditus, remained the "concealed God" with regard to inner man , just as Shakespeare's Richard would trust for a momeni s length in his concealed inner kingship. This inner kingship, however, dissolved roo. For of a sudden Richard realizes that he, when facing his Lancastrian Pilate, is not at all like Christ, but that he himself, Richard, has his place among the Pilares and Dudases, because he is no less a traitor than tlie others, or is even worse than they are: he is a traitor to his own immortal body politic and to kingship such as it had been to his day: Mine eyes are full of tears, 1 cannot see.... But they can see a sort of traitors here. Nay, if 1 turn mine eves opon myself, 24 The passage is found in the Chronigne de la Traison et Mort de Richard 11. ed. B. Williams , in: English Historical Society, 1846, and in Creton's French metrical History of the Deposition of Richard II, ed. J. lvebb, in: Roval Society of the Antiquaries' (London, i8 , q)..A fifieenth-century English version, which has been ren dered here, was edited by J. Webb, in Archaeologia, xx (1824), 149. See, on [hose sources, Wilson , "Introduction;" lviii, cf. xvi f and vi. The crime of treason svould naturally evoke the comparison with judas. The comparison with Pilate seas likewise quite common (see, e.g ., Dante, Purg., xx, 91), though his role was not alwavs purely negative ; see, e .g., O. Treitinger, Die ostrdmische Kaiser- und Reirhsidee nach ihrer Gestaltung ¡ni i,dfischen Zeremmtiiell (Jena, 1938), 231, n. 104, for Pílate 's inkpot in the ceremonial of the Bvzantine emperor, who on Ash w'ednesdav symbolically "washed his hands."

38

SHAKESPEARE: KING RICHARD 11 1 find myself a traitor with the res[:

Por 1 ]tate given here mv smtl's consent T'undeck tlie pompous hody of a king... (IV.i.21,11 That is, the king body natural becomes a traitor to the king body

politic, to the "pompous body of a king." It is as though Richard's self-indictment of treason anticipated the cliarge of 1649, sise charge of high treason committed by tbe king against the King. This cleavage is not yet the climax of Richard's duplications, since the splitting of his personality will be continued without mercy. Once more does [here emerge that metaphor of "Sunkingship." It appears, however, in the reverse order, when Richard breaks into that comparison of singular imagination: O, that I were a inockery king of snow, Standing before the sun of Bolingbroke, To melt myself away in water-dropsl

(IV.i.26off) ° But it is not before that new Sun-symbol of divine majesty throughout the play-that Richard "melts himself away," and together with his self also the image of kingship in the early liturgical sense ;2I it is before his own ordinary face that diere dissolves both his bankrupt majesty and his nameless manhood. The mirror scene is the climax of that tragedy of dual personality. The looking- glass has the effects of a magic mirror, and Richard himself is the wizard who, comparable to the trapped and cornered wizard in the fairy tales, is torced to set his magic art to work against himself. The physical face which the mirror reflects, no longer is one with Richard's inner experience, his outer appearance, no longer identical with inner man. "Was Chis the face?" The treble question and the answers to it reffect once more the three main facets of the double nature-King, God (Sun), and Fool: Vas this the face

That every day under his household roof Did keep ten thousand men? Was this the face That, like the sun, did make beholders wink? Was this the face, that faced so many follies, And was at las[ outfaced by Bolingbroke? (IV.1.281)

es See below, pp. 87f.

39

SHAKESPEARE: KING RICHARD II

SHAKESPEARE: KING RICHARD II

When finally, at the "brittle glory" of his face, Richard dashes the mirror to the ground, there shatters not only Richard's past and present, but every aspect of a super-world. His catoptromancy has ended. The features as reflected by the looking-glass betray that he is stripped of every possibility of a second or super-body-of the pompous body politic of king, of the God-likeness of the Lord's deputy elect, of the follies of the fool, and even of the most human griefs residing in inner man. The splintering mirror means, or is, the breaking apart of any possible duality. All those facets are reduced to one: to the banal face and insignificant physis of a miserable man, a physis now void of any metaphysis whatsoever. It is both less and more than Death. It is the demise of Richard, and the rise of a new body natural.

Theatre before his supporters and the people of London. In the course of the state trial against EsseK that performance was discussed at some length by the royal judges-among them the two greatest lawyers of that age, Coke and Bacon-who could not fail to recognize the allusions to the present which the performance of that play intended.21 It is likewise well known that Elizabeth looked upon that tragedy with most unfavorable feelings. At the time of Essex' execution she complained that "this tragedy had been played 40 times in open streets and houses," and she carried her self-identification with the title character so far as to exclaim: "I am Richard II, know ye not that?"20 Richard II remained a political play. It was suppressed under Charles II in the t68o's. The play illustrated perhaps too overtly the latest events of England's revolutionary history, the "Day of the Martyrdom of the Blessed King Charles I" as commemorated in tlrose years in the Book of Common Prayer.31 The Restoration avoided there and other recollections and had no liking for that tragedy wtlich centered, not only on the concept of a Christ-like martyr king, but also on that most unpleasant idea of a violen separation of the King's Two Bodies. It would not be surprising at all had Charles 1 himself thought of his tragic late in terms of Shakespeare's Richard II and of the king's twin-born being. In some copies of the Eikon Basilike there is printed a lament, a long poem otherwise called Majesty in Misery, which is ascribed to Charles 1 and in which the unfortunate king, if really he was the poet, quite obviously alluded to the King's Two Bodies:

Bolingbroke: Go, some of you, convey him to the Tower. Richard: O, goodl convey? conveyors are you all, That rise thus nimbly by a great king's fall.

(IV.i.gi6f) Plowden: Demise is a word, signifying that there is a Separation of the two Bodies; and that the Body politic is conveyed over from the Body natural, now dead or removed from the Dignity roya¡, to another Body natural.26 The Tragedy of King Richard II has always been felt to be a political play,21 The deposition scene, though performed scores of times after the first performance in 1595, was not printed, or not allowed to be printed, until after the death of Queen Elizabeth.21

With my own power my majesty they wound, In the King's name the king himself uncrowned. So does the dust destroy the diamond32

Historical plays in general attracted the English people, especially in the years following the destruction of tire Armada; but Richard II attracted more than the usual attention. Not to speak of other

2P Wilson, xxx ff; Keeton, 166 , 16s. 20 Wilson, xxxii. ar Wilson, xvii; Child, lxxix. 32 According to Rosemary Freeman, English Emblem Books (London, 1948), 162, n.1, the poem was first printed in the Eikon Basilike, edition of 1648. Margaret Barnard Pickel, Charles I as Patron of Poetry and Drama (London, 1938), who prints the whole poem in Appendix C, secros to assume (p. 178) that it was first published in Bishop BurnePS Memoirs of the Duke of Hamilton (London, 1677), a work dedicated to Charles E. A few stanzas have been published also by F. M. G. Higham, Charles I (London, 1932), 276-

causes, the conflict between Elizabeth and Essex appeared to Shakespeare's contemporaries in the light of the conflict between Richard and Bolingbroke. It is well known that in i6oi, on the eve of his unsuccessful rebellion against the Queen, the Earl of Essex ordered a special performance of Richard II to be played in the Globe 26 Plowden, Reports, 233a; aboye, Ch. 1, n.13. 21 Palmer, Political Characters, u8f. 28Wilson, "Introduction," xvi ff, xlix; also Child (¡bid.), Ixxvii fE; cf. Keeton, Legal Problems, 163.

40

1

41

THE NORMAN ANONYMOUS

C 1-1 A P 'I' E R I I I CHRIST-CENTERED KINGSHIP r. The Norman Anonyn7ous \17HILE undoubtedly it is trae that the legal fiction of the King's Two Bodies ivas a distinctive leature of English political tiiought in the age of Elizabeth and thc early Stuarts, it would be unfortunate lo imply that those speculations were restricted to the sixteenth and seventeenth centuries or were lacking antecedents. It may not have been generally known, but it was probably known to at least one prominent Elizabethan, Archbishop Matthew Parker, that almost five centuries before his own times an anonymous mediaeval author liad developed some curious ideas about the "twinned" person of a king. For Archbishop Parker, who shortly before his death in 1575 bequeathed his precious library to his old College, Corpus Christi at Cambridge, liad among his treasures the only extant manuscript of some highly interesting theological and political tractates which, around A.D. iloo, had been written by an unknown cleric. The tractates reveal in daring language the author's passionately anti-Gregorian and vigorously royalist sentiments; they still breathe the fire kindled by the Investiture Struggle. Since their first publication some fifty years ago, those pamphlets have attracted increasing attention from historians; but despite all scholarly efforts it has not been possible to ascertain the narre of their author, although the most recent study leaves no doubt that the "Anonymous" was a Norman froin Normandy and perhaps even a member of the Duchy's high clergy.r There are few problems in the field of ecclesiology and policy whicli the Norman Anonymous, who liad a good knowledge of 1 The bulk of the a sony,nous 'rractates 'vas published in ,899, by IIeinrich Bühmer, in MGH,LdL, 111,642-678, and in his Kirche and Staet in England and in der Norntandie im ir. und za. Johrhumdert (Leipzig, 1899), 496-497, with a full discussion of the Tractates and suggestions as lo che authorship 077-269). For the whole problem, including a hihliographie raisonnée, see now, in addition to Harald Scherrinsky, Untersuchungen zum sogenannten Anonyntrs van York (WürzburgAumühle, 1940), George H. Williams, The Norman Anonymous of ca. uoo A.D-: Toward the Identification and the Evalnation al the So-called Anonymous of York (Harvard Theological Studies, xvw; Cambridge, ,95,), en whose work 1 have drawn perpetually in the follmeing pagel. Ser AVilliams. ,2511, for sise authorship of the tractates.

42

1

theological literatnre, liturgy, and canon law, failed lo treat in his always original, always surprising, and ahvays lively fashion. Among the many topics which he saw fin to discuss, there was also what later would be defined as persona mixta, the `mixed person" in which various capacities or strata concurred. "Mixtures" of al¡ kinds of capacities, of course, may be found today as in every other age and under ahnost any conditions. However, the yoking of nco seemingly heterogeneous spheres had a peculiar a! riad VIO for an age eager to reconcile the duality of this world and the other, of things temporal and eternal, secular and spiritual. We need only think of the "mixture" of monk and knight postulated in the orders of spiritual chivalry lo grasp the pattern of ideals by which that time might have been moved; and when an abbot of Cluny was said to be angelicus videlicet et humanos, it was more than just a metaphor chosen by chance, because we llave to remember that the monk claimed to exemplify, while still in this world and in the flesh, the vita angelica of the celestial beings.2 What matters here is only the persona mixta in the religio-political sphere where it was represented chiefly by bishop and king, and where the "mixture" referred to the blending of spiritual and secular powers and capacities united in one person. Dual capacity in this sense was a feature customary and rather common with the clergy during the feudal age when bishops were not only princes of the Church but also feudatories of kings. We do not need to look for such extreme cases as that French bishop who claimed to observe strictest celibacy as a bishop while being duly married as a baron, or the case of Odo of Bayeux who, at Lanfranc's suggestion, was tried by the Conqueror as an earl, and not as a bishop;a for cxxxm, 67C: "Eral enim velut 2 See John of Salerno, Vita S. Odonis, c.5, PL, lapis angularis quadrus, angelicus videlicet el humanus;' wherehy it has lo be known that acmrding to Christian exegesis the Biblical "Correr Stoné" ivas identified with Christ joining together " two walls," that is, ,jeses and Gentiles. In this sense, then, Odo of Cluny not only receives an epithet due to Christ, Sta also is said to join together "nvo walls;' (hose of angels and men. See, for the concepst„Gerliart B. Ladner, "The Symbolism of the Biblical Correr Stone in the Mediaeval Wesq" as vita angelica , ser, e.g., Kassius Medioeval Studies, n (1940), 4360. For monachism DA, x (1954), 4'7445, esp. Hallinger, "Zur geistigen Welt der Anfünge Klunys;" 429f ; and, for Angelus tuus as an address, Henri Grégoire, "'Ton Ange' el les Anges de Théra," BZ, xxx (1929-30), 641.644. (Manchester, 1914), 160, B T. F. Tout, The Place of Edward 11 in English History (Cambridge, n. 1; James Conway Davies, The Baronial Opposition lo Edward Il Historia ecclesiostica, n1, c.vii, ), 22. For Odo of Bayeux, see Ordericus Vitalis, 1918

43

CHRIST-CENTERED KINGSHIP

o THE NORMANANONYMOUS

shortly al ter i ioo the dual capacity of bishops had been spelled out in legal tercos in a number of concordats which the Holy See concluded with the secular powers. It is significant, however, that a seemingly so obvious distinction as that between the spiritualities and temporalities of a bishop, with which tl1e problem of investiture had been almost hopelessly entangled, could be established only with great difficulty, and that it was due chiefly to the clear thinking of a legal authority, Ivo of Chartres, that the logical conclusion finally was drawn: the recognition of a bishop's dual status. Under Ivo's sponsorship the problem of the bishops' investiture with the temporalities, sided by the ecclesiastical consecration, was regulated in England by the concordat of 1107, and from that time onwards the dual status of the English bishop-barons was clearly defined. Habet daos status declared the royal judges under Edward 1 concerning the Bishop of Durham, who was at the lame time count palatine; and the judges formulated thereby, though with greater precision, only what had been described already in the Constitutions of Clarendon (1164) as well as on other occasions.4 Not only the bishop, but also the king appeared as a persona mixta, because a certain spiritual capacity was attributed to him as an effluence of his consecration and unction, It is true that the papal doctrine finally denied to the king a clerical character, or relegated it lo some insignificant honorary titles and functions., Nevertheless, the late mediaeval authors continued to emphasize that the king was "not purely laical" or, in the language of the law, was "not an ordinary person."e Around 1100, however, when the

Norman AYaonymous wrote his tractates, the concept of the king as a person endowed with spiritual qualities was still in bloom and had hardly passed its heyday; and therefore much of what that writer discusses has to be viewed against the background of mediaeval priest-kingship ideals. With the King's Two Bodies the doctrine of the persona mixta seems lo have no direct relation. The duplication expressed by the concept of the persona mixta refers to temporal and spiritual capacities, but does not refer to bodies natural and politic. Or could it be that the king's impersonal and immortal super-body appeared, during the earlier Middle Ages, in some way or the other, embedded in that very idea of his spiritual character resulting from the clericalization of the royal office?1 In fact, it is in that direction that the Norman Anonymous, one of the staunchest defenders of the spiritual essence of a Christ-like kingship, sends us, and we can do nothing better than to take his hint and follow his guidance. The best known , and perhaps the most remarkable, of the see Eichmann, "Kdnigs- und Bischofsweihe," 58, also 52ff; cf. Die Kaiserkrdnung, t, 1o5ff, 203, and passim. See also the Order of Cencius (Cencius II), ed. P. E. Schramm, "Die Ordines der mittelalterlichen Kaiserkr6nung," Archiv für Urkundenforschung, xi (1929), 379: "(Papa) fatiit eum clericum," referring to the emperor's reception among the Canons oí St. Peter's; see A. Schulte, "Deutsche Künige, Kaiser, Papste als Kanoniker an deutschen und rdmischen Kirchen," Historisches Jahrbuch, uv (1934), i37ff; also Schramm, "Sacerdotium uncí Regnum im Austausch ihrer Vorrechte," Studi Gregoriani, u (1947), 425ff. In connection with the right oí investiture, see the Norman Anonymous, MGH,LdL, 111,679, 16ff: "Quare (rex) non est appellandus laicos, quia christus Domini est'' (cf. 685,42ff). Some later jurists held the same view; see below, Ch.vir, 11.16; for Sicily, e.g., Marinos de Caramanico, Prooemium, in Lib. aug., ed. Cervone, xxxv, and ed. F. Calasso, 1 glossatori e la teoria della sovranita (Milan, 1951), 189,26: "Reges enim non sunt mere laici in quos .. .

8, PL, ecxzxvu1,529f, ed. A. Le Prevost (Paris, 1845), 111,191: "Ego non clericum nec antistitem dainno, sed comitem meum, quem meo vise mea preposui regno." 4 Constilutions of Clarendon, §11, ed. Stubbs, Select Charters (Oxford, 1921), 166; Clase Roas, 1296-r302, 33off; Rot.Parl., 1,1o2ff; cf. Davies, op.cit., 23; Pollock and Maitland, 1,524. The dual character oí the bishops is stressed also by Francis Accursius; see G. L. Haskins and E. H. Kantorowicz, "A Diplomatic Mission oí Francis Accursius;" English Historieal Review, LVllt (1943), 436, 446, §27. The capacities oí the pope, of course, are almost innumerable. Bernard oí Clairvaux addressed the pope: "Quin es? sacerdos magnos, summus Pontifex: Tu princeps episcoporum, tu haeres Apostolorum, tu primatu Abel, gubernatu Noe, patriarchatu Abraham, ordine bfelchisedech, dignitate Aaron, auctoritate Moyses, iudicatu Samuel, potestate Peeus, unctione CIpistus"; and St. Bernard did not even mention the judicial and administrative capacities. CE Bernard, De consideratione, 11,8,15, PL, cr.xxxir,751. G Eichmann, Die Kaiserkrónung, 1,203,282f,319, for the king's functions oí subdeacon and lector; see also next note. For the Norman Anonymous en the persona mixta, see also below, n.3o. s See ahoye, Chapter n, n.22. For the formula imperator (rex) non omnino laicus,

44

spiritualia jura non cadunC' That the king is not an "ordinary person" was repeated over and over again; see, for England, e.g., G. O. Sayles, Select Cases in the Court of King's Bench (London, 1939), Iotrod., xliii,n.3. For the king as p ersona mixta, see Schramm, A History of the English Coronation (Oxford, 1937), 115,11.1; also Chrimes, Const. Ideas, 8, and ¡bid., 387, the interesting statement oí Chief Justice Brian (1o Henry VII): "quod Rex est persona mixta car est persona unita cuco sacerdotibus saint Eglise." From Chis general concept there derives, ultimately, the doctrine within the Protestant countries concerning the prince as a duplex persona, saecularis et ecclesiastica ; see Gierke, Gen.R., 1v,66f,n.2o; and, in general, Hans Liermann, "Untersuchungen zum Sakralrecht des protestantischen Herrschers," ZfRG, kan.Abt., xxx (1941), 311.383,

4 For the "clericalization" oí the royal office, beginning, by and large, wjth Hincmar oí Reims and Charles the Bald, see Schramm, Der Kdnig von Frankreich (Weimar, 1939), 17f, 26ff ; cf. Kantorowicz, Laudes regiae, 78ff, and passim.

1

45

CIIRIST-CEN TERED KINGSHIP

THE NORMAN ANONFMOOS

anonymous tractates is the one De consecratione pontificurn et regum. As the title suggests, the author's discussion is centered on the effects of the ordination anointings of both kings and bishops. The Norman Anonymous proceeds very logically from the Old Testament to the New, and therefore starts with the anointings of the Kings of Israel. For the moment, we may disregard the fact that the author is referring not only lo the anointment of brael's kings but also to that of Aaron and the Israelitic high-priests, cohen he writes: ,

che economy of salvation. The kings of the New Covenant no longer would appear as the "foreshadowers" of Christ, but rather as the "shadows," the imitators of Christ. The Christian ruler becarne the christomimétes-literally che "actor" or "impersonator" of Christ-who on the terrestrial stage presented che living image of the two-natured God, even with regard lo the two unconfused natures. The divine prototype and his visible vicar were taken to display great similarity, as they were supposed lo reflect each other; and there was, according• to the Anonymous, perhaps only a single-though essential-difference between the Anointed in Eternity and his terrestrial antitype, the anointed in Time: Christ was King and Christus by his very nature, whereas his deputy on earth was king and christus by grace only. For whereas the Spirit "leaped" into the terrestrial king at the moment of his consecration to make him "another man" (alius vir) and transfigure hico within Time, the self-same Spirit was from Eternity one with the King of Glory to remain one with him in all Eternity., In other words, the king becomes "deified" for a brief span by virtue of grace, whereas the celestial King is God by nature eternally. This antithesis is applied by the Anonymous over and over again . It is not his own invention , but merely reproduces theologically familiar concepts. The antithesis of natura and gratia was commonly used to indicate not only that the weakness of man's nature was remedied by grace, but also that grace disposed man to participate in the divine nature itself. In the latter sense the antithesis of natura and gratia actually formed the vehicle for the early Christian "deification" of man in general , and not just for consecrated and anointed kings. The Anonymous, however, applied that "deification by grace" pre-eminently to the king as an effluence of his anointment and the ritual act of consecration, and used the antithesis lo point out that the "eminente of deification" provided his king with a body of grace by which he became "another mari' excelling all others-a deification which he describes as coterminous with the Greek apotheosis and the ancient Roman

We thus have lo recognize [in the king] a Iwin p erson, one descending from nature, the other from grace.... One through which, by the condition of nature, he conformed with other men: another through which, by the eminente of [his] deification and by the power of the sacrament [of consecration], he excelled all others, Concerning one personality, he was, by nature, an individual man: concerning his other personality, he was, by grace, a Christus, that is, a God-man.s

This passage parallels strikingly, if in theological rather than constitutional language, the arguments of the Tudor lawyers. Those jurists, of course, did not talk about grace but about the polity of the English people, and they would have said probably 'one [body] descending from nature, the other from the polity"; but both the Norman author and the Tudor jurists arrived at a similar fiction of a royal super-body conjoined in some mysterious way to the king' s natural and individual body. The similarities between the two concepts, however, should not tempt us to overlook the fact that some perplexing "physiological" difference prevails between the mediaeval "geminate" king and his two-bodied Tudor descendant. The kings whom the Anonymous refers lo are the christi, the anointed kings of the Old Testament, who have been foreshadowing the advent of the true royal Christus, the Anointed of Eternity. After the advent of Christ in the flesh, and after his ascension and exaltation as King of Glory, the terrestrial kingship underwent, very consistently, a change and received its proper function within 9 MGH,LdL, nt ,664,26ff: "Itaque in unoquoque gemina intelligitur fuisse persona, una ex natura , altera ex gratia , una in hominis proprietate, altera in spiritu et vir. tute. Una, qua per conditionem nature cereras hominibus congrueret , altera qua per eminentiam deificationis et vira sacramenta cundas allis precelleret. In una quippe erat naturaliter individuos homo, in altera per gratiam Christus, id esa Deushomo."

46

9 Ibid., 665,2f : " Post unctioncm vero insilivit in eum spiritus Domini, et propheta factus est , et mutaras est in virum atium." From this "lcap" of the Holy Spirit the king's ❑vo personalitics actually derived; cf. 664,2off : ''[Ad unctionem ] insiliebat in cos spiritus Domini et virtus deifrcans , per quam Christi figura fierent el imago et que mutaret cos in viros alios, ita ut . , . in persona sua esset alias vir, et alias in spirir1[... .

47

CHRIST-CENTERED KINGSHIP THE NORMANANONYMOUS

consecratio .10 The antithesis served the Anonymous, it is true, lo observe very strictly the inherent difference between the God and the king; but it served him also lo blur that line of distinction and lo show where the difference between "God by nature" and "god by grace" ended; that is, in the case of potestas, of power. Essence and substance of power are claimed lo be equal in both God and king, no matter whether that power be owned by nature or only acquired by grace. The power of che king is the power of God. This power, namely, is God's by nature, and the king's by grace. Hence, the king, too, is God and Christ, but by grace; and whatsoever he does, he does not simply as a man, but as one who has become God and Christ by grace.ll

Thus, the king appears the perfect christomimetés also with regard lo power, since his power is che same as that of Christ. The author may add, therefore, that the One who is God and Anointed by nature, acts through his royal vicar who is "God and Christ by grace," and who in oficio figura et imago Christi et Dei est.12 That is lo say,-the king, otherwise an individual man, is in oficio the type and image of the Anointed in heaven and therewith of God. 10 For Christian deification , see, e . g., M. Lot-Borodine , "La doctrine de la déification dans l'église grecque ," Reate de I'histoire des religions, cv-cvrt ( 1932-33); J. Gross, La divinisation du chrétien d'aprés les péres grecs ( Paris, 1938 ); atoo G. W. Butterworth , "The Deification of Man in Clement of Alexandria ," Journal of Theological Studies, xvn ( 1g16), ,57ff, and Cuthbert Lattey, ¡bid ., 257ff; A. D. Nock, in: Journal of Religion, xxxl (1951 ), 2,4ff, and Kantorowicz , " Deus per naturam, deus per gratiam ," Harvard Theological Review, XLV (1952), 253-277. For apotheosis and consecratio , lee below, n.13. 11 MGH,LdL, ur,667,35ff. The priest instituted by the king is not instituted by the power of man , but by the power of God: " potestas enim regis potestas Dei est Dei quidem cal per naturam , regis per gratia.. Unde el rex Deus el Christus est, sed per gratiam, el quicquid fati[ non homo simpliciter , sed Deus factus et Christus per gratiam facit ." See also 676 , 14ff: "Summi el celestis imperatoris el secundi terrenique una eademque potestas est, sed celestis principaliter , terreni secundarle ." The ruler as a Deo secundus ( so already Tertullian , Apologeticus , xxx,r) and Christ as óeírepor ecó, ( see, e.g., Origen , Contra Celsum , v,39, and v1 ,57) belong lo another cycle of problems for which some relevant material has been collected by H. Volkmann, "Der Zweite nach dem K6nig ," Philologus, xevu ( 1987), 285-316. It is interesting , however, that the Byzantine emperor was sometimes addressed as "second God by grave(6V709 vo0 roo cara Xúpv cal ñevre'pou OeoC ); see Spyridon P. Lampros , MÉXai) X 'Ac0µ1viro,, roO xwYI6T° V ra swl6,s va (Athens, 1879), 1,221 , 11f; M. Bachmann, Die Rede des Johannes .Syropulos en den Kaiser Isaak II. Angeles (1185-1195) ( Munich diss ., 1935), 11 and 26.

12 MGH,LdL, nt,667,8f: "... in spiritu el Christus el deus est , el in officio figura el imago Christi el Dei est." Ibid., 667, 39: "Immo ipse , qui natura Deus est et Christus, per vicarium suum hoc facit , per quens vices suas exsequitur."

48

These reflections on both the bipolarity and the potencial oneness of nature and grace led the author to the concept of his Christ-impersonating king as a "twinned" being. He, the anointed by grace, paralleis as a gemirla persona the two-natured Christ. It is the mediaeval idea of Christ-centered kingship carried lo an extreme rarely encountered in the West.11 The king is a twinned being, human and divine , just like the God-man, although the king is two-natured and geminate by grace only and within Time, and not by nature and (after the Ascension) within Eternity: the terrestrial king is not, he becomes a twin personality through his anointment and consecration. The expression itself, gemina persona, does not represen a poetical metaphor, but is a technical term derived from and related to christological definitions. That actually chis term was rarely applied to Christ is a different matter. According to the orthodox dogma, Christ is una persona, duae naturae. "Twin person," therefore, was an expression lo be avoided as dogmatically unsafe; it was just as bad as "two Persons," since it did not safely preclude a Nestorian -or Adoptionist interpretation. It is noteworthy, however, that the image of "twinship," generally rare in that connection, occurs with relative frequency in the acts of the early Hispanic councils. A certain wavering may be found in the numerous Creeds which the Hispanic synods have produced, but their wording is dogmatically correct. The second Hispanic Coun12 Ibid., 665 , ,gf: "Eral enim . . christus Domini el unus cum Domino spiritus. Christus etenim Deus el homo esr." And more explicitly , ¡bid., 665,28ff , a passage showing that king and Christ have che "Two Natures" in common: Rex autem ... huius Christi , id est Dei el hominis , imago et figura eral, quia ... Lotus homo eral, totus deificatus eral el sanctificatus per gratiam unctionis et per benedictionis consecrationem . Nam el si Graeci sermonis utaris ethimologia , consecratio , id est apotheosis, sonabit tibi deificatio . Si ergo ... rex . . per gratiam deus est el christus Domini, quicquid agit el operatur secundum hanc gratiam, iam non homo agit el operatur, sed deus et christus Domini. 1 have constantly amitted che referentes so the bishop ; see below, n . 3o. For che Anglo - Saxon king as christus Domini, see the legatine report of 787, in Haddan and Stubbs, Councils and Ecclesiastical Documents ( Oxford, 1871), 111,4544u ; and, for Henry II, Peter of Blois, PL, ccvn,44oD; in general , see Leonid Arbusow, Liturgie und Gesehichtsschreibung im Mittelalter ( Bonn, 1951), g5,n.6o. It should be added that according lo the Anonymous ( 67o,5ff) only che king is a true and genuine christomimétis; for the bishops act interposita vice et imitatione aposlolorum; they are quasi-apostolomim2tai and onty indirectly , through che Apostles, also christomimétai . The "elymology " of che Anonymous is perfectly corred : in Rome the consecratio of the emperor was his apotheosis, whereas the word deipcalio , like the Greek Beonosta , belongs atmost exclusively lo Christian terminology.

49

THE NORMAN ANONYMOUS

CIIRIS'T-CENTERED KINGSHIP

The Norman Anonymous was well acquainted scith che Acts

cil (61q) empliasized tire geminn natura of Christ and added correctly that ''this gern ino u at unt still fornrs oras person."'a The Sixdi Toledan Council (63S decided also corrcctly t11at' man and God are One Christ in neo natures ... les[ diere acceded a Quaternity to the Trinity, if Christ rcere a geminala petaonn."'° In 67rt, thc Flevéntll Council of Toledo returued to che terco of "ncinship'' but shifted it from gemirla un(lt ra al¡(¡ geminatn persono carcfully to gemina substanlia, asid csplaiuecl: ''Tlterefore he has in hiniself a gemina substantia, that of Iris divinity and of out humanity." And in this connection che Council comed tire remarkable sentence: Item et major el mino? se ipso esse credendus est.16 Finally che Fourteenth Toletanum (684) introduced a new variety of gemination. The truth is, so che bishops declared, that Christ has a "twin will"-gemina in eo voluntas, el operatio-though he is not divided by the twinship of natures-non naturarum geminatiene divisus-hut is wholly God and wholly man." Thereafter the terms of twin-nature, twin-person, twin-substance, or rtvin-will seem to go out of fashion in the Creeds. Rhabanus Maurus mentions them once more, if in a negative sense;16 and only che gigas geminae substantiae turras up occasionally in che christological writings of the twelfth century as a means of refuting che thesis that Christ was geminatus before the Incarnation.16

of che Spanish Councils, which formed a section of certain redactions of che Pseudo-Isidorian Decretals. The Norman used and quored Chis collection repeatedly; he even era]uated the Spanish councils with some ci rcu ni specti un in order lo prove that the Visigothic kings-as kings, not as cntperors-custoniarily sunt moned, direcred, a n d presided ovcr cite svuods of their ten-itorial Church just as t11e enlperors sununnneci, direcred, and presidccl over tire councils of the universal Church. Hence, che Visigothic model was an important preceden[ which, more easily tiran the imperial model, was applicable to Anglo-Norman conditions in a time when the claim rex est imperator in regno suo was not yet formulated 21 And from che Toledan Councils che Anonymous century, the "giant of twin substancé' seems lo hecome a characteristic of the school of so-called Christological Nihilianism, rejected by che Third Lateran Council, in 1179 (cf. Hefele, Konziliengeschichte, v[18861, 616, 719)- See, e.g., l'eter of Poitiers, Sententiae, 1v,7, PL, ecxl,1161C: "Viam quam geminae gigas substantiae exsultando cucurrit... " Further, Quaestiones Parsavienses trinitarias et christologicae, ed. F. Stegmüller , in Miseellanea Giovanni Mercati (Studi e Test¡, 122; Vadean, 1946), n,3o6,§15: "Coepit esse gigas geminae substantiae hiformisque naturae, divinae scilicet et humanae." Peter the Lombard, In Ep. ad Romanos, e1, PL, mm1,13o7C, 13oBA, seems lo use only the expression gemina substantia. See, however, the Prooemium of Magister Vacarius' Opusculum de assumpto homine, edited by Maitland, "Magistri Vacarii Summa de Matrimonio ," Law Quarterly Review, xn1(1897),143, which was directed against the nihilianism of the Lombard: "Et quod horno curo sic persona, ipse [Jesus] lamen assumptus dicitur et non ipsa persona. Et quod Christus et dominus glorie et gigas gemine substancie duarum sin [ substantiarum nomina"

14 PL, exxxtv,599C; Hinschius, Decret. Ps.Isid., 44ob, el 441 a. 15 PL, Lxxxiv,395A; Hahn, Syrnbote, 237; Hinschius, 376b. 16 PL, Lxxxiv,456BC; Hahn, a46f; Hinschius, 407a. 17 PL, exxxrv,5o6Df, cf,5o8B. 1 18 Hahn, Symbole, 357: "quia nec geminavit utriusque substantiae integritas per-

See, in general , Joseph de Ghellinck, "Magister Vacarius: Un juriste théologien peu aimable pour les canonistes,- Recree d'histoire ecctésiastique , XLIV (1949), 173-178, with full bibliography.

20MGH,LdL, 111,675,161L where che Anonymous works out very ncatly the dilference between che emperor and che kings (see also below, n.47). He remarks, however, that the Visigothic kings exercised the lame power over the Church as the emperors did, and concludes (675,27ff) that there£ore kings at large have quasiimperial power over che Church: "Unde enanifestnm est reges habere sacrosanctam potestatem ecclesiastici regiminis super ipsos etiam pontific es Domini et imperium super eos ." The res imperator concept was developed relatively carly in England, even though some of the places adduced by Carl Erdmann, Forschungen zur politischen Ideenwelt des Frühmittelalters (Berlin, 1951), ,5ff,38ff, have turned out to be forgeries of, presumably, the 12th century; see Richard Drbgereit, "Kaiscridee und Kaisertitel be¡ den Angelsachsen;" ZJRG, germ.Abt., Lxix (1952), 24-73; see also W. Holtzmann, "Das mittelalterllche Imperium und die werdenden Nationen," Arbeitsgemeinschaft für Forschung des Laudes Nordrhein-Westfalen, vil (lgs3), 19, n.2o, for a remark made, according to John of Salisbury, by Heno' II; aleo Post, "Two Notes," 303. For che doctrine itself, see Calasso, Glossatori, 35ff (for England), and, in general, Sergio Mochi Onory, Fonti canonistiche dell'idea moderna dello stato (Miran, 1951 ), including che most recen[ discussion by Gaines Post, "Two Notes," Traditio, IX (1954),2g6ff. The right of summoning councils (loes not secm to

sonara, nec confudit geminam unitas personae substantiam:" See also Leo the Great, ep.33, PL, Lrv,797 ("gemina natura"), and Gregory che Great. Moraba, xvnt,85, PL, Lxxvl,goB ("nec naturarum distinctione geminatus"), against Nestorius. Very specific about the danger of the geninatio is Bede, Expositio Actuurn Apostolorum, ed. M. L. W. Laistner (Cambridge, Mass., 1839), 51: "... ne Christi naturam geminare et in Nestorii dogma cadere videamur."

19 Christ as gigas derives from Psalin ,8:6 ("tanquam sponsus procedens de thalamo suo, exsultavit ut gigas ad currendam viani'), che applications of which cover unexpected grounds, froin che Armenian Liturgy tu the 17th-century French cult of kings; see, for a few early applications, F. J. Dülger, Sol salutis (2nd ed., Münster, 1925), 217, and Die Sonne der Gerechtigleeit (Münster, 1818), 102ff; see also A. Alfüldi, "Der iranische Weltriese auf archaologischen Denkmidern," Jahrbuch der Schweizerischen Gesellschaft für Ulgeschichte, XL (1949-50), 24. The expression gigas geminae substantiae may have become known through (Pseudo[?]-) Ambrose, Hymns, tv,15, PL, xv1,1474: "Procedens de thalamo suo,/Pudoris aula regia,/Geminae Gigas substantiae,/Alacris ut currat viam." See below, 11os.63ff. The metaphor fs found sporadically lo designate che natura duplex of Chrisq see, e.g., Rangerius of Lucca (d. ca. 1112), Liber de anulo et baculo, linee 26f, MGH,LdL, 11,5og. Later in the 12th

50

1

51

CHRIST-CENTERED KINGSHIP

THE NORMAN ANONYMOUS

probably borrowed also the metaphor of royal "twinship." It may seem curious that he transferred lo his definitely christocentric doctriné of kingship the only expression which had, christologically, a Nestorian and Adoptionist flavor, gemina persona. But he could not possibly attribute lo tire king a divine "nature" after having repeated over and over again that the king was not divine by nature, but by grace. The axiom of deificatio, of becoming god

he implies that the reges christi of the Old Testament, who prefigured the exalted Christus regnaturus in Heaven, should be considered-as kings-in a sense superior to the lowly Christ of Nazareth before the Ascension. But it is truly baffling lo find a similar relationship between the Roman emperor and the incarnate God; lo be exact: between Tiberios and Jesus.23 It is Jesus, the Son of man, who submits to Tiberius when rendering the tribute money 24 But to which Tiberius was the money rendered? The Anonymous creates another gemina persona in the

as opposed to being God, brought about in the royal christology of A.D. I10o a certain affinity with Nestorian and Adoptionist formulae.91 The author thoroughly explored the possibilities implicit in his idea of the dual capacities of the Christlike king. This concept, in fact, became che vehicle for all his other constructions which were no less consistent and skillfully developed than the theories of the Tudor lawyers. The Anonymous likes lo juggle with the king's two persons; but after the same fashion he incessantly plays off against one another the figures of Jesus Christus and Jesus christus, the Anointed from Eternity and the one anointed in Jordan during Iris ministry on earth.12 The author carnes those dichotomies even further, that is, lo pagan Antiquity, and thereby obtains the most curious results. It may be acceptable, though strange, when have been included in che bulk of claims which che rex imperator would normally make, though in England chis would change with the Reformation; see, e.g., Bishop John Jewel's Apology of the Church of England (1560) against Thomas Harding (in The Works of John Jewel [Cambridge, 1848], m,g8f; cf. Frances A. Yates, "Queen Elizabeth as Astraea," Warburg Journal, x[t9471,39f), whose arguments are sometimes reminiscent of those of the Norman Anonymous. 2r If che Anonymous mentions (667,6) that king and Bishop "sunt et dü et christi per adoptionis spiritum" and (675,12) that che king is "alter Christus per adop. tionem post Christum," [hese and similar utterances have nothing to do with "Adoptionism" but with Romans 8:15, and consequently with the Spiritus adoptionis effective at Baptism. See , about the "gods" by adoption, Kantorowicz, "Deus per naturam;" 256,262; there should be added, however, Honorius of Augustodunum, Summa gloria, c.5, MGH,LdL, nt,66f, who claims that priests are called fui Dei, dii, christi, angeli, whereas kings are only fui hominum, which preves "[quantum] divina auctoritate sacerdotes in dignitate reges precellunt." 22 The anointtnent of Christ in Jordan (Acts m:88; cf. Isaiah 61:1 and Luke 4:18) was interpreted also as "Coronation of Christ," a copie in peed of historical and, aboye all, archaeological investigation. See, for che Dove descending with a crown, the gold-box lid of che 5th or tith century in che Dumbarton Oaks Collection, reproduced in The [Walters Art Gallery: Early Christian and Byzantine Art (Baltimore, 1947), pl. extx,B; further Adolf Goldschmidt, Karolingische Elfenbeinskulpturen (Berlin, 1914), 1, No. 154, PI. rxv; and, for England, che Benedictional of Aethelwold (968.984), in J. Strzygowski, Iconographie der Taufe Christi (Munich, 1885), 59, pl. XVI11,4.

52

Emperor Tiberius, as he interpreta the story: 23 For the interpretation of che following passage, sce Williams, Norman Anonymous, 181 f. It may be that che Anonymous considerad the Roman emperor likewise an "anointed" in the sense in which Cyrus was a christta Domini according to Isaiah 45:1. Ser, e.g., Haymon, Bishop of Halberstadt (84t-8,58), Cornmentarium in Isaiam, c.45, PL, cxv1,942D: "Christus interpretatur unctus. Antiquitus enim in populo Judaeorum, quemadmodum apud Romanos diadema, faciebant et regem. ... Quare ergo appellatur Cyrus christus, cum non sit penmctus de oteo benedictionis? Quia dignitas imperialis [Cyrus was the founder or "emperor" of che secondthat is, che Persian-World Monarchy] pro chrisniate el fuit. Haec dicit Dominus 'christo meo' pro eo quod est 'christo sud: val uncto suo, hoc est, regi suo." Te Bede, In Esdram et Nehemian Prophetas, c.1, PL, xet8,1, Cyrus appears as a prefiguration of ChrisC "At vero justa mysticos senos Cyrus res Domninum Salvatorem el nomine [eipmr?] designar el factis.. . Assimilavit namquc cura Deus filio suo, quamvis ipse Deum se assimilantem minime cognoverit: primum in eo quod Chrisn1m suum eum cognominare dignatus est.... Assimilavit ergo Cyrum Dominus unigenito Filio suo, Deo et Domino nostro Jesu Christo.. " The Greek authors usually confine themselves to explain that Cyrus was styled "anointed" as a king called to government by God; see, eg., Cyrill of Alexandria, In Isaiam, tv, Oratio ii (_Is., 45), PGr, 1.xx,95oD-g5,A; Procopius o[ Gaza, In Isaiam, c.45, PGr, rxxxvn, 2418. The Greeks, being in perinanent conflict with the Persian power, had apparently less sympathy with Cyrus, although he was recognized as a fulfiller of che divine dispensation. See, e.g., che Scholion of Cyril, ed. F. C. Conybeare, The Armenian Version of Revelations and Cyril of Alexandria's Scholia on the Incarnation and Epistle on Easter (London, 1907), ,6g: "And though the man [Cyrus] was an idolater, he is called Anointed by reason of his being so anointed unto kingship by che decree from aboye: he was designed by God, mightily te subdue the Baby. tomaos." In chis sense, then, Tiberius had certainly a prominent place within che cconomy of salvation. 2a Matthew 22:2, played, as is well known, an enormous role in mediaeval political theory; see, e.g., Max Hackelsperger, Bibel und mittelalterlicher Reichsgedanke (diss., Munich, 1934), 29f, for che tribute to Caesar in the literature of the Investiture Struggle. The Anonymous is perhaps closest to (Pseudo-) Ambrose, In epist. ad Roman., xn1,6, PL, xvu,172AB: "... principi enim suo, qui vicem Dei agit, sicut Deo subiiciuntur . . Unde el Dominus: 'Reddite etc.' Huic ergo subiiciendi sunt sicut Deo...:' The author of chis commentary was probably the so-called Ambrosiaster; J. E. Dekkers and A. Gaar, Clavis patrmn Latinorum (Sacris erudiri, ¡ir, Bruges and Hague, 1951), 30, No. 184. That the tribute was paid ad acandalum vitandum is a surprisingly paltry interpretación which does not seem lo antedate Thomas Aquinas, Summa theol., Ila llae,q.lo,a.lo,ad t: "Sicut etiam Dominus Match. xvn ostendit, quod poterat se a tributo excusare, quia liben sunt filii; sed

53

o 44 GO 1 .5 'J61

THE NORMAN ANONYMOUS

CIIRICT-CF.yTFRF D KINGSHIP

Benedictus qui venir in nomine Domina. The bishop liad evorshipped, even in an Attila, divine Majesty.a' This legend, no douht, reflects an extreme case of passive obedience and of Christian submission to power in che spirit of thc Aposde's advice: "The powers that he are ordained by God." But to a like extreme did tlte Norman Anonvmous carry the divinity of poseer per se when he placed aboye the manhood of dte Godinan the divinity of tire Caesar manifest in Tiberius che aran. IIere, as elsewhere, che writer starts from bis idée fixe of the "gemina-

He said "Render noto Caesar the things dial are Cacsar's," and did not say "unto Tiberius che things chau are Tiberios'." Render to che power (potesta , non to thc pcrson. The peison is worth no!hing. but the power is post. Iníquitoes is 'Fibcrius, but good is tbe Caesar. Render, not unto the pcrson worth nodsim; non unto iniquitous Tiberius, bui unto thc rightcous power and tinto the good Caesar the things that are his...... Dice," said he [unto Peter], "for me and thee to dte rightcous power und to cite good Caesar, to whonr aceording to asir marihood ec :sic sibjccts. . .." For lie knew that Chis pertained Lo justice to vender unto Caesar che things that are Caesar's.... In all that he fulflled justice. For it seas just that the huinan weakness succumbed Lo che divina potestas. Namely, Christ, according to his humanity, was then weak; but divine was Caesar's potestas.2b

tion " of rulership in general, no matter whetiter tire ruler he a Jewish king, a Christian prince, or a pagan emperor. He integrares that dual personality of gods and of kings inca bis clever system and skilfully makes che geminatio the mainspring of all his argumenta. The Emperor Tiberius appears as a "twinned" being just as much as the God-man himself. Tiberius as man is iniquitous; but he is divine as Caesar, is divine as che incarnation of Power, is And Tiberius' deus and, with regard to Jesus, at once dominus. dual personality becomes all the more, and almost bopelessly, involved as this imperial gemina persona is set over against another gemina persona, Jesus Christ, the unigenitus accgrding to his divinity and che primogenitus according to his humanity-distinctions which in turn the Anonymous will apply also to his king.28 Thus, the strangest chiasmus imaginable resulta froin that conof frontation of two dual personalities. It is as though the potestas Tiberius qua Caesar were "haloed," whereas Christ, in his human

The least that can be said for Chis passage is that it is an extraordinary overlaboring of a principie, and that, though keeping within the range of customary concepts, it is nonedteless opposed to them. All by itself, the exaltation of potesta.s is as much in agreement with che teaching of che Church as the doctrine of "suffering obedience,"26 There comes to mind the touching story about che. bishop of a city at whose gafes the fierce King of the I-Iuns was knocking: "I am Attila, the Scourge of God." The bishop replied simply: "May there enter the Servant of God," and opened the gate only to be slain while innrnmring to the invader the blessing: tatuen mandavit tributuin solvi ad ara ida!utn sitnndUm.'' See, for the problcm, also E. Gilson, Dante Me Philosopher (New York, 1949), 2o8,na. 25 MGFI,LdL, m,671,39fr: "Reddite potestati, non persone. Persona enim nequam, sed fusta potestas. Iniquus Tyberius, sed bonos cesar. Reddite ergo non persone nequam, non iniquo Tyberio , sed fuste potestati et bono cesar ¡ que sua sunt .. . 'Da,' inquit, ' pro me et te , fuste potestad et bono cesar ¡, cui secundum homfnem suhditf sumus ' . . . Sciebat cojín lmc pertinere ad iusticiam , ni redderet cesar¡ que sunt cesar¡s.. . Sed in jis omnlbus implevit lustleiam . Iustum quippe eral, ni humana infirmftas divine suhderetur potestati . Chr¡stus natnque secundum hominem curse infirmus eral, cesaris vero potestas divina." 29 Authoritative for chis attltude was, e.g., I Peter 2:1308 . Obedience toward tyrants was certainin opposed to Greek political thinking, though it does not seem Lo have disagreed with Jewish tradni on: tyrants , like earthquakes and plagues, are a vfsftation of God and a foro of punishment according Lo Philo; see Erwin R. Goodenough, The Poütdcs of Philo Judaeus (New llaves, 1938), wo. A poem on the tribute money by Amarcius (ca. o oSo't loo) saos explicitly:

serfdom, remains without halo. At the same time, however, the iniquitous Tiberius in his individual natural body is without halo, whereas the incarnate and individuated God, though a Deus absconditus , is haloed even as man .29 The anonymous Norman, however, does not halt at chis point. With similar arguments he points out that the bishop, toa, is a gemina persona so that, in this respect, there is no difference between king and bishop. There is, however, a difference of rank, 27 John of Salisbury , Policraticus , 5t4b, ed. Webb (Oxford, 1909), 1,236. 2s MGH,LdL, m,669,35ff: ". . . sacerdotes quidem unxit [ Deus] sicut apostolos suos unctione spirituali , regem vero sicut fillum suum primogenitura et ante secula genitum pre omnibus participibui sois" ( cf. Psalm 44:8). accurately such 29 Maitland , who had at his disposal a felicity for dcscribing the Anonymous, "who orderly disorder , has devoted unfortunately only a line to was writing sentences that Marsiglio and Wyclif would non have disowned "; see his Introduction Lo Gierke , Political Theorie,, xliv.

Reges ergo honi 'cnerandi vi sunt imitarsdi, Pervcrs¡ non sunt ¡mi tandi, sed venerandi.

Cf. Erdmann , Ideenweli , 133. See, in general for the age of ti re Investfture Str0ggle, G. Tellenbach, Church, State, and Christian Society at che Time of lbs Iuvestiture Contest (Oxford, 1938), in addition to Hackelsperger (ahoye, 0.24).

54

1

55

CHRIST.CENTERED KINGSHIP

THE NORMAN ANONYMOUS

and the author substantiates that difference of ordo between king and bishop by means of a new gemination : while distinguishing the King Christ from the Priest Christ, he turns this duality into

Or is it the cathedral building of Canterbury that claims supremacy over the cathedral building of York? Apparently it is neither the stones nor the material building of the church of Canterbury, but it is the immaterial Church of Canterbury, the Archbishopric, which claims superiority. And wherein should the superiority of one archbishop over another archbishop be found? In eone quod horno est, an in eo quod archiepiscopus est? True, at the end the author comes to reject the claims altogether; but the main point is that in employing his usual tactics he sets the homo against the archiepiscopus, the man against the office, and the "bricks" of Canterbury against the "See" of Canterbury, just as on another occasion he sets the "corporeal sky" against the "incorporeal heaven."91 And in a similar fashion he rends asunder the unity of the Roman pontiff, sets the office against the person of the pope, and confronts, as we might say by analogy, the pope 's "body politic" with the pope's "body natural"-adding, however, in this case, an "infra-human" stratum for a pope who should happen lo be a peccator.92 What is the main problem underlying the political theories of the Norman Anonymous which so clearly betray the influence of the dialectical method at the bend of the eleventh to the twelfth centuries , and what is the significante of those innumerable "geminations"? It is not really the distinction between Office and Person which is so startling ; for that was not quite unknown in the earlier Middle Ages. The author himself quotes St. Augustine's saying about the king's obligation to serve God: "It is one thing when he serves «God] because he is a man, and it is another thing when he serves because he is a king."'a The distinction between office and person was stressed strongly also in a law of King

an antithesis and equates it not only with the divine and human natures of the God-man (as was the custom), but also with the royal and sacerdotal offices on earth. Both [king and bishop] are in spirit Christus et Deus; and in their offices they act as antitypes and images of Christ and God: the priest of the Priest, the king of the King: the priest acts as the antitype of the inferior office and nature, that is, His humanity: the king, as that of che superior office and nature, that is, His divinity.'^

And even chis is nor all, for the Anonymous drives the wedge of his personality-splitting method into any and every being, person, or institution. There was that old struggle and competition between Canterbury and York about the supremacy of either one or the other see. What is it, asks the Anonymous, that may claim supremacy? Is it the bricks and stones of the church of Canterbury? 30 MCH,LdL, ns,667,8ff: "Unde et uterque in spiritu et Christus et deus est, et in officio figura et imago Christi et Dei est. Sacerdos sacerdotis , rex regís . Sacerdos inferioris offrcü et naturae, id est humanitatis , rex superioras , id est divinitatis." Most of the arguments quoted hitherto and proving che king's gemina natura are valid alzo with regard to the bishop . For although the bishop is the image of "Christ the Priest " he yet shares also to some extent in the "superior office and nature;" the kingship and divinity of Christ , and vice versa ; see ¡bid., 665 ,96ff: " . et rex sacerdos et sacerdos rex . . . ¡tire potest appellari, Nam et sacerdotis est in spiritu Christi regere populum ." Similarly Hugh of Fleury, De regia potestate, roo, MGH, LdL, 11477,21: " Hic [sacerdos ] ... sal terrae vocatur, et rex propter ducatum, quem praebere populo deber, et angelus , quia bona nuntiat , el pastor, quia divini verbi dapibus homines expleC; ¡bid., 477,38: ":Nam et regalem dignitatem habere . videtur episcopus ." But che bishop has to act as mediator " ínter regem et ores sibi creditas ." The priest as rex has a long history which parallels thar of che king as sacerdos. See, eg., Didascalia Apostolorum , 11,34, ed, R. Hugh Connolly (Oxford, 1929 ), 96,17ff, or che Pscudo-Clementine Recognitiones, 1,46, PGr, r,1294A: "pontifex Aaron, chrismatis compositione perunctus , princeps populi fuit , et tanquam rex .. . iudicandi plebem sorte suscepta de mundis immundisque iudicabat '; cf. Hinschius, Decret.Ps.Isid., 69. From those premises , however, the opposite conclusions could be drawn. See, e.g., james of Viterbo, De regimine christiano , n.c.4, ed, H. X. Arquilliére, Le plus anclen traitt de t'Eglise : Jaques de Vitobe, 'De regimine christianá (Paris , 1926), 199, who admits that Christ the King is more dignified than, and superior te, Christ che Priest " Est enim sacerdos in quantum horno, rex autem est et in quantum Deus et in quantum homo ... et sic maior dignitas importatur ex eo, quod res dicitur , quam ex co , quod sacerdos ." But then he concludes: "Quare et in prelatis ecclesie superior est potestas regalis, que dicitur iurisdictionis, quam sacerdotalis , que dicitur ordinis." See R. Scholz, Die Publizistik zur Zeit Philipps des Schdnen und Bonifaz' VIII. ( Stuttgart , 1908 ), ,44f; Martin Grabmann, "Die Lehre des Erzbischofs und Augustinertheologen Jakob von Viterbo," Episcopus: Festschrift für Kardinal Michael von Faulhaber (Regensburg, 1g49), 'gof.

56

31 Tractate XXIX, in Bühmer, Kirche und Staat, 479. Argumenta of that kind are nor roo rare . See, e.g., Isidore , Etym., xv,2,1 (" tiritas autem non saxa, sed habitatores vocantur "); see also below , n.9g; further, Maitfand , Sel.Ess., 90 (" the church is not che house nor the walls, but is to be understood as the ecclesia spiritualis'). See below, n.47, for heaven and sky. 32 Bbhmer , Kirche und Staat, 436f. 23 MGH,LdL , m,673,24: "Aliter enim servir quia homo est, aliter quia etiam rex esr." Augustine , Ep. cexxxv,c.5,19, ed. A. Goldbacher (CSEL., L vn), 17,21, che very frequently quoted letter Ad Bonifacium ; see, for the place cited here, che Decretum Gratiani , c.42,C.XXIII,q.4, ed. Friedberg , 1,929, though it is found also in earlier collectiona, e.g., in Ivo of Chartres , Decretum , x,121, PL, ctx1,727, interesting in so far as there are other relaciona between Ivo and che Anonymous ; see Williams , Norman Anonymous, 55ff.

1

57

CHRIST-06NTERED KINGSJIIP

TIIE NORMAN ANONYMOUS

Reccesvinth of fi33, which, through the medium of the Spanish material in the Pseudo-lsidorian Decretals, was widely known. In that law, the A'isigothic king pointed out that honor was due, not to the king's person, but lo the royal power: not to the king's personal mediocrity, but co Use honor of his sublimity: "The rights, not the person, make a king."91 With cinc alterations, such distinction was formulatcd also in a leuer of Humbert of Silva Candida lo the Patriarch Kcrull arios: [Papa] gualis Pelrus officio ... non qualis Petrus merito-`The pope is like Peter by his office ... he is not like Peter by his merits."a' And during the great conflict between Empire and Papacy the Emperor Henry IV drew a clear line separating che papal office from the individual Hildebrand when pronouncing his sentence of deposition against Gregory

kingship and priesthood of Christ have co he reflected in bis vicars as well, that is, in the King and che Bishop, wtso are at cite same time personae mixtae (spiritual and secular) asid )Icrsonae gemi-

VII.aa All those features are found, overtly or latently, in Che writings of the Norman pamphletist, too. Where he seems lo diffcr from others is in che philosophy which supports, and builds up, Iris theory, and in the fact that the king's duplication of persons is not founded in law or constitution, but in theology: it mirrors the duplication of natures in Christ. The king is che perfect impersonator of Christ on earth. Since che king's divine model is at once God and man, the royal christomimétes has lo correspond to that duplication ; and since the divine model is at once King and Priest, 84 PL, rxxxrvg31A ; Hinschius , Decret.Ps. lsid., 392: "Regalis proinde ordo ex hoc cuneta sibi deber¡ convincit , ex quo se regere cuneta cognoscip et inde conquisita non alter¡ quam sibi fuste defendiq urde non personae, sed potentiae suae haec deber¡ non ambigit. Regem enim jura faciunt, non persona ; quia nec constat sui mediocritate sed sublimjtatis honore. Quae ergo honor¡ debent, honore serviant, et quae reges accumulant , regno relinquant.'' The notion of honor comes very clase to che meani ng of dignitas ¡n later political theory (bclow, Ch.vu). The principie disclosed in the last words-''what kings accumulate , they ( cave to che realm"-was certainly disregarded in Carolingian times and thereafter . An exception is formed by che words whjch w'ipo, Gesta Chuoaradi, c.7, ed. H. Bresslau (MGH,SS.r.Germ.), 29f, probably following antique authorities , attributes to Conrad II: "Si periit res, regnum remans¡ t sicut navis remanet cu ¡ us gubernator cadit. Aedes [destroyed by che people of Pavia] publicae fuerunt, non privatae"; cf. A. Solmi, "La distruzzione del palazzo regio ¡n Yavia nell' anno 1024 ;' Rendíconti dele Istituto Lombardo di scienze e lettere , LVII (1924), 97ff. 85 Anton Michel , Die Sentenzen des Kardinats Humbert, das trate Rechtsbuch der pepstlichen Reform (MGH, Schriften, vn; Leipz¡g, 1943), 32,n.r. a° See the king's letters of ,076 (H. dei gratia rex Hildebrando), ed. C. Erdmann, Die Briefe Heinrichs iv. (MGH, Deutsches Mittelalter , 1, Leipzig , 1937), 141, nos. 11 and r2; see also C. Erdmann and D. von (;lad¡ss, "Gottschalk von Aachen ¡ In Dienste Heinrichs IV.," DA, ut(s939), i68.

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1

natae (human by nature and divine by gracc).°7 Ar any rato, cite theories of che .Anonymous are not centered in the notion of "officé' as opposed to man, nor in constitutional or social considerations; they are christological and christocentric. Supported by the new dialectical movement and influenced. perhaps directly, by Ivo of Chartres,ae che Anonymous applied his unity-splitting method co che two natures of Christ and chen transferred the results, by a bold analogy, to the royal imago Christi en earth. The overemphasis upon the idea Rex imago Christi (rather than Deil) makes it evident that the analogy prevailing between che God-man and his image should not be sought in a functional distinetion between "office" and "man." For it would be difflcult, nay, impossible, lo interpret the divine nature of Christ as an "office," since the divine nature is his "Being." And the Anonymous likewise visualizes in his king two different forros of "being": one natural or individual, and che other consecrated or (as the author calls it) deified and apotbeosized.aa In short, the Norman author's vision of the king as a persona geminata is ontological and, as an effluence of a sacramental and liturgical action performed at the altar, it is liturgical as well. His vision is, en the whole, more closely related lo the liturgy, ro che holy action which itself is image and reality at the same time, than lo che distinction of funcional capacities and constitucional competencies, or co the concepts of office and dignity as opposed lo man. That che authoi s dialectic threatens co break up the ontological oneness by playing off the two natures against each other there is no doubt. This dangerous facility the Anonymous has in common with che intellectual development of his time . But it would be a grave error co ignore the primarily ontological stratum upon which the Norman Anonymous founded che structure of his unambiguously Chrisccentered, and therewith liturgical, philosophy of kingship 40 87 The passage quoted aboye , n.9, refers also to che hishops or high-priests; cf, n.3o. 38 On Ivo of Chartres and che Anonymous, see Williams , Norman Anonymous, 55ff aa See aboye, n.s3 40A few brief, but very good remarks on the Tractates of che Anonymous (for-

59

CHRIST - CENTERED KINGSHIP

FRONTISPIECE OF THE AACHEN GOSPELS

This philosophy was not that of the times to come. It has often been noticed and held against the Norman Anonymous that his passionately anti-hierocratic pamphlets, carried by a mystical belief in the power of sacramental anointings , had no practical effects on the age in which they were written. This is correct. Indeed, the victory of the revolutionary Reform Papacy in the wake of the Investiture Struggle and the rise of the clerical empire under papal guidance, which monopolized the spiritual strata and turned them into a sacerdotal domain, negated all efforts to continue or renew that king-priestly pattern of liturgical kingship which the Anonymous so fiercely defended. On the other hand, the new territorial states which began to develop in the twelfth century were avowedly secular despite considerable borrowings from the ecclesiastical and hierarchical model ; secular law , including secularized canon law, rather [han the effects of the holy chrism, were henceforth to justify the holiness of the ruler. The ideas of the Norman Anonymous , therefore, found no resonante in either the ecclesiastical or the secular camps. His image of rulership was inacceptable to the hierarchy and it no longer was of major interest to the secular state. Hence, despite the modernism of his dialectical and antithetical method, the pattern of Christ-centered kingship for which he fought belonged to the past. He is the champion of ideals of the Ottonian and early Salian period as well as of Anglo-Saxon England, and in bis tractates he actually sums up the political ideas of the tenth and eleventh centuries. But like every bard who glorifies a bygone age , he overlabors and overstresses past ideals, and thus becomes the chief exponent of the christocentric theory of kingship in its most concentrated , most consistent , and most extreme form. His tractates, therefore, have to be used, not as a

A Romanesque type of crucifix, known as the Volto santo and showing the Crucified with an imperial diadem on his head and the purple around his shoulders, renders perhaps the briefest iconographic €ormula of at once the regal and the sacrificial characters of the God-man.92 The compact brevity and tcrseness of that formula is so striking that che image cannot fail co impress directly: the Volto santo is signally una persona, duae naturae. The theme of the two natures of Christ, of course has often formed the subject of artistic representations, though normally each nature would be figured individually: the newly-born or the cross-bearing Jesus in the lower part of the panel, and in a superimposed register, the King of Glory. In the Volto santo, however, the duality is so stirring , and it is expressed so powerfully, that the effect is much stronger here than in the images displaying the two natures separately."

merly called the York Tractates) Nave been made by Wilhelm Berges, Die Fürstenspiegel des hohen vnd spdten Mittelalters (MGH, Schriften, ❑ , Leipzig, 1938), 28ff: "Nie zuvor und nie nachher hat der Christus K6nig-Gedanke die pnlitische Theorie so heherrscht wie ira Yorker Tractat." Williams , Norman Anonymons , 190, is a little more precise svhen he comes to the following conclusion : "The Anonymons' ecclesio -political theory is christocentric , hut the Christ whom his king imitates and whose power he shares is the Royal Exalted Eternal Christ, for whom the Crucifixion was but an incident to be pondered over by priests . Christology has become almost complctely regalized ." That this development towards an over-emphasis of the Exalted Christ should be viewed against a generally Estropean background, of which Williams is aware, has been recently discussed by Josef Andreas Jungmann, "Die Abwehr des germanischen Arianismus und der Umbruch der religidsen Kultur im frühen Mittelalters" Zeitschrife für katholische Theologie, extx (1947), 36-9g.

,n See the "Summary" of Williams, Norman Anonymons, sggff. 12 For the Vol?. Santo , see A. Kingsley Portar , Spanish Romanesque Sculpture (New York, 1929 ), n,pls.63ff; G. Schürer and J. Ni. Ritz, Sankt Kü,nmernis und Volto Santo (Forschungen zur Volkskunde , x,,,-xv, Düsseldorf, ,934), with full bibliography; see also Clairece Black, "The Origin of the Lucchese Cross Forma' Marsyas, 1 (1941 ), 27-40. *a Later Byzantine arq however , produces similar effects in the startling imagery of the Divine Liturgy and in the illustration of che Cherubic Hymn: "Thou art he that otferest and art offered ; and that acceptest and art clistributed ." See J. D. Stefanescu , " L'Illustration des liturgies (lans l'art de Byzance el de ]'Orienta" Annuaire de l'institut de philologie et d'lOstoire orientales, 1 ( 1932 ), 72ff; for the formula itsetf , cf. J. M. Hanssens , Institutiones liturgicae de ritibus orientalibus (Roma, 1932 ), 111,289, §11,7.

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reflection of ideas valid in his time or foreshadowing the future, but as a kind of mirror that magnifies, and thereby slightly distorts, the ideals current in the preceding era .41 Iconographic evidence will bear out Chis assertion.

2. The Frontispieee of the Aachen Gospels

Only in the full flush of the uncompromisingly christocentric period of Western civilization-roughly, the monastic period from goo tO A.D. 11oo-could it happen that also che two natures of che imperial christomimétés ruling on earth were depicted in a similarly brief, if iconographically very different, fashion. The famous miniature in the Gospel Book of Aachen, executed about A.D. 973 in the Abbey of Reichenau, shows the Emperor Otto II enthroned

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CHRIST-CF' TERF,D KINGSHJP

needed co indicare che imperial dignity."o At any yate, they are princes or reguli dependent on the young kosmokrator who himself is raised towards heaven or inm heaven. We may think oí che description oí che emperor's power-the power as such-offered, a century later, by che Norman Anonymous. He calas che imperial potestas grand and holy, che cooperatrix of che grace oí God and

(fig. ,r)." He is seated on a throne-bench decked, as usual, with a roll-shaped cushion, ivhile his feet rest on a footstool. It is certainly a representativa imperial image oí state, conventional in che Wcst since Carolingian times; huc diere is mueh disregard oí artistic cuscom and convention in che Aaclien Codcx. The throne is not standing on firm ground as nortnally it would ni risa state imagcs oí che precious Carolingian and Ottonian rnanuscripts. It is seemingly poised in mid-air, for tale throne as well as Ihe emperor's whole figure are surrounded by a mandorla. Yec che throne stands on earth; it is carried by a crouching Tellus, Earch herself, whose hands support che feet oí che footstool. At the same time, the Hand oí God is reaching down from aboye, from heaven, either lo ¡mpose or to touch and bless the diadem on che emperor's head. The divine aureola framing the Hand oí God intersects with the imperial aureola , thus allowing the emperor's head to be placed in the spandrel which is formed by che intersecting haloes. The image shows three superimposed planes. The upper part oí che emperor's figure is surrounded by che four beasts oí the Apocalypse, symbols oí che four Evangelists, holding a white handerole or drapery. Deep below the emperor's feet, in che foreground oí the image, four dignitaries are seen, cwo archbishops and two warriotss, apparently representing Ihe princes spiritual and secular." In che central parí, righc and lefc oí che footstool, there stand, flagstaffs with purple pennants on Iheir shoulders, two male figures in a gesture oí veneration, if not adoration. That they are of very high rank is suggested by Iheir crowns-feudatory dukes or perhaps rulers oí tire regna, die plurality oí which was

therefore entidad "co treac with che sacraments oí che Catholic faith and matters celestial." Then he draws his conclusions: Therefore che emperor, by che Lord Jesus Christ, is said co be elevated even unto heaven. Even unto heaven, I say, not unto che corporeal sky which is sean, but unto risa incorporeal heaven which is unseen; that is, unto che invisible God. Truly, unto God he has been elevated, since so much so is he conjoined co Him in power that no other power is more nigh unto God or more sublime than that of che emperor; yea, all other power is inferior to his.*' These are che very ideas which the miniature displays: the emperor elevated unto heaven (usque ad celum erectos), ala earthly sa Schramm , "Herrscherbild," 1g9, and Die Deutschen Kaiser, 83, ealls those

crown-wearing princes "dukes" no account of che fiagstaffs with pennants which they shoulder. Their models, however, are found in che Carolingian Codex Aureus (Schramm, Kaiser , plsga; below, fig.16b), where che corresponding figures are described as Francia and Gothia: che lame drooping knecs (more so with che right figure than with che left ), the mural crowns replaced by princely crowns , and Ihe cornucopiae by lances. Hence, che idea seems te he that those princes are reguli of dependent kingdoms ; for (he old-fashioned idea of "empire" in che cense of a hegemonial " super-kingship " over a plurality of kingdoms was still very strong in Ottonian times, despite ala che advances which che Roman empire idea had made in che meantime ; see C. Erdmann , Forschungen, 43ff, and passim ; also his study, "Das ottonische Reich als Imperium Romanum," DA , v1 (1943), 412-44147 —la utique magna et sancta imperatoris potestas , que cooperatrix est gratie Dei in pascendis ovibus eius veritatis germinibus es coi a Deo omnes regere concessum est , coi cocina mundi pontifices ad concilium convocare , ad de sacramentis catholice fidei el celestibus negotiis tractare el ipsis pontificibus, uc inde traccent, imperare per cooperantem sibi eandem gratiam coltatum ese. Propter quod usque ad celum a domino leso Christo erectus esse dicitur. Ad celum, inquam , non utique istud corporeum quod videmus , sed incorporeum quod non videmus , id est invisibilem Deum . Usque ad Deum quippe erectus est, quia el in potestate ira coniunctus est, ut nulla potestas Deo sir propinquior, imperatore sublimior, sed omnis sir alia inferior ." MGH,LdL, 111,676,5ff. For che holiness of che imperial protestas, see aboye, n.25. The distinetion betwecn "sky" and "heaven" was convencional because che exegetics liad co distinguish between che ascension of Elijah and that of Christ, (he former a heing taken up to che sky of air (caelum aereum) and the latter lo heaven (caelum aethereum); see Gregory che Great, Homiliae in Evangelia, n,29,5f, PL, t.xxv1,1216f ; also Bede, Expositio Achmm Apostolorno, 1, u, ed- M. L. W. Laistner, Cambridge, Mass., 1939, 9: ". . ut vera in caelum illum (Christum) ¡re monstrarent, el non quasi in caelum sicut Eliam " See, for che problem, Meyer Schapiro, "The Image of che Disappearing Christ," Gazette des Beaux Arts, cxxxv 0943)140 .

44 Stephan Beissel , Die Bilder der Handschrift des Kaisers Otto ira Münster zu Aachen (Aachen, 1886), 61ff,p1 .3; Adolplr Goldsdunidt, Germen Illumination, II: Ottonian Period (New York, md.), pl.I; P. E. Schramm, " Das Herrscherbild in der Kunst des Mittelalters ," Vortrüge der Bibliothek Warburg 19223, 1 (1924), 1g8ff, a full discussion with bibliography; see also his Die deutschen Kaiser und Kdnige in Bildern ihrer Zeit ( Leipzig, 1928), S1ff,1g1, and P164: K. Vdge, Eine deutsc he Malerschule um die Wende des er'sten Jahrtausends (westdeutsche Zeitschrift, Erghm zungsheft , 211, Trier , 1881 ), 7f; A. Boeckler, "Die Reichenau Buchmalerei ," in Die Kultur der Abtei Reichenau , Erinnerungsschrift ( Munich, 1925), n,g8sff. 15The remark has been made that che elergy has its place on the left sirle of che emperor, similar lo che Justinian mosaic in San Vitale and co its weaker replica in Sant' Apollinare in Classe at Ravenna; ser Schramm, "Herrscherbild," 1gSf; Beissel, Bilder , 62, for a few onrer parallels . The distribution of secular and spiritual officers, bowever, is not influenced by che Byzantine modal, hui by the imagery of Carolingian Apocalypses ; see below, n Ra.

60

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FRONTISPIECE OF THE AACHEN GOSPELS

powers inferior to his, and he himself nearest to God. Most startling, in view of the miniature , is the concept of the imperator ad celum erectus, lince Chis is exactly what the artist painted. Could he have known that phrase? Chronologically, there would be no difficulty. The phrase is taken from the so-called Collectio Hispana or Isidoriana, a collection of canons composed probably in the seventh century, ascribed to Isidore of Seville, and laten fused with the Pseudo- Isidorian collection. That the phrase actually originated in the Hispana is obvious for a simple reason: only in that

bear out this assertion92 These parallels demonstrate that the emperor appears not simply as the vicarius Christi and human antitype of the World Ruler aboye, but almost like the King of Glory himself-truly the christomimetes, the impersonator and actor of Christ. It is as though the God-man had ceded his celestial throne to the glory of the terrestrial emperor for the purpose of allowing the invisible Christus in heaven to become manifest in the christus on earth. Related ideas were carried through iconographically by other means as well. Attention has been called recently to the mosaic in the Martorana at Palermo, representing the coronation of King Roger II at the hands of Christ, where the desired effect of making the God manifest in the king was achieved by a striking facial resemblante between Roger and Christ-a duplication (Zwillingsbildung) which has its parallel in certain images of the Ottonian period, and has its precursora in imperial coins of the third and early fourih centuries (see fig. 32).'0 In the Aachen Gospels, however, the emperor's assimilation with Christ is indicated, not by means of facial and physiological resemblance between ruler and divise prototype, but rather by a christological and indeed meta-physiological resemblance: the image, to say it immediately, represents the emperor's two natures, human and divine, or rather, in the language of that age, a ruler " human by nature and divine

collection do we find a textual corruption of the acts of the Council of Chalcedon at which one of the bishops modestly said that God imperatorem erexit ad zelum [i.e ., fidei]. In other words, a scribe copying the canons of Chalcedon misread the text and changed ad zelum finto ad celum; and this erroneous reading must have reached, perhaps through the channels of Pseudo- Isidorus, the Norman Anonymous for whom even that great forgery in favor of the hierarchy could turra finto grist brought to his royalist mill.48 The reading is merely an error, though an error remarkable by itself, since it shows how easily any extravagant exaltation of the imperial power could flow from the pen of a scribe in [hose centuries. For the present purpose we may forget about the Hispana text, for it is most unlikely that the Reichenau painter knew that corrupt reading when he pictured the imperator ad celum erectus. Nevertheless, it remains a fact that the glorification of the emperor as displayed by the miniature of the Aachen Gospels by far surpasses anything that was customary in Eastern or Western art. The image shows the emperor in the maiestas of Christ, on the throne of Christ, holdiñg his open and empty left hand like Christ, with the mandona of Christ, and with the animal symbols of the four Gospels which are almost inseparable from the images of Christ in Majesty. An ivory book cover from St, Gall (fig. 7), and another one of the early tenth century, now at Darmstadt (fig. 6), may 48 See Hinschius , Decret.Ps.Isid., 283, also the note of Boehmer , in MGH,LdL,

111,676,41. Dr. Schafer Williams, who is studying the mas of Pseudo.Isidorus , kindly informed me that the misreading is found only in the pare Hispana text edited by F. A. Gonzalez, Collectio canonnm ecclesiae Hispaniae (Madrid, iSoS) and reprinted in PL, Lxxxrv, 163C; see also G. Williams, Norman Anonymous, 189,n .54o. The Norman Anonymous , in that passage , paraphrases throughout the Acts of Chalcedon.

64

by grace." cs Ad'olf Goldschmidt, Die Etfenbeinskulpturen aus der Zeit den karolingischen und sbchsischen Herrscher ( Berlin, 1914 ), pl.Lxxv, Book Coser from St. Gall ( c. A.D. goo), where the right hand is open and empty " like en representations of the Last Judgment" (cf, p.8o, Noe62); see ¡bid., pl.Lxxrv, for a Book Cover from Belgium, now in Darmstadt, and p.8o, No. 163a; Christ holds the seroll in his right hand whereas the lcft is open "to show the stignmta:' See also Vdge, Malersehule, 282, who likewise thinks of representations of tlre Last Judgment and of the Ascension. In fact, the gesture performed by Otro II, though not at al¡ vare in the iconography of Christ, senos to be unique in mediaeval imperial iconography. Beissel, Bilder, 62f, mentions that the iniage of the emperor in the Aachen Gospels has actually been mistaken for ara image of Christ; Schramm, Die deutschen Kaiser, 82 , briefly indicates the impossibility of that hypothesis.

60 See Ernst Kitzinger , "On the Portrait of Roger II in the Martorana in Palermo," Proporzioni, ni (195o), 30-35; for Ottonian parallels, see the remarks by Schramm, Die Deutschen Kaiser, 94 112, for Otto III and Henry II (also pI .65); similar observations were made by Georg Leidinger, Miniaturen aus Handschriften der bayerischen Staatsbibliothek in Manchen, Munich (n.d.), vis5 and pl.xm. For a few coin specimens ( Póstumos, Probos , Constantine the Great), see Kantorowicz, "The Quinity of Winchester,' Art Bulletin, xxix (19,17), figs.27-s9 (following p.78): also H. Usener, "Zwillingsbildung ," Kleine Schriften, n, (1913) , 33411 . See Panegyrici

65

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FRONTISPIECE OP TIIF AA CITEN GOSPEJS

Any interpretation of the image rnust procecd from the mysterious white banderole or scarf-like drapery Ivhich so obtrusively demands the actention of the spectator. It is carried by the four Evangelists representad by the apocalyptic symbols, and it is carried in such a fashion that the two tips of the banderole barely touch the crowns of the regttli. A fold of the batid itself seems co divide the emperor's body: head. sboulders, and chest are aboye the borderline; arras, trunk, and feet remain below. The observation was made long ago that the white drapery separates heaven from earth.11 In fact, the emperor's head not only touches heaven, but is in heaven, or beyond the heavens, whereas bis feet on the footstool are carried by the subservient Tellus, a feature of world dominion reminiscent of the Barberini Diptych, of Gandhara and later Buddhist monuments, or, aboye all, of a contemporary ¿vory in which Terra supports the feet of the crucified Christ (fig. S)P2

The interpretation of the image actually hinges on the interpretation of the banderole, and che understanding of both the details and the lchole will he considerable simplified once Ice know what

lalini, vt,2I (Paneg. Constantino Aug. dictus, ed. Baehrens, sgs i), 2,8,6: "Vidisti [Apollineml seque in illius specie recognovisti." See below, Epilogue, pp. 5o3f. 51Schramm, "Herrscherbild," 599; for the "hand" or drapery, see also Vóge, Deutsche Malerschule, 20sf. Beissel, Bilder, 62, is in some respects more correa Iban others when he compares shas drapery with che curtains of the Carolingian throne images (Vivían Bible , Codex aureus) where the hand of God is always separated from the head of the king by the curtain. See below, n.83, and figs. ,6a-b. 52 See André Grabar, L'Empereur dans l'art bysantin (París, 1936), 48ff, and play, for the Barberini Diptych; cf. Beissel, Bilder, 6,, and Schramm, "Herrscherbild, a95,n.172, For Gandhara, see Hugo Buchthal. "The Western Aspects of Gandhara Sculpture ," Proceedings of the British Academy, xxxl (1845), 15g.29, a feature re. peated over and over again . For the Gotha Crucifix carried by a crouching Terra, see Goldschmidt, op.cit., n,pl.sx,fig.23. It is likewise Tellus which carnes, as a cariatyde, Christ in the "Tree of Lile" of the Evangeliary from Bamberg, now in Munich (C1m.4454); cf. Leidinger, op.cit., v1,25,pl.xul. See further the strange miniatuve in a Byzantine noth-century ras (Homilies of John Chrysostom: Athens, Bibl. Nat.MS 21 t,fol.34") where Adam, carrying Chris[ in a clay lamp, is himself carried by Earth; Grabar, "A propon du nimbe crucifbre 6 Castelseprio:" Cahiers archdologiques, vn (1954), pl.54,fig.1 (facing p.161). Quite frequen(ly Earth is found together with Ocean (e.g., Goldschmidq 1,pl.Lxxv) in order to indicase the lordship of Christ letra marique. See, for Chis formerly imperial title, A. Momigliano, "Terra marique," Journal of Roman Studies, XXXII (1942), 53-64. It was applied again to Frederick II ("nobis Roma subiaceat , quibus letra servil, mace lave["; "hunc terra el pontus adoran["; "dominatur in [erra, principatur in mar¡ el imperar in utroque"); cf. Erg.Bd., 2o4f. That this lordship over earth and sea, and indeed oven the elements, was considered a strictty imperial prerogative became evident when Guillaume de Plaisian , a crown jurist of Philip IV, asserted the king's jurisdiction over the bishop of Gévaudan in [hese ternos: "Itera quod dominus Rex sis imperator in regno suo et imperare possit cerro el mar¡," a claim co which the bishop mockingly answered: "Porro utrum dominus Rex sis imperator in regno suo el u[mm possit imperare terre el mar¡ el elementis et, si obtemperarent ipsa elementa , si eisdem imperare[, ... nichil ad proposimm nec contra Episeopum faeit." See the highly iniportant

66

the banderole designates. The white scarf is nos a band or a banderole at all, nor is it merely an ornamental drapery: it is a veil. It is actually TIIE VEIS., chas is, the curtain of the tabernacle which, according to the oldesc Eastern tradition, symbolizes the sky separatin, carth from heaven. Speculation about che meaning of the veil was at all times alise in che East, since the curtains of the iconostasis, which nave a definite function in the rites of all Eascern Churches, actually dernanded some explanation 11 However, the interpretation of the veil of che tabernacle as "sky" was very common in the West as well. Bede, for example, in his work On the Tabernacle, explains in full agreement with the Eastern expositors shas "the veil figures the sky." He adds that when once a year en the Day of Expiation the high priest of Israel passed through the sky-curtain of the tabernacle in order to offer (Leviticus 16: 12ff), he-like Christ, the eternal Highpriest-actually "entered into heaven icself" (in ipsum coelum intravit).54 Now the sky-curtain, according to Exodus (26: 31f), was hung before four pillars. Those pillars were often identified with che four corners of the world, bus full scope was also given to other interpretation. Bede, for example, identified the ed. A. Maisonobe, in Bulletin de la société Mémoire retalif au Pardage de 1307, Département de la Lozére (Mende, 1896), d'agrieulture, industrie, sciences el arts da 521 and 532; el. Strayer, "The Laicization of French and English Society in the Thirteenth Century," Speculum, xv (1940), 82,n.5, who was kind enough co call my attention co chis interesting passage. sa For the interpretation o( tlre curtains, see Carl Schneider, "Studien zum Ursprung limrgischer Einxelheiten bstlicher Liturgien: EATAnETASMA," Kyrios, 1 (Freiburg, 1902), 133f; (1935), 57-73; J. Sauer, Die Symbalik des Kirchengebaudes also Robert Eisler, lt eltenman tel und Himmelszelt (Munich, 1910), 191 and 25o(. 54 Bede, De Tabernaculo, n,8, PL, xc,,445f; see 446D: "velum quo coelum figurator"; 445C: "Velum hoc, coelum interpretatur:' For the passage quoted, see 445D: "Summum yero sacerdotem, qui semel in aneo sancta sanctorum cum sanguina victimarum ingrediebatur, ipsum intellegi esse pontificem magnum, cui dictum est: 'Tu es sacerdos in aeternum. . . Qui semel oblatus pro peccans nostris, ipse sacerdos et hostia per proprium sanguinem in ipsum coelum intraviC' Bede's Tabernacle follows Eastern sources; see M. L. W. Laistnen, in A. H. Thompson, Bede, his Life, Times and hVritings (Oxford, 1935), 246. It remained authoritative, was copied, paraphrased, and quarried by a great number of continental writers; ed. P. S. Moore see, e.g., Peter of Poitiers, Allegoriae super Tabernaculum Moysi, and J. A. Corbett, in Publications in Mediaevat Studies, ni (Notre Dame, Indiana, 1938), 122f-

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CHRIST-CENTERED KINGSHIP

four pillars with "the powers of the celestial hosts, adorned with the four virtues," and later interpreters of the tabernacle claimed that the pillars signified Apostles.11 In the Reichenau miniature it is neither the celestial hosts nor the virtues nor che Apostles that are credited with representing the four pillars holding the veil of the tabernacle, but tire four animal virtutes, the Evangelistslogically, insofar as the picture precedes a Gospel Book.56 It would be pleasant lo think that the artist, when introducing the four Gospel animals, intended also lo allude lo the emperor's missionary task. After all, the emperor was "crowned by God" ad praedicandum aelerni regis evangelium, "lo preach the Gospel of the Eternal King." This idea was expounded in the official "Mass for the King," it was repeated in many a Coronation Mass, and it was programmatically adhered te by the Ottonians in their missionary policy.ei The combination of veil and animals, however, derived directly from the Carolingian models which the artist followed. These technicalities, interesting though they are, shall 65 Bede, op.cit., 446A: "Quatuor autem columnae, ante quas appensum est hoc velum, coelestium sunt potestates agminum, quatuor virtutibus eximiis praeclarae." Gregory the Great identified the four animals with the four Virtues, and in Byzantium they were mainly "angelic powers"; see Gregory the Great, In Ezech., 1, Homil. n1,8, PL, exxvl,8o9A, and F. van der Meer, Maiestas Domini (Vatican City, 1938), 227f. For other interpretations, see Sauer, Symbolik, 134. 6e For a survey of the ]iterary tradition concerning the four animals, see van der Meer, Maiestas Domini, 223ff; see also Irenacus, Adversos haereses, m,u,8. 1, For the prayer "Deus, qui ad praedicandum acterni regis (regni) evangelium Francorum (Romanum) imperium praeparasti," see Gerd Tellenbach, Rórnischer und christlicher Reichsgedanke in der Liturgie des frühen Mittelalters (S.-B. Heidelherg, 1934-35), Abh.r, m whose texts there may now be added the 81h-century .Sacramentariu,n Pragense, ed. Alban Dold and Leo Eizenhófer (Texte und Arbeiten der Erzabtei Beuron, i..Abt.,Heft 38-42; Beuron, 1949), 11,t37',No,246,4 See also Hans Hirsch, "Der mittelalterliche Kaisergedanke in den liturgischen Geheten," MOIG, XLIV (1930), gff, against whom C. Erdmann, "Der Heidenkrieg in der Liturgie und die Kaiserkrónung Ottos 1.,' MÓIG, XLVI (1932), 129-142 (also Ideenwelt, 1gf,nos. 6-7), emphasizes chal the praedicatio evangelif was the task of every Christian king, and not only that of the Reinan emperor. See, e.g., the acclamations lo King Reccared (Third Council of Toledo, in 589): "Ipse mereatur veraciter apostolicum meritum, qui apostolicum implevit oBfcium"; PL, rxxxIv,345CD. For the missionary ideology under the Oltonians, see Joseph Kirchberg, Kaiseridee und Mission unten den Sachsenkaisern und den ersten Saliern von Otto I. bis Heinrich ID. (Historische Studien, 259 [Berlín, 1934]); also M. Bünding, Das Imperium Chrislianum und die deutschen Ostkriege vara zehnten bis zum zwdtften Jahrhundert (Historische Stu. dien, 366 [Berlin, 1940]). For the prayer in the Coronation Ordines, see, e.g., Scluamm, "Die Ordines der mittelalterlichen Kaiserkrónung," ArchtlF, x1 (1329), 371, and "Die Krónung be¡ den Westfranken und Angelsachsen von 878 bis um 1000," ZfRG, kan..Abt., xxul (1934), 220; Paul L, Ward, "An Early Version of the Anglo-Saxon Coronation Cerelnony," EHR, LVII (1942), 360.

FRONTISPIECE OF THE AACHEN GOSPELS

not occupy us here.es Nevertheless, it should be mentioned that in severa! Carolingian Bibles a picture is found showing the four animals with the throning figure of a man who holds a veil over his head (figs. 9, lo). This miniature conveniently supports the interpretation of the banderole as "sky," for the veil billowing aboye the head of that male figure descends directly from the veil which the ancient Roman god Caelus holds over his head to indicate the sky (fig. li).e° Symbolically the veil of the tabernacle was said to separate heaven from earth. According co its original function, the curtain separated, within the Temple, the sanctuary from the Holy of Holies (Exodus 26: 33). To Bede, who again argues along customary lines, this division of tire Temple appeared as a symbol of tire Church which itself was twofold: men peregrinating below on earth, and saints as well as angels ruling aboye in the heights. At chis reffection about the twofold Church, Bede arrived because the veil reminded him of the two natures of Christ the Mediator who was, at che same time, on earth the man Jesus and in celestial eternity the co-ruler of God.6° Bede, at leas[, offers a clue to help us understand the separating curtain as an indication of the two natures of Christ. Bede's seemingly strange association will become less cryptic when we turn to another peculiar item of che Aachen miniature: the apparently gigantic stature of the emperor whose feet rest on earth while his head is in heaven. Incidentally, there exists a miniature of Otto's contemporary in the East, Emperor Basil II, who likewise towers like a giant from earth to heaven (fig. 12) while his defeated enemies crouch below.6t The giant figure, of course, was a distinguishing mark not only of Hellenistic and Roman or Bys8 1 may discuss [,hose prohlems separately. se The three representations of chal type (Vivían Bible, Grandval Bible, and San Paolo Bible) have been studied carefully by J. Croquison, "Une vision eschatologique carolingienne;" Cahiers archéologiquee, tv (1949), 10-129, with full bibliography (see p.u6f, for Caelus), whose identification of the bearded man on the throne with John the Evangelist is suggestive, but not fully convincing. de Bede, De Tabernaculo, PL, xe1,447AB: "Infra hoc velum templi posita cal arca testamenti; quia mediator Dei el hominum, horno Christus Jesus, qui solus paternorum est conscius arcanorum, . super coelos coelorum ascendens (see below, nos72ff), sede[ ad dexteram Patris. Hoc velo sanctuarium el sanctuarfi sanctuaria dividuntur; quoniam Ecclesia, quae ex angelis sanctis el hominibus constat, partim adhuc peregrinatur in infimis , partim in aecerna patria regnat in supernis." el Grabar, L'Empéreur, pl.xxnl,l, and pbo.

68 69

CIIRIST-CENTLREI)

KINGSHIP

zantine empernes honored by colossal monutnents, but also of Christ. It usas a feature sveli known in eariy Christian popular belief, especially in the gnostic and docetic cii eles which mav even have drawn from a Rabbinic tradition concerning adam: "The first man extended from tlte eartb to tire finnament."02 However, the vision of a ó ant Christ seas orthodox as well. It was kepí alise within the Chureh through the thtlt Psahn_ "He hath re¡oiced as a gant lo run his course." And although in che Psalm the giant stature of God-Justin paralleis him with the nrythical Heracleshas no obvious relation to the tuso natures, Saint Ambrose neceetheless speaks in that connection of Christ as the gigas geminae substantiae . The Psalm has been taken subsequently as an allusion to either the Incarnation or the Resurrection and Ascension of Christ Ba And perhaps the Ambrosian "Giant of two substances" should be linked to a standard interpretation of the head and feet of Christ which was current in the East. "The head means the godhead of Christ; the feet, his manhood," writes Cyril of Jerusalem;84 and it was quite common, especially in connection with 62Decisive is the Gospel of Peter, c.4o (see below nos79fl), ed, Leen Vaganay (Paris, lg3o), 298ff, with che parallels , most of which were enumerated alrcady by H. B. Swete, ESaryryéX , ov car& llérpov : The Ahrnim Fragment of che Apocrypisal Gospel of St. Peter (London, 1893), p.i8,n.2. See H. L. Strack and P. Billerbeck, Kommentar zum Neuen Testament aus Talmud und Midrasch (Munich, 1928), tv, 888, for Rabbi El'azar according to whom the first man extended from earth to heaven, hut " inasmuch as he sinned , che Holy One ... placed his hand upon him and made him small." Since Christ undid the sin of Adam, it is logical that che new Messiah should hace had again the original sine of Adam , and the rabbinic tradition has it that " the messianic time shall restore to the Israelites more than giant stature ." See also Strack - Billerbeck , 1v,947f, for additional material ; cf. 111,851. es For che gigas geminae suhstantiae , see aboye , n,5g; see 1120 Justin, Apología, 1,54, who claims that the whole pagan myth of Heracles was stolen from Psalm 18:5, although in fact the versicle referred to Christ. For the interpretation of che Psalm in the cense of Ascension and Resurrectiou, see Ddlger, Sonne der Gerechtigkeit, 102ff, and Sal Salutis , as7f; also Pseudo-Berle, in Psalmorum librum exegesis, xvn1, PL, xctn,5811) . See further, Hubert Schrade, " Zur Ikonographie der Himmelfahrt Christi ," Bibliothek IVarburg : Vorirdge 1928-29 (Leipzig, 1930), u9f, and Ikonographie der christlichen Kunst: Die Auferstehung Christi ( Benin and Leipzig, 1932 ), 39; also Helena Gutberlet, Die Himnielfahrt Christi in der bildeslden Kunst (Strassburg , 1934), 7of. 1 sl Cyril of Jerusalem , Catechesis, x,r,l, PGr, xxxm,726: ''. .. eegaXip µerá rwv ro& ,' µerañd(3wµev ecsa ),hs µ6 rf,c Bcórr^ras voouµérnt , roá6v 3 1 ,'t &süpwrórnrar étXapp avoµévps . The passage lnay reflect Odes of Solomon, xrm,13; see Rendel Harris and Alphonse Mingana , The Odes and Psalms of Solomon ( Manchester, 1920), u,55f. Pseudo'Chrysostomos , In PaseSo, u, PGr, 1. 1x,728, lees in "head and feeP' of Exodus 12:9, en allusion to the tuso Advents of Christ. Bede, In Exodum, ct2, PL, xc1,3o6D , docs not seco to know that exegesis, but interprets " head and feet- as Christus cum duabus legi bus.

i0

I'RON11SI'IECR OF THE AACIIE,Ar GOSPELS

the Leer likc unto fine brass" of the Revelation (t: 15), lo explain that tite feet of Christ indicated che Incarnation.113 The intellectual climate of flte Ottonian period s1-ould probably allow us to take Greek writings into consideration. IIowever, use do not need to seek succour from either Gnostic authors or Eastern theologians to explain the Reichenau miniature. A priori it svould appcar unlikely that the master of tbe Aachen Gospels should lave been inspired by other elan conventional material for bis unconventional image. Decisive, in fact, is a source not at all obscure: Augustine's Enarrationes in ¡'salmos, which may serve also lo illustrate che Ambrosian gigas geminae substantiae. When interpreting Psalm 91, Augustine exclaims: "Oh Christ, who sittest in heaven en the right side of the Father, but art with thy feet and thy limbs struggling on earth."88 Augustine, on that occasion, repeated only an idea treated by him at greater length in his exposition on the preceding goth Psalm. Here he discusses the w'ord "tabernacle" (v.to), and points out that the word was used of the human flesh.°' "The tabernacle of God is the flesh. In the flesh the Word has dwelt, and the flesh was made a tabernacle for God." Augustine then continues: "In this very tabernacle the Emperor [Le. Christ] has militated for us-In ipso tabernaculo Imperator militavit pro nobis." Once more he remarks en that occasion: "He is far aboye all heavens, but his feet he has en earth: the head is in heaven , the body en earth." And so as lo preclude every possibility of a dichotomy and preserve the dogmatic "One person, two natures," he adds: "But we should not believe that the head is ss Andreas of Caesarea , In Apocalypsim (en 1,15), PGr, evt229A, refcrring to Gregory Nazianzen : róbes yap airoi 8 odpl; Arethas of Caesarea , Comm, in Apoc. (on 1,15 ), ibid.gtgAB. See, for che 12th century , Michael Akominates, Comment. in Apocalypsim, ed. Dyovouriotis , in 'Ererepis ¿'apelas pvlavrwmv orrováwv , v(1928), 24,19: vo>Íewµev risas rily & ñ eapeit ¿rrágµtav . See, for the West, e.g., Haymon of Halberstadt , PL, otvn,g56B: " [pedes] aliquando significant stabilitatem aeternitatis, aliquando vero humanitatem per quam ad nos venit cognitio divinitatis , aliquando praedicatores ." Por the feet as praedicatores, see also Victorin of Petcau , In Apocal., PL, v,3t9. See further R. J. H. Jenkins and C. A. Mango, in Dumbarton Qaks Papers, ix-x (1856), 132,n.52.

66 Augustine, Enarrationes in Psalmos, xci , 11, PL, xxxv11 ,1178: "O Christe, qui in coelis sedes ad dexteram Patris, sed pedibus tuis et membris tuis laboras in terra.', 87For tabernaculum (aenvp, acüvot) in che figurativa cense, see II Cor. 5: 4, and II Peter t : 13. The human flesh as che " tabernacle of the soul " has its philosophical antecedents ; see Delatte , Traités de la royauté, 181; cf. Kantorowicz , " Deus per naturam," 27o,n.56.

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CHRIST-CENTERED KINGSHIP FRONTISPIECE OF THE AACHEN GOSPELS

separate from the body: there is a discretion in space, but a conjunction in love."°a It should be mentioned that the Augustinian exegesis of that Psalm was repeated many times and was generally known. Ir passed into the ordinary gloss on the Psalter; it is found in the Psalm Commentary ascribed to Bede; it appears later in the marginal glosses of the Canterbury Psalter and in the Exposition on the Psalter by Peter the Lombard, and can probably be found in many other writings as svell.89 The Reichenau artist did not come about those passages merely by chance. Commissioned, as apparently he was, to design a triumphal image of the emperor, he naturally turned to Psalm go and consulted Augustine's commentary. For Psalm go was the great Victory Psalm, the "imperial" Psalm par excellence according to oldest tradition, because it contains the famous versicle (v.i3): "Thou shalt tread upon the adder and the basilisk, the lion and the dragon shalt thou trample under feet."70 In fact, this Psalm was for many reasons so irresistibly imperial that the very feev and rather exceptional representations of Christ in the full uniform of a Roman emperor-golden armour and imperial shoulder fibula with thrre pendents (fig. 13)-are all connected with Psalm go: 13, although otherwise "gods in uniform" were a sub68Augustine , op.cit., xc,5, PL, xxxvu,u63: "Tabernaculum Dei caro est. In carne inhabitavit Verbum, et caro facta est tabernaculum Den: in ipso tabernaculo Imperator militavit pro nohis ... Longe est super omnes coelos , sed pedes haber in terra: caput in coelo est , corpus in terra . . Sed ne putemus quia separatum est capuz a corpore: discretum est enfm locis , sed iunctum est affectu ." The fide imperator for Christ is found less frequently than rex, though of course it is well known, especially in early Christianity; see, e.g., Erik Peterson, "Christus als Imperacor," ¡ir his Theologische Traktate ( Munich, 1951 ), 151.164, quoting also places from Augustine, though not the one mentioned here. The title is found with the later jurists ; see, e .g., the Summa Inperatorie maiestali; . inperator noster, Christus Jesus, venos imperans et mar¡ ..." See Stephan Kuttner, Repertorium der Kanonistik ( Studi e Test¡, 71; Vatican , 1937), 179f ; S. Mochi Onory, Fonti canonistiche dellidea moderna dello stalo ( Milan, 1951 ), '12f,n.3. 69 Pseudo -Bede, In Psalmos, xc, PL, xcm,g95C-976B; Anselm of Laon [falsely Walafrid Strabo ], Glossa ordinaria , Ps. xc, PL, cxnt,999; Canterbury Psalter, fols. 163v164r, ed. M. R. James (London, 1935); Peter the Lombard, Comm. in Psalmos, xc,,o ( cL titulus), PL, cxcr,852C (cf.847D). 70 See Grabar, L'Empereur, 237ff; and, for the West in Carolingian times, also Josef Deér, "Ein Doppelbildnis Karls des Grossen," Forschungen zur Kunstgeschichte und christlichen Archdologie, 11(1953 ), 103-156, esp. 11811. In the Utrecht Psalter, fol.53v, ed. E. T. DeWald ( Princeton , [ 1932] ), the illustration of Ps. go shows Christ not only stepping on lion and adder, but also receiving a crown.

ject not roo rarely depicted in late Antiquity.71 There cannot be the slightest doubt, therefore, but that the Augustinian exegesis of Psalm go prompted tire artist co represen[ the living emperor Christ-like as Imperator in labernaculo militans. As a result, he turned the ambivalent word tabernaculum from its figurative meaning ("flesh") back to its original meaning of tabernacle: thence in his picture the "ve¡¡ of the tabernacle," which became to him also an essential stage property for dividing the emperor's body and indicating the geminate nature-pedes in terra, caput in coelo. To understand the specific function of the veil, another iconographic partera has co be considered: the image of the Ascension of Christ showing only the feet of the Incarnate whereas body and head have already disappeared in heaven.12 Perhaps, though not necessarily, the concept of Christus Gigas was influential roo. Maximus ecce gigans scandit super astra triumphans (Lo, the greatest giant strides over the stars in his triumph) reads a verse inscription explaining an Ascension picture in the Gospels from Bamberg of the early eleventh century.ra At any rate, the new type of Ascension imagery, very common in the thirteenth century and the later Middle Ages, made its first appearance around A.D. tono in two Anglo-Saxon manuscripts as well as in the 71 See, for che Neon Baptistry in Ravenna , Grabar, op.cit., pl.xxvir, l, and for the representation in the Archiepiscopal Palace, J. Wilperq Die rdmischen Mosaiken und Malereien ( Freiburg, 1g1y), t, pl.8g, and p47. For the ( bula, see below, Chapter vo,n.341 . For "gods in uniforma" see, for the time being , R. Paribeni, "Divinitk straniere in abito militare romano," Bulletin de la société archéologigue d'Alexandrie, x11, (1910), 177.183, also E. Breccia , ¡bid., xvn ( 1919-2o), 184ff; there are very many monuments to be added . See, in that connection , also A. D. Nock , " Studies in che Graeco- Roman Beliefs of the Empire ," Journal of Hellenic Studies , xLv(Ig25), 93, for the augustos [irle of gods, wllich was carried Petrus Chrysologus , Sermo CXXX, PL, 111,559B: over co Christian times; see, e.g„ augusta Trinitas. 72 See E. G. Millar, English llluminated Manuscripts ( Paris and Brussels, 1926), pl.13a (and p.73), for the Missal of Robert of Jumiéges, and p1.29a, for an uthcentury Troper; for che Bemward Gospels, see Gucberlet, pl. xxix; Schrade, " Ikonographie der Himmelfahrt," pl.xv, fig.3o; and , for che Morgan Library Gospels of St. Bertin ( Ms 333 ), Schapiro , '' Disappearing Chrisca' 147. For the new type in general, see Gutherlet , 2431f; Schrade, t65ff; Schapiro, 14off. 1 am greacly indebted co Professof Erwin Panofsky who suggested the combination of that Ascension type with the Reichenau miniamre. 78 Goldschmidq German Illuminations, 1t, pl.4oB ; see also Stephan Beissel, Geschichte der Evangelienbücher in der ersten Hdlfte des Mittelalters (Stimmen aus Maria-Laach , 92-93, Freiburg , 1906), 218.

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CHRI.ST-CENTERED KINCSI[IP

Bernward Gospels from Hildesheim (fig. 11).R4 It marks a complete break tvith the whole Western tradition as we11 as with Eastem iconography. Hitherto tlie Ascension liad been depicted in tire forms of an antique apothcosis or of an cpiphany; now, however, Christ does nor become manifest, lit disappears in Heaven.i0 That is to say, whereas rapul el corpus Clv-isti are in heaven, the feet alone-the symbol of the Incarnation-remain as a visible token of tlic historical fact that the Incnrnate has migrated en earth. Moreover, it is the sky that divides the body of Christ and suggests the two natures,R° just as the "sky" divides, in the Reichenau picture of Otto II, the body of the emperor. The sky-that is, the veil of the tabernacle-in the emperor's image still demands some comment. The veil is held by the Eagle of John and the Angel of Matthew in such a fashion that the fall of the fold leaves head, breast, and shoulders as we11 as the brachial joints of the emperor "aboye," that is, in heaven, wbereas tlic body, including Clic hands, remains "below." We have te remember that head, brease, shoulders, and brachial joints were tire places where the emperor was anointed with holy oil. Those parts of his body therefore refer, so to speak, to the christus domini, whereas trunk and limbs are those of an ordinary man. One might be surprised to find that the hands are below, not aboye, the veil, since the hands of kings were anointed too. But this detail happens to be correct: the anointment of the hands was not the custom at the imperial coronation nor was it as yet used at the German coronation of Otto II in Aachen (961), though it was introduced a little later, in an Order of the Coronation dated between A.D. g8o and

FRONTISPIECF OF THE .SACHEN GOSPELS

More difficult is tire explanation of the remaining parts of the veil. Tire Lion of Mark and the Ox of Luke dangle the ends of tlic curtain so skilfully that tire tips just toucli the crowns of tire two reguli who flank the emperors footstool, that is. his Leer whicls "militare en earth:' This feature has been bouawed from the Carolingian models in which ve notice that the tips of tlic veil just toi ch tire ntouths of Liott and Ox who, playfully like little dogs, snap at the loose ends fig. lo!.-, In Clic Aachcn Gospels, honevel, the touching of tire crowns of tite reguli apparently has a more definite meaning. No better explanation could be found than the words of the Gospel of Si. Peter where the author narrates the events at Christ's Resurrection: The soldiers, on guard at the tomb, see ovo angels descending from aboye and entering into tire sepulchre; then they see "how there come back from tate tomb three men [ instead of two]; and the two support che One; and of the two, the heads reach unto heaven; hut tire head of dre One, whom they support, towers heyond tire heavens."79 This would fit almost perfectly tire scene as depicted by che Reichenau tnaster. The heads of the two reguli "reach unto heaven," that is, unto the tips of the veil representing the sky; but the head of the central figure, the emperor, "towers beyond the heavens."

Unfortunately the painter of the Aachen Gospels could not possibly have studied the apocryphal Gospel of Peter of wltich no evidente shows us that it was available in the West. 80 But even if we have to rule out the Gospel of Peter as a possible source of inspiration,P1 it may yet help vis understand the intentions of the artist. In accordance with Augustine's interpretation of Psalm go,

tooo 77 74 Gutberlet, pl.xxlx; Schrade , ' tkonographie der Himntelfahrt,' pl.xv, 3n (ser aboye, 11.72). 7s Schrade , op.cit., 166. 7e Augustine , Enarrat., Ps. mx,7, PL, xxxv11 ,14 Vio: "in eadem [carne] ascendit in coelum el sedet ad dexteram Patris." That is, Christ, who rules together with the Father froto Eternity and as God, sits at the right hand of che Fadaer as man, which is often forgotten ; see Iungmann , "Die Abwehr des gcrmanischen Arianismus;' 75,n.e. Mote significant is, in this connection, Helinand of Froidmont (late 12th century) who, quoting Len tire Great, says: "Christus ascendens in altum, miro modo, ut ait Leo papa, factns est divinitate praesentior , et humanitate longinquior." PL, ecxu,6o6D, quoted hy Sclirade, op.ciL, 177. 77 The Coronation Order of ca. A.o. 961 has no anointment of the hands; see Schramm, "Die Krbnung in Deutsdrland bis zunt Beginn des Salischen Hauses;" ZfRG, kan.Abt., XXIV ( 8935 ), ag4f, and 315, X12; che hand anointment was introduced later (Schramm, 255, and 328, $12a), and only mor the coronations at Aaehen; the Reinan

74

imperial coronation liad no hand anointment anyhow, nor ivas it customary in France before the W11 century; see Sehramin, Der Kdnig von Frankreieh (Weimar, 1939 ), t57,nos.6-6. 78 So in the Bible uf San Paolo; the interpretation of W. Kbhler, Die karolingischen Miniaturen ( Berlin, 1930.33 ), 1,141, according to whom the animals are tear ing at Ihe veil, is hardly acceptable.

79 Gospel of Peter, 36-40, ed. Vaganay , 294ff; aboye, n.62. 8° For the influence of the Gospel of Peter, see Vaganay, 163ff, who, however, does not Cake works of art finto consideration. sr Gutberlet , Himmelfahrt , 226, does not exclnde the possibility of an influence of the Gospel of Peter even as late as the early 12th century. An influence may he possible in very early times ( see Dólger , Sol Salutis, 212ff ; Kantorowicz , "Tire King,s Advent," Art Bulletin, xxvI [ 1944], 226), although probahly tire Apocalypse of Peter was more influential i ban the Gospel ; but without some new and striking evidente, an influence-at least, a direct influence-cannot be assumed in later times.

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FRONTISPIECE OF THE AACHEN GOSPELS

tire artist had lo show that the emperor's head was longe super coelos. He could, however, demonstrate most conveniently that the

the emperor's body in two sections, one supra- celestial and the other sub- celestial . The comparison explains also the function of

head was "far aboye all heavens" by allowing the sky to touch the crowns of the princes dependent en the emperor : their heads reach unto heaven or unto the sky, but the head of the emperor towers beyond the heavens. It is a purely artistic expedient which does not seem to demand further textual interpretation; it was supposed to be self-explanatory. Therewith another detail of the picture falls in its proper place: che four figures below, the princes spiritual and secular. If the uppermost plane represents a sphere "aboye alt heavens," and the middle plane a sphere below heaven but reaching "unto the sky," then the lowest tierce would plainly indicate sub-celestial "earth." In fact, this particular meaning of the tripartition is countenanced by Carolingian manuscripts. The Trier Apocalypse, for example, or the Bible of San Paolo (figs. 15a-b) show the Maiestas Domini in a similar fashion : in the uppermost tierce we see Christ with

che four animal symbols as carriers of the veil: the curtain attached to the pillars of the throne canopy does not suggest the word "tabernacle" nor could it convey the meanings of "sky" and "far aboye all heavens" which the Reichenau painter obviously wished lo express. Moreover, the very presente of che animals as well as the mandorla surrounding the emperor indicare that he is in the place of Christ, the Emperor " militating for us in the tabernacle." Finally, the veil dividing the body emphasizes that the emperor en earth has in common with Christ the two substances-human by nature, but divine by grace and by consecration. All Chis results from a philosophy of state which is very different from that suggested by che Carolingian throne images. It is true, the Hand of Cod the Father emanates the divine blessing and grace also on the Carolingian monarch, and there is a relationship between the ruler on his throne and the far remoce Father in Heaven; but Christ is absent from those scenes. The Carolingian concept of a David-like kingship was decisively theocentric: "Thou art the vicegerent q God, and the bishop is in che second place only, the vicegerent of Christ," as the English scholar Cathwulf wrote to Charlemagne.84

the four animal symbols; in the middle tierce, there are the twentyfour elders, their bodies en the level of the knees and feet of the Saviour and their haloes touching che sky; and in the lowest tierce moves the unhaloed crowd with John or Isaiah respectively in the right corner where in che Aachen Gospels the clergy has its place.B2 The Carolingian models are important to us because they are a commentary where the Reichenau artist foliows them, and they are most revealing where he chooses to deviate. A comparison of the Aachen miniature with the famous Carolingian throne

Nothing could have been more contrary co the Reichenau painter. His emperor is in the place of Christ, and the hand stretching down from aboye is surrounded by a cross-halo: it is probably not che hand of the Father, but rather that of the Son 81 In short,

images-for example, of Charles the Bald in the Vivian Bible (fig. 16a) and in the Codex Aureus (fig. 16b)83-exhibits that point very clearly. True, there is a veil also in the Carolingian miniatures; it is attached to the pillars of che canopy-ciborium vaulting

84 MCH, Epp., rv.5o3,3ff: .. tu [rex mi] es in vice illius [ Dei regis tui] . . . et episcopus est in secundo loco, in vice Christi tantum es t." M. Buchner, in Hist.Jhb„ rv(1985), 604, claims without evidente that che Cathwulf letter is a fiction of the gth century . There is no reason whatever for chis assumption , but even if correa, it would make little difference here: the otherwise unknown Cathwulf would be replaced by tire otherwise unknown contemporary anchor of a "school exercise" who (and Chis is all that matters ) reflected che so-called "Ambrosiaster "; see Williams, Norman Anonymous , 175ff . See below, Ch .rv,n.12, for Amhrosiaster in Canon Law. 85 It is, of course, impossible to tell whether it is che Hand of God stretching down from heaven ( Beissel, Evangelienbücher , 21 r) or that of che Son . The crossed nimbos surrounding che hand, however , is a vera suggestive feature, lince it is very rara in that period, though very common in che later Middle Ages. There seem to he no more than three earlier examples: an ivory plague of che ioth century (Goldschmidt, Elfenbeine, u,pl.rx,s¢b: Incredulity of Thomas); an antiphonary from Prüm of the same century (Paris, Bibl.Nat., MS .lac.9448, fol. toa: St. Stephen in che Synagogue); and che Bamberg Apocalypse of ca.~ oro ( Bamberg, Staatsbibl., MS 14o,fol.24v , ed. H. Wülf hin , 1921, pl 24: Rev. 9: 18). To these there may be added,

the throne. But the veil does not overcut and divide the ruler's body; it separates his head from the Hand of God. In the Reichenau miniature, however, tire emperor's head puches through che curtain or "sky" so that the dextera Dei is now in direct contad with the head of Otto; moreover, the sky-line itself now divides 8a The scheme is very obvious, e.g., in che Bible of San Paolo, f .' 15; van der'leer, Maiestas Domini , 386f, fig.78 ; see also 147ff ( fig.34), 287f (fig.67), for che Trier Apocalypse. 83 Schramm , Die deutschen Kaiser, figs . 26sga-b, also fig.28.

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TIfL HALO OF PLRPETUITY

CHRIST-CLNTFRED KINGSHIP

notion. This specia] mark of distinction indicated tliat che figure ovas meant to represen[ in every respect a continuum, something permanent and sempiterna) beyond the contingencies of time and corruption. Roznan provinces such as Egypt, Gata], Spain, and others were sometimes represented with a halo-for example, in the late antique Notitia dignitatum ss In that case, ove usually cal) these haloed females "ahstractions'' or ''personifications," which is correct so far as it goes; buc ove llave ro be aovare that the most significan[ feature of all abstractions and personifications is theb supra-temporal character, their continuity within time. In fact, it was not so much the personification which was made conspicuous by the halo, as the Genius of the individual province , that is, its perennial creative and seminal power, since genius derives from gignere. Much of what ove today are inclined lo associate with slogans such as Roma aeterna or La France éternelle,19 was very precisely expressed by the Aegyptus, the Gal&a, the Hispania when adorned with the nimbus. The lame was true with regard lo notions or virtues : Justitia or Prudencia, who were goddesses in pagan Antiquity, were meant to represent forces perpetually effective or forms of Being perpetually valid when depicted in Christian art with the halo.B° In other words, whenever ove capitalize a notion and, in the English language, even change the pender from neuter to feminine, we actually are "haloing" the word or the notion and are indicating its sempiternity as an idea or power. In this sense, and very much in the sense of the anonymous Norman pamphleteer, the Byzantine emperors, until and beyond the Fall of Constantinople, were represented haloed. The origin

the Ottonian concept of su]crship displayed by che Rcichenau artist was not thcocentric: it was decisively christocentric. A liundred years or more of Christ-centered monastic piety°° have aflected also the image of rulership. In fact, the unique Rcichenau miniature is the most powerful pictorial display of what may be called " liturgical kingship"-a kingship centered in the God-man rather than in God the Father.ar As a result, the Reichenau artist ventured to transfer to the Ottonian emperor also rbe God-man's "two natures in one person." No less distinctly tltan the Norman Anonymous in his tractates has the master of the Aachen Gospels expounded the concept of tite ruler's gemina persona. j. The Halo of Perpetuity Things difficult and circumstantial lo describe in words are sometimes more easily and succinctly expressed by an iconographical formula. It has been stated aboye that in the tractate of the Norman Anonymous Tiberius qua "Caesar" appeared, so lo say, with a halo whereas "iniquitous Tiberius," the individual man, was certainly without a halo. This metaphor, not chosen at random, may actually help us to clarify yet another aspect of the mediaeval concept of che ruler's gemina persona. In late antique art, ve often find the halo bestowed en such figures as might impersonate a supra-individual idea or general as the definitely earliest one , a represeritation of che lland on che Cross in the Bible of Charles che Bald (Bibl.Nat., MS. lat.,,fo1 .317ro, see W. K6hler, Die Schule van Tours [ig3o ], pl.89,fig.n: the upright Hand Banked by neo angels). Whether in ihose cases che hand is meant co be that of God or of Christ is net at all clear in every case. However that may be, of major interesa is che fact all by itself that the symbol of Christ hegins to he passed on to God che Father, an impossible feature in Byzantine iconography of that period, especially in coronation scenes , Contrariwise, Christ as coronator es very common; see, e.g., the Sacramentare el Emperor Henry II, in Schramm , Die deutschen Kaiser, fig.85a; and, for Bvzantium, Grabar, L'Empereur, pl.xix,1-2, and also (below, fig.12: see ahoye, n.61) tire triumph of Basil II. In ihe Aadien Gospels, where che full figure of Christ tonta] hardly hace buen represented , che crosshaloed hand therefore seenis ro imply ihe abbreviated formula of the Crowning Christ. s° This problem is in peed of a thorough investigation, although Georg Schreiber, Gemeinschaften des Alittelalters (Nfünster, 1948), buches upon it time and time again; see also Hallinger , DA, x,43(1f. lungmann, of course (aboye, n.76), especially in bis fundamental book Die Stellung Christi im liturgischen Gebet (Liturgiege. schichtliche Forschungen, 7.8; Münster, igsg) is fully aware of che general prohlem, but does no [ seem co have dealt with monastic piety in particular. al See below , Ch.ry, pp. Sqf.

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ss lr is not intended torre to discuss in any detail the function or origin of ihe halo; see the standard work en che subject by A. Krücke, Der Ninsbus und verwandte Attribute in der frühchristlichen Kunst (Strassburg , 1905) and 1(. Keyssner, "Nimbus;" RE , XXXIII ( 1936), 5gsff, esp. §§i8 , 24,cols.6n,622. See Notitia Dignitatum, ed. Seeck ( Berlin, 1876), e.g., u18 ( Italia, Iflyricum , Africa ), mi (Felicitas, Virtus, Scientia militaris), 102 (che Four Seasons, with Autumnus cross -haloed[I] ); see, for che haloed Seasons, George M. A. Hanfmann , The Season Sarcophagus in Du,nbarton Oaks (Dumharton oaks Studies, 11, Cambridge , Mass., 1,266; u,ir,, o2g,3; also 45 ,46,48,52, and passim. 89 The expression '' Eternal Trance " does not seem ao antedate che i6th century, and ove may wonder whether it was not transferred from "Eternal Rome," just as che notion Roma communis patria seas transferred, in the ,3th century, to France: "corona regni [ Franciae] esa communis patria." See Gaines Post , " Two Notes," Traditio, ix, 288ff (n.44), also 3o,. se see, for a few rernarks en a related subject, my note ''Zúvepovos Aleq;' American Journal of Archaeology , LVII (1853 ), 65-70.

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of the imperial halo and its tradition from a pagan symbol of divinity to a Christian symbol of holiness shall not occupy us here.91 The halo of the Byzantine emperor, which even in Christian times still referred to the r» , the genius imperatoris, referred in later times mainly to the imperial power as such which was considered perpetual and sempiternal and, therewith, venerable and holy also in the Christian sense, regardless, of course, of the presente or absence of venerable or holy qualities in the individual bearer of the diadem. Admittedly, an emperor might be worshipped also individually and independently as a saint as, for example, Constantine the Great;91 the nimbus, however, did not depend upon an emperor's enrollment in the catalogue of hagiarchs. It indicated the bearer and executive of perpetual power derived from God and made the emperor the incarnation of some kind of "prototype" which, being immortal, was sanctus, regardless of the personal character, or even the sex, el its constituent. For example, the Empress Irene, when governing (79o-802) the empire as regent for her son Constantine VI, was spoken of in ofhcial documents, not as "empress," but as "Emperor "-Etprivrl arw-ros $avtñe» S.°a sr For the imperial halo, ser, aboye all, Alfóldi, "Insignien und Tracht der rómischen Kaiser," RM, L(,935), 13gff. See also H. U. Instinsky , " Kaiser und Ewig. keit," Hermes, Lxxv11 ( 1942), 313-385; Treitinger , Ostróm.Reichsidee, 122,n372. Byzantine art represented the emperor adorned with the halo practically without exception—even when he is shown in prostration before a group of likewise haloed saints; cf . Paul Buberl , Die Miniaturhandschriften der Nationalbibliothek (Denkschriften der Wiener Akademie , 1.),2, Viemna , 1917), 6, pl.Iv,fig.7. 92 His veneration is usually linked to that of his mother , St. Helen; their images and trames appear even en hosts; see Carl Maria Kaufmann , " Konstantin und Helena auf einem griechischen Hostienstempel ," Oriens Christianus, N.S.IV ( 1915), 85-87:8 See J. B. Bury, The Constitution of the Later Roman Empire (Cambridge, 19o), 24; also F. Dólgeq in Byz.Zs., xxxvI( 1956), 129ff. Similar considerations, no doubt, were effective in Hungary when Maria, daughter of Louis the Great (,342. 1382), took the title "King " ("quae quidem Maria appellahatur Rex Hungariae'") and was crowned as " King" (coronata fuit in regem ); only alter her marriage te Sigismund did she accept the title regina ; see Du Cange , Glossarium , s.v. "rex." As late as the ,8th century the enthusiastic Hungarians acclaimed their queen Moriamur pro rege nostro Maria Theresia, The peculiatly abstract concept of the "Crown of Hungary" may have produced also the abstractness of the title ; see, for the vast modern literature en the Hungarian Sacra Corona , Patrick J. Kelleher, The Holy Crown of Hungary ( Papers and Monographs of (he American Academy in Rome, xnz [Rome , 1951]), and, in general , Fritz Hartnng, Die Krone als Symbol der monarchischen Herrschaft im ausgehenden Mittelalter (Abh. Berl. Akad., 1940, No. 13 [1941]), 35ff. Twisting St. Ierome's statement In divinitate nullus est sexos, it might be said that also In corpore politico nullus est sexos: Gallienus, who vested his supra - personal body with the insignia of Ceres, had coins struck with the legend

80

Moreover, the Middle Ages were perhaps more aovare than we are of the various categories or measures of time. Arralar of Metz, for example, ifl his acclamations to Emperor Louis the Pious, very acutely distinguishes the individual emperor from the sempiternal prototype; he wishes "long lile" to the "divine Louis," but wishes sempiternity to the "new David" as impersonated by the Carolingian emperor: Divo Hludovico vila! Novo David perennitas!

In other words, Louis was "haloed" not as an effluence of the epithet divus, but through the perennitas of the pious King of Israel in whom the Carolingian empire idea, the regnum Davidicum, culminated and became manifest. 99 It was perhaps in competition with the Byzantine emperor that Pope Gregory VII claimed the "halo" for every pope, as it were, ex dignitate o[cii, because the court poet of Theodoric the Great, Ennodius of Pavia, liad said: "Who can doubt that he be holy whom the apex of so great a dignity has enhanced!"°° The exact meaning of that kind of holiness ex offi.cio has been expressed very neatly by Peter Damiani: "It is one thing to be holy by the merits of lile, and it is another thing lo be called holy owing lo the ministry of one's' Galliena Augusta; see A. Alfóldi, "Zur Kennrnis der Zeit der rómischen Soldatenkaiser," Zeitschrift für Numismatik, XXXVIII (1928), ,74ff. s4 See PL, cv,988; Kantorowicz, Laudes, 69,1.15. For Louis the Pious haloed, see Schramm, Die deutschen Kaiser, pls.i5a-b, where the halo has the inseription: Christe, corona tn Hlu dovaicum (Sdvamm, 171). Carolingian representations nof rulers adorned with a imbu ns are no[ to0 raye. The mosaics of Chademagne i the Lateran and in S. Susanna, in Rome, showed the square halo; see G. B. Ladner, I ritratti dei papi nell'antichitá e nel medioevo (Vatican, 1941), 1,1 t4f,,27. Most impressive is the haloed king in the Sacramentary fragment of MS IaL1141, of the Bibliothéque Nationale, whom A. M. Friend, "Two manuscripts of the School of St. Denis," Speadnm, 1(1926 ), 59-70, esp.64f, identified with Charles the Bald, while J. Croquison, "Le 'Sacramentaire Charemagne,''' Cohiers archdologiques, VI(1952), 55-71, mterprets Ihe picture as a youthful Charlemagne between Saints Gelasius and Gregory; see my remarks en "The Carolingian King in the Bible of San Paolo fuori le Muta," Late Classical and Mediaeval Studies in Honor of Albert Mathias Friend, jr. (Princeton, 1955), 298ff. Also Schramm, op.cit., fig.67 (and p.86, aleo 192); Hermano Beenken, Romanische Skulptur in Deutschland (Leipzig, 1924), 76f,p1.38a. '5Gregory VII, Regist., u,s8a,§23, ed. Caspar, 207, cf.56o,n.1; also Hinschius, Decret.Ps.Isid., 666. Julia Gauss, "Die Dictatus-Thesen Gregors VII. als Unionsforderungen," ZJRG, kan.Abt,, XXIX (1940), 1-115, overlabors her Ihesis, but has called attention to several interesting items of hyzanrine-papal rivalry worth being studied separately.

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rank."Be We may wonder whether the niediaeval square nimbus or nimbos perfeclionis, which so often adorns nameless bishops, priests, or deacons as representatives of their ecclesiastical codo, does not refer ro the perfection anca sempiternity of the consecrated office per se, or of tic dignitas, regardless of its constitpent.°'

her material body or, as the jurists of a much later period would

Further, tic Norman pamphleteer, wlicn sctting the rbricks of Canterbury" over against tic "Sec of Canterbury," was lar less

but also to Aachen where Charlemagne built a ''Lateran'' and apparently planned lo establish the Roma futboa.100 We should

original than it may seem. 1 -he Bvzantines. long belore, had

not be mistaken: those viere not comparisons or allegories alter

claimed that the so-to-speak "haloed" essence of ancient Rome on

the fashion of "Geneva, the Protestan[ Rome."101 Constantinople and Aachen and others claimed to be each a nova Roma, just as a

llave put it, will be "transferred and conveyed over from the Body natural now dead to another Body natural." Thus it happened that "Rome" migrated from incarnation to incarnation, wandering first to Constantinople and later to Nloscow, the third Rome,

che Tiber, or her sempiternal genius, had been transferred lo New

Hellenistic king or Roman emperor might claim to be a vWOS slttivuo-os or a véos "HXtos, and a Carolingian ruler, a novas David and novus Constantinus- temporal incarnations of the god' s or hero's

Rome on the Bosphorus, and that whatever remained on the banks of the Italian river, was bricks and stones and the rubble of buildings out of which the genius loci, the lile perennial, had evaporated sa The so-called Versus Romae, an anti-Roman poem prob-

image, his perpetual substance and power of lile. They were timebound owners of the "halo" of their divine or heroized proto-

ably of the late ninth century, reflects those feelings very distinctly.

types.102

Thine emperors have, so long ago, deserted thee, Roma, And to the Grecks riere has vanished thy honor and name .. . Flowering Constantinople is now styled the newer Roma, Moral and mural collapse is, ancient Roma, thy lot,

All that seems even more true with regard to Jerusalem, although transcendental Jerusalem means timeless Eternity rather than continuity within Time. The original city of Christ, Jerusalem's material body, had been destroyed by Titus; Aelia Capitolina, Hadrian ' s new foundation on the ruins of David's city, was void of metaphysis . Yet, "Jerusalem haloed" might descend to earth at any moment , if for no longer than the festal hour in which a new shrine was consecrated, and then bestow the lustre of Eternity on any insignificant town or even en the village church.10a

And with an old palindrome, the poet concludes the first half of the distichs: Roma tibi subilo motibus ibit amor, "Roma, Amor will suddenly vanish from thee."°° Romé s haloed body will leave °e Petrus Damiani , Liher gratissimus , c.1o, MGH,LdL, 2,31,29: "Aliud namque est ex vitae meritis sanctum esse, aliud ex ministerio conditionis die¡ ; and, very similar to the Anonymous , who in other respecto seems to have borrosved from Damiani, ¡bid., 3i ,gff: "licet persona .. . indigna, ofcinm tamen . . . bonum"; see above, n.25. 97G. B. Ladner, "The so-called Squaie Nimbus," Medioeval Studies, 111(19,11), 15-45, especially the liso, 38ff , which show that very often the square nimbos referred te the office only , and not te the individual person. °3 Franz Dblger , " Rom in der (,edankenwelt der Byzandner," Zeitschrift für Kirchengeschichte , LVI fi937), ,-4s, esp.s4ff; also Byzanz und die europdische Staatenwelt (Ettal , 1953), 93ff. 00 William Hammer, "The Concept of the New or Second Rome in the Middle Ages, Specnlum, xix(1944), 5062; ¡bid., 53,n.6, for the Versus Romae, of which I have cited lines 4f,9: Deseruere tui tanto te tempore reges, Cessit et ad Graecos nomen honosque taus .. . Constantinopolis florens nova Roma vocatur Moribus et muris, Roma vetusta, cadis... .

loo Concerning Aachen, see Hammer, op.cit ., 56; R. Krautheimer, "The Caro lingian Reviva ¡ of Early Christian Architecture ;' Art Bulletin , xxiv ( 1942), 3off, 34ff; Kantorowicz , Laudes, 63 , where che Aachen Idea is interpreted as hoth antiRoman and anti-Byzantine . Similar observations viere advanced , quite independently, by C. Erdmann , " Das ottonische Reich als Imperium Romanum ," DA, vi (1943), 418f, and, en a hroader basis, Ideenwelt, 22ff ("Die nicht -rümische Kaiseridee"). 101 See Hammer, op.cit ., 62, for this and many similar expressions. 102 For the novas ( irles, see A . D. Nock, "Notes en Rulercult,' Journal of Hellenic Studies, XLVIII ( 1928), 39ff. There was no reason why there should he only one re. incarnation of the prototype at a time; the Emperors Heraclius Father and Son, e.g., were acclaimed as the "new Constantined ' (Kwve-ravr ( vwrv r v v€uv ... e,Uaá ra lrv ); see Henri Grégoire, Recueil des inseriptions grecques chrdtiennes d'Asie Mineure ( Paris, 1922 ), Fasca,2 if ,Nos.g9,8o. See , for Carolingian and other examples, Kantorowicz , Laudes, 57,n.148, and 69,n.15. 103 For the descent of Celestial Jerusalem at the dedication of a church, see the Hymn Urbs beata Hierusalenz dicta pacis visio in its original form , containing tic ; see C. Blume, Analecta hymnica medü aevi, m line Nova veniens e caelo .. (tgo8), uo. Por the distorting " improvements " of [his hvmn by the post-Tridentine

The palindrome (fine 12 of the poem's 24 lines) is the axis oí the poem . The play Roma-Amor is ver, old . It is actually found en mino of the Constantinian period which show Ihe inscription EPS]E; see H. Dressel , " Numismatische A nalekten, Zeitschrift für Numismatik, xxm (19oo), 36ff.

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I-lence, the "halo" always indicated, in some way or another, a change of the nature of Time. It signified that the haloed individual, person or place, participated also in a category of "Time"

the city of Jerusalem on that day.101 The loyal creature is mentioned not too rarely in the writings of the Fathers, who generally held that the animal messianum finally was returned to its former owner; and the Palm Sunday preacher formed no exception to the rule, when he carne to speak about the ass.

which was different from the one determining the natural lile on earth as the mediaeval mind understood it. The halo, it is true, did not remove its bearer into the aeternitas Dei which is without

It is true (said he), the animal alter having made its entrante into Jerusalem Judaea, was returned lo its owner; but the prophecy, related tu the animal, remained in Judaea. For of that animal, Christ had needed not the visible, but the intelligible nature; that is, not the flesh, but the idea. Hence, the flesh was returned, but the idea retained: caro remissa est, ratio autem retenta est.roa

continuity because in it all times, past and future, are present. Yet, the halo removed its bearer too: removed him, scholastically speaking, from tempus to aevum, from Time to Sempiternity, at any rafe, to some continuum of time without end: the haloed person, or rather the person qua halo, his ordo, "never died." The halo further signified that its individual bearer stood vicariously for a more general "prototype," for some Immutable within the mutable time of this earth, and that, conjoined and associated with him, there was some image or power whose true abode was that endless continuum which the Middle Ages came to call aevum. And since aevum was the habitat of the Ideas, Logoi, or Prototypes as well as of the "Angels" of alexandrianized Christian philosophy, it becomes comprehensible that finally the king's "Body politic" of the Tudor lawyers betrayed so much resemblance to the "holy spritejand angels," and that the rex christus of the Norman Anonymous was endowed also with the superior nature of the Mediator, a king human by nature and divine by grace 104 It would be difficult lo find a more suitable, and at the same time more delightful, illustration of the general problem of the King's Two Bodies in its early mediaeval setting than the little story inserted in a homily wrongly ascrihed lo John Chrysostom. It is a Palm Sunday sermon, and the unknown preacher discusses, very fittingly, the important róle which in the economy of salvation was played by the little ass that carried the Expected One roto

In other words, the little ass "body natural," alter having served its tasé to fulfill lo the letter che prophecies of Isaiah (62: lo) and Zachariah (9: g), was sent to its former owner; for its visible and material body no longer was needed by the Lord. The ass's messianic scmpiternal body, however, its ratio or idea or prototype, as well as the prophetic vision it stood for and helped to fulfill: these 105 The sermon, transmitted in Latin only , is round in the Opus imperfectum in Matthaeum (PGr, Lv1,836 ), attributed co John Ghrysostom, of which Thomas Aquinas supposedly said he would prefer its possession te that of the whole city of Paris; cf. Oldradus ele Ponte, Concilia , Lxxx,v,n.t (Venice, 1671), fol.g,v: "Et narratur quod beatus Thomas dixit, quod inagis vellet hahere Chrysostomum super Mattheum , quam civitatem Parisfi. Expedir cnim cuilibet studioso hahere multos libros." See, for the work itsclf, G. Morir, 'Quelques apersus nouveaux sur (Opus imperfectuin in Matthaeum ;' Rev.benéd ., xxm11(5925 ), 239262 falso ¡bid., uv [19421, gff), who suggests as place of origin Ravenna , or at least some place in Northern Italy ; cf. K. Jordan , ' Der Kaiscrgedanke in Ravenna zur Zeit Heinrichs IV.;' DA, 11(1938), rufa. The Palm Sunday homily of Aeltric, otherwise a paraphrase of the Opus irnperfectum , does not contain the passage quoted here ; see the Aelfric edition by Benjamin Thorpe ( London, 1844), ,,2o6ff. The ass is mentioned quite often in the writings of the Fathers. Ephrem, e.g ., permits the ass and her colt to offer acclamations in praise o[ the King of Heaven ; see In festum Epiphaniae hymnus, 11,27, ed. T. J. Lamy ( Mecheln, 1882 ), 1,23; also Hymni de miraculis, xur, 6, ed. Lamy, 11 ,720, where the ass has a twofold meaning: "Pullus durae cervicis portavit Dominum in figura, cor gentium portavit eum in veritate ." According to later legends, the holy animal died, very advanced in years and alter long migrations, in Verona where a local cult developed ; see E. Staedler, " Uber das Eselsrelief am Dome zu Como: Ein Beitrag zur Überliefenmg des caput asininurn ," Theologische Quarlatschrife , exxn1 ( 1942), 177-188 , with full literature ; see also Leclereq, "Ane," DACL, ! , 2063f; and , for the ass with colt on late, Roan coins, A. Alfóldi, "Asma: Eine dritte Gruppe heidnischer Neujahrsmünzen ira sp5tantiken Roma" Schweizerische Münzbedtter, 11(1951), 57-66. roa PGr, Lv1 ,836: ''Animal quidem postquam ingressum est in Jerusalem Judaeae, ad dominara suum remissum est, animalis autem prophetia in Judaea remansit. Nam de animal¡ illo non hoc , quod videhatur, necessarium eral Christo, sed illud, quod intelligebatur , id est, non caro, sed ratio : ideoque caro remissa est, ratio autem retenta est."

Church, see A. L. Mayer, "Renaissance , Humanismos und Liturgie ," JLrV, xiv (1938), 166f; also the criticisms of X. Schmid , " De Breviario Romano reformando rommentatio ," Ephemerides Liturgicae , xulr ( 1929), go81E . The hymn, incidenmlly, had its political bearings as well; the medallion of an Empero, "Orto ," soldered on a liturgical dish, has the legend Jerusalem visio pacis; see Schramm , " Die Magdeburger Patene mit dem Bilde Ottos des Grossen ," Thüringisch-Sdchsische Zeitschrift par Geschichte und Kunst , xv11('928); also Gerd Tellenbach , Die Entstehung des Deutschen Reiches ( Munich, 1946 ), pl.IX (facing p.'28). For the manifestations of timeless Jerusalem en earth, see also Kantorowicz, "The King's Advera," 2ogf. loa See, for a broader discussion of this subject , below, Ch.vi.

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werc indispensable within thc course of salvation and inseparable from the image oí the Dlessiah. T]tus, the animal's immortal "body politic" remained in rhe Iloly City with the Dlessiah: it was "haloed," enveloped by the divine light oí its Rider. Caro remissa, ratio retenía.' In this sense, Charles 1 ¡ti the flesh could be dismissed to Oxford, but bis "habed" ratio in the shape oí his seal image remained in Parliament-which loes not imply that the unlialoed ass temporal should ahvays be sought at "Oxford," nor che habed ass perpetual always ¡ir "Parliament."

C11 AP'I'ER 1 V LAW-CENTERED KINGSHIP i. From Liturgy lo Legal Science THE tinc; a gemina persona, human by nature and divine by grace: chis was tire high-mediaeval equivalent oí the later vision of the King's Two Bodies, and also irs foreshadowing. Political theology in that early period was still hedged in by the general framework oí liturgical language and theological thought, since a Churchindependent secular "political theology" was as yet undeveloped. The king, by his consecration, was bound to the altar as "King" and not only-we may think oí later centuries-as a prívate person. He was "liturgical" as a king because, and in so far as, he represented and "imitated" the image oí the living Christ. "Thou art the vicar of Christ; note but his imitator is the true lord," proclaimed the historian Wipo in the imperial camp.' "In his king, iruly, Christ is recognized tu reign," echoed the saintly Cardinal Peter Damiani,2 while Cardinal Deusdedit, his younger contemporary, included in his canonical collection the words with which Pope John VIII, in an assembly of bishops, liad praised the Carolingian Emperor Charles II as the salvator mundi, "the saviour oí the world constituted by God," whom "God established as the Prince of His people in imitation of the true King Christ, His Son, ... so that what he [Christ] owned by nature, the king might attain to by grace."3 r Wipo, Gesta Chuonradi , c.3, ed. Bresslau (MGH,SS.rer.genn., 1915), 23: "Ad summam dignitatem pervenisti ,/ vicarius es Christi . INemo nisi illins imitator/verus est dominator ." Cf. c5,p.26,18; alto his Tetralogus, fine l9,p.76,2i , and unes 121f, p.79,15f, where the emperor is called alter post Christum and secundus post dominum caeli. See aboye, Ch.m,n. tu, for the Prince as a Deo secundus, x Petrus Damiani , Ep., 111,2, PL, cxuv,436: '' in rege suo vere Christus regnare cognoscitur." s Deusdedit, Collectio canonum, w,92, ed. Victor Wolf von Glanvell, Die Kanonessammlung des Kardinals Deusdedit ( Paderborn , 1905), 1439; the passage is quoted also by his contemporary Anselm of Lucca (ca. so83 ), Coll.can., 1,79, ed. M. Thaner (Innsbruck, 1go6-1915), 5af (PL, cxux48g, numbered 1,78). See, for the Popes address at Ravenna, in 877, Mansi , Concilia, xvn,App. s72; also Bouquet , Recueil, vn,695C: "... unxit eum Dominus Deus . . . principem populi sur constituens ad imitationem scilicet ... ven Regis Christi filii sur .... ita ut, quod ipse [Christusl possidet per naturam , iste [imperator] consequeretur per gratiam ." See also Schramm, Kónig von Frankreich , 14o and 45, 11,36,n.3; Eichmann, Kaiserkrónung,

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FROM LITURGY TO LEGAL SCIENCE

Very naturally this Christ- imitating king was pictured and expounded also as the " mediator " between heaven and earth, a con-

ogy áctually covered two aspects of che royal office, one ontological and the other functional , and both were reflected in the honorary titles which so often exalted che mediaeval ruier: "Image of Christ" and "Vicar of Christ." While the former designation referred perhaps more to his Being, che latter stressed juristically his administrative functions and referred primarily to his Doing. Neither of [hese titles was, by itself, specific about che two natures or emphatic about any "physiologicaf' resemblance between ruler and Godman; but so long as [hese titles linking che ruler to Christ prevailed, the king could appear, at leas[ poeentially, as a gemina persona paralleling the two natures of the human-divine prototype of all earthly kingship. However, even the purely potencial relationship of che king with che two natures of Christ was forfeited when the high-mediaeval designations of "rex imago Christi" and "rex vicarius Christi" became evanescent and gave way to those of "rex imago Dei" and "rex vicarius Dei." To be sure, che Prince figuring as a simile or an executive of God was an idea supported by che antique ruler culi as well as by che Bible.r Hence, che Deus titles and Inetaphors may be found in any century of che Middle Ages. When finally, in che wake of the clericalization of che royal office in che later ninth century and under che influence of che language of che Coronacion Ordines and their liturgical ideal of kingship, che royal Christus titles began to predominare, the difference between a vicarius Dei and a vicarius Christi was probably not always felt, or not felt at all.s

cept of some importante here because every mediatorship implies, one way or another, the existente of a twin - natured being. Kings and bishops, wrote the Norman Anonymous in his customary fashion, "are consecrated and sanctified for the purpose that ... they be saints; that is, outside the earth and outside che world be they set apart as mediators between God and the people, having communion in heaven and moderating their subjects on earth."* Related ideas of a royal mediatorship, though with a significant shift of the point of referente, were expressed in that period by the Coronation Orders: "In analogy with che Mediator between God and raen shall the king act as the mediator between clergy and people"-for che king, who in some respect belonged also to che clergy, "bears as the christus Domini che type [of Christ] in his narre."" It was che language of christological exemplarism which was used throughout to proclaim che king a typus Christi.° This typol1,88. The passage could easily have been known to the Norman Anonymous; see Williams, Norman Anonymous, 57f,n.16g; Kantorowicz, " Deus per natui2m," 258. 4 MGH,LdL, rii,669,8ff: "Ideo igitur consecrantur sacerdotes et reges et sanctificantur, ut ... sancti sin [, id est extra terram et extra mundum segregati , inter Deum et populum mediatores effecti, et in celis conversentur [ Philippians 3:20] et in terris subditos moderentur ." See Williams , op.cit., 158ff , and especially p.225ff, che Magna digressio de vote 'sanctus; which explains that passage ( e.g., "in Greca lingua quod dicitur hagios quasi extra terram esse significar "). See also Peter of Blois: sanctus et christus Domini rex est nec in vacuum accepit [II Cor. 6:1] unctionis regiae sacramentum "; PL, ecv11,44o; cf. Eichmann , Kaiserkrónung , 1,208,0.74. For related places , see Philipp Oppenheim , " Die sakralen Momente in der deutschen Herrscherweihe bis zuna Investiturstreit ," Ephemerides Liturgicae , Lvni (1944), 46f; also Leonid Arbusow, Liturgie und Ceschichtsschreibung ira Mittelalter (Bonn, 1951), 95,n.6o. s Scbramm, '•Kronung in Deutschland;' 320, §ig: •' . quatenus mediator Dei et hominum te mediatorem eleri et plebis in hoc regni solio confirmet ." See also 317, §14: "... coro mundi Salvatore, cuius typum geris in nomine '; and 319, §17: " . cura redemptore ac salvatore Icsu Christo, cuius nomen vicemque gestare crederis." See also Schramm , "Austausch;' 4s5ff,45o, for the king as sacerdotalis ministerii particeps. The phrase personara Christi gerere and its equivalents is the technical Lean for "impersonate , representa" and in that sense it is used also in Pope Pius XII's encyclic Mediator Dei defining che place of the priest in the liturgy; see Joseph Pascher, " Die Hierarchie in sakramentaler Symbolik," Episcopus, 278ff. The bishop, of course , was not rarely styled the mediator between king and people; see, e.g., Hugh of Fleury, Tractatus de regia potestate el sacerdotal¡ dignitate, I,c.io, MGH,LdL, n,477,43ff. a A striking example is offered by Otto of Freising , Gesta Friderici, n,c.3, ed, C. Waitz (MGH,SS.rer. germ., 1912 ), 1o5,7ff, where he reports en tire double consecra-

tion at Aachen ( March g, 1152) of a king (Frederick 1) and a bishop (Frederick of Munster): en the same day, in the sama church, by the same coesecrators there were anointed two christi Domini, both having the same name , so that che summus rex et sacerdos himself ( that is, Christ), seemed te be present at that celebration. Cf. Arbusow, Liturgie und Geschichtsschreihung, ablf, ,viso rightly emphasizes that Otto of Frcising leas clinging to an ideal of by-gone days. 1 The fusion of homo irnago (vicarios) Dei and rey imago (vicarios) Dei, carried through already by the so-called Ambrosiaster , has its long and complicated hisfory; see Kantorowicz , " Deus per naturam ," s61ff, and passim ; the importante of Ambrosiaster for the later development has been stressed by Berges , Fürstenspiegei , 26f. See also G. B. Ladner , "The Concept of the image in che Greek Fathers and che Byzantine Iconoclastic Controversy ," Dumbarton Oaks Papers , vi' (1953), 1-34. a For the influence of the Coronacion Ordines en language and thought, the Norman Anonymous is che foremost example; sce MG11,LdL, ui,677ff. It would he wrong te say that in his hrilliant study Michele Maccarrone , Vicarios Christi: Storia del titolo papale (Lateranum , N.S.,xvui, Roma , 1952 ), was heedless of che difference between the two designations, but he was indifferent to the historical implications and to a problem which, in another connection , Jungmann (aboye, Ch.ui , n.86) has

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Nevertheless, it is rcntarkable for the dianging patterns o[ piety and for the general rcligiou.s nlood that alter the Carolingian period, during which the vicarios Dei predicat ion seems lo have been the rule, a definire pre[erenee for ticaritic Christi becontes noticeable in the christocentric age of the Ottonians and early Salians.° The diferente bcuveen the tico designations, liol+ever, became articulate and therewitlt Itistorically mcaningful when the vicariate of Christ was claimec[ asa prerogativc of the hierarchy"Where are there emperors found obtaining the place of Christ''?11-until finally the vicarius Christi title became a monopoly of the Roman Pontiff. As usual, many strands of political , religious , and intellectual life concurred to bring about the general shift and to dissolve the image of Christ-centered kingship. Tire spell of the Coronation Ordines waned under tire impact of the Investiture Struggle. That struggle itself, on che one hand dismantling tire secular pocver of spiritual authority, ecclesiastical competency and liturgical affiliation , and, on the other, imperializing the spiritual power, had certainly its share . However, the do,matic-theological developinent of the twelfth century towards defining the real presente of Christ in the Sacrament also produced a new accentuation of the ancient idea of the presente of Christ in the person of the vicariously masscelebrating priest.11 Moreover, the new impetus of Canon Law so acutely discussed . The christological problem was definitely visualized, though purposely not treatect in detail, by Berges, Fürstenspiegel , 26ff. The texts for vicarios Dei ( Christi) collected by J. Riviére, Le probléme de Péglise el de l'état en temps de Philippe le Bel (Louvain, 1926 ), 435ff, are discussed in Maecarroné s comprehensive study which also fills considerable gaps in A. ven Harnack's famous study Christus preesens-Vicarios Christi (5. B. Berlin, 1927 , No. xxxlv),4t5-446. For the interrelations barnicen christulogy and rulership in earlier times , see G. H. Williams, "Christology and Church-State Relations in the Fourth Century;" Church History, xx ( 5952 ), No- 3,3-33, and No.4,3-26.

9 Among the Carolingian examples collected by bfaccarrone, op.cit., 79f, there is only one referring lo the valer as vicar of Christ ( Smaragdus , Via regia, c . ,B, PL, o11,g58), though in fact more are to be found (see aboye , n.a). The shift from vicarius Dei to vicarius Christi should probably be sought in the later ninth century as a result of the clericalizarion of the royal office (imitatio sacerdotif aclording ro Schramm, "Austausch ," 4o4f), of the language of the Ordines , and of the spirit of monastic piety. 1o De ordinando pontífice , MGH,LdL, 1,14 , 4: "Uhi enim inveniuntur imperatores locura Christi obtinere?" 11 Pascher , " Die Hierarchie in sakramentater Symbolik ;' 285f; J. Geiselmann, Die Eueharistielehre der Vorscholastik , Forschungen zur christlichen Literater- und Dogmengeschichte , xv,r3 ( Münster, 1926).

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studies nade itself felt. The Decretum G-atiani quoted in two places-orle froto Hesych of Jerusalem, and the othcr froto Ambrosiaster-bishops and priests alike as tiicarii Christi,'2 a fact which prompted tire decretists to enlace opon that designation. even though not necessarily in the papal sense. Where are now [hose who sav that only the pope is the ricas of Christ? With regard to the plenit ide of power, [his is ove; but otherwise every priest is vicie of Christ and of Petar... ?°

So wrote, between 1187 and 1181, Huguccio of Pisa in his Summa super Decreto when glossing the Ambrosiaster passage, and his words show that by his time the almost exclusive application of the "vicar of Christ" title to the pope must have been common enough. Sorne ten years later, Pope Innocent III tightened the notion of plenitudo potestatis in regard to which even Huguccio did not deny that only the pope had the right to style himself vicar of Christ. Furtherrnore, with the decretals of Innocent III the official appearance, not in papal vicarius Christi made its first common language, but in the collections of Canon Law14 Henceforth the decretalists, theologians, and scholastic philosophers concentrated en interpreting this title in that exclusively papal sense in which, by and large, it is used today 11 Vice versa, the civilians, relying upon the vocabulary of Reinan Law and some Roman 1,1222: "... quos [ sacerdotes] 12 Cf. e 35,D .3, De penitencia (C.33,q.3 ), ed. Friedberg, Glossa ordiChristus vicarios saos in ecclesia constituir " (Hesych), to which the , e t9,C.33, Further, from Ambrosiaster ." sacerdotes etiam simplices naria remarks : " , ita ante episcopum ,,1255f: ''Quasi ergo ante iudicem Christum 9.5, ed. Friedberg, , who quotes these passages (op.cit., sit, quia vicarios Domini est .. P Maecarrone , ev1,17 1o6), adds alto c.a3,C.33,q.5, Friedberg , 1254, a passage from Ambrosiaster is said chal man in (cf. Kantorowicz, '' Dens per naturam ," 265,n .40), where it Decretum omits the folgeneral has '' imperium Dei quasi vicarius eius," but the lowing "quia omnis rex Dei babet imaginem." The passages are characteristic of God, and the priest the Ambrosiaster ' s tenet saying that the king is the vicar of that of Christ . Ambrosiaster in canonical literature would deserve a special investi( see Friedberg , p.xxxiv, gation. In the Decretum , Ambrosiaster is quoted many times there should be added, though, s.v. Augustinus , Questiones veteris el noei testamenti ; , lince they are the quotations [ ¡bid., p.xxxii ] s.v. Amhrosius , In S. Pauli epístolas Ch.m,n.24), and Friedberg's annotations lo [hose , sea aboye ; also by Ambrosiaster Caesaraugustana, passages show that Ivo of Chartres , Anselm of Lucca, the Collectio , quoted from Ambrosithe Collectio trium partium , as well as Peter the Lombard , could easily have aster, directly or indirectly . The Norman Anonymws, therefore been acquainted with those writing through legal, and not through literary, sources; cf. Williams, Norman Anonymous, 175ff . 13 Maecarrone, op.cit., lo6,n . 87; ef. 1o7,n.8g. 14Maccarrone , 1191f. 1s Maecarrone, 118ff,129ff.

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authors suclt as Seneca and Vegetius, began to style the emperor almost without exception deus in terris, deus terrenus, or deus praesens. Apparently they took it for granted en the basis of their

vicar of che visible incarnate God, of the God-man, was the priest, the supreme hierarch. These shifts in late mediaeval titulature, often hardly perceptible and yet very telling, were only che surface symptoms of evolutions in far deeper strata of Western religious sentiment. Official and popular piety, alter che era of Saint Francis, became boch more spiritualized and more material; and concomitantly there took place an evasive, and yet quite distinct, transformation of christological concepts. Mari s relation with God retired from the "realism" of the object-centered mystery lo an inner haze of subject-centered mysticism characteristic of che later Middle Ages. Those changes are most obvious in tlie domain of iconography where, che later the more so, the God-man-unless represented purely "in che flesh"-becomes ahnost indistinguishable from God the Father.l° Within the policical sphere there resulted che replacement of the more christocratic-liturgical concept of kingship by a more theocratic-juristical idea of government, while from che divine model which later rulers claimed co follow there gradually slipped away che "manhood" of che deity, and therewith che quasi-priestly and sacramental essence o£ kingship. To put it in another fashion: as opposed co che earlier "liturgical" kingship, the late-mediaeval kingship by "divine right" was modelled after the Facher in Heaven rather than alter che Son on che Altar, and focused in a philosophy of che Law rather chan in the-still antique-physiology of che cwo-natured Mediator.

sources that che Prince was aboye all vicar of God; for as an imperial designation, the expression vicarius Christi would not llave been within che range of their language at all.16 Thus it came to pass that the christocentric ideal of rulership dissolved also under the influence of Roman Law. Henceforth a papal Christus in terris'° was sided by an imperial deus in terris. As a pater subjectorum, "father of his people," che Prince, it is true , was granted a faint resemblance with the invisible Father in Heaven;1e but the 10 The referentes are usually D.3r,,2,1,5 ( lex Fatcidia : " . quae Deo relinquuntur;' lo which che Glossa ordinaria remarks: "celesti , idem in terreno"), D.14,2,g (lex Rhodia de iactu, where che emperor says of himself: " Ego quidem mundi dominus"), or C.7,37,3,5 (de quadriennü praescriptione: ".. , noto divino imperiales suscepimus infulas" ), though there are other relevant places as well . Baldus, e.g., who uses those places roo, quotes very often for Deus in [erra ( terris) Nov.m5, 24, saying chal the emperor is the lex animata; see , e.g., Consilia , 1,333n.1 ,fo1.1o5, in addition l o the places quoted by Gierke, Gen.R., ❑ 1,r,63,n.122. Other favored places were Seneca, De clementia, 1 , 1,2: "[Ego, Nero ,] ... qui in terris deorum vice fungerer;' a passage ( though without quoting precisely these words ) used by Fredcrick II, Lib.aug., prooem ., ed. Cervone , 4, with the gloss of Marinos de Caramanico, v. Vehzt executores ; cf. A. Marongiu , " Concezione della sovranitá ed assolutismo di Giustiniano e di Federico II," Atti del Convegno Internazionale di Studi Federiciani ( Palermo, 1952 ), 43•n.7o, and " Note federiciane ," Studi Medieval¡ , xvln ( 1952), 298. Quoted was also Vegetius , De re mili [., 2,5: "... nam imperator cum Augusti nomen accepit, tamquanl praesenti et corporali deo est praestanda devotio"; see, e.g., Andreas of Isernia, en Authentica 'Habita' (cf. MGH, Const., 1,249 ,Noa78), n.3, in In usos fendorum comrnentaria (Naples, 1571 ), fol.318, and the places quoted by Gierke, loc. cit., but also John of Salisbury, Policraticus , 1v,c.1, and v1,c7, ed. Webh, 1,235f, and 11,20. A number of places from legal sources may be found in M. A. Peregrino , De privilegüs et iuribus fisci, 1,2,n .46, and 1,3,m2 (Venice, 1587), pp.26 and 52 (Venice, 1611 ), fols.7 and 14v , mostly applied lo kings not recognizing a superior ; see also Andreas of Isernia , en Feud. n,56 ('Quae sunt Regalia ), n.6g, fol301: "et dicitur ' nostri numinis ,' quia Imperator vel Rex in Regno dicitur hahere numen divinum, quia est in terris sicut Deus in coelo , inde dicitur rescriptum suum coeleste oraculum. . 17 See che passage from Arnald of Villanova, in Carl Mirbt, Quellen zur Geschichte des Papsttums und des rdmischen Katholizismus , 4th ed. (Tübingen , 1924), 211, 110.373. ls The place usually quoted is Nov.98.2,2: "hoc post deum communis omnihus pater ( dicimus autem qui imperium haber) per legem . servet ." See Glos.ord., v. Dicimus autem; also Marinus de Caramanico , on Lib.aug., 1,74, v. Post Deum, ed. Cervone, 134; also Andreas of Isernia , on Lib. aug., prooem., ed . Cervone, 6: "Rex est pater subiectorum in regno suo ." In his gloss on Lib.aug., in,26, Cervone, 355, Andreas says: "Princeps legislator , qui est lex animata in terris ... est pacer subieccorum ;" and refers l o C.3,28,34,1 : " Sed nos qui omnes subiectos nostros et filios el nepotes hahere existimamus adfectione paterna el imitatione .. " For the origins of che notion " father of his people ," see A. Alfóldi, "Die Geburt der kaiser.

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The change was not abrupt; in fact, it was slight and subtle like most evolutionary changes in history. There was, nevertheless, a period of transinion from che earlier liturgical kingship lo che latemediaeval kingship by divine right, a period, clear in its contours, during which a royal mediatorship, though strangely secularized, still existed, and during which che idea of royal priesthood was vested in che Law itself. The former ontological aspects of a royal lichen Bildsymbolik: 3. Parens patriac ,' Museum Helveticum , [x(1952), 204-243, and x(1953), 103-124. 1v Although the fact itself is well known -see, e.g., V. Leroquais, Les sacramentaires ef les missels manuscrita (Paris, 1924), 1, p. xxxvii , and p1.87, where the "King al Glory " appears like God the Facher -the development itself and its conneaion with christological changes does not seem to have been investigated.

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christomimésis infieren[ in the concept of the king's gemina persopa may have grown paler, but functionally the ideal of the Prince's twin-like duplicacion ,'vas still active: it became manifest in the king's new relationship to Law and justice, swhich replaced

encroach upon it-alter all: Christus ipse ipsa iustitia.12 John of Salisbury's version indicares nierely a slighc variation of the old cheme, a seemingly insignificant shift from che more liturgical co the more legal aspecc of Christ as represenced by the ruler. In che case of John of Salisbury that variation becomes so noticeable only because he incegrated maxims of Roman Law into the impressive building of his thought in which hierocratic anal humanistic features blended. John of Salisbury tried to solve whac may appear to us self-contradictory or an efforc to square a circle; for he attributed to his Prince both absolute power and absolute limitation by law. The essence of chis alleged antinomy is exposed in a chapter-heading which reads:

his former status in regard lo Sacrament and Altar. Jurisprudence as a science reas barely esistent, and certainly not yet effeccive, sien clic Norman Anonvluous composed his challenging tractaces. APhen sume fifty ycars late,', around II,-,o, Julio of Salisbury wrote his Policraticus, legal idioms liad already penetrated scholarly language and legal notions ivere applied frequently, though as yet without overturning che modes of mediaeval thought.20 John of Salisbury, to be sure , cuas not a professional jurist , but he handled the volumes of the juscinian Corpus and Gratian's Decree with che same case as the bulky load of classical authors and patristic writings. In some often-quoted chapters at the beginning of che Eourth Book of the Policraticus, John of Salisbury developed his doctrine of the rex imago aequitatis. The metaphor of the king as an "Image of Equity" or "Image of justice" is very oid;21 nor does it in any respect invalidare , by itself, che notion of che rex imago Christi or 20 For a brief but profound analysis of the Polioaticus and its ontological essence, see Berges , Fürstenspiegel , 131-143, whereas W. Kleineke, Englische Fürstenspiegel vom Policraticus Johanns von Salisbury bis zum Basilikon Doron Konig Jacohs 1. ( Studien zur Englischen Philologie , líen xc, Halle,1937), 23-46, remains on the surface. The most recent study by Haos Liebeschütz, Medioeval Humanism in the Lije and tvritings of John of Salisbury (Studies of the Warburg Institute, xvii, London, 1950 ), hardly touches opon the problems discussed here. For bibliographical items, see Berges, opcO., 291-293, te which there should be added Fritz Schulz, "Bracton en Kingship , EHR, Lx(1945), 164ff, and the study by W. Ullmann, "The Influence of John of Salisbury en Mediaeval Italian Jurists ," EHR, Ltx(2944), 384393; also Ullmann , Lucas de Peona, Index, s.v. John of Salisbury; through Lucas de Peona and Matthaeus de Afictis the Policraticus, especially the Pseudo - Plutarch chapters, exercised considerable intuence en the later French jurists; J. on the Plutarch problem , H. Liebeschlitz, "John of Salisbury and Pseudo -Pluarch," IS'arburg Journal, vi (1943 ), 3339• who, convineingly to me, identifies 1's: Plutarch with John himself; see, however , A. Momigliano, " Notes en Petrarch , John of Salisbury and the lnstitutio Traiani," ¡bid., x1(,949), 189f, How the old ami the new interpenetrated each other in the Policraticus has buen shown by John Dickinson, "The Mediaeval Conception of Kingship as neveloped in the t'olicraticus of John of Salisbury:" Speculum, 1 ( 1926 ), 307387. 2r The briefest formula of these metaphor is, of course , [fiar of the les ariimata and the iustitia animata ; see below. There are, however , related expressions of which Louis Robert, Hellenica (Paris, 1948), esp. vol.iv, gives many examples from late antique governor inscriptions , a most fruitful source for the knowledge of political thought also in che Middle Ages; see mv paper, quoted ahoye, Ch.m,n.go.

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That the Prince, although he be nor bound by che ties of Law, is yet Law's servant as well as chal of Equity; thac he bears a public person, and that he sheds blood without guilc.22 John of Salisbury does not deny che essential validity of the Roman Law maxim proclaiming the Prince as legibus solutus; for che Prince he thinks of is indeed free from the ties of Law. This, however, does nor imply that he is permitted to do wrong. He is free from che ties and restrictions of Law just as he should be free from the fetters of sin. He is free and legibus solutus because he is "expected to act en the basis of his innace sense of justice,"21 and because he is bound ex oficio to venerare Law and Equity for the love of justice herself, and not for the fear of punishment" He is without guilt when he sheds blood in his capacity as judge; for what he does as che ordinary he does as "the minister of the public utility" and for the benefit of the common weal. He is, and accs as, a persona publica. And in that capacity he is expected to consider all issues with regard to the well-being of the res publica, and nor with regard co his privata voluntas. Thus, when Roman Law maintains that che Prince's voluntas has the power of Law, the reference 22 Honorius Augustod ., Elucidariurn, m,sg, PL, CLxx11,115oA. 23 IV,c2, ed . Webb, 1,237: "Quid lex; et quod princeps , licet sir legis nexibus ahsolntus , legis [amen servus est et aequitatis, geritque personara publicam, et innocenter sanguinem fundit." 24 Ullmann , " Influence of John of Salisbury," 389. 25 policraticus , 1v,c.2, ed. Webb, 1,238,2ff: ". . . dicitur ahsolutus, non quia el iniqua liceant , sed quia is esse dehet , qui non timo ' e penae sed amere iustitiae aequitatem colat .. .

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appears to be made not to his arbitrary private volitions, but to the voluntas active in him as a persona publica.28 As a public person, however, the Prince serves public utility; and therewith the hearer of the imago aequitatis becomes at the same time the "servant of Equity"-aequitalis servus est princeps.27 John of Salisbury's antithesis of persona publica and privata voluntas seems co contain, by implication, che distinction between che Prince as a public person and che Prince as a privare person. We might expect some theory saying that che Prince as a private person is under che Law, legibus alligatus, whereas his public person is above the Law, legibus solutus. This, however,'is not che conclusion which John of Salisbury draws. He, like che Norman Anonymous, is not particularly interested in che Prince as a persona privata, at leas[ not in that connection, since every private person is under che Law anyhow. He is interested in the persona publica, that portentous notion introduced from Roman Law upon which political theory in the later Middle Ages and thereafter hinged. In che passages of John of Salisbury's Policraticus under discussion here, the inner tension is found within the Prince's persona publica itself: as a public person he, che Prince, is at once legibus solutus and legibus alligatus, is at once imago aequitatis and servus aequitatis, at once lord and serf of the Law. The duality is in che office itself, a conclusion at which John of Salisbury was almost bound to arrive on the basis of two contradictory laws of che Roman Corpus, che lex regia and che lex digna, as shall be explained presently.2a It may be correct to say that the Prince of John of Salisbury is not a human being in che ordinary sense. He is "perfection" if at al] he be Prince and nos tyrant. He is-in good mediaeval fashion, and yet in a new juristic sense-che very Idea of Justice which itself is bound to Law and yet above che Law because it is tlte end of all Law. Not che Prince rules, but Justice rules through 26 The whole passage (p.238) deals with che various aspects of voluntas and with Use distinction between private and puhlic will. 11 ''Elus namque voluntas in bis vim deber habere iudicii; et rectissime quod el place[ in talibus legis habet vigorem, co quod ab aequitalis mente eius sententia non discordes ... Judex etenim incorruptus est cuino sententia ex contemplatione assidua imago est aequitatis. Publicae ergo utilitatis minister et aequitalis serios est princeps, et in co personam publicam gerit." 2srhe ¡ex digna is quoted Iv,c.I, Webb, 237,,ff. See below for lex regia and lex digna.

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or in a Prince who is che instrument of Justice and, though Salisbury does not quote Justinian to that effect, is at che same time che lex animata. Al! that may appear hazy and ambiguous today. But in that ambiguity we shall learn co recognize che king's gemina persona mirrored by Law as well as che idea of royal mediatoiship transferred froin the liturgical co che juristic sphere. 2. Frederick che Second PATEI4 ET FILIUS IUSTITIAE

Two generations alter John of Salisbury, legal though[ unmistakábly prevailed over che spirit of the licurgy: Jurisprudence now felt invited fo creare its own secular spirituality. The lacus classicus el a new pattern of persona mixta emerging from che Law itself is found in the Liber augustalis, the great collection of Sicilian Constitutions which (at Melfi, in 1231) Frederick II published as a Roman Emperor, though in his capacity of King of Sicily-a king truly competen[ co act as imperator in regno suo.26 Title 1,31 of this lawbook is inscribed "On che Observation of Justice." 60 It is a juristic and philosophic discussion of both the origin of the imperial right co legislare and the emperor's obligation co protect and observe tire Law. Those, of course, were topics which the lawyers of that age had dealt with frequently, and doubt con Id nos arise about prerogatives and dudes at large of che Prince 29 Frederick 11, publishing his laves as emperor in his kingdom, was in fact the only monarch of the i3th century wbo literally acted in accordance with the new maxim Rex est imperator in regno suo, or its equivalents. For che development of that maxim in che Sicilian kingdom, see che lacest study of Francesco Calasso. I glossatori e fa teoría della sovranitü (vid ed., Milan, 1gri), who (2(ff) reviews che emiier literature, and (17911) reprints also che Prologue of Marinis de Caramanico's gloss on che Liber augusialis; see also Liber aug., ed. Cervone, pp. xxxiii-xl; che same ideas, of course, were developed also in che Prologue of Andreas of bernias Lectiva on the Liber aug., ed. Cervone, pp. xvii-xxxii. The problem of che origin of that ph-ase and its equivalents has been greatly clarified hy Sergio Mochi Onory, Fonti canonistiche dell'idea moderna dello stato (PUbblicazloni dell' Universicá del Sacro Cimre, xxxvnt. Milan, 1950; see further che highly importan[ contributions (en che hasis oE legal material 'inc used by Mochi Onory) and corrections by Gaines Post, ""rwo Notes en Nacionalista in che Middle Ages: I. Rex Imperator," Traditio, 1x(ig§3), 296-320; also his study, "Blessed Lady Spain-Vincentius Hispanos and Spanish Nacional Imperialism in the Thirteenth Cencury," Speculum, Xxrx (1954), 198-209. 10Ltbaug, 1,31, ed. Cervone, Si (this edition is used throughout en account of che glosses); see Huillard-Bréholles, rv,33; also 'rhescider, L'Idea imperiale (cf. below, n4,1), 179.

97

FREDERICK TUL SECOND LA 14'-CENTERED KINGSHIP

who was recognizcd as che " fotintain of Justice."11 However, tbe current ideas and formulas viere reformulated, succinetly and clearly, in che Liben augustalis, and the majestic language in which Frederick's statement was couched appeared impressive enough lo make the glossator Andreas of Isernia exclaim: Pulchre dictata est haec lex,'r whereas a laten glossator, Matthaeus de Afflictis, suggested that, for che elegante of che wording. young mera should learn the whole constitution by heart.°' In tltis law che emperor harked back lo the ancient right of legislation owned by che Roman Quirites, and declared:91 Not without great counsel and wise deliberation have the Quirites, by che lex regia, conferred en che Roman Prince both the right lo legislate and che imperium, tlrat from che very same person (ruling ... over the people by bis Power) there might progress che origin of Justice, from wbom also the defence of justice proceeds.ea Pro31Lib.aug., r,38, Cervone , 85f, on che offices of the magister iustitiarius and the judges of the Magna Curia , The preamble of that law follows C1,1g , z,18: the las[ sentence ("a qua [se. Curia), velut a fonte rivuli, per regnum undique norma iustitiae derivetur") repcars a nletaphor used bv che jurista (see Erg.Bd ., 84f), eg., by Placentinus , Thomas oí Capita, and also Bracton, who draws from Aro, Summa Institutionum , on Insta 1,1 ,ruin. (Lyon, 153u), fol.268v, ed . Maitland , Bracton and Azo (see below , n.175), 18. The julists , however, say: " Ex iustitia omnia iura emanant," which would imply that che Magna Curia, or the emperor himself (below, n.133), as it were, impersonated Iustitia . It is remarkable lo what extent the nletaphor of the joras iustitiae 'vas repeated in che later theories of French absolutism; see William Farr Church, Constitutional Thought in Sixteenth-Century France (Harvard Historical Studies, xtvu ; Cambridge, 1941 ), 38,n.5o, also 53,n.3o, and passim. sz On Lib.aug., 1,31, Cervone , Si; sea also ( ¡bid,) the gloss oí Marinas de Cara manico: 'et pulchra est hace sonso[urjo , et continet ius commmie." sa Matthaeus de Afiictis , In Utriasgue Siciliae Neapolisque sanctiones et constitutiones novissima pr'aetectio (Venice, 1562), 1,f(>1 147, en Lib. aug., 1,31,rubr .: " Ista constitutio est multum elegans, et rota esset memorial commendanda a iuvenibus, et continet ius commune ." Cf. aboye, n3z. ac"Non sine grandi consilio et deliheratione perpensa condendae legis bis et imperium in Romanunl Principem lege regia transtulere Quirites, ut ah eodem, qui commisso sibi Caesareae fortunae fastigio per potentiam populis imperabat , prodiret origo iustitiae, a quo eiusdem defensio procedebat. Ideoque convinci potest non tam utiliter quam necessario fuisse provisum , ut in eiusdem persona concurren[ ibus 11is duobus, iuris origine scilicet ct tutela, ni a iustitia vigor et a vigore iustitia non abesset. Oportet igitur Caesarem fore iustitiae patrem el fihum, dominum et mini stmm: Patrem el dominum in edendo iustitiam et editam conservando , sic et in venerando iustitiam sic filius, et in ipsius copiam ministrando minister." 55 Cf. Quaestiones de iuris subtititatibus, 1,16, ed. H. Fitting (Berlin, 1894), 56: "Qui enim nomen geril inperii , genere deber auctoritate quoque eiusdem, qua menda sunt eadem iura , que sunt ab ea profecta ." See, for tire authorship (probably Placentinus ) of this ztb -century tractate, helo', 11 .57. The passage is printed also by Sergio Mochi Onorv and Cianluigi Barni. La crisi dei Sacro Romano Irmpero: Docun, enti (Milan , tg5t), t5o, where it appears as che work of an anonvmous author.

vision, therefore, was made for reasons of utility arad necessity, as can be proved, drat diere concur in [he selfsame person che origin as well as the protection of Justice, les[ Vigor be failing justice, asid Justice, Vigor.- The Gaesar, therefore, must be at once ihe pathrr her lord antl her rmnistel lacho asid lord in and Son of Justice, creating Justice and protecting what has been created; asid ¡Ti like fashion he shall be, in her veneration, che Son of Justice and, ¡Ti ministering her plenty, her minister.

seems to be a new While che anti phrasis pater et filias Justitiae formula, metaphors of intellectual parentality of tliat kind viere comnton property of che jurists' idiom of that age. The emperor iuris, and ius itself che minister vel a pater legis , Justice a mater that may be found in contemporary legal literafilius Iustitiae: all ture.ar It was perhaps, in addition lo the obvious paradox, chiefly the concentration of these metaphors in che person of che living emperor that gave a peculiar ring to the language of the Liber augustalis. Moreover, in Frederick's stately and solemn proclamation two orbits seem to overlap, one legal and one theological. The at a time when che fide of che movedocument, alter all, originated ment labeled "Jurisprudence emulating Theology" tan highest. A quasi-theological undertone, therefore, would not appear as law; non, for that massomething quite unexpected in an imperial of the Sicilian lawter, did it escape the ear of a laten glossator fiii, wrote Matthaeus book: che emperor acts exemplo Dei patris et recalled also that che emperor, de Afflictis, who en that occasion lex animata.'a according to Roman Law, was pater legis as well as ¿ex regia and che as Roman Law was influential , nos only with regard lo che Ctos.ord. en that paraC.1o,1,5,2, including the , and iustitia Quirites . See, for vigor qui est vigor iustitiae, ande dicitur lex graph, Y. vigorem : " id est principem , This remained che standard interpretation ; see, e .g., Andreas animata (= Nov.1o5 )." super tribus libris Codicis, Vemce, 16m), de Barulo, en C.io,1,5,n.5 ( Commentaria ubi dicitur les p. 6: "Imperator est vigor iustitiae . . . (referente to Nov.1o5), et 1n pectore suo "se ... Et pater est animata. Et iura dicuntur ab co oriri ... augustalis alludes lo rather tiran che famous leguen...." It is chis law the Liber vigoremc saying cha [ che Prince' s vol untas legis haber aestimavimus recte se habere nos tamquam ar For polar legis, see Nova 2q : Glos.ord., v. Patres: "Nota legis patres" (che plural is one of majesty) , including imperatorem votar¡ patrem legis, unde et leges sunt el subiectae ;' followed again the emperor as ¿ex animata). The (see aboye , n.36) by an allegation of Nov.io5 ( was repeatedly referred to by the glossators ; see, e.g., Glos .ord. oo phrase pacer legis . For lustitia as moler iuris, see, autem, as well as below, n.3B Nov.99,2, Y. Dicimus .6o, 69; bus che image was repeated for example , Glos.ord, en D.1,1,1, also helo', nos minister et filius, over and ocer again: sea, eg., Ullmann, "Baldus ;' 389, ng. For en D.i,1,1, v. Et iure: "ius iustitiam prosequitur ut minister vel filius." . see Glos.ord : ".. exemplo Dei patas et te Matthaeus de Afllictis, ora Lib.aug., 1 , 31,n.8, fol. 1491

99 98

LAW-CENTERED KINGSHIP FREDERICK THE SECOND

All that, however, does not yet explain the antiphrastic formula itself which the Liber augustalis produced and by which the emperor vas represented definitely et maior et minor se ipso, that is as a "mediator," as the father and son of Justice, whereby Justice herself was attributed likewise an intermediate position : she was, by implication , at once the mother and daughter of the emperor. The peculiar wording of that paragraph is not warranted by Roman Law. It reminds us rather of certain laudatives applied tu princes, and perhaps prelates as well , who were sometimes styled filias et pater Ecclesiae . 29 However , the seemingly paradoxical formula describing the relationship between Prince and Justice may nave easily evoked other associations in the minds of Frederick's contemporaries: they were accustomed lo hear not only the praise of the Holy Virgin as "mother and daughter of her Son" (Vergine madre, figlia del tuo figlio), but also the praise of Christ himself as father and son of his virginal mother: "I am your Father, I am your Son," sang Wace, who merely echoed a motif repeated in many variations by a whole chorus of poets.40 It would be beside the point lo assume that by means of the filii, ni patet in psal. rxxn t esis iudicium tuum regi da el iustitiam tuam filio regis.' EL ideo dicitur [imperator ] lex animata in tacita, ut in Auth. de consulibus. §. fin. [_ Nov.1o5 , 2,4], ct pater legum, ur in Authen. de fide instrum, in princ. f_ Nov.73,praef., acmally a wrong allegation ; see Nov.12,4, and ahoye, n37]."

a° A. L. Mayer ( see next note), p65, quotes Froumund of Tegernsee ' s susceptaculum for Emperor Henry II: filias ecclesig . . pater aecclesit ; cf. Die Tegernseer Briefsammlung , ed. Karl Strecker ( MGH. Epist.sel ., u1; Berlin, 1925 ), No.xx, p.q7; further a [omb inscription for a Count Theobald, from a Ziirich ase (C.581275, ): fol.8v Ecclesiae matris filias, ¡ armo pater. It seems most likely that prelates, too, were praised as filias Ecclesiae and at the same time pater ecclasiae , cha[ is, father of their ,vil prebend or church.

40 The very rich material for that antiphrasis has been clrefutly collected and studied by Anton L. Mayor, "Mater el filia ," Jahrbuch für Liturgiewissenschaft vi,(1927), 60-82 ( Toletanum, xl : ipso et p acer matris et fiiius, miglit he added; A. Halan, Bibliothek der Symbole und Glaubensregeln der alten Kirche [2nd ed., Breslau, 18791 , 176), who indicates ( 8if) [hat Chis kind of speech , while extremely rare in earlier times, especially in [he East , became very common in the l2th century resulting from [he new devotion Lo St . Mary (therefore St. Bernard addresses che Virgin with the words quoted aboye from Dante 's Paradiso , xxxm,r ) and that it reached [ he climax of popularity in che "gothic agé'; see P . 78, for Wace ' s je suis ton fil, je suis ton pire. See also Helmut Hatzfeld, "Liturgie und Volksfrümmigkeit in den südromanisehen Dichtersprachen ," Jahrbuch bir Liturgiemissenschaft, xn (1935), 72. Jungmann , " Arianism us ;' 8,,n.31, quotes L. E . Wels, Theologische Stn'if. auge durch die altfranzdsisehe Literatur ( Vechta, 1937), 1,3, .51 ( not accessible lo me), who considere that antiphrasis almos[ a kind of Sabellianism . If we recall, however, that the Virgin Mary symbolized at the same time che Church , che antiphrasis would imply that Christ , too, was Ecclesiae matris filias, ¡ moro pater (see aboye, n.39).

100

formula of " father and son of Justice" the imperial legislator intended lo put himself in the place of Christ or to ascribe to the virgin Justice-the Virgo Astraea of Vergil 's messianic Eclogue and other classical sources to which the jurists occasionally referred-the place of the Virgin Mary, although admittedly any kind of quid pro quo became possible in allegorical interpretation . 41 The emperor' s antiphrastic formula belonged to a different world of thought . It fell in with the intellectual climate of the "Jurists' Century" in general, and in particular with that of Frederick's Magna Curia where the judges and lawyers were expected to administer Justice like priests; where the High Court sessions, staged with a punctilio comparable to Church ceremonial, were dubbed "a most holy ministry (mystery) of Justice" (iustitiae sacratissimum ministerium [mysterium]); where the jurists and courtiers interpreted the "Culi of justice" in terms of a rellgio iuris or of an ecclesia imperialis representing both a comple-' ment to and an antitype of the ecclesiastical order; where, so to speak, the robe of the law clerk was set ayer against the robe of the ordained cleric; and where che emperor himself, "whom the Great Artificer ' s hand created man," was spoken of as Sol Iustitiae, the "Sun of Justice," which was the prophetic title of Christ.12 Within 4r Por Astraea, see, e.g., Baldus , en e34 X 1,6 ( Venerabilem ), n.13, In Decretales (Venice, 1580 ), fol.78v, quoting Huguccio : " dictt Ugutio quod Astraea , id est, iustitia que (le coelo descendit , dicta est ab astris , id est, a stellis , quia lumen suum naturaliter communicat universae creaturae ." Allegorical misrepresentations were no[ rare. In tire Gesta Romanorum , c.54, ed. Oesterley ( Berlin, 1872 ), 349f, the Captan triumphal arch of Frederick II, whose throne image seems Lo have been flanked by a mate and a female figure (a Virtue7 ), is interpreted in [he following fashion: "Car issimi, imperator iste es[ dominas noster Jhesus Christus, porta marmorea ese sancta ecclesia . . . In qua porta sculpta est imago ...[scil . imperatoris] cum duobus collateralibus , i.e. cum Maria matee Jhesu el Johanne evangelista , qui designant nobis eius misericordiam el iustitiam." The allegorizing cieno thus interpreted the three figures in Letras of a Deésis , See carl A. Willemsen, Kaiser Friedrichs 11. Triurnplstor zu Capua ( Wiesbaden , 1953), 68f,,o3,11.222, who, without solving the problem either , corrects me en an importan[ point; see Kaiser Friedrich IL, 486, and Erg.Bd ,, 21of. See, for much later times, Francos A. Yates, "Queen Elizabeth as Astraea," Warburg Journal , x (1947), 27-82, who collects interesting material on [he triangle of Virgo Astraea , Virgo Maria , and Virgo Regina; see esp. pp.75 and 62 with pl.2oa, where lastitia, depicted in iba center of the Vir[ ues, wears a dress similar lo that of Elizabeth. For a twelfth - century enamel from Stablo displaying Iustitia where Mary or che Church would he expected , see helor, n.73. 42 Por che material of I bis summary , see, in general , Erg.Bd., 88ff . For [he jurists as sacerdotes iustitiae, see below, nos. 94ff , and for Christus iurisconsultus , Hermann Kantoiowicz , Studies in che Glossotors of the Rorian Late (Cambridge , 1838), 21. For mysterium iustitiae (Erg.Bd., 88 ) and tire interchangeable use of ministerium and mysterium , see F. Blatt, "Ministerium - Mysterium ," Archivurn latinitatis medii aevi,

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FREDERICK TIIE SECOND LA IP-CENTE.RED KINGSHIP

chis political theology, or politico-religious hybridism, the words of the Liber august(úis-written by the Bologna-trained jurist and stylist Petrus de Vinea"a-have their definite place. However, Frederick's imperial "theology of rulership," though pervaded by ecclesiasticalthought,touched by Canon-Law diction, and infused with quasi-christological language to express che arcana of government, no longer depended on the idea of a Christcentered kingship. The chief arguments of Frederick and his legal advisers derived from or were determined by Faw-more accurately by Roman Law. In fact, che emperor's dual function of "lord and minister of Justice" descended from the lex regia or was linked to it, as the passage cited from the Liber augustalis shows quite unambiguously ; that is, it descended from that falNous lave by which the Quirites of olden times used to confer the imperiurn, together with a limited right of creating law, and of law exemption , on the Roman princeps.44 And therewith a strictly Law-centered ideology begins lo supersede the stratum of the mystery-like christomimésis predominant in the earlier centuries. rv(1928 ), Sol, and my strldy "The Absolutlst Concept Mysteries of State, and ics Late Mediaeval Origina;' Harvard Theologiral Revino, xcvns (1955), 71.0.22. For religio inris, see hélow, 0.159, and for the ecclesia imperialis, Erg.Bd., 208. For Vinca addressing the emperor "pacator iustissimus, quem supremi manus opificis formavit in hominem;' see Petrus de Vinca, Epistolae, 111,44, ed. Simon Schard (Basel, 1566), 469, ed. Huillard-Bréholles , Vie et correspondance de Pierre de la Vigne ( Paris, 1865 ), 426, no. 107, and for some remarks en che history of that phrase, my study "Kaiser Friedrich II. und das Konigsbild des Hellenismus," Varia Variorum: Festgabe für Kart Reinhardt (Münster and Cologne, 1952)• 171-174. For Frederick II as Sol Iustitiae, see Huillard -Bréholles, v1,8n, also my study "Dante's Two Suds;' Semitic and Oriental Studies Presentad to IVilliam Popper, ed. W. J. Fischel (Berkeley and Los Angeles, 1950), 221f,227ff; fax the application of that title to che King of Franca , see Berges, Fürstenspiegel, 263; Johannes Hallar, Papsttum und Kirchenreforrn (Berlin, 1903 ), 1,470,0.1. See further che quite recently discovered eulogy en Frederick II by Nicholas of Bari, ed, Rudolf M. Kloos, "Nikolaus van Bari, cine neue Quelle zur Entwicklung dar Kaiseridee untar Friedrich II.," DA, x1 (1954), 166-1go, esp.l6gff. ss Hans Niese , "Zur Geschichte des geistigen Lebens am Hofe Kaiser Friedriclis II:" Hist. Ztschr., CVIII (1912), 535, stresses that Vinca "has formulated all the laws incorporated in che Liber augustalis," and 1 agree with him today even more Ihan in former days. The rhetorical "hybridism" with its ten(lency towards building up "theologies" o£ all sures (political theology as well as a theology of science or rhetoric) was actually taught in Bologna; see, e.g., rey study "An 'Autobiography' el Cuido Faba," Mediaeval and Renaissance Studies, 09,11-43), 253-280. 44For a useful collection of extracts concerning che lex regia, see Eugenio Dupré Theseider, L'Idea imperiale di Roma nella tradizione del medioevo (Milan, 1942), 2551f. For the older literatura, see Erg.Bd., ,,5f; see also Karl jordan, 'Der Kaisergedanke in Ravenna," DA, u (1938), uoff; F. Schulz, "Bracton en Kingship," EHR, 4x(1945), 153ff; Ullmann, Lucas de Penna, 48ff.

102

The twofold possibility of interpreting tire lex regia as die oasis of either popular sovereignty or royal absolutism is too wellknown as to require consideration here. In justinian's Institutes and elsewbere tire lex regia veas quoted in order to substantiate the claim tilat in addition to the very numerous other ways of legislating "also (el!) what pleases che Prince has the power of law.-` But in justinian's lawbooks there Iras inconsistency anal ambiguity insofar as it was not clearly said whethcr che lex regia implied a full and permanent 1ranslalio of power to tire empero] in genere or only a limited and revocable concessio to the individual emperor in persona." It was that ambiguity which in the later Middle Ages led, among other solutions, to the construction of a dual sovereignty, a maiestas realis of the people and a maiestas personalis of the Prince.47 Frederick II did not arrive at a duality of that kind. Nor did he, as yet, come to the formulation which, by the end of his century, described the ruler's position as une deriving equally from the people and from God, popuao faciente el Deo inspirante.'" Nor would he have made che distinction between empire and emperor which his contemporary Accursius suggested and Cynus of Pistoia later accentuated: "The emperor stems from the people; but the empire is from God, and because he presides over the empine, the emperor is called divine."41 Frederick may 45 The passages referring ro che lex regia (D.1,4,1,1, and C.1,,7,1,7) have been recently discussed , with regard to che Middle Ages, by Schulz, "Kingship," 154ff; che importante of che word el (Inst.1 , 2,5; Gaius' Institutions [cf.1,1,3,5] were unso often known during the Middle Ages except through che Justinian Corpus), De Laudibus : A Review," neglected , has been stressed by Max Radio, "Fortescue's Michigan Law Review, xctv (1944), 182. For the ¡ex de imperio Vespasiani, see S. ), 41548, No.15 (with Riccobono , Fontes iuris Rornani antejustiniani (Florence, 1941 s exemption to literatura ); aleo Theseider, op.eit., 256; che lave restricts che emperor' successors. !hose cases which were already customary under Augustus and his first The inscription was unknown in che Middle Ages hefore being rediscovered by (Berlín, Cola di Rienzo ; see Burdach, Rienzo una die geistige 11 andlung seiner Zeit ig13), 3o4ff, and passim. 46In5t.l,2,5: potestatem concessit; C.t,17,1,7: translata sunt. For che problem, see E. Schoenian, Die Idee den Volkssouverdnitüt i,o mitlelalterlichen Rom (Leipzig, 1919), esp.17 and 58ff; also A.J. Carlyle, "The Theory of che Sourre of lolitical Authoricy in che Mediaeval Civilians to che Time of Accersius," Mdlanges Fitting (Moncpellier, 1907), 1,181 -194, who connects che dispute of che jurists rightly wich che conflict between customary and statutory laves. 47 Gierke, Gen.R., sv,215ff, 315ff, and passim. 49 John of Paris, De potestate regia et papali, c.xix, ed. Dom jean Leclercq, jean de Paris et l'eeeldsiologie du XIIIe siécle (Paris, ,942), 235,11; see below, Ch.v1, nos.5,ff. 49 Glos.ord., en Nov.73, rubr.i, v. De caelo (below, Ch.vi, n.53). For Cynus, see

103

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FREDERICK THE SECOND

Nave anticipated the essence and main idea of those formulae; but they viere neither coined nor applied by him, nor were they quite his. Moreover, with regard lo his power of legislacor he depended on the Roman Law experts of his own age who, on the whole, ruled out an independent legislative power of the people because they considered the Prince che sole legitimate legislator and ultimate interpreter of che law. Nevertheless, Frederick II derived from che lex regia a twofold obligation which he expressed in one clear sentence maintaining, not unlike John of Salisbury, that the Caesar was at once "Father and Son of Justice." Frederick's interpretation of che ruler's relations wich Law was hased, so far as che Justinian Law was concerned, not only on che lex regia co which he alluded quite often and gave much prominence in his law-book and letters,50 but also on the lex digna. This law, which the glossators customarily cited in connection with che les: regia (John of Salisbury, in that respect, was not an excepcion), did not abolish che ambiguities, nor did it alleviate them. The emperors Theodosius and Valentinian, from whom che lex digna issued, liad made a statement implying that rnorally che Prince was obligated co observe even [hose laws co which legally he was not subjected; but they did noc intend co bind themselves co Law wichout reservations or co deny che validity of che claim according co which che emperor was legibus solutus. The sixtlrcentury compilers of che Justinian Code, however, suggesced in cheir summary a more substancial binding co che Law on che parí of che emperor when they reproduced che edict:

The mediaeval lawyers could not possibly fail co notice che antinomy prevailing between che maxims princeps legibus solutus and princeps legibus alligatus. By chis antinomy, in addition to other considerations, John of Salisbury was prompted to interpret che Prince as at once imago aequitatis and servus aequitatis; and chis solution, in its turn, appeared lo him as a reflection of che biblical model, namely, of Chrisc who, though King of Kings, "was born under che Law, fulfilled all justice of che Law, and was subjected co che Law non necessitate, sed voluntate. For in the Law was his will."°2 That was, by and large, che expedient co which substantially many mediaeval lawyers resorted when they tried co reconcile che seemingly irreconcilable maxims of che lex regia and the lex digna. They poinced out that che emperor, though not legally bound by the laws, yet bound himself co che Law and lived voluntarily in accordance with che Law: his subjection co che Law was considered a velle, and noc an es.ce.22 Frederick II followed che customary legal exegesis. He, loo, referred on one occasion co che lex digna, voluncarily recognized a superior judgmenc, and made a formal account as co che kind of Law co which he considered himself obligated. To che senacors and people of Rome he wrote: Both all-powerful Reason, who commands che kings, and Nature impose upon us che obligation co enhance in che times of our imperium che glory of che City.... In accordance with Civil Law we patus which appears co me as che axis of che whole sentence . See also W. Ensslin, "Der Kaiser in der Spütantike ," Hist,Ztschr., axxvn (tg4), 465. The lex digna was paraphrased also in an arenga of Frederick 's son, King Henry (VII) in 1228; see J. F. B6hmer , Acta imperii selecta (Innsbruck , 1870), 1,283, No . 326, where one shonld read digna voce ( for vice). 52lt was common practice of jurisu and political ph ilosophers co link the (ex digna together with the maxim legibus solutus , and thereby co solve that dilemma; see, e.g., Azo , Summa Instit ., prooem. ("Quasimodo genioche author of which was Boncompagno), foi.269v: ^Licet romanus princeps sic legibus solutus, tomen digna vox ex maiestate regnantis legibus alligatum se principem profiteri:' See also Carlyle, Political Theory v,97, and 475f; A. Esmein, La maxime Princeps legibus solutus est dans l'ancien droit public francais," Essays in Legal History ( Oxford, 1913)• 2o3,n.1; 2o8 , n,4; 209,0.1. See also below, n .54, for Frederick II. The difficulty seas sometimes overcome by indicating che model of Chrisc who, though Rex regum, was nevertheless sub lege; see , e.g., John of Salisbury , Policraticus , 5236c, ed. Webb, 1,252,6ff: ". . sicut Rex regum , facros ex muliere, factus sub lege, omnem implevit iustitiam legis, el non necessilate sed voluntate subiectus ; quia in lege voluntas eius.', s2 Schulz, "Kingship ," 168 (including n.6) and 163 , 0.1; cf. aboye , n.52, for John of Salisbury . See also Esmein , op.cit., 203,0.1.

It is a word worthy of che majesty of che ruler that che Prince professes himself bound co che Law: so much does our authority depend upon che authority of che Law. And truly, greater chan che imperium is che submission of che principate co che Iaws.01 Theseider, L'Idea imperiale, 262; Ctlmann, Lucas de Penna, 171. Cynus mates a dear distinction between che emperor who is a populo and che empire which is divinum a Deo, che Ianer a turren[ definition. so For che places, see Erg.Bd., 86 and 183. 51 C.1,144: "Digna vox maiestate regnantis legibus alligatum se principem propteri: adeo de auctoritate iuris nostra pende[ auctoritas . El re vera maius imperio est submictere legibus principacum ." See che brief and concise remarks of Schulz, -Kingship ," 16of, according to whom che italicized words are 0.n insertion of che later compilers . My translacion of che last sentence differs from the one offered by Professor Schulz ( p.16, ), who translates maius imperio with "It is nobler for the emperor" ( imperium= imperator). 1 prefer che literal translation (imperio an ablative dependen [ on rnaius) because it preserves che antithesis imperium -princi.

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which Reason is the mother as he is the fatber; but Reason is also aboye che Prince as she is aboye any king, and to her the emperor is bound: he is legibus solutus, but ratione alligattts. The doctrine was not without danger, siuce tic interpretatiun

profess our obligation with a word most worthy [of majesty]... . For although our imperial majesty is free from all laves, it is nevertheless not alto gether exalted abone the judgment of Reason, herself dlc Mother of all Law.^"

oí Reason might easily depend <)ti the Prime alone. Indeed, less than a century later this semi-divise Ratio will become a ratio regis el patiiae, synonymous with Reason of State, and what Por-

What that statement amounts lo may he called the Princc's voluntas ratione regulara, his "Will directed by Reason."55 The emperor, in his manifiesto, strongly emphasized that he was legibus solutus, but at the same time he acknowledged that he was bound lo Reason which commands all kings. The general proportions were similar lo tltose which he established when he expounded in his law-book the lex regia and proclaimed himself the father and son of Justice. The passage again reveals the emperor, theoretically, as the intermediate parí: he is free from all laves; he is aboye the ties oí Positive Law, which Reason, complying with public Utility and changing Necessity, may alter at any time, and oí

mcrly was a goal in itself will turn roto a tool, a mere instrument of statecraft. Reason, in many respects, was all that already under Frederick II; yer, in legal philosophy she still showed the features oí a goddess-a manifestation of Nature equal to God.óe IUSTITIA MEDIATRIX

To worship the absolute power oí legal Reason was nothing peculiar to Frederick II and his advisers. The lawyers, and especially the Civilians (who were also the true rediscoverers oí a non-ecclesiastical Stoicism and therewith the initiators of the later humanistic Neo-Stoicism oí Petrarchan pattern), were generally fond oí playing with the notion of Reason, and of hallowing Reason as well as Justice like ancient deities . The leading lawyer

sa "Ad extollendum imperii nostri temporibus decus Urbis ... et ratio prepotens, que regibus imperar, et natura nos obligat, et civiliter obligatos voce dignissima profitemur ... Sed quamquam soluta imperialis a quibuscumque legibus sir maiestas, sic tamen in totum non est exempta indicio rationis , que iuris est matar ." HuillardBréholles, v,162 ; Theseideq L'Idea imperidle , 187. The submission te Reason on the parí of every authority was emphasized by the early glossators ; sea, e.g., tire ssthcentury Quaestiones de iuris subtilitatibus, Ivh, ed. Fitting , 58: "Dicat ipsa Ratio, qua et ipse nituntur auctoritates .. " See next note. The word civiliter, which might appear ambiguous , obviously refers te D.t,1,8: "viva vox esa iuris civilis," so that we have te consider a contamination of digna vox and viva vox ; see, for the related law viva vox , Steinwenter , " Nomos;" 266f, and, for the combination of ¡os civile with the lex digna , Boncompagno , Rhetorica novissima , Ix,5, ed. Gaudenzi, Bibliotheca juridica medii aevi (Bologna , 1892 ), n, 289. By chance, we have a glosa of one of Frederick ' s judges of the Magna Cur ia , Guillelmus de Vinea, en Lib.aug., . quod princeps sir absolutos legibus, tamen iure pri1045, Y. iure proprio: " vato (?) vivere debet , ut C.de leg.et cons .l.digna vox ." Cf. B. Capasso, " Sulla storia externa delta costituzioni di Federico II;" Atti delta Accademia Pontaniana, ix (1871 ), 439,n.2. Te quote another Sicilian , see Andreas de Barulo , en C.1o,8,3,n.s, pp.24E "Nota quod licet Princeps sir legibus solutus, vivit tamen secundulfl leges, e ut ... de legib . digna." sISee A. P. D' Entrtves , The Mediaevat Contribution tú Política ! Thought (Ox^ ford, 1939), 39, for the voluntas ratione regutata in the sense of Thomistic doctrines, and Ullmann , Lucas de Peona , 54 for the principie of the Civilians : " curo voluntas principis ab aequitate , iustitia et ratione deviet, non est lex," For the emperor's subjection to Reason , Baldus was later te some extent the authority ; see Baldus, en D.44,39,mg5, foL2W: "magnos est Caesar , sed maior est ratio '; also, Cons., 1,36, nb, fol.loov : " Praeterea princeps potest se suhiicere rationi" (with referente te Ds,,,14); also Cons., 1 , 333,n . 1, fol.lo5v: "Itero princeps iura utilia potest con (ce)dere sine causa . nanr ipse [princeps] et ratio idem sunt." See also Matthaeus de Afgictis, en Lib.aug., 1,7 ,n.37, fo),57v, who refers continuously te Baldus : " .. Imperator licet sir solo tus legibus, tamen non est solutus a praeceptis divinis et sanetae matris ecelesiae ... Itero non est solutus a dictamine rationis , quia est animal rationale ... Ideo princeps etiam ligatur natural¡ ratione... .

106

of the generation just before Frederick II, the great Placentinus (died 1192), was in all probability the author of a legal dialogue called Quaestiones de iuris subtilitatibus, the poetical prologue oí which is of some relevante here.11 In this prologue, the author actually erected a literary monument of the goddesses of Law when describing, solemnly and in glowing colors, the beauty and majesty of the Templum Iustitiae which he pretended to have disóe For the necessity of producing new laves caused per rerum mutatíones et temthe preamble oí which was framed alter porum, see Lib .aug., 438, ed . Cervone, 85 , papae (§ 7), was of course C.1,17,2,18; the leading idea , found already in the Dictatus repeated over and over again. Sea also, for the parallelism of divine Law (ius , 35: "Iotas gentium) and natural teason, the preamble of Lib.aug., i,a6, Cervone gentium induxit auctoritas et naturalis haec ratio non abhorret , ut tutela cuilibet 1,31, where the emperor claims ("Hac su¡ corporis permittatur "; further Lib . aug., igitur consulta ratione commoniti ...") te be prompted by tire advice of Reason. 57 The Quaestiones de iuris subtilitatibus were ascrihed by their editor, H. Fitting , for indeed very good reasons, te (see aboye , n.35), te Irnerius, and more recently 181-2o5, and also his study, "The Glossators, see Hermano Kantorowicz, Placentinus ; poetical Sermon of a Mediaeval Jurist: Placentinus and his 'Sermo de Legibus,' " betrays a poetical spirit similar te IVarburg Journal, 11 ( 1938-39), 22fi; the Sermo . Absolute certhat of [he prologue of the Quaestiones and quite alien te Iruerius tainty as te the authorship cannot, of course , be established at present.

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covered, by chance, in a pleasant grove en the top of a hill.Be In that imaginary shrine he saw Reason, Justice, and Equity dwelling together with the six civic Virtues- a "celestial banquet,"' so it seemed to him, rather than anything en earth. Ratio ranked highest she was seated en the head of Justice from where she observed "with her star-like eyes and her flashing keenness of mirad" the remotest things, even those far beyond the precincts of che temple. lustitia, "in her inelfable habit of dignity,"69 was the central figure "observing with many sighs che things of both God and men."°° She embraced her last-born daughter, Aequitas, whose features mirrored nothing but kindness and good-will as she tried to balance the scales held by her mother. The other daughters, che six civic Virtues,61 surrounded Justice like guardians. Within the shrine some space was reserved for the inaccessible Holy of Holles, che adytum, which was separated by a wall of glass on which, with golden letters, the full texts of Justinian's law-books were inscribed. It was only through that glass wall that the spectator viewed the deities "as in a mirror." Inside the adytum , "a not too es The prologue of che Quaestiones , ed. Fitting , 53f, has been edited also by Hermano Kantorowicz , Glossators , 183E. The conecto here is not che Iiterary gene in general of poetical visions, which was very common in rath-century literacure, but its application to a juristic technical tractace . A less philosophical variety of templuns lustitiae is described by Anselmus de Orto, Iuris civilis instrumentum, prof., ed. Scialoja, in: Bibliotheca iuridica medii ocal, 11,87; cf. Fitting , op.cit., 7f. 5° "... michi visa es[ inelfabili dignitatis habito lustitia ." The author alludes to che customary definition of Justice : " Iustitia esc habitus mentis bonus vel bene constitutae" (e.g. Azo, Summa Institutionum , en lnst.[,1, fol .269); cf. Fitting , Schriften , 16o (also 3.i ): H. Kantorowicz, Glossators, 6012,10, also 272,16. See further Glos.ord . on lnst.,,i, v. ¡ustida : " . quasi habitus mentís bonus . Sed Tullius sic definit: 'lustitia esc habitus animi ... suam cuilihet t ribuens dignitatem .' " The referente of all glossators is Cicero, De invent ., 11,159. See below, n.61. eo , causas enim et Dei et hominum crebris advertebat suspiriis ." The melancholy of Justice is tradicional ; see below, n . 64, for Gellius . Aequitas, though partly identical widr lustitia, belongs to che sphere of practical Ius; cf. Glos.ord, en D.1, t,r, e. Iustitia : " los esc ara boni e[ aequi , ut subiicip et fuscitia nihil aliud esc quam ipsa aequicas et bonitas : ergo iustitiam habe r matrem." 61 The six Virtues enumerated by che author are Religio , Pietas, Gratia , Vindi. catio, Observantia, Ventas, again in agreemenc wich Cicero , De invent ., n,t591f (aboye n.59 ). That [hey are daughters of Justice agrees with che common opinion (ultimately deriving from Aristode) according te which all Virtues may be reduced to Justice; see Nicom. Ethics, 112gb, wich the Latin version by WVilliam of Moerbeke: "In iustitia autem simul omnis vircus esc, el perfecta maxime virtus "; cf. Thomas Aquinas, In decem libros Ethicorum Aristotelis ad Nicomachum expositio, ed. R. M. Spiazzi (Torio and Rome, 1949), 246f ( No.64s for Ariscotle 's text, and No .9o7 for Thomas' commentary : " in ipsa iustitia simul comprehenditur omnis virtus"). See also below, 0.156.

FREDERICK THE SECOND

modest number of honorable men," apparently che Clergy of Justice, was in attendance at the glass wall, ever ready lo revise che texts of che golden lettering whenever a passage appeared disarrayed lo che examining eyes of law-weighing Equity.82 Outside the adytum, finally, a venerable teacher of Law discussed with his auditors difficult legal problems, and it was the discussion between chis interpreter of che Law and his audience which the author of the Quaestiones pretended co reproduce in his learned tractate. What the author described in che story framing his story was actually a vision of Jurisprudence at work within che shrine of Justice. The vision itself was stimulated by Justinian' s letter to Tribonian in which che emperor disclosed that he ordered "to build up che matter of Law in a most beautiful work and, as it were, lo consecrate a proper and most holy temple lo Justice," and by his slightly later letter lo che Senate in which he declared he wished lo show from how many thousands of books "che temple of the lustitia Romana was built."°e Some additional colors for depicting chis goddess may have been borrowed from Aulus Gellius, the second-century jurist and rhetor, who, in his Attic Nights, reproduced from Stoic sources a similar literary portrait of lustitia, "an awe-inspiring virgin with penetrating eyes and with some venerable grief in her dignity," and attended by the perfect judge whom Gellius called Iustitiae antistes, "tire priest of e2 Hermane Kantorowicz , Glossators , 185, was surely correct when he suggested that che honorahiles viri, non quidem pauci, were che "priescly ministers of che law." Apparently chey were identical with che galaxia which ( he ssth-century author of a Materia Institutionum, ed. Fitting , Schriften, 148,10, mentioned as che inhabitants of che templum : " Sicut quidam philosophus ait 'Qui iusticiam tenuerint, coluerint auxerint , illum incolunt locum, quem in templo hoc medium vides,' e[ ostendit galaxiam." The passage refers undoubtedly co che templum lustitiae, though it is not obvious who che philosophus quidam may have been. es C,1,17,1.5 , and 1,17,2,20 a; also [he consticution Deo auctore (§ 5) preceding che Digest. The templum lustitiae is often quoted and interpreced by che mediaeval jurists; see , e.g., Marinus de Caramanico , on Lib.aug., r ,prooem., Y. Et iura.condendo, ed. Cervone , 6, whereas Andreas of Isernia, In usos feudorum commentaria, praeludia, n.s6 (Naples, 1571 ) fol.sv, consecrates his own work as a proprium et sacratissimum templum lustitiae. Interesting are the later jurists who connect [he sacerdotes lustitiae ( that is, the iurisconsulli) with che templum, as, e.g., Cujas , o0 D.1, 1,1, Opera (!' rato, 1839), vu,col.t if, or Frantois Hotman, en InsL,,i (Venice, 1569), p7; whereas Louis d'Orléans, Les Ouvertures des Parlements faictes par les Roys de France (Lyon, 1620), 399.446, devotes his whole long-winded "Second Remonscrance" (1590) lo [he subject of che Temple of Justice, especially to che Temple eternal de la justice Franroise (see below, Ch- vu,11 -334 ). See also my remarks in American JournaWof Archaeology , cvn (1953 ), 67, concerning the non-architectural characcer of [hese and other [eynples of Justice

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Justice.''" Placentinus, or the author of the Quaestiones, may llave been inspired also by other sources n' and in later times re[lections on the Tem»luna Iustitiae viere anything but raye.°° What matters Itere, however, is tliat the author not only used che metaplior of the Temple of Justice, but integrated the personifications into the customary hicr'archic system of legal philosophy. Reason, in his tractate, eventually revealed herself as identical with the [.ate of Nature whiclr ¡vas practically one with Divine Law.°` Equity belonged without question to tire sphere of Positive Law, the human or man-made laves issued for the government of che state. That left Justice, the most prominent figure to whom the shrine was dedicated, in an intermediate position.- She alone liad a share in both the Natural Law aboye and the Positive Law below her, although she was equal to neither. Justice, to be sure, was the end and the ultímate test of every judgment, of every state and of every human institution. But lustitia herself was, properly speaking, not Law at all, although she was present in every lave and existed before any law ever was issued.-° lustitia reas an Idea, or a goddess.'° 04Gellius, Noctes Att., xlv,4, renders mainly Chrysippus' description of Justice. "Forma atque filo virginali, aspecto vehementi et formidabili, luminibus oculorum acribus, neque humilis neque atrocis, sed rcvercndae cuiusdam tristitiae dignitate." See above, n.6o, for the tristitia . Gellius' elescription of the ideal judge, qui Dtstitiae antistes est, and of whom he demands ''oportere esse gravem, sanctum, severum, incorruptnln .. , vi et maiestate acquitatis veritatisque terrificum,' has exercised considerable influence on mediaeval jurists; see, e.g., Bonaguida of Arezzo (ca.l2 y). Summa introductoria super oficio advocationis, I,c.,, ed. Agathon Wunderlich, Anecdota qua- processum civilem spectant (Gbttingen, 1841), 136f, who like others emphasizes the gravitas which che judge should display. The Gellius passage certainly impressed tire 16th-century jurista sud[ as Cujas and Hotman (ahoye, n-63) as we11 as Guillaume Budé, Annotaliones in XXIIII Pandectarum libros (Lyon, 1551), 70 (un Da,1,1). es The so-called Mythographus III (12th century) seems to have demanded that lustitia be represented as pueda erecta in melara, having vultum virgineum, aureum vel vitreum; cf. Hans Liebeschütz, Fulgentius Atetoforalis (Studien der liibliothek Warburg, IV, Berlin and Leipzig, 1926), 53. The "glassy" tate leas us recall the glass wall of the Quaestiones; however, such e, bicuta Imlovitrea ore, popular in visionary literature; see, e.g., Acta S. Sehastiani, in Patr.Laf., xvu,1045A-B, quoted bv Laistner, in Harvard Theologicat Reviene, xxxiv(194 i), a6o. es See above, n.58, and nos. 62-64. ss Quaestiones, iv,6, ed. Fitting, 594; H. Kantorowicz, Clossators, ¡85. es Quaestiones, tv,6: "... Iusi itia quam pro officii dignitate potiori grado collocavi." es The sentence Prius fuit lustitia quam ius (Glos.ord. on D.1,i,i, v. lustitia) was repeated over and oyer again; see, e.g., Bartolus, en Insta,i,n., (Venice, 1567), foL6Sv: " fustitia est prius quam ius sicut abstractio ven abstractum ante con. cretino ..." Similarly Baldus: "lustitia creatoris fuit ab aeterno antequam orbis crearetur et formarelur" and "[lustitia in abstracto] est mater el causa iuris'; ef.

110

She was, in faca, an "extra-legal premise" of legal thought.r' And like every Idea she liad also the function of a mediator, a lustitia mediatrix, mediating between divine and human laces, or between Reason and Equity. One is tempted to inquire into contemporary art to discov'er whether perhaps come sculpture or painting rendered che rnediaeval lawyer's vision of justice and ber sluine. It is trae. ¡I r( Iustilia Caesaris is said to have been represented in the 1ru in)phal arch of Frederick II at Capua, where her more than life-sized bust was placed in a key position below the throne of the emperor and directly aboye tare entrante of the gate, and where, so cee are told, she was flanked, right and lefa, by the busts of judges (fig. t7).r' However, the whole composition of the figures of the Capuan Gate is loo uncertain to draw final conclusions, and the arrangement was at any yate very different from what the author of che Quaestiones described.42 Ullmann, "Baldus," 389,n.9, and 39o,n.,6. lustitia in abstracto is mencione(¡ already in Glos.ord, on Inst.1,1, v, lustitia: "Aliquando consideratur iustitia proa[ esa in abstracto, ut tunc iustitia est constans el perpetua." 1-lustitia as an abstrae[ idea: aboye, n.69. Justice as a Pirtus is among the oldest definitions; e.g., Placentinus, Summa Institutionuce, 24, ed. Fitting, Schrif ten, 221: "ius est preceptum vel scientia, set lustitia virtus esa"; also in the Glos.ord. en Insta ,i. The definition of Justice in the Institutes as constaras et perpetua voluntas leal, en the one hand, lo interpret her as a habitas (ahoye, o.59), and, ora the other, to interpret her as equal with God or the divine voluntas; see, e.g., Glos.ord. en Inst.1,,: "Haec fustitiae definitio potest intelligi de divina lustitia, quasi dicendum: Divina lustitia est voluntas constans et perpetua." The i6th-century jurias, while still depending en the Glossa ordinaria, asked whether Justice seas a virtus or a dea, and decided (en the basis of D.t ,t,r) for the goddess because the jurisprudents were called sacerdotes and there were no sacerdotes virtutum humanarum; hence, Justinian musa have defined Iustitiam dearn, lovis filiara (Hotman, loc.cit. [above, n.63]); and Cujas (¡bid., col. 12) says straightforwardly: "Iustitiam naroque colimus, quasi Deam sanctissimam," 71 Ullmann, Lucas de Penna, 30, also his study "Baldus." 3881[. 72 Willemsen, Triumphtor, 65ff, has adopted nsy interpretation (Kaiser Friedrich II., 485f) which 1 purposely refrained from repeating in Erg.Bd., 211; cf. 13acthgeu, in DA, xi (1955), 624, on Willemsen's hypothesis. The interpretation of the flanking busts as judges ("hin- et hinc imagines erant duormn iudicum") goes back to Lucas de Penna, en C.11,41 (40),4 (Lyon, 1582), 446, glossing en the words imagines consecrari: "id est, consecratas apponi, ven in porta collocari, ut in porta civitatis Capuae." It is interesting at any rase that in connection with the "consecration of images" the jurist thinks of the "apposita statua Frederici Imperatoris," a ruler he otherwise dislikes as an enemy of the Church. Lucas concludes his description of the Capuan Gate, saying: "Ex his operibus possent dici regales statuae consecrari; alias cessantc in regibus lustitia, dicendi sunt potius execrar¡ quam consecrari." Flis allegation lo Andreas of Isernia, In usus feudorum, en De statutis et consuetudinibus, n.28, fol.315v, refers to the parallelism between images of kings and images oE saints or of Christ. 12 For a reconstruction, see Willemsen, Triumphtor, pl.1o6, and, for the magnifi-

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Far more suggestive is a representation of the early fourteenth century: Ambrogio Lorenzetti' s fresco of the Buon Governo in the Palazzo Pubblico at Siena .14 The allegorical contents of the picture, complicated and even obscure as they are, shall not bother us here. It will be sufficient to point out the two main figures, Justice and Good Government (fig. 18a-b). Justice is more than life-sized, indeed a puella erecta in coelum and aspectu vehementi et formidabili .1 1 She is enthroned en a raised platform. Hovering aboye her head is Sapientia who is synonymous with, or takes the place of, Ratio in the Templum Iustitiae and to whom Justice raises her eyes; at least we now understand what the author of the Quaestiones had in mirad when he said that Reason "reclined on the head of Justice."'e Below the feet of Iustitia is another " last-borri" daughter, Concordia, whom the jurists often cent female head which can be appreciated now only alter tbe plaster "embellishments" have Leen removed , see pls.44-49 . That lustitia actually could take the place normally reserved for the Virgin or Ecclesia , is shown in a s2th-century enamel from Stablo (Collection of Mr. and Mrs . Alistair Bradley Martin), published by Yvonne Hackenhroch , "A Triptych in the Style of Godefroi de Clair," Connoisseur, exxxm ( 1954 ), 18-188. The iconographic problem is involved, and I may discuss it in another connection ; see, however , Francis Wormald , " The Crucifix and the Balance;" Warburg Journal, 1 (1937-38), 276-280, for the idea Crux statera corporis Christi, quod est Ecclesia . It is, of course, the balance (statera) which suggested the representation of Iustitia in that place. See fig.sg, a reproduction kindly placed at my disposal by permission of the owners through Dr. R. H. Randall, Jr. 74 Por a description , see Ernst van Meyenburg , Ambrogio Lorenzetti ( Heidelberg diss., 1903 ), 51ff; for bibliography , see Giulia Sinibaldi , I Lorenzetti (Siena, 1933), 2ogff. See also L. Zdekauer , " IUSTITIA : Immagine e Idea,' Bullettino Senese di storia patria, xx(1913), 384-425, esp . 4ooff, who connects the ideale nuovo delta Giustizia with the new spirit of the Italian Communes in and after the thirteenth century and who from chis angle discusses also the Lorenzetti paintings , but unfortunately omits lo consider seriously the new jurisprudence. 1 sin very much obliged te Professor T. E. Mommsen for reminding me of Lorenzettis Iustitia mediatrix. rs See aboye , n.65. Justice occasionally seems to have been represented like a crown-wearing man, for in Paris, Bibl.Nat. MS.lat .511 (late 13th oc early t4th ceotury) we find the remark: "Iustitia pingitur ut vir habens coronam auream"; see Catalogue général des MSS latins de la Bibl.Nat., ed. Ph. Lauer (Paris, 1939), 1,19076 The test says: "cuius in vertice recumbebat. " H. Kantorowicz, Glossators, 185, interprets : " Ratio finally , seated gloriously , if uncomfortably , o0 the head of Iustitia." I wonder, however , whether in vertice has not simply the meaning " aboye." The efforts of H. Kantorowicz , p.186, to connect the figures of the templum with representations of the "Virgin in Majesty " (e.g., Duccio 's Madonna Rucellai) are not fortunate , and the image of the Virgin with the Dove perched o0 her head in a New Minster tus belonging , as it does , co the filiations of the Utrecht Psalter, should not have been mentioned in that connection at all; see, for the New Minster drawing , my study "The Quinity of Winchester," Aro Bulletin , xxlx ( 1947), 73ff-

1113

mention in that connection.'' On che same platform we find Buon Governo enthroned, a gigantic emperor-like figure surrounded by six Virtues. Hovering aboye the head of "Government" is Caritas, flanked by Fides and Spes. While it is obvious that the Christian Cardinal Virtues are represented, it should yet be indicated that Charity may refer also to Amor patriae, according to the definition common around 1300: Amor patriae in radice Charitatis fundatur, "Leve of the Fatherland is founded in the root of Charity."1s This patriotic meaning is perhaps alluded to by the emperor-like figure in black and white, the colors of Siena, below whose feet we find the Roman twins with the she-wolf, Siená s coat-of-arms symbolizing the city's foundation by Rome. The Lorenzetti painting, admittedly, is late and-charged as it is with artistic obscurities of Renaissance allegorism-less limpid than the vision of the twelfth-century jurist. Nevertheless, the picture conveys some notion of what, by and large, the mediaeval lawyer may have had in mirad. The fresco certainly displays Justice in the role of a lustitia mediatrix, and the "emperor" or Good Government as the counterpart of Iustitia. In connection with the visionary Temple of justice of Placentinus, attention has been called occasionally to a miniature of an earlier date shoowing the emperor as mediator in legal matters. The miniature is found in the magnificent Gospelbook which Emperor Henry II, in 1022 or 1023, donated to the Abbey of Monte Cassino ( fig. 2o).11 The folio preceding the Fourth Gospel, 77 Ser, e.g ., Bartolus, o0 Inst.t,, n-1, fol .68: [Iustitia] tribuens ... Deo religionem, parentibus obedientiam , paribus concordlam ..." See aleo Baldus , ora D.g1,5,n 4, foltov, and innumerable other places. rsTolomeo of Lucca, in his continuation of Aquinas' De regimine principum, ns,c4, ed. J. Mathis ( Rome and Turin , 1948), 4,; see helow , Ch.v, n.t5t. Lorenzetti's Caritas reminded Meyenburg rightly of Amor; see R. Freyhan, " The Evolution of the Caritas Figure in the Thirteenth and Fourteenth Centuries ," Warburg Journal, xt (z948), 68ff, who, however, misses Caritas as Amor patriae . The connection of the Buon Governo with the Amor patriae is mentioned by Zdekauer (aboye, o.74). Millard Meiss , Painting in Florence and Siena Alter the Black Death ( Princeton, 1951 ), 51, interprets the Lorenzetti Caritas as both amor dei and amor proximi. 79 See Schramm , Deutsche Kaiser, p1.86 and pp. 112ff,sg8, and the very thorough stody by Herbert Bloch, "Monte Cassino, Byzantium , and the Wesi in the Earlier Middle Ages ," Dumbarton Oaks Papers, 111(1946), 1771f (full bibliography, p.181, 0.53). A. Gaudenzi , " Il tempio della Giustizia a Ravenna e a Bologna e il luogo in esso tenuto dal diritto longobardo ," Mélanges Fitting (Montpellier, 1308), n,6g9ff, who combined the miniature with Placentinus' vision (then still attributed to Irnerius), has been misled to rather extravagant conclusions . Ir may be mentioned

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where a representation of St. john would be expected, shows instead a full-page image of the emperor with a number of personifications. It is a higlile politic:al and legal-philosophical picnic. In the center, within a big circle, the emperor is enthroned in full regalia. In the upper corners we recognize lustilia and Pietas; to the right and left, placed in smaller circles, are Sapientia and Prudentia, attendants ami throne companions of kingship since carliest times. In the corners below the ruler are Lex and lus, che symbols of Positive Law 80 They depend upon the emperor and execute his will. "At the emperor's behest Law and Right condemn the tyrant," reads the verse inscription around the circle below the emperor's feet: the tyrant shall be executed if the emperor so wills.,s The emperor's will, however, is directed by inspiration from aboye. To be sure, ir is not Ratio, the star-eyed goddess of the lawyers, who gives advice to che Prince; however, Ratio is not absent from the image. In the circle aboye the emperor's head we recognize the Holy Spirit descending from heaven in the shape of the dove, che symbol also of Divine Wisdom and Reason.s, The dove infuses right judgment into the mind of che emperor who, in turn, imparts his inspiration to the executive forces of Law and Right. In this scene of judgment Henry lI clearly functions as mediator between divine Reason and human Law. But, as behooves an Ottonian Prince, che emperor's mediatorship is expressed "liturgically," that is, by the epihlesis of che Spirit. The picture's language obiter that Emperor Henry IIl had the by-narre Linea Justitiac; see Wipo, Gesta Chuonradi, prol., ed. Bresslau, p.8,5805ee, for personifi(atians in general, Adolf Katzenellenbogen, Allegories of the Virtues and Fices in Alediaeval Art (Smdies of the Warhurg Institute, x; London, r939-ef. p.36 for the Monte Cassino Gospels), and, for tire importan[ late-antique centuries , Glanville Downey, "l'ersonificatinns of Abstraer Ideas in Antioch Mosaics," Transactions of the American Philological Association , LXIX ( 1938), 349ff; aleo my study in American Journal of Archaeology, rm1(1953), 65ff, for Virtues as throne companions . The most importan[ authority en the Virtues during che bliddle Ages was probahly Cicero, De finibus , 2,21 (cf. Augustine , De civitate, 5,20), and especially De invent., 2,1596, a place fregnently expounded by the mediaeval lawyers; see H. Kantorowicz, Glossators, Inclex ev. "Cicero ." Since Justice appeared as the aggregate of all virtucs , the lawyers took some interest in systematizing and discussing the virtucs at large, and their discussions may have given new impulses tu the artists as well. sr ''Caesaris ad nutum eimnpnunt Lex Iusque tyrannum" For the political situation and the tyrant referred to. ser Bloch,''Monte Cassino," 185f. 82 H. Kantorowicz , Glossators, ,86.

FRLDERICK THE SECOND

is chcological, and not jurisprudential: the emperor is mediator and executor of the divine will through the power of the Holy Spirit, and not through the secular spirit of legal sc iencc. The Ottonian miniature may not be as relevant lo the ncclfrhcentury lawyer's vision of the Temple of justice as has hecn assumed occasionally; it is instructive nevertheless. For it illustrates extremely well co vvhat extcnt the concept o[ rulership has drifted away from the liturgical sphere in the .span of time separating that miniature from the Hohenstaufen period. It would be quite amiss, however, to assume that the transcendental values distinguishing rulership in the liturgical age were simply abandoned in the following period when political theories began to crystallize around learned jurisprudence. The contrary is true; and it is true not only with regard to the ruler's mediatorship, but it is true in general. The mediaeval patterns and concepts of kingship were not simply wiped out, neither by Frederick II nor by others: practically all the former values survived-but they were translated into new secular and chiefly juristic modes of thinking and thus survived by transference in a secular setting. Moreover, the patterns and values were rationalized not by means of theology, but preferably by means of scientific jurisprudence. Emperor Henry II was shown as a judge receiving advice through the dove of the Spirit. It would be difficult indeed to imagine the dove alighting on the head of Frederick II whose images-we may recall his statue from the Capuan Gate or his famous gold augustales-betray ideas and ideals far remote from sacrament, altar, and unction. If nevertheless this emperor could claim, as he repeatedly did, that in all official acts of stafe,'in legislation and jurisdiction, he was directly inspired by the Divinity, then the justification for this assertion was taken mainly from the law-books of Justinian whose example he followed.01 Apart from celestial inspiration, Frederick II like every mediaeval ruler claimed also to be the vicegerent of the Deity. In the mosc prominent place-in the great Prologue of his Liber augustalis-the emperor stated that after the Fall of Man kings and princes were 83Cf. Erg.Bd., 84; C.1,1,1, also C.5.4,28,1, and other passages. The Holy Spirit, co be sure , was not absent from culogies praising Frederick II; see, e.g., Kloos, "Nikolaus von Baria' 171, §8: .. super quem almus spiritus quasi apis super florem oderiferum requiescit."

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created by natural Necessity as well as by divine Providente, and that they were given the task,

Code 1,1,8,1, where these words are cited, and to the rubric of Novel 73, where a related idea is expressed.ss And Marinus de Caramanico merely followed che general custom of the Civilians. In other,words, the secular authority of the Roman law-books appeared to the jurists, as jurists, more valuable and important and more congincing an evidente than che sacred literature, so that even straight quotations from che Bible were reached, preferably, by a detour; that is, by citing che volumes of Roman Law. To be sure, the glossators and post-glossators also quoted Scripture often enough whenever it fitted their purpose; but their supreme authority was the Law. It now fell to Justinian s law-books to replace and restore the religious values of kingship which, as an effluence of liturgical and sacramental concepts, had been generally acknowledged until the Struggle of Investiture. At the height of that struggle, che Norman Anonymous, as we recall, defended more vigorously than any other writer the priestly character of tlre king cvhom he interpreted as the genuine rex et sacerdos "by grace"; that is, by the power of the sacrament of consecration.sr He even conceded to the royal christus Domini the ministration of the chief sacrificial acts. The Israelitic king of che Old Testament, declared che Norman, "offered himself a living host, a holy host, a host that pleases God"; he alone is said to have immolated spiritually because along with che sacrifices of praise and of che afflicted spirit he brought che true sacrificium iustitiae. Contrariwise (said che Anonymous), the Levirate only reproduced the king's spiritual sacrifice by symbolic actions when they offered on che altar che non-spiritual visible sacrificium carnale,ss

being arbiters of lile and death for their peoples, to establish what each man's fortune, lot, and state shall be, as though they acted in a certain way as the executors of the divine Providence.a*

It is most significant, however, that chis traditional royal office of executor divinae Providentiae was couched, not in che words of Scripture or patristic texts of which any number would have been available, but in che words which, according to Seneca, che Emperor Nero could have said: Have I not been chosen to act on earth as vicar of che gods? 1 am che arbiter of life and death for che peoples. What each man's lot and state shall be is laid into my hands. And what Fortune would bestow on any mortal, she makes known through my mouth.ss

Frederick's chancery, it is true, mitigated what perhaps might appear as haughty and arrogant language; but it remains a fact that the office of vicar of God was interpreted by Frederick's legal advisers after the model of Seneca's emperor, and was couched in words which were supposed to have been spoken by Nero, who in mediaeval lore was not considered a model ruler. It was no less significant that the glossators liked to gloss on purely biblical quotations by referring to Digest and Code, Novels and Institutes. Marinus de Caramanico (to take an example picked at random), when pointing out in his gloss on the Prologue of the Liber augustalis that "kings and princes are from God," does not quote Romans 13, as would have been natural, but quotes Justinian's Code; and in order to gloss on che famous words Per me reges regnant he sends his reader not to Proverbs 8: 15 but to

sesee v. Divinae provisionis, ed. Cervone, 4: "Nota quod reges et principes sint a Deo, ut ... [C_7,37,3,5] cc .. [C 1,17,1,11 et ... [Cibi, per me reges regnant etc. el in . . . [Nou73, rubr.]" It is not to the contrary jf Andreas of Isernia, Usos feudorum, prael.,n.46, fol.8, says: "Itera attendendum, quod in hoc opusculo producuntur plerunque authoritates sacrae Scripturae: nam illae allegantur in causis sicut leges scriptae," a statement which he bolsters again by quoting Roman Law passages. CE Mcllwain, The High Court of Pariiarnent (New Haven, tgto), 99,n.2, for a relevant statement in t7th-century England, though for very different reasons: " 'Tis from the Statute Book, not che Bible, that we must judg of the Power out Kings are invested withal ..." 87 Aboye, Ch. m,n.13, also n,2t. 88 MGH,LdL, 111,665,38: ". . et regis est sacrificare el immolare in spiritu. Ipsius etenim est exhihere se ipsum hostiam vivam, hostiam sanctam, hostiam Deo placentem ( Roen. 12: r), et immolare Deo sacrificium laudis, sacrificium justicie (Ps. 4: 6), sacrificium spiritus contribulati, quod totum sjgnificatum est per carnale

ss Lib.aug., proaem., Cervone, 4: "Qui [principes gentium] vitae necisque arbitri gentibus quatem quisque fortunam, sorteen, statumque haberet, velut executores quodammodo divinae providentiae stabilirent ..." The italics indicate the words borrowed from Seneca. See next note. ss Seneca, De clementia, 1,1,2: "Egone ex omnibus mortalibus placui electusque sum, qui in tenis deorum vice fungerer? Ego vitae necisque gentibus arbiter; quatem quisque sorteen statumque habeat, in mea mano positum est; quid cuique mortalimn fortuna datum velit, meo ore pronuntiat." The horrowing on the parí of che imperial jurists was noticed immediately; see Marinus da Caramanico, on che Prooemium, v. Statumque haberet. More recently, che conformities have been indicated by Antonio Marongiu, "Concezione delta sovranitá," 42f, and "Note federicjane," 29611 (ahoye, n.t6). Seneca's De clernentia was quoted by che jurists over and over again; see, e.g., below, Ch.vn,n.405.

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issued one of bis laves as a piisima sirve sacrosancta oblatio quam Deo dedicamus.°a Similar ideas viere expressed in other sections of

Very different from thar emotional author's proximity to the altar were the new ideas about both Use royal sacrificiurn iustitiae and the ancient ideal of the rex el sacerdos. The Prince did not cease to be "king and priest,'' buz he regained his former 19riestly character-shattered, or at least reduced, afier che lñvestiture Struggle-through die high pretensions o[ Roman legal pllilosd phy which compared che jurisprudents with priests. Tlte ancient solemnity of liturgical language nlingled strangely with che new solemnity of che Civilians and thcir idiom when King Roger II of Sicily, in che Prologue of his Assizes (1140), called his collection of laws an offering of merey and justice and an oblation to God, and then added:

his law-books, and they viere repeated by Frederick If and othcrs.02 That is to say, che source and point of reference no longer were che Book of Kings and che Psalter, but the laws of justinian; and it was alter che model of chis emperor that the new books el codified law represented che sacrificium iustitiae: che books themselves viere the rulers' oblation and offering.°a Moreover, from che first paragraph of the Digest sprung che -Martin Schaller, Die victoria tuba insonet salutaris . Gaudeat et tellus ...' Hans und ihr Sprachstil (Gdttingen diss., typeKaiser Friedrichs II.: Ihr Personal Kanzlei script, 1851 ), 8411', has assemhled from the letters and manifestoes of Frederick II a great number of similar liturgical phrasings, and has pointed out thap though a tendency to that liturgified language may be detected sporadically also in the arengae of Frederick 1 and Henry VI, it was nevertheless only under Frederick II that che dictarors of the imperial chancery applied the liturgical language systemand that papal partisans actually had atically for the Sakralisierung des Kaisertums , some reason to complain of che imperial notaries who indulged in matutinas et Vita Gregorii 1x,c.31, in Liber eensuum, laudes in preconia Cesaris ... comniutando ( 11,30). See also Erg.Bd., ao6f , for che ed. P. Fabre and L . Duchesne [Paris, 1889ff1 , Salvatorstil used by the courtiers for which some striking paralleis are found in late Antiquity when (he Roman imperial style was "liturgified." Schaller (p.96) is perfectly correct when he writes : " Friedrich II hit nicht Geistliches verweltlidlt, sondern sein profanes Herrschertum vergeistlicht und verkirchlicht ." Ir should be noted, however , that Chis tendency prevailed aleo with che lawyers and that the ; see my study "An Bolognese dictatores applied liturgified language abundantly 'Autobiography ' of Guido Faba ," Mediaeval and Renaissance Studies, 0943), 253ff, esp. 26off, 265; also Hermano Kantorowicz , " The Poctical Sermon of a Mediaeval Jurista' Warburg Journal, n ( 1838-9), 22ff. lex propria ad honorem Dei °I Nov.g, epil .; see also the prologue of chis law : " 12: "omnipotente consecrata"; further, Justinians De confiirmatione Digestorum , § Deo et hanc operam ad hominum sustentationem pus optulimus animis." ea Lib.aug., prooemium : "... colendo iustitiam et iura condendo mactare disponimus vitulum labiorum ." Marinus de Caramanico quotes promptly a parallel: Nov.8,11 "Et sic ipsi ("valeamus domino (leo vovere nosmet ipsos' ), and adds, v. Mactare:

In qua oblatione-By Chis oblation the royal office presumes for itself a certain privilege of priesthood; wherefore some wise man and jurisprudent called the law interpreters " Priests of the Law."BB A few words in chis Prologue are reminiscent of the Canon of the Mass.°° But the chief source of che Prologue was Justinian who sacrificium , quod sacerdos olferebat iuxta ritum visibilem sacramenti ." The author may have drawn from che Liber responsalis , atcribuced to Gregory the Great, and the Antiphonae de suceptione regum (PL, 1.xxv11t, 828B ); cf. Williams, Norman Anonymous, a68,n 566. In that responsory the rex el sacerdos ideal is stressed quite powerfullyj " Ijr. Elegir te Dominus sacerdotem sibi, ad sacrificandum el hostiam laudis. yr. Tunc acceptabis sacrificium iustitiae , oblationes et holocausta . -Ad sacrificandum ( ei hostiam laudis). ) y. Immola Deo sacrificium laudis et redde Altissimo vota tus." The plural regum in che rubric of this susceptaculum suggests a considerable age, lince it stands probably for the plurality of the Eastern emperors; see, for this plural in che political prayers, G. B. Ladner, " The Portraits of Emperors in Southern Italian Exultet Rolls and the Liturgical Commemoration of the Emperor," Speculum , xv11(1942 ), 18gff. sa F. Brandileone , 11 diritto Romano nelle leggi Nornzanne e Sveve del regno di Sicilia (Turin, 1884 ), 94: "In qua oblatione regni officium quoddam sibi sacerdotii vendicat privilegium : unde quidam sapiens legisque pericus iuris interpretes iuris sacerdotes appellat." See aleo Hans Niese , Die Gesetzgebung der normannischen Dynastie im Regnum Siciliae ( Halle, 1910), 46, who rightly stresses che phrase regni oficium, that is, che once character of kingship. See aleo Gierke, Gen.R., 111,563, n.l23; Maitland, Political Theories, 34 and 141f. e° Compare the first words of King Roger's Prooemium-Dignum el necessarium est-with che Preface of che Mas,, : Vete dignum et iustum es! , and che relative junction In qua oblatione with Quam oblationem hefore the Consecration . Neither the similarities nor the slight variations are incidental ; one wanted the assonance with the Mass , but refrained trozo profanation . These scruples were leas prominent under Frederick II; see, e .g.. the letter about che victory over che Lombards ( Vinea, Epp., 1t,.): "Exultet iarn Romani Imperii culmen , e! pro tanti victoria principia mundos gaudeat universus "; also Vinea , Epp., 11,15: "Exultet tata universa turba fidelium ... el pro tanta victoria principia precipue gaudeatis "; and compare the Praeconium paschale: "Exulte ! ¡en¡ Angelica turba caelorum ... el pro tanti Regís

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Deo pro quedara odore suavitatis praesentem lihrum constitutionum offerre ... ut sic per iustitiam , quae est in lege, Imperator irte domino Deo voverat seipsum...:' 69, where the English king's See aleo Erg . Bd., 85. See further Chrimes, Const . Ideas, promise in Parliament to prorect the Church and to have rhe laves observed apRex deber operre peared to the Speaker " like the sacrifice of the Mass ." The idea still pervades che writings of che French jurists in the i6th century; ser, legem Deo e.g., Church , Constitutional Thonght, 6o,n.51. ss The ultimare source, of couree, was biblical; see Ps. 50:2c "Tunc acceptabis tunc imponent super alzare tuum sacrificium iustitiae , oblaciones et holocausta ; virulos," which has to be connected with 11 Kings 14: 17: "fiar verbum domini mee sic est dominus meus rex." Several regís sicut sacrificium ; sicur enim angelus Dei , other places could be referred to as well. Accordingly , already Ephrem che Syrian, Hymni de Resurrectione , xix, ed. Lamy, 11,754, could say: "Offerant Domino nostro ... pontifex suas homilías , presbyteri sua encomia ... , principes sua acta."

1

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idea according to which lawyers and judges were " priests of Justice."

FREDERICK THE SECOND

Just as the priests minister and confection things holy, so do we, since the laws are most sacred . . . And just as the priest, when imposing penitente, renders Lo each one what is his right, so do we when we judge.101

Deservedly may we be called of this art the priests: for we worship Justice and profess the knowledge of what is good and fair.... " The Digest quoted Ulpian, and Ulpian quoted Celsus, who wrote under Hadrian . Hence, the language of an earlier age has been

Guillaume Budé, three centuries later, still praised the acuteness of Accursius for this parallel.102 But the parallelism of spiritual and secular priesthood was common language long before the Glossa ordinaria. We may recall the Prologue of the Assizes of

preserved. We recall that Aulus Gellius epitomized the moral and ethical qualities of the judge as those of an antistes iustitiae.°a A century before hin, Quintilian styled one of the great lawyers of the classical period iuris antistes.°° In the Greek orbit other meta-

Roger 11, or think of tire twelfth-century author of a collection of legal word definitions who expounded, under the heading De sacris el sacratis, the new, or old, dualism:

phors were used lo express a similar idea-for example, "Thronesharer of Dike" or "Coachman of the throne of Dike"-although in the fourth century a governor was praised also as "Temple of Justice."91 The Latin language was more solemn and less visual:

There is one thing holy which is human, such as the laws; and there is another thing holy which is divine, such as things pertaining lo the Church. And among the priests, some are divine priests, such as presbyters; others are human priests, such as magistrales, who are called priests because they dispense things holy, that is, laws.101

by the end of the fourth century, Symmachus-or rather Roma herself-addressed the emperors: Iustitiae sacerdotes." Whether the change from antistes to sacerdos really suggests patristic influence is more than doubtful ." At any rate , the compilers of the Digest eternalized a well-known metaphor when, through Ulpian, they designated the legal experts sacerdotes.

The mediaeval glossators could not fail lo comment upon that passage. "Deservedly the Law is called holy, and those dispensing the Law are therefore called priests," wrote Azo.100 Accursius, in the Glossa ordinaria, drew a clear parallel betcveen the priests of the Church and the priests of the Law. 24 D.i,i,i, De iustitia el jure. See, for an excellent discussion of that [irle, Ulrich von Lübtow, " De iustitia vi iure," ZJRG , ron. Abt., LXVI (1948), 458-565. See below, ".99. 05 See aboye, 0.64. °s Q uintilian, Inse.orat., x[,1,69. 97 Louis Robert , Hellenica ( Paris, 1948), 1v,24 and 103: vgbs EUtKírls for a Cretan governor ; see also my paper in AJA, LVII ( tg53), 65ff, for the other tirles mentioned. ss Symmachus , Epist., x,3,18 , tire famous setter of 384 Lo Theodosius the Great concerning the altar of Victory, ed . Otto Seeck ( MCH, Auct. ant ., vi), 282,28. Actually, sacerdos iustitiae is found also in an inscription : CIL, v1,225o. tt G. Beseler, Beitrdge zur Kritik der rdmjschen Rechtsquellen ( Tübingen , 1920), tv,232f, considers the passage an interpolation : " Gedanklich ¡si es von schónem Ethos, aber ( ver allem durch das Gleichnis [sacerdotes ]) klassisch -juristisch ." For objections against Beseler's theory kirchenvaterlich, nicht , see Félix Senn, De la Juce et du Droit ( Paris, 1927 ), 38,11.3, and Lübtow, "De iustitia et iure,' 461,11.12. st0 Glos.ordin . on D.,,,,1, Y. Cuius : " Meruit enim ius appellari sacrum, el ideo jura reddentes sacerdotes vocantur." The gloss is attributed co Azo, who , however, in tire prologue of his Summa Institutionum simply quotes tire passage from tire Digest.

110

I

101 Ibid., v. Sacerdotes : " quia ut sacerdotes sacra ministran[ es conficiunt, ita et nos, cura leges sin[ sacratissimae , ut C. de legi. el consti. l.leges (C. 1,54,9): et ut ius suum cuique tribuit sacerdos in danda poenitentia, sic et nos in indicando." In tire Gothofredus editions of the Digese a few additional glosses aré found: "Qui iustitiam colit, sacris Dei vacare dici potest'; and ex altero Ulpiani collectione he quotes: "Omnis iurisconsultus est iustitiae sacerdos, et quidem verus et non simularas: Iustitiam enim colit . . . Hoc vere est iustitiam tolere es sacris temploque eius ministrare." roa Budé, Annotationes in Pandectaru,n libros, en D.i,,,, (Lyon, 155, ) , p.29: "Accursius peracute sane ( ut solet plerunque) sacerdotes hoc in loco absoluto intelligit , ut ipse inquit , poenitentiam dantes." For the formulae used by tire judge when passing his sentence, see Durandus , Speculum iuris, n,part.iii,§5,n.13 (Venice, 16oa ), 11,787: ... talen condemno vel absolvo . Vel aliter proferat, sicut viderit proferendum . .." See, for such alternatives , ¡bid., §6,n.8,P.79o. Also, of course, the judge hears tire "confession " of a culprit; cf. ¡bid., §6,n.z,p.788: "Ego talis iudex , audila confessione tua, praecipio tibi . ." For the preceding invocatio nominis Dei , see §6, nos.6-7,pp.789f; it is the cusmm also today in ecelesiastical courts (cf. Codex Iuris Canonici, ca .1874,§1: "Sententia ferri debet divino Nomine ab initio setnper invocato"), but it was the cusmm also in secular courts in the i3th century and thereafter; see, e .g., F. Schneider, "Toscanische Studien," QF, xtt (1go9), 287, for a sentence passed by the imperial vicar general of Tuscany That sentences were pronounced "In the Name of the King," so that the in 1243. king (or emperor) replaced God as the supreme legal authority, belongs Lo a later period, though it is found sporadically around iyoo . See, e .g., ¡ir the Decisiones Sacri Regii Consilii Neapolitani (Lyon, 1581), p.g, Matthaeus de Afflictis, Decisio Fria: "utrum praesidens in concilio possit ferre sententiam sub nomine Regiae maiestatis . or ¡bid., P457, Antonius Capycius, Decisio at ,n.,: "... quod facereni iustitiam nomine regio, etiam nomine Caes. maiest. p rotuil sentencian, . publics, of course, tire sentence is pronounced "In che Name of the People of n roloa Petri Exceptionum appendices , 1,95, ed. Fitting, Jurist.Schriften , 164: "Sacrum aliud humanum, ut leges, aliud divinuni, ut res ecclesie . Sacerdotes alii sacerdotes divini, ni presbyteri, ahí human , ut magistratus , qui dicuntur sacerdotes, quia

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To distinguish between the.cacerda+ tem/ioralo, qui est iurlex, and thesúcerdos spiritualis, qui rlicitur prccbyler, remai sed Ilic custmn for many centuries."' Otlier authois produced parallels which were more in tire liase of _lccm-silis, as, ter ecunple, lile imperial judge John of Viterbo, who (abeto 12,18) virote a AIin'or of lile Podestá. Hc extracted boro Roncan L.arc Dor only lile atstotnarv passage according lo whicli judges «ere quast-priests, but also passages inferring that "che judge is hallowetl by che presence of God," or that "in all legal matters che judge is said, nay, bclieved to be God with regard to roen," whereby the fact that the judge administered a sacramentar , the oadi, and had a copy of Holy Scripture on his table, served-or was pressed to serve-the purpose of exalting the jurist-priest religiously.10i dan[ sacra, id est leges." 'hhose ideas, (le!iving fmm the parallelism prevailing between things holy and tilings public, between priests and magistrales, according to Reinan Law (D.l,ld,2), were repeated over and over again, often with referente to Nov.7,2.0 e'... nec multo differant ab alterutro sacerdotium el imperium, el sacrae res a communibus el publicis'), and were lapidarily sunlmarized in che formula: "nam ius divinum el public uu ambulant pan passu"; see Post, "Two Notes," 313,n.81, quoting jacques de Révigny (ca.127o-So); aleo Post, "Statute of York," 421.n.18. See also Glos. ord., en D.i,1,1,2, v. in sacris. Further, DaQte, Monarchia, 11i ,,o,47ff; below Ch.vnl,n.35. , 104Lib.aug., 1,72, ed. Cervone, 131, forbids clerics and judges to act as°local bailiffs. Marinus de Caramanico, in his gloss, explains that judges are treated like cleries "forte lila ratione, qua quin [indices) merito sacerdotes appellat." Hence, che parallelism was carried over-at least, on lile parí of' che glossators-to practical adminis' tration. Matthaeus de Alfiictis, glossing en that law (numbered 1,6q, sol 1,228) goes much further; he refers lo Marinos and adds: "[indices laici] quando fuste iudica[n]t, possunt dici sacerdotes temporales. El sic duplex es¡ sacerdos: temporalis, qui est iurlex, et spiritual is, (lit¡ rlicitur presbyter; vel ihi iurlex est sacerdos, guando com. poni[ iussu principis sacras leges ... El subdit [Albericus de Rosate; see below] quod indices, qui ¡Lisie indican[, non solum appellantur sacerdotes, sed etiam angeli Dei, el plus merentur quam religiosi" See Albericus de Rosate, en D.s,i,t,n,u (Venice, 1585), fol.,o: "ibi, 'iustitiam namque colimus' etc., quia labia sacerdotes custodiunt iustitiam el leges requiruntur ex ore eius. ]falachiae. C.2 [Mal. 2: 7: , .. quia angelus Doinini exercituum (sacerdos) est'], ubi dici1 1-lieronymus [?] que(¡ sunt angeli Dei," Albericus simple quotes, and transfers lo cho judges, the classical place for che character angelicus of priests; el. Friedrich Baethgen, Der Engelpapst (Schriften der Konigsberger Gelehrten Gesellschaft, x:2, Halle, 1833), who has collected rich material en that subject; see also Henri Grégoire, "'Ton Angé el les anges de Théra," Byzantinische Zeitschrift, xxx (2929-1930), 641-645. Albericus then quotes Hostiensis "quod advocati el indices exercentes recte corum officia plus merentur quam religiosi." Cf. Hostiensis, Summa aurea, prooem.,n.8 (Venice, 1586), col.6: ". . iusti iudices vitam activam sine plica ducentes, quae si bene duceretur, magis fructifera esset, quam contemplativa" vis John of Viterbo, De regirnine civitotuni, c.25, ed. Gaetano Salvemini, in: Bibl. jurid. roed. aevi, 111 ,226: " . nam iudex alias sacerdos dicitur quia sacra dat (cf. aboye, n.1o3) ... ; vi alias dicitur: ludex dei presencia consecratur (C.3,1,14,2) ... ,

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1)istinctjons, antitheses, parallelisms, and adaptasjons such as [hese, repeated (ver and over again, were cuasi ribo tire vi creating lile new holiness of lile secular state anci its "mysteries, "° and therefore liase an inlped anee far bevond lile mere eflorr of hallowing lile legal profession, of placing legal science on equal footing w'ith theology or of mmparing legal procedure tcirls lile rites of tete Church. Tlhe professional pricte of lile jurists certainly played an important role. Already Accln-sius answered the self-posed question whether it he necessary "that everyone who wants to become a jurisprudent or legal expert is bound to study theology," with in the body of Law."lar a straight "No; because all that is found whether the Doctors of Law Baldus, when raising the question should be included among the higher dignities, answered: "Why not, sine they discharge the office of priesthood"; 108 and, being said: "Professors himself a professor of Law at Bologna , very neatly wanted of Law are called priesfs."109 Professors of Law, of course, pro quo method to be called " Counts" as well, for the juristic quid success in the field of of so-called "equiparations" led to practica¡ : by che end of the thirteenth century the jurists social stratification claimed as their really acquired che quasi -knighthood which they due en the basis of some wrongly interpreted passages of Jusin omnibus pro hominibus (C.2,(8[59],2,5)." dicitur etiam, immo creditur, esse deus Cf. C.2,58(59),1 ,1 for che Holy Seripture handled by the judge. Harvard Theoloa See, for Use problem in general , my study "Mysteries of State,' logical Review, xtvul (1955), esp.72ff. roa Glos.ord. en D.1c,1o, v. Notitia: "Sed numquid semndum hoc oportet quod quicumque volt iurisprudens vel iurisconsultus esse, debeat theologiam legere? Respondeo, non; nam omnia in corpore iuris inveniuntnr." 105 Baldas, en r-¡5 X ig,n.g, In Decreteles, fo1.37v: "Sed mlmquid includantur legum Doctores [ínter maiores et digniores]? Die quia non, quia fungunnlr sacerdotio." ras Baldas, en D.1,i,i,n.5, fol.7: "Itero nota quod legum professores dicuntur sacerdotes." Even the priessly rank of doctors may be defended; ¡bid., n.17, foi.7v: "Quarto opponitur et videtur quod Doctores non sin[ sacerdotes quia non habent ordines sacros . Solutio: sacerdotium aliad spirituale, ca sic loquitur contra; aliud temporale, el sic loquitur hic." Resides, adds Baldas, the doctoratus is publici iuris husos datur infula tanquam and is a dignitas auctoritate publica, and "in signum Principi seo praeeepmri legum," so that che doctor may Nave a "pricstly" rank similar to that of the professor of Law. See also Paulas Castrensis, en D.1,1,i,n.3 (Venice, 1582), fols: "propter quod iuris professores dici possi nt sacerdotes, quia administran[ leges sacratissimas ... ; quia professores iuris colon[ iustitiam ." These and similar considerations finally prompted Thomas Diplovatatius lo write his compendium on che great jurists and their right of precedente at ceremonies; see Diplovatatius, De claris iuris consultis, ed. H. Kantorowicz and F. Schulz (Berlin and Leipzig, 1918), 145,ct 28ff. See nexi note.

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tinian's Cede. Henceforth, the promotion of a doctor and the dubbing of a knight were paralleled because they conferred the same grade of social dignity. A new nobility ranked now together with the milicia coelestis of the clergy and the militia armata of the gentry, the so-called milicia leguen or militia litterata, which Baldus occasionally called a militia doctoralis , a "doctoral knighthood."110 Needless to say, nothing comparable was achieved with regard to the fiction of the sacerdotal character of the jurists. The jurists never even attempted to materialize their claim to "legal priesthood" in the way they materialized their claim to "legal knighthood." The whole talk about their priesthood reflected the long drawn battle between theology and jurisprudence, ending in the de facto victory of the laical spirit. Only in one respect did that talk about legal priesthood come Glose lo the real problem of clerical status: with regard lo the ruler.

it was not uncommon-apparently ever sine Irenaeus-to say that "every just king has sacerdotal rank."kla A new version, however, became popular by the end of the thirteenth century. William Durand, great lawyer and liturgical expert that he was, did not express his own opinion, but quoted others, presumably some glossators, who held "that the emperor ranked as a presbyter according to the passage where it is said: 'Deservedly we [the jurisprudents] are called priests.' "114 It is truly remarkable that here

What held good for the judges held good for the Prince who, after all, headed the legal hierarchy. In the Digest, it is true, only the jurisprudent is called a sacerdos; but the transfer of this quasisacerdotal character from "judge" to "king" was no problem: already King Roger II had utilized the words of Ulpian when he presumed for the royal office "a certain privilege of priesthood."111 Strangely enough, this legal priesthood of the king eventually served even lo prove the clerical status of the ruler within the Church and thus lo bolster the common assertion that the king was, ecclesiologically, non omnino laicus or, as Pierre d'Ailly once put it, une personne moyenne entre spirituelle el temporelle, referring thereby lo the anointings of kings.112 On the other hand, uo The material has been summed up by Fitting, Das Castrense peculium in

seiner geschichtlichen Entwicklung und heutigen gemeinrechtlichen Geltung ( Halle, 1871), who mentions (p.543,n.1 ) that already Placentinus styled the jurists milites inermi militia , id est, literatoria militantes; see for militia doctorales, Baldus, en C.7,38,1,n.i, fo1.28, who holds that in chis militia Hebrews and non - Christians could no[ militate . Placentinus ' contemporary Ralph Niger , a friend of John of Salisbury, stresses that che lawyers were called domini and scorned the titles of doctor or master, a complaint sided by Scephen Langton's remark: "Sacerdotes etiam magis vohlnt vocari domini quam sacerdotes vel capellani. " See H. Kantorowicz, "An English Theologian's View of Roman Law: Pepo, Irnerius , Ralph Niger ." Medioeval and Renaissance Studies, 1(1943), 247 (n.2), and 250,32f. 111 Andreas of Isernia , on Feud. 11,56 ("Quae sunt regalia" ), 11 .64, fo1.301 : " Princeps est iudex iudicum .. " See aboye , n.89, ter Roger II. 112 Dom jean Leclercq, "L'idée de la royauté du Christ pendant le grand schisme," Archives d'histoire doctrinale et littéraire , XXIV (1949) , 259f-

124

a positive effort was made to prove the Prince's non-laical character within the Church, not as a result of his anointing with the holy balm, but as a result of Ulpian' s solemn comparison of judges with priests. It is less baffling that William Durand referred also to the pontifical rank which the emperor was said to hold.il' For in this case his source was either Gratian's Decree quoting Isidore of Seville, 11° or any one of the numerous glossators on che Institutes of Justinian, all of whom customarily recalled the former 113 Irenaeus , at least, iras quoted by Antonipus Melissa, Loci communes, tos (= clil), PGr, cxxxv1 , 1004B, as having raid: ,r6s paaiXc , blxalus teparnK±ty IX,¿ ráfiv ("rex omnis justos sacerdotalem obtinet ordineni"). The idea itself is found repeatedly; see , e.g., the Norman Anonymous on the rex iustitiae (Melchizedek); MGH,LdL, m,663g1f. 114 Durand , Rationale divinorum ojjiciorum, 11,8,6 (Lyon, 1565), fob55v: "Quidam etiam dicunt ut not.ff.de rerum divis . l.sancta ( D.1,8,9) quod fit presbyter, iuxta illud, 'Cuius merito quis nos sacerdotes appellat' (D.i,i,l)." Cf. Marc Bloch, Rois thaumaturges, 188,11.3; also Eichmann , Kaiserkrdnung, 1,283 ( where, however, the word added in brackets should read iurisperitos and not imperatorem). The referente to die indices sacerdotes was not customary with che glossators en thac oecasion, though it does occur; see, e.g., che Memorandum of John Branchazolus , a Doctor of Law from Pavea and Ghibelline partisan , who (in 1312) wrote : "... et talis rex appellabatur pontifex et sacerdos , ut ... (follow referentes to D.i,1 , 1; D.i,8,g; and Inst.2,1 ,8);" see Edmund E. Stengel, Nova Alemanniae ( Berlin, 1921 ), i, No.go,i,§2, p46. Durand' s other allegation is normal; sea next note. 111 Durand , loc.cit.; "Imperator etiam pontifex dictus est "; also Rationale , 11,11, with referente te ancient Rome: "Unde et Romani imperatores pontifices dicebantur," a quotation from Gracian s Decretum ( see next note). The Civilians traditionally discussed the imperial character of sacerdos and pontifex in connection with the dedication of holy places mentioned in D.1,8,9 (see Glos,ord ., v. Dedicavit) and Inst.2,1 ,8 (Glos.ord., Y . Pontifices); see also next note. 116 Decretum, c.i,D.XXI , ed. Friedberg, 1,68: "Nam maiorum haec erat consuetodo, ut rex esset etiam sacerdos et pontifex . Unde et Romani Imperatores pontifices dicebantur." What the Decretum quoted, through the medium of Isidorus, was actually Servius , en Aeneis, 111 , 268, which may have been known te the jurists anyhow. The Civilians rarely failed te refer te che Decretum when discussing the former priestly character of the emperors ; see Aro, Summa Inst., en Inst . 2,1, n.6, fol. 273v: "Imperatores enim antiquitus erant sacerdotes , ut fertur in canonibus, et ideo poterant dedicare ." Also Glos.ord . on Inst.2,1,8 , v. pontifices : " uc in canonibus dicitur."

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imperial office of pontifex maximus when discussing the dedicaponti¡ire.s."r tion of temples and other res saetee at the hands of Guillaume Budé, ene o6 che founders of the humanistic historical school of jurisprudence in the sixtecntb century, mas perfectly correct when he ridiculed flre error of Accursius and che glossators in general tito were inclined to confuse the sacei(lote.s and pontificas of aucient Romo with the presbyters amI bishops of their own time."' 1 Toscecer, it was by nieans of there ohj ecticely false equivocations of which the works of the mediaeval jurists abound, that completely new insights were gleaned and conclusions were drawn which in many respects viere to shape our own age and remain highly influential even today. The mediaeval jurists, as natural, were struck by the grave solemnity of the ancient Roman Law which, of course, was inseparable from religion and things sacred in general. They now were cager to apply also the Roman religious ethos of justinian's collections to the conditions of their own world of thought. I-lence, it was through the agency of the jurists that some of the former attributes and cherished similes of kingship-the divinely inspired king, che offering king, the priestly king-were carried over from the age of liturgical and Christ-centered kingship and were adapted to the new ideal o£ rulership centered en scientific jurisprudence. It is true, of course , that the former liturgical values of kingship did not tease to exist and that, with varying degrees of intensity, they lingered en also in their original setting-though their substance grew paler as both the legal and the religious importante of royal consecrations decreased. But it may be said nevertheless that the jurists salvaged much of the mediaeval inheritance by transferring certain peculiarly ecclesiastical properties of kingship to the legal stage setting , thereby preparing the new halo of the rising nacional states and , for good or evil, of the absolute monarchies. In one case , however, the mediaeval theory of kingship was actually brought into bolder relief by the introduction of a secular see ahoye, nos. 117 The places were Inst .2,s,8; D.1,8,g; occasionally alto D,i,t,, ( Res pacificus, see alto Baldus, en ; quoted alto by the canonists

114-115 ). They were of Gregory IX). n.5, In Decretales , ps (Prooemium of the Decretals 118 Budé, Annotationes , p.3o: "Similis est ignorancia Accursu vel saeculi potius Ubi pontificum Ulpianus méminlt de Accursiani , quae hac aetate ridícula est ... collegio pontificmn loquens, a quo bis pontificium apud antiquos dictum, quod Accursius ad nostros pontifices retulit" 1

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concept which derived from Roman Law and strengthened the idea of royal mediatorship. The earlier Dliddlc Ages liad attributed to the legislating Roman Emperors an instrumentality comparable to tliat of inspired Prophets and Sibyls: "Through tlre mouths of pious Roman Emperors, inspired by God, there viere promulgated tlte venerable Roman Laws," wrote Pope John VITI, and his woids later penetrated into [he collections of Canon I.aw"° The miniature of Henry 11 in the Monte Cassino Gospels apparently reflected a related idea; and the nevar-failing Norman Anonymous naturally used the mediaeval idea of royal mediatorship for his purposes. When, however, the influence of Reman Civil Law became effective, the Prince not only appeared as the lex animata, oraculum of the divine power: he himself became the of Justice. an incarnation the living or animate Law, and finally

Law" was a denizen The concept of the Prince as the "animate with regard to Roman legal thought. The notion itself, vóµos JvXos, derived from Greek philosophy; it was blended with the idea of the Reman Emperor being che emhodiment of all Virtues and all else worth the living; and perhaps it was not free from in the forro in which Justinian Christian influence either -at least finally applied the metaphor to his own person. At the end of one of his Novels, the emperor proclaimed: From everything we have decreed [in the preceding edict] there shall be exempt the Tyché of the emperor, to whom God has submitted the laws themselves by sending him down to men as che living Law120

years that most It has often been noticed and stressed in recent en an oration likely che phrasing of Justiniat s Novel depended of the philosopher and orator Themistius addressing, in 384, the Emperor Theodosius I.111 The influence of Themistius en Byzanche influence of Hellentine thought can be doubted as little as VIII: "venerande Romane leges divinitus 110 See MGH,Epp., V11,281,1 1, for John ' s Decretum , c.17,C.XVI, ." per ora piorum principum promulgate Through Gratian known; cf. Ullmann , Lucas de beeame widely q.3, ed. Friedherg, r,796, che passage Penna, 78,n.2. thorough monograph on che whole subject is Steinwenter, 120 Nov.1o5 ,2,4. The most one might add where alto che modem literature will he found; , "Nomos," 2501! n1:2,u4ff, as wel1 as the new Milan, 1848), ( Arcana Imperii , Pietro de Francisci 24511; also Schulz , " Kingship ," 157ff. Cf. study by Dclatte , Traités de la Royauté , Kbnigsbild des Hellenismus ," 1711. my study on " Kaiser Friedrich E. und das . Dindorf, 277 . De Fran121 Steinwenter , " Nomos;' 26o ; Themistius , Oral., xix, ed nu2,2o8. Arcana Imperii, cisci,

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istic political philosophy on this late imperial orator.'22 But apparently it has been generally overlooked in gris connection that already Lactantius , in his Divine Institutes , a work dedicated to Constantine the Great as a Christian complement of the Institutes of Civil Law, produced a very similar version of that idea. God, writes Lactantius, sent his ambassador and messenger to instruct mortal mankind with the precepts of his Justice ... For since there was no justice on earth, he sent a teacher, as it were a living Law, to found a new narre and temple... ?2a

Lactantius , of course , was not talking about an emperor ; he spoke of the incarnate Son of God as the intermediary between divine Justice and justice on earth. Common though the topic of the "animate Law"-or its equivalents-was in Greek philosophy, it was not explicitly connected with the idea of an intermediary "sent down" from heaven. The amalgamation of the two ideas seems lo go back lo Lactantius: in his interpretation of the Incarnation he combined the evangelical image of Christ as teacher in the Temple " sent " by che Father (John 7: 14ff) with the Greek political philosophy of the "living Law." In fact, the later versions of Themistius and Justinian seem lo presuppose the doctrine of the Incarnation with which Lactantius was concerned 124 However that may be, the doctrine of the Prince as the

lex

122 Delatte , Traités, 152ff, for the influence en Byzantium; alzo Vladimir Valden. herg, "Le idee politiche di Procopio di Gaza e di Menandro Protettore ," Studi Bisantini e Neoellenici , Iv (1935), 67ff (esp.730 , and "Discours politiques de Thémistius dans leurs rapport avec l'antiquité ," Byzantion , 1(1924 557.580, esp. 57sf; ), Johannes Straub, Vom Herrscherideal in der Spdtantike ( Stuttgart , 1939), i6off. Themistius, Oratio, xv, Dindorf, 228f, may have influenced the Prologue of Jus. tinian's Institutes ; ef. Kantorowicz , " On Transformations of Apolline Ethics ;" Festschrift für Ernst Langlotz ( Bonn, 1957). 123 Lactantius , Divinae Institutiones, Iv,25,1ff: . quare Deus summus, cum legatum ac nuntium suum mitteret , ad erudiendam praeceptis iustitiae suae mortalitatem, mortal¡ voluetit eum carne indui . . . Nam cum iustitia pulla esset in [erra, doctorem misil, quasi vivam Iegem , ut nomen ac templum novum conderet ..:' My attention was called to chis importan [ passage through the study of Arnold Ehrhardt, "Das Corpus Christi und die Korporationen im spdordmischen Recht," ZfRG, rom.Aht., rxx1(1954), 29,n.g, who was kind enough to allow me to peruse the manuscript of his study before publication. 124 Lactantius ' Christus doctor is certainly inspired by Chistus doten of John 7:14ff, where the one qui me misil is referred to five times ; where V.24 refers co justice: iustum iudicium iudicate; and where the setting of the scene in the Temple suggested the novum templum of Lactantius . The problem itself will be discussed separately.

128

animata, practically unknown in the West during the earlier Middle Ages,121 was revived through the revival of scientific jurisprudence and the literary style of Bologna. If we may trust Godfrey of Viterbo, the famous Four Doctors of Bologna addressed Barbarossa at the Diet of Roncaglia, in 1158, wish the following words: You, being the living Law, can give, loosen, and proclaim laws; dulces stand and fall , and kings rule while you are the judge; anything you wish, you carry on as the animare Law?'"

Whether these words were really spoken or not makes little difference here, because by the end of the twelfth century the doctrine of the Prince as lex animata , or lex viva, must nave been Common enough anyhow lo be known co Godfrey of Viterbo, who died in 1191 . Moreover, the English Canonist Alanus, writing between 1201 and 1210, transferred, even at that early date, the notion to the pope. Talking about the fact that a marriage may be forbidden sometimes by the judge, and sometimes by the law, Alanus asserts that the judge's decision stands, "unless you wish co say something about the prohibition on the part of the supreme pontiff, who is the living law or living canon."1" To refer also co the pope as the lex animata in terris was not uncommon in the later thirteenth century and thereafter;128 but it was a more natural thing to refer 125 An allusion may perhaps be detected in Benzo of Alba, Ad Heinricum, vI,7, MCH,SS., x[,669 ,[: De coelo missus , non homo carnis (cf. Nov.1o5: - eum mittens hominibus). But the similarity is very vague. 126 MGH,SS, xxn,3 t 6 , line 388: Tu ¡ex viva potes date, solvere , condere, leges, Stantque caduntque duces, regnant te iudice reges; Rem, quocumque velis, lex animata geris. Cf. Steimventer , " Nomos," 255. 127 nisi quid speciale dicere volueris circa prohibitionem summi pontificis, qui est lex vel canon vivos." CE Franz Gillmann, "Magister Alberms, Glossator der Cotlmpilatio 11," AKKR, ev( '925), 153, a passage lo which Mochi Onory, Fonti, 76, called attention. 128 CE Joann€s Andreae , on c.n VI 1,14, V. Suris: "[arbitri electi] ad ipsum ius a quo potestatem habent, oportet appellari: et sic ad Papam qui est lex animata in terris." See Steinwenter, "Nomos," 251, for Chis and later examples to which there might be addcd Oldradus, Consilia , 128,n.6 (Venice, 1571), fol.164, who simply refers to Nov.1o5 . See alzo F. Gillmann , " Dominus Deus noster papa ?," AKKR, xcv(1915), 27o,n.3. It may be mentioned in this connection that the papal political theory in general was constructed in analogy to the imperial theories . The pope, though the lord of the ¡os fori , was bound as a minister co the ius poli (cf. Rudolph Sohm, Das altkatholische Kirchenrecht und das Dekret Gratians [Munich and Leipzig , 1g18]. 6uf); of him , roo, it was expecied that he submit voluntarily to the Law; see, for example, Hosdensis, Summa aurea , en X 1,30 (De oficio legati), n.3 (Venice, 1586), 324, who quotes for that purpose the lex digna together with the maxim princeps

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LAW-CENTERED KINGSHIP

to the emperor in these tercos. The Glossa ordinaria quoted the emperor repeatedly as che "animare Law on earth," sometimes even in connection with the les digna, which represented a different ideal 3R0 Around 1238, john of Viterbo recited in his Mirras of the Podestá Justiniano Novel almost verbatim: The emperors bate received from God the permission lo issue laves; God subjected the lasas to the emperor and sent hico as the anímate Law lo mea-0

In a similar vein, the South-Italian jurists, including the glossators of the Liber augustalis, defined the emperor as the living Law131 legibus solutus, as was the cuslom observed by botlr Civilians and Canonists; see also Johannes Teutonicus, en eso,C.XII,q.2, v. papae: "sed certe licet sic solutus legibus, tamen secundum leges vivere debe[:' Aegidius Romanus, De eccles. pot., nt, 8, ed. Scholz, rqo, sums up the theory: "Naco licet summus sacados sil animal sine capislro el freno et sit homo supra positivas lepes, ipse tomen debes sibi imponere capistrum et frenum et vivere secundum conditas legas" (cf. 11t,cq, Scholz, i8t). See, for the related right oí resistance against the pope, the competen[ study oí Brian Tierney, "Grosseteste and the Theory oí Papal Sovereignty;" Journat of Ecclesiastical History, v« t955), 129 Glos.ord., on D.1,3,22, v. cure lea: "lex, id est imperator qui est lex animata in tenis'; en D.2,i,5, v, alieno beneficio; en C.1o,1,5,2, v. vigorem (see ahoye, n.36); en Nov.12,4, v. Patres (ahoye, n.37); on Nov.lo,,,2,4, Y. legem animatam, where the lee digna is quoted. Cynus, en fol26v, polemizas no[ quite justly against the Glos.ord. (en the same law, Y. alieno beneficio) when, in connection with subdelegation (possible, if original jurisdiction was derived directly from the law, and impossible, if deriving from another person), he says: "dicit glossa qui haber [iurisdictionem] beneficio alieno, scilicet hominis, non potes[ demandare [in the cense of 'delegare'] , . Sed qui habet [iurisdictionem] beneficio legis, bene potes[ delegare .... et princeps non est homo, sed est lex animata in tenis ... Ista responsio est derisibilis, quia licet princeps sir les animata: Lamen est homo." Quite good en that poinl is Albericus de Rosate, en D.1,3,3 ',o 10, fol.3,: "propter quod princeps non debe[ dici proprie sub lege, sed in lege positus, et ideo dicitur lex animata in terris." 135 John of Viterbo, De reg. civit., c.128, ed. Salvemini, 266; cf. Erg.Bd., 86; Steinwenter, "Momos;" 254. 131 Karolus de Tocco, Apparalus in Lombardam, en 1,9,1 (Leges Longobardorum curo glosis Karoti de Tocco, Venice, 3537, fol,Sv), v. non possibile: "nam el si legibus sic princeps solutus, legibus Lamen vivere debe[ ... (C.6,23,3), cuco omnis ¡mperialis maiestas et eius aucroritas a lega pendeat el ab ea sic inducta.l.digna vox etc. (C.1,i4,4); nam cum ipse sir Iex animata . (Nov.1o5,2,4), non debes in legem committere ... quia frustra legis invocat auxilium qui contra legem committit." Cf. F. Calasso, "Origini italiane calla formola 'Rex in regno suo etc.; " Rivista di storia del diritto italiano, m (1930), 245,n.gi; also Heydte, 324,n.23. See further Andreas of Isernia, en Libaug., 111,25, ed. Cervone, 355b: "Princeps legislator, qui ese lea animata in tenis . . . est pater subiectorum.- See also Matthaeus de Afflictis, aboye, n.38. If , however, Marinus de Caramanico, Prooem. in Const., ed. Cervone, xxxiii, ed. Calasso, Glossatori, 182,1off, says: ''Quid enim aliud est les quain rex?", he does nos have Justinian's Novel to5 in mind, bus sends his reader to D.t,3,2, the Chrysippus fragment concerning the vóµos pae,Teís, a concept (¡t derives from Pindar, fr.,6g) related lo, though nos identical with, that oí the lex aninata; see Steinwenter, "Nonos," 261ff, and, for the problem in general, Hans Eridt Stier,

130

FREDERICK THE SECOND

And, of course, Frederick II himself resorted lo that definition of his legislating power. [n 1230, tse "Lord Emperor" was styled in Two ycars later, the a South-ltalian docunlent the lex animata."'= cmperor referred to his own person when declaring a elecision void because it reas directed against "ihe nrajesty which is the ammate Law on eartlr and from which tse civil laves origínate:''[' VVith the last phrase, the diction comes Glose lo the legal tnaxim saving "in Use shrine of that the cmperor has all laves in scrinio pcctoris, his breast," a maxim likcivise deriving from Roman Law and belonging to the same general compound of ideas.164 Hence, a Bolothe famous Magister Boncompagno, gnese teacher of the dictamen, deemed it correct to address (ca. 1235) the emperor as "Most serene Emperor of the Romans, who keepest all the natural and civil laws in the innermost of thy breast."196 The tener of the lex animata, however, penetrated the most unexpected arcas. Johannes about 1245, declared de Deo, writing his Liber poenitentiarius that the emperor may confess to any confessor he chooses, "for the Prince is nos subject to laws: He himself is the animate Law on earth."138 It was probably dile to the fact that Frederick II's son, King Henry (VII), acted in Germany as his father's deputy when, in 1231, he stressed "the plenitude of royal power by which we as "NOMOE BAEIAETZ,' Philologus, rxxxnt (1928), 225258; see also below, 1148, for a fusion oí the ovo theories in the writings oí Aegidius Romanus. That the ChryOcho' re sal dIBpwvívwv vpaypúrwv ...) sippus fragment (6 ",tos rávrwP leal faeiXels exercised relativcly little influence en mediaeval political theory may have been caused by the translation; for whereas Marinos de Caramanico translated the decisive ¡ex est regina, an allegorizmg phrase correctly (¡ex es¡ rex), [he official version says metaphor no longer suggesting a realistic identifcation oí the Law witls the Prince. Baldus, ¡t ¡s true, refers to it (en D.s,3,2,n2, 101.171) ¡n the literal cense: "Nota quod lex est Princeps, Dux et regula,'' bus then he remrns ¡mmediatcly to the more and says: ''Rex esa lex animata: et ... subditi familiar formulatiou of Nov.1o5,24, possunt tunc dicere: Ego dormio et cor meum, id est, Rea meus, vigilat (Cant.5,2);' which neatly illustrates the ruler's omnipresente (see helow, n.167). For the vigslans iustitia, see below, 11.146; 1 shall discuss the new ideal ol the rex exsomnis in another connection.

132 Wolfram ton den Steinen, Das Kaiserturn Friedrichs des Zweiten (Berlin and Leipzig, 1922), 63, quotes the relevant places; sea also Steinwenter, "Momos;' 255, n.28. ras Bdhmer, Acta imperii, 1,264.No.299: "(maiestas nostra) que est lex anunata Erg.Bd., 86f. in tenis el a qua jura civilia oriuntur." CE MGH, Const., 11,184,n 1; 134 See aboye, Ch.n,n.i5. 135 Erg.Bd., 85. 1255 Ser Gaines Post, "Illessed Lady Spain;" Speculum, xxix (1954), ton, n.to: perhaps the passage quoted by Post, "Two Notes on Nationalism in the Middle Ages," Traditio, uc (1953), 299,113 1, belongs to the same compound of ideas.

131

LAW-CENTERED KINGSHIP

the living and animate Law on earth are aboye the laws."asr For it seems to belong lo a slightly later period that, in the course of the customary development, the national king, too, was styled, and himself claimed lo be, in terra sua lex animata ; and chis designation played a considerable role in the later political theory of royal absolutism.138 Nor will it be surprising lo find the lex animata theory applied lo the universitas, the legislating community.138 That in all these cases Justinian s Novel was the common source of Civilians and Canonists is obvious. In the latter half of the thirteenth century, however, one of the ultimate sources of Justinian himself became no less important: Aristotle. In the Nicomachean Ethics, Aristotle called the perfect judge a 8(Kalov $µOtvXov (iustum animatum ), which in English usually is rendered by "animate justice." The judge, in this capacity of animate justice, is the intermediate between the litigant parties who seek nothing but justice itself. Hence, concludes Aristotle, "justice is something intermediate, and so is the judge," who is the living justice 140 What matters here is not so much Aristotle himself as his interpreters in the thirteenth century. In his commentary on the Nicomachean Ethics, Aquinas, of course, recognized that the judge was quoddam iustum animatum; but to the definition of the judges as "intermediates" (medios) he added: vel mediatores, "or mediators," which is not quite the same thing.141 In the Summa

FREDERICK THE SECOND

1

theologica, Aquinas brings the king finto this image and says that "the judge is animate ,Justice, and the king the guardian of what is just."142 In the later section of the commentary on the Politics, written by Aquinas' continuator, Peter of Auvergne, the judge has dropped out completely and there remained the king whose office it was "to be the guardian of Iustitia ... and therefore, lo resort to the king is lo resort to the iustum animatum ."148 The transition from judge lo king worked as smoothly here as in the case of Ulpian's sacerdotes Iustitiae. It is pardonable that Aristotle's simile of iustum animatum, referring to the judge or Prince as an intermediate between subjects, was taken to be a mere variant of Justinian's well-known definition of the Prince as the lex animata, referrirg to the Prince as a mediator between heaven and earth. At any yate, thg.Prince was soon identified with the "living Justice." John pf Paris, around 1300, refers quite bluntly to the Prince as Iustitia animata and guardian of what is just.' And the confusion of Aristotle with Justinian is finally borne out by Baldus who styled the king the iustum animatum and referred, not lo Aristotle, but to Justinian's Novel.", However that may be, the Prince appeared not only as the living Law but also as the living Justice. Already Albertus Magnus demanded that the king be neither torpid nor sleepy, but be the "living and vigilant Justice;' adding that the king was aboye the Law because he was the "living form of the Law'."196 And Dante, thoughtfully, lets Justinian him-

137 Cf. MGH,Const., u,t84,n.1; Huillard-Bréholles , 111,469. asé See Church, Const.Thought, 58,70,193, and passim (see Index , s.v. "King'); also Esmein , " Princeps legibus solutus ," 206,0 . 1. Cf. Matthaeus de Af0ictis, on Lib. aug., 1, 6,11.32, fo1.52v : " et rex in regno dicitur lex animara." See , for an early example (Charles 11 of Naples, ' 295), Romualdo Trifone, La legislazione angioina (Naples, 1921), 119, No.cxn, 136 Lucas de Penna, en C'.u,69,1,n.4 (Lyon, 1582), 6'3: "nam si potest hoc [sc, aedificare in publico permittere] lex municipales , fortius ipsa universitas quae legem municipalem constituir . .. . quia potentior est lex viva quam mortua sicut excessive animatum potentius est [in]animato ." Lucas thereby implies that the universitas is a living being or animate " persona' a concept which presupposes the persona ficta theory. Por his distinction between lex viva and lex mortua he refers to his own commentary on C.n41, n.2o; see below , n.i5o. 140 Eth.Nicom., v,. t32a,2off : rá 5'€nl c3v ñtaaarily 1€va., l€va. lariv € nl rd ifeatov• b yáp b.Kaorits poú\erat elvat oiov aiKawv €µyugov. Cf. Delatte, Traités, 246; Goodenough, "Hellenistic Kingship ," 63; Steinwenter , "Nomos," 260. Justice herself , of course, is an intermediate like al] virtues , though of a different and most august kind, because ,he does nor hold the balance between two extremes each of which is a vice (e.g., Fortitude as the mean between Cowardice and Rashness); see Eth.Nicom., v,s129a, sil; '1336, 3off.

141 Aquinas, In Ethicorum Aristotelis ad Nicomachum Expositio , §g55, ed. R. M.

132

Spiazzi (Turin and Rome, 1949 ), 261f: "... nam iudex debet esse quasi quoddam iustum animatum , lit scilicet mens eius totaliter a Iustitia possideatur . Illi autem qui refugiunt ad iudicem , videntur quaerere medium ínter partes quae litigant; et ende est quod indices vocant medios vel mediatores ." See, however , Arfst., Nic. Eth., 11322,22 - 23: sal tyroGot IO KaCT*V µ€00v, tal saXoia , v Xvw, µeatálous.

142 Aquinas, Summa theoí ,, n-nae, q.cvnl , al, ad 5: "iudex est iustum animatum et princeps est costos iusti." Fnr the king as "guardian ," see next note. 143 Aquinas , In Politicornm Aristote[is Expositio , § 849, ed. Spiazzi (Turin and Rome, 1951), 284: "Et dicit [Aristoteles] quod ofllcium regis est esse custodem iustitiae. Et vult custos esse iusti. Et ideo recurrere ad regem est recurrere ad iustum animatum ." See Arisi. , Po[., v,13ua,. , who does not use the term " guardian of justice," but simply says : poúsera, se' 6 pau,Tebs elvm esú»af (" Vult enim rex esse custos"; §706 , ed. Spiazzi , p.282), although the meaning is that of costos iusti. 144 lohn of Paris, De patentase , c.xvn, id. Leclercq, 225,6: ". . . ad principem pertinet qui est Iustitia animata et custos iusti :' For the trvo aspects oE the king as intermediate between suhjects and as intermediate beween God and mea, see Valdenberg , in Byzantion , 1,572f. 140 See Baldas , en c.33 X 2.24,n.I, In Decretales, fo1.26!: "ítem debet esse iustum animatum, ut in Auth. de consulibus (=Nov.1o5,2,4)."

146 Albertus Magnus, In Matthaeum, vl,to, ed..A. Borgnet (Paris, 1893), xx,266f; 133

LA IS-CL'JTERED EINGSIIIP

self use the cxpression viva Giusiizia to designate che Godhead which inspired. him 117 It may be claimed tliat che theory about the ruler as thc living

FREDERICK THE SECOND

superiority of che living king over che rigidity of ille lifeless Law has its predecessorsJ°° I'he definitions of Aegidius were repeated over and over again,'1° and his addicional conclusion holding that

Law or living Justicc ivas brought to some conclusion by Aquinas'

"it is becter co be ruled by a king [han by che Law," reas finally

pupil and follower Aegidius Romanos who dedicated, between 1277 and 1279, bis political tractate De r(gimine principune ro che

boiled clown by che jurists lo the maxim Alelius es! bonos res gitano bona lex-a total reversal of what Aristotle liad said al](¡

son of the King of France, later King Pliilip TV. Since this ' Mirroi

mean[ co say.- Furthcrmore, [hese reflections on thc hing-l.arr

of Princes" was one of clic ulost-rcad and nrost-quoted works on a

nrediator led Aegidius lo summarize aleo che numerous discussious

political topic during the later Middle Ages, che main problems

about che ruler's position with regard to Natural and Positivo

were, so to speak, settled by its author for many centuries to come.

Laws. He could arrive praccically at one conclusion only: "The

Aegidius Romanus, having digested Aristotle very thoroughly,

Positive Law is under che ruler just as Natural Law is aboye him."

likewise styled the Prince "Guardian of Justice" and defined him

Or, as he remarks in that connection: °The ruler is che intermedi-

as the "organ and instrument of the just Law." Moreover, refer-

ate between Natural Law and Positive Law."152 The tenets of

ring directly tu the Nicomachean Ethics, he quoted the passage concerning the judge who represented a iustum animatum, though

mediatorship and duality of Laws thus were fused.

not without adding: et multum magis ipse rex, "and mueh more

was che lex animara sent by God down to men, and who was both

so the king himself." Por, so Aegidius explained,

legibus solutus and legibus alligatus, was for obvious reasons a not

the king or prince is a kind of Law, and the Law is a kind of king or prince. For the Law is a kind of inanimate prince; the prince, however, a kind of animate Law. And in so far as the animate exceeds the inanimate che king or prince must exceed che Law.348

In this description of the interrelations between Law and Prince we find an antithesis of animate king and inanimate Law which, in the last analysis, goes back lo Plato's Politicus; and also the "Hace autem potestas animata deber esse iustitia, quia rex non tantum deber esse iustus .... non torpens vel dormicns, sed viva et vigilans iustitia ... Et licet rex supra legem sic, tatuen non est contrarius legi: et est supra legem, co quod ipse est viva forma legis, potius formans et regulans legem quam formatus et regulatus a lege ..." See, for the rex exsomais or vigilans, aboye, n.,31, and below, n.167. 147 Dan te, Parad., v1,88: "Chi la viva Giti stizia che 1ni spir:e" lsy letting justician quote the decisive words in the right place, Dante, as pone hui he could, insertares Empire, Church, Reman Law, Aristotle, che cn,peror as a disinely inspired anti tape of God, and many odler related matters ami ideas.

1a3"Si lex est regula agendorun: ut traben potcst ex 5 Elisie., ipse iudex, el multum magis ipse rex cuius est leges (erre, deber esse quedan regula in agendis. Est enim rex sive princeps quaedam ]ex; et ley est quaedam res: sine princeps. Nam lex est quidam inanimatus princeps. Princeps yero est quaedam animata lex. Quantam ergo animatum inanimatnm superas, tantum res sive printeps deber superare legem ... Rex quia est quaedam animata les, est quaedam animata regula agendorum . ." See, en Aegidius, Carlyle, Political T7seuo', v,-,off, esp.y5f, where che texrs are cited in full; Steimwenter, "NOmos," 253f: Berges, Fürstenspiegel, 211ff, esp.218f, who gives a succinct analysis of the tractate; cf.32nff, for che lirerature and for the incredible numher of mediaeral trauslations roto at leas[ ten dilferent languages.

1,34

A Prince who was the intermediare between the two Laws, who

uncommon concept in that period. For every legal philosophy of the Middle Ages was inevitably founded on che assumpcion that there existed a, so lo speak, meta-legal Law of Nature the existente of which did not depend en the existente of kingdoms and statesin fact, of any kingdom or state at all-because the Law of Nature existed self-sufficiently per se and apart from any Positive Law. 145 Plato, Politices, 294-296; Steinwenter, "Nomos;' 262ff. 150 See, for Engelbert of Admont, Steinwenter, "Nomos;" 253; alto George B. Fowler, Intellectual interest of Engelbert of Admont (New York, 1847), 17of. Cf. Lucas de i'enna, en C.1141,n.2o (Lyon, 1582), 453, "Et sicut animatum excessive potentius est inanirrlaco, sic princeps excessive potentior est ipsa lege, dicit [frater Aegidius] ibidem lih.1, parte 2. Et periculosius est contempere legeni vivam, manisque criaren, quam legem mortuam." 151 Carlyle, Political Theoty, v,95,n.2: "... quod melius est regí rege quam lege." Cf. Baldes, en D.,,1,5,n5, fol.lov; also Matthacus de Alflictis, en Lib,a.g., 1,30,o 8, fol.l47v. Aquinas, Susnma theol., ,-nae, q.xcv, arc1, ad 2, who follows Aristode, is more sceptical, at least with regard te che judge: he thinks it hetter to have every [hing ordered by the laws "quia iustitia animata iudicis non invenitur ¡ti multis." 112 Carlyle, loccit.: "Sciendum est regem et quemlibet principantem esse medium ínter legem naturalem et positivam ... Quare positiva lex est ¡otra principantem sicut lex naturalis est supra ..." CE Gierke, Gen.R., 151,614n.264. Since Aegidius referred, in Ihe preceding sentence, te 5 Ethicorurn, it is certainly 'thé Aristotelean image of che "judge as an intermediare " which prompted him te interpret che ruler likewise as an "intermediate." Aquinas (see next note) interpreted che ruler's position in a similar fashion, and in his commentary en Aristotle's Politics (§^5, ed. Spiazzi, p.y) he explains thar the political power "quasi secundusn partem princi petar ... , et secunduni partem sic subiec us."

135

LAW-CENTERED KINGSHIP

FREDERICK THE SECOND

About this fundamentally dualistic aspect of the Law there was no serious disagreement between jurists and theologians . It was actually Thomas Aquinas who made at least one essential point perfectly clear when he declared that indeed the Prince was legibus solutus with regard to the coercive power ( vis coactiva) of Positive Lacv, since che Positive Law received its power from the Prince anyhow; on che other hand, however, Aquinas held ( in full agreement with the lex digna which for this purpose he quoted) that the Prince was bound to the directive power (vis directiva) of the Law of Nature, to which he should submit voluntarily.153 This cleverly phrased definition, which apparently offered an acceptable solution of a difficult problem (acceptable to both adversaries and defenders of the later royal absolutism and still quoted by l3ossuet), 04 conformed essentially not only with John of Salisbury, but also with Frederick II when he stated that the emperor , though aboye the Law, was yet bound to the directive power of Reason. It will be rather obvious by now to what extent the duality of Laces, natural and human, was interlocked with the idea of an intermediate in matters of Law and with che dualities inherent in Justice herself as well as in the Prince. And it is at this point that, philosophically, also Frederick's self-definition as "father and son of Justice" becomes meaningful, since his claim to mediatorship in

matters of Law resulted from, and fell in with, the political thought of his century. If Justice was the power "intermediate between God and the world,"155 then the Prince as the Iustitia animata necessarily obtained a similar position. Hence, by the combined efforts of Roman Law and Aristotle, of legal and political philosophies, supported by tradicional theological maxims, Justice and Prince as well as their mutual relationship appeared in a new light. It is true that the convencional features characteristic of the image of Justice during the earlier Nliddle Ages remained untouched and were hardly affected even by che eulogizing effusions of philosophizing jurists. If the lawyers defined Justice most emphatically as a Virtus "triumphant over all other Virtues" and almost equal lo God himself, there was nothing new in that statement except a certain emphasis and, perhaps, a greater specificness.l°° Nor was the stress incessantly laid upon the two natures of Justice-alia divina, alia humana-new by itself; for the distinction was always made between a celestial and a terrestrial Justice, one absolute and immutable, ruling the universe and pieceding in time all created laws, and the other imperfectly materialized in the laws of man and mutable in her appearance according to the fickle conditions on earth-therefore "observing with many sighs the things of both God and man."1S Furthermore, when the jurists distinguished between Justice in abstracto and Justice in concreto, we easily recognize in the former the "Idea" or the "Universal," and in the latter the actual application of that Idea to human laws. To be sure, new distinctions were derived from Aristotle and his categories of Virtues; but the definition of Justice, for instante, as a habitus was known through the agency of Cicero long before the revival of Aristotle.101

153 Aquinas , Summa theol., 1-nae,q.xcvt , a.5,ad 3; see che discussion of that passage by Carlyle, Political Theory, v,475f.; also Jean-Marie Aubert, Le droit romain dans l'oeuvre de Saint Thomas ( Bibliothéque thomiste, xxx [Paris , : 955]), 83f. m4 De jure magistratuum (quoted by Esmein, "Princeps legibus solutus ," 2og, n.1): che Prince is "solutus nonnisi de legibus civilibus ... . non autem de iure publico et ad statum ( I), ut dici solet , pertinente . multoque minas de iure naturali et divino." The referentes to Aquinas ' distinctions are innumerable ; they do not begin with Andreas of Isernia, on Feud. 11,55 (' De capit. qui ), n.2g, fol.231 (" nam quantum ad vim directivam legis, Princeps est subditus legi, sicut quilibet J), nor do they probably end with Bossuet , Pelitique tirée des propres paroles de ['écriture sainte, tv, proposition 4 (ed. H . Brémond, Bossuet : Textes choisis et commentés , Paris, 5953, s,u5), who, alter having quoted the les digna (" cette belle lo¡ d'un empereur romain"), said: ''Les rois sont done soumis comme les autres á l'équité des lois . mais jIs ne sont pas soumis aux peines des lois: ou , comme parle la théologie [se. Aquinas], ils sonst sotsmis aux lois, non quant a la puissance coactive, mais quant á la puissance directive." See also the distinction made by Albericus de Rosate, on D.1,3g1, n.lo, fol.3,: che Prince being the les animata is placed not really under the Law, but in the Law ( ahove, n.129); then, quoting Ps.l:z (" In lege Domini voluntas eius "), he explains : ' dicit aliud est esse in lege, aliad sub lege. Qui enim in lege est , secundum legem agit voluntarie obedicndo legi; qui autem sub lege est, secundum legem agit necessitatis timore coactus." He finally refers to the les digna. See also abone, nos25 (John of Salisbury), 52ff, and, for the later theory , Church, Constitutional Thought, 197, 232, passim.

136

All that was not decisive. What actually changed in the age of 155 Siete Partidas , 11,9,28, ed. Real Academia de la Historia ( Madrid, 1807), 11,84: "4a justicia que es medianera entre Dios e el mundo." las Baldus , on c.36 X 1,6 , n.4, In Decretales , fol 79: "Nota quod Iustitia triumphat super omnem aliara virtutem , vitam, famam et scientiam ." See also the paraphrase of his glosses on D.1,,, by Ullmann , " Baldus;' 388ff ; further Ullmann , Lucas de Penna, 35ff , for a collection of likewise relevant passages . For Justice as the aggregate of all virtues , see further che pompous arenga of a letter of King Robert of Naples concerning che promotion of a Doctor of Law at the University of Naples, ed. G. M. Monti , " Da Carlo 1 a Roberto di Angió," Archivio storico per le province napoletane , ux (1934), 146. See also aboye, n.7o. 157 Aboye, n . 6o, also 64. las Aboye, nos.59ff,8o.

i

137

FREDERICK THE SECOND

Ldll'- CE:A'TERED KINCSIIIP

jurisprudence was, according to Roman Law, "dte knowledge of things divine and human.""'° Jurisprudence was defined not only as a "science" (scieratia) but also as an art. And art was for the jurists-long before Renaissance artists picked up that defini

the jurists was not Justice herself, but the mood of her new interpreters, who wrote about Justice not for theological or spiritual benefit, but for professional purposes and in a scientific manner. Decisive, then, was that a scientific and professional Jurisprudence had come to life, and that Justice thereby became the special scientific object of scholarly interpreters who concentrated on investigating the nature of lustitia and Ius with the same profes-

tion-''Imitation of nature.-"! Of chis art, said Ulpian, we jurists may be called the priest, "for we worship Justice" (Iustitiam namque colinaus), to which a late gloss added explainingly: ut Dearn, "as a goddess."1Q2 Whether a Virtue, or a Universal, or an Idea, or a Goddess, the worship of Justice on the part of the jurists was semi-religious , and a great lawyer such as Baldus would later almost apotheosize Justice, which he called "a habitus which does not die (non moritur )," which is perpetual and immortal like the soul, and which leads to religion and to God. But already the

sional devotion and the same inncr urge with which thcologians would interpret professionally the nature of the triune God or the working of divine dispensation. The opening titles of Justiniar s Digest, fraught with philosophy as they were, as well as the°likewise philosophical introductions of the books of che Institutes, challenged, by their profound seriousness and their aura el boli-

Liber augustalis was carried, unmistakably, by the same semireligious ethos; and the tenor of its language was as high-strung as that of any legal language in later times . In fact, it was the same language which a judge would use who, when deciding an important case , might wish to preface his sentence by pointing out that "the command of Reason presides in the mirad of the judge," that "Justice herself examining truth sits en the bench," and that "Righteousness of Judgment is seated like a king en his throne," or by paralleling the judge on earth with the eternal Judge from

ness, generations of jurists to ponder about the very essence of their own doing and to reflect or comment en the dignity of their profession. Justice, after all, vindicated the ultimate raison d'étre of her adepts who, in return, not only stressed the moral and ethical values of their learned occupation, but also made justice the chief object of their tole and the live center of their iuris religio'°° Isa The term iuris religio is regularle used by the glossators when interpreting reJustinian ' s prooemium of the Institutes, where the emperor is called iuris ed. Fitting. Inst., Summa , ser, e.g., Placentinus (also D.31a,67ao); Iigiosissimus Schriften, 222 , 21; also Azo , Summa Inst ., fo1.268; ed. Maitland , Bracton and Azo, p.6; further Glos.ord., v. religiosissimus : " Nota quem fiera religiosum per leges; nam ipsae sunt sacrae." Since the emperor mentions the duality of arma and tegea, the glossators expand en that topic; see, e.g., Glos . ord.: "Item nota hic quatuor proportionalia : scilicet arma , usos armorum , victoria , triumphus; item leges, usos legum, calumniae , repulsio, et iuris religio"; military triumph and religion of law are put into parallel . Since religio was defined according to Cicero (De invent., 11,161 ) as virtus curara ceremoniamque afferens ( see H. Kantorowicz, Glossators, 1g), it was not difficult ti) apply this notion in a secular sense to the cave for justice and to the ceremonial of court sessions (see Lib . aug. 1,32, Cervone, 82: Cultos iustitiae silentium reputatur; cf. Erg,Bd_ 89) or, in later times, to the quasireligious court ceremonial of ahsolutist kingship . Moreover , the first of the six civic Virtues , the daughters of Justice , was Religio (see aboye , n.61) according to Cicero. Hence, it was common enotrgh to point out that "Iustitia in subiecto infusa vel acquisita informat ad religionem , pietatem , etc." See Baldus , on D.1,1,1o,n.2, fol.151; also Ullmann, "Baldus ," 39of. Finally, Inst.4,t6, rubra, the iurisiurandi religio is mentioned . See, e.g., Andreas el Isernia , en Lib.aug ., 1,99, Cervone, 168: "lustitia haber multas partes , inter quas est religio et sacramentum secundum Tullium in Rhetorica sua. l'onitur ergo totum pro parte: nam sacramentum est religio: Linde dicitur iurisiurandi religio ( with a referente to C.2,58,1.2 ; see ahoye, n.lo5 )." It is worth mentioning that Cuias, ora Inst., prooem . (Scholia), says: "Religiosissimus fere ideen est, quod sanctissimus iuris sacerdos ." See Cuias, Opera (trato, 1836), 55,607. Fortescue (see below, Ch.v,n.8g) also talks abour legas sacramenta and mysteria legos Angliae, and he therehy falla in with the lingo of the

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n.7, fol.3: "Quaedam Italian jurists; see, e.g., Baldus , on Liber Extra , prooem., rubr ., quihus non [nomina] misterio iuris sunt introducta ;" whercas other nomino exist " est datum certum mysterium a iure." 16u D.1,1,10 , 2: "Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientiá ; repeated verbatim in G1st.1,1,1. un "tus est ars boni et aequi"; D.1,s , 1. The glossators , since Irnerius , interpreted , Glossathese words time and time again; see , for the early glosses, H. Kantorowicz tara, 63f. In the earlier times it seems to have been customary to define ars according to a phrase attrihuted to Porphyrius ; see Azo, Summa Inst., on Inst .t,2,n.2, " id est scientia fol.269; ed. Maitland , P-24; and Glos. ord, on D.1,1 , i, v. ¡os est are Porphyfinita, quae arctat infinita ; nam ars est de infinitas finita doctrina , secundum rium." Laten on the definition of Aristotle , Physics, n,2 , 1g¢a,21 (" art mimics nature'), 218,n,i, for began to prevail; see below, Ch . vi,n.8see also Berges, Fürstenspieget, Aegidius Romanos. 192 Marginal gloss on D.1 , 1,1. In later times, this became the custom; see, e.g., and Budé, Cujas on that place, in opera , vn,l2: "quasi Deam sanctissimam "; Annotationes, 28f, who compares Justice with the Greek goddess Dik€, and adds: is already "eiusque Deae diaconi et ministri ... Iudices dicuntut, " This, of course , the historical school which understands Justice as a goddess of ancient Greek or motus or Roman religion , whercas tire mediaeval lawyers understood her as Dei de Penna, 36. Lucas Ullmann, Dei spiritus ;

i

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whose features the right judgments proceed.103 Hence, chis language acquired an unexpected degree of reality by its application in court, and what may have seemed to be no more than a presumptuous metaphor could be brought lo life and gain actuality through the pronouncement of the judge. It is against the background of these and many related ideas that we have lo understand Frederick lis antiphrasis "father and son of Justice, her lord and her minister." It would be ridiculous to deny the perpetuation and unbroken effectiveness in the thirteenth century of the ancient ideal of the rex iustus which had held sway in the earlier Middle Ages, for Frederick II himself would easily enough activate the ancient ideal of the biblical and messianic King of Justice whenever it seemed useful to him. However, like so many other notions, the eschatological image of the rex iustus grew paler in the political world of the later Middle Ages, and it was perpetrated politically not in its former Augustinian attire but t'áther in the guise of the jurists: it survived at the price of being transferred from the altar to the bench, from the realm of Grace to that of Jurisprudence, while the king gerens typum Jesu Christi was gradually superseded by a Prince gerens typum lustitiae. The Prince of the juristic century, however, no longer typified Justice in the sense of Melchizedek (whose name means rex lustitiae), but in the sense of Accursius, or (to quote Maitland) of "a priest for ever after the order of Ulpian."184 And this new type derived its strength not from the effects of consecration, but from learned jurisprudence. The Prince was "mediator" as an impersonator or antitype of Iustitia mediatrix rather than an impersonator and antitype of the God-man. It cannot, however, be emphasized strongly enough that the former values continued lo stand unabated, even though in juxtaposition with the new values; that the interrelations between Christ and Justice were so obvious res Aboye, n.r6o; Ullmann , " Baldas;" 3 88f, for Justice as a habitus. See the forms of sentences quoted by Durandus , Speculum iuris, u,part.iii , § 6,n.19 ( Venice, 1602), 11,79rf, who recommends " si autem arduum sit negotium , incipias cum praefatione sic" and then offers the following form : Presidente rationis imperio in animo iudicantis, sedet in examine ventana pro tribunali Iustitia et quasi Rex in solio iudicii rectitudo ... Haec enim recti fuit eterni providencia iudicis, de cufus vultu recta iudicia procedent, ut recti iudices eligentur in orbe...:' 164 Pollock and Maitland , English Late, 1,208 (_ p.187), n.3, referring ro Bracton, who added to "iustitiam namque colimus " the words: "et sacra iura ministramus," following thereby Azo; cf . Maitland, Bracton and Azo, 23f.

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and so numerous that the transition was often imperceptible;1'^ and that the formerly valid features contributed to shape the image, messianic or apocalyptic, of che Prince also during the 'jurists' century." What matters here is the obvious secularization of royal mediatorship through the new jurisprudence, a development comparable to the secularization of the rex et sacerdos ideal and of many another notion. It is true, Frederick II's formula defining the Caesar as both pater et filius lustitiae still had in its phrasing a quasi "physiological" content which would seem lo link the emperor lo the interpretations of earlier times, lo the ruler as a gemina persona. Undeniably there evolved some superficial conformities between che Christ-centered and the Law-centered concepts of rulership. But [hose similarities, if such they be, should not deceive us. The essence of every liturgical kingship, Grace, had no share in the metaphysical superworld which the jurists constructed and finto which they placed the Prince as the "living Justice." To the Norman Anonymous, the anointed king appeared as a "twinned person" because per gratiam this king reflected the two natures of the God-man, "Man by nature and, through his consecration, god by grace." That is lo say, the king' s ambivalent appearance was founded theologically on the tension between "human nature and divine Grace." And it was Grace which bestowed upon the individual man that super-body of which the anointed king appeared as the living image. In the Law-centered era, however, and in the language of the jurists, the Prince no longer was "god by grace" or the living image of Grace; he was the living image of Justice, and ex officio he was the personification of an Idea which likewise was both ros Sce aboye, n.22. See also c.84,C.XI,q.3, ed. Friedberg, ¡, 666 ("Christus sapientia est, Iustitia ..."), a passage to which, e .g., Lucas de Penna, on C . 12,45 , 1,n1t (ed. 1582), p915, refers when explaining that the selling of justice is simony : "gravius crimen est vendere iustitiam quam praebendam . Legimus enim Christum esse iustitiam . . . Non legitur autem esse praebendam ... Vendere iustitiam quae Christus e,t, gravissimum est censendum" (see, for che underlying problem, Gaines Post, "The Legal Theory of Knowledge as a Gift of God." Traditio, xi [1955], t97. 2m); see also en C.¡o,7o,4.n.S, p345. and ¡bid., n.4: "Iustitia quidem (sicut verissime Trimegistus diffinit) nihil aliud est quam Dei motus." Further , ¡bid., n.5, where he refers to Pseudo-Chrysostomus' Opus impen/ectum super Matthaeum : " qui omne Iustitia facit et cogitar mente sua , Deum vides , quoniam Iustitia figura Dei est. Deus enim iustitia est ..." And he alludes to Prov . 1r: 4, when he says (n.7): "qui yero iustitiam sectatur, non moritur."

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divine and human. The new duality of che Prince was founded on a legal philosophy which indeed was interspersed with theological thought; it was founded on the goddess of the religio inris. However, the field of tension no longer was detennined by the polarity of "human nature and Divine Grace'; it liad moved towards a juristically formnlated polm-ity of "Law of Sature and laves o[ man," or to that of "Nature and man," and, a little late:. to risa[ of "Reason and society," where Grace no longer liad a discernible place. Baldus, in one of his ethically most high-toned legal opinions, talked about the Prince who surrendered himself to Justice, "that is, to the Substance of what is good and right; for the person who judges, may err, but Justice never errs." And yet (Baldus pointed out), "wanting a person, Reason and Justice act nothing"; they are incapacitated without the personator of their substance, wherefore, if controversy arises, "wanting an ofiicial dignitary justice is buried."lee Hence, the Prince in his capacity of a Iustitia animata had lo make that goddess manifest, and as her constituent he could claim for himself with some inner logic a virtual omnipresente in his courts: through his officers he owned, as Frederick II repeatedly termed it, "potential ubiquity" even though in his individual body he could not be present everywhere.1e' rae Baldus , Consilia, 11 1, 2,8, fol .64 (col.b, in fine): "Et certum est quod submittit se iustitiae , id est, substantiae boni et aequi ['realitati iustitiaé in the preceding sentence]. lus enim reddens quandoque errar, sed Iustitia nunquam errar . . Item certum est quod ratio et Iustitia sine persona nihil agit . . Unde sine magistratu fustitia in controversiam posita sepulta est." See below , Ch.vis,n-42o. Theeunderlying idea is that Justice, heing a "potentiality;' has to he "actualized " by a person or dignity ; cf. Petrus de Vinea, Epp., ni,68, ed. Schard, 507: "quod m potentia gerimus [the emperor] per cos [judges and officials ] velut ministros iusticiae [ahover n.s62] deduceretur ad actum." We recognize, of course, the Aristotelian categorice ("de potentia ad actum"). 16e Lib.aug., 1,17, Cervone, 41: "Et sic nos etiam, qui prohibente individuitate personae ubique praesentialiter esse non possumus , ubique potentialiter adesse credamur ." See also Vinea, Ep. 11,8, ed. Schard, 271; MGH,Const., 11,3o6,37f, No.223; cf. Erg.Bd., 94. Further Nicholas of Bari, ed. Kloos, DA, x1,t75,§16, the encomium in praise of Frederick 11: the author demands that every suhject serve the emperor "quia omnia novia et falli non potest [see aboye, n.166, for Baldus on Iustitia] . . quia ubique eius potentia invenitur el ideo fuge aditus denegatur ." Baldus, Consilia, r,333,n.t , folao5r, uses very similar words lo explain the nature of delegations ("Ipse [Imperator] personaliter ubique esse non possil ..."). See aleo aboye , o.131, for che ubiquity of the emperor because he is the lex animata : " I sleep, and my heart, that is, my king , watches." The image was not uncommon ; see Philip of Leyden, De cura reipublicae , vi,1, p.36: . princeps, qui ad quietem subditorunl praeparandam nortes transare consuevit insomnes .. 1' All those ideas (the Prince's ubiq'

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To summarize, dic Prince as the animate Law or living justice shared with Iustitia the duality which inheres in all Universals or "Ideas." R was this double aspect of Justice, human and divine, which was mirrored by her imperial vicar en earth who, in bis turn, was mainly through Iustitia also Use vicar of God. Justice herself, at leas[ in the language of lcarned jurisprudence, no longer was quite identical with the God of tlie altar, though still inseparable from God the Father; nor was she as yet subordinated to an absolute or deified State: she was, for that short period of transition , a living Virtus in her own right, the goddess of the age in which jurisprudence took the lead and became intellectually the great vivifier of almost every branch of knowledge . By analogy, the Prince no longer was the christomimétés , the manifestation of Christ the eternal King; nor was he, as yet, the exponent of an immortal nation ; he had his sisare in immortality because he was the hypostasis of an immortal Idea. A new pattern of persona mixta emerged from Law itself, with Iustitia as the model deity and the Prince as both her incarnation and her Pontifex maximus. 3. Bracton REX INFRA ET SUPRA LEGEM

The seemingly self-contradictory concept of a kingship at once aboye and below the Law has been criticized as "scholastic and unworkable."188 Whatever that criticism may mean, and from uity, his character of rex animata, his infallibility [" the king can do no wrong"], and his perpetual vigilante) are summarized by Matthaeus de Alllictis , on Lib.aug., I,6,n.32, fol.5av : "(referente to Baldus, Consilia, 5,141,n4, fol . 42v) ubi dicit quod rex quoad suos suhditos in regno sum esa tanquam quidam corporalis Deus ... , quod lex non exequitur aliquod iniustum , vel iniquum : quia oculus legis sicut oculus Dei omnia cldet, omnia intuetur ... et rex in regno dicitur les animata... El ideo antiquitus dicebatur quod corona imperialis invisibilis imponebatur a Deo ipsi principi ... quia iris divinum eoncessi1 principibus supremam potestatem, ut patea in evangelio .. ." See also, for the imperial and royal ubiquity, my paper "Invocatio nominis imperatoris ," Bollettino del Centro di Studi Filologici e Linguistica Siciliani, 111 ( 1g55 ) , 35-50, and , for some additions , " Zu den Rechtsgrundlagen der Kaisersage ," DA, xni ( 1957), nos.6lff. lea See Schulz , " Bracton on Kingship ," EHR, rx ( 1945 ), 165, about the theory of John of Salisbury . Schulz, for one thing, underestimates the influence of Salisbury, which was non restricted to Helinand of Froidmont and Gilbert of Tournai (see, e.g., Post, "Two Notes;" 293 , 11.53), but can be trared in legal literature to the ,6th century; see Ullmann, "Influence of John of Salisbury ," EHR, LIX ( 1944 ), 384ff, whose interesting survey, restricted chiefiy to Italy, does non pretend te be complete . Salisbury's fiction was, by and large, that of che rex iustus, which , in the treatise of 143

°LAW.CENTERED XINGSHIP

whatever point of view that verdict may have proceeded, the only thing that is of interest here is whether or not those self-contradictions appeared scholastic and unworkable at the time they were introduced and during the centuries they were recognized valid. Men such as John of Salisbury, Frederick II, or Thomas Aquinas were not lacking experience; and if they considered, as apparently they did , those contradictions less unworkable and scholastic than the modern critic, we may safely assume that certain conditions of thought, or perhaps "limitations of thought," forced them lo shape their opinions in the way they did. Afcer all, the idea of a state existing only for its own sake was foreign to that age.16° The very belief in a divine Law of Nature as opposed to Positive Law, a belief then shared by every thinker, almost necessitated the ruler's position both aboye and below the Law. Finally, we may wonder whether those self - contradictions were not conditioned, directly or indirectly, also by the divine model of mediaeval kings who, being extra - legally God and man at the same time , was likewise aboye and below the Law; or whether the Virgin Mary, frequently referred to by Canon Law lo illustrate legal conditions, did not as "Virgin and mother, daughter of her Son"-Nata nati, mater p atris-likewise imply certain self-contradictions which would not easily be accommodated to the definitions of any customary law of inheritance.170 Gilbert of Tournai , a representative of the political mysticism of 13th-century France , was turned into that of a king co rule supposedly angelito more (see the careful analysis of Gilberto Erudito regum et principum by Berges , Fürstenspiegel, ,5off, esp.156f). Whether the rex iustus or rex angelicus is more workable or less workable than the rex ¡mago Christi or the king as lex animara is, of course, not at all the question , since for a modern "political platform" [hose ideals are al] equally useless . What matters here is the change of the metaphor of "Perfection" which, in the 13th century , entered into a new phase : the image of perfection was either spiritualized ( rex angelicus , papa angelicus , messianic emperor ) or secularized (lex anímala , Iustitia animata , Crown, Dignity , etc.), which did not exclude mutual overshadowing . 1 do not believe that any mediaeval political theory could work without some fiction or some "metaphor of perfection ;" and there is every reason to wonder whether a modern one can. les For the whole problem , see Gierke , Gen.R., 111,6,0: "The thought that State and Law exist by, for and under each other was foreign to the Middle Age. It solved the problem by opposing to Positige Law the idea of Natural Law." The translation is Maitland 's (Political Theories, 74), who captioned the paragraph in the margin: "Law aboye State and State aboye Law." 170 See , for mater et filia, aboye, 11 . 40, and, for the juristic evaluation of these terms ora the parí of the Canonists, Gierke, Gen.R., 111,278f, 11 . 96, also 332,11.272 (Goffredus of Trani ). John Fortescue , when discussing the problem of the succession

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In any case, to the political thinkers and legal philosophers of the late Middle Ages those contradictions did not appear unworkable at all; they appeared, en the contrary, as the only solution of the divine and human duality within the realms of Natural and Positive Laws. If viewed against that background, Frederick lis definition of the emperor's place in the syscem of mediaeval Law as "father and son of Justice" appears as a highly finished and mature formula ; and if one keeps it in mirad, as one should, it may turn out to be extremely useful and helpful for the understanding of some further "contradictions of our own making"r'r in the political doctrines of other lawyers of that period, and aboye all of Bracton. For it appears that in the present lively discussion about "Bracton on Kingship " a focal point has been sometimes unduly slighted,172 Frederick II and Henry of Bracton were contemporaries. The great emperor died about the time when Bracton hegan lo write his De legibus et consuetudinibus Angliae.173 No available evito the throne , argued along the following lines: since "the father's royalty cannot be inherited by the daughter, she cannot be a medium for its inheritance by her son," because she cannot pass o0 tu her son something she herself does not possess (Chrimes, Const . Ideas, mff). Fortescue was guided by Roman Law; had he been guided by theology-inspired jurisprudence , his argument would have been hardly convincing, for theology found it lesa dilficult to maintain that the Theotokos did not impair her Son's divine nature, though she herself did not possess ft. 171 Charles H. Mcllwain , Constitutionalism Ancient and Modern (Ithaca, N.Y., 2nd ed., 1947), 83, whose brilliant discussion of Bracton (pp. 67f1) is itself a great step in delineating the so-called " contradictions " and in understanding them within the setting of thirteenth -century thought. 172 The present lively interest in Bracton was perhaps stimulated by the controversia] book of Hermano Kantorowicz , Bractonian Problems (Glasgow, 1941) and the very fruitful discussion was kept alive by Fritz Schulz' numerous studies: "Critical Studies en Bracton 's Treatise," LQR, L1x(1g43), 172-180; "A New Approach co Bracton;" Seminar , 11(1944), 42-50; "Bracton and Raymond of Penafort ," LQR, LXI (1945 ), 286-292; "Bracton as Computist," Traditio, 111 (1945), 264-305; his study "Bracton en Kingship" ( aboye, n.168 ) refers directly to the problems of the present study; see p136, n.2, for che earlier literature . In addition co two articlcs by H. G. Richardson ("Aro, Drogheda, and Bracton ," and "Tanered, Raymond, and Bracmn," EHR, LIX [19441, 22-47, 376-384), Gaillard Lapsley in his study, " Bracton and the Authorship of the 'Addicio de Cartis; " EFIR, rxn (1917), 1-1g, deals with Bracton's concepts of kingship . See further the highly instructive and illuminating studies by Gaines Post, especially "A Romano-Canonical Maxim, Quod omnes tangit, in Bracton ;" Traditio, iv ( 1946 ), 197-251, For Mcllwain's contribution see aboye , n.17', to which there may be added his text-critica ] remarks "The Present Status of the Problem of the Bracton Text," Harvard Law Review, rvn(1g43), 220-240. 172 The general assumpcion was, and probably still is, that Bracton finished his book around 1259; H. Kantorowicz , Bractonian Problems, 29ff, suggested an earlier 1

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BR ACTON LA IV.CENTLRLD /.'ISG11llp

dence permits us to assumc that rhe English lawyer [vas familiar with che Liber augustalis, aldtough ihe 'fiftics of tire thirteenth century marked che high-tide of indced most intense diplomarle and political interchanges between England and the kingdom of Sicily.14 Similarities between die utterances of the emperor and of Bracton are anything bus raro; ihey are, however, casily accounted for by che fact that die Sicilian lamyers as well as tlic English relied often en the sanie material to support iheir concepts of rulership-especially with regard to Roman Law. The works of Azo, for example, were used equally in the South and in England .' The lex regia, the maxim quod principi placuit, tire lex digna, and other famous passages of che Justinian law-books have been adduced and evaluated in both countries, and in one way or another the great intellectual problems of that age isnprinted their marks unfailingly en every contemporary legal writer. For allthese obvious congruencies, the differences between the imperial and the English concepts of rulership and Law were considerable . The Hohenstaufen emperor was, in many respects, far less cryptic [han Bracton. Frederick II described his place aboye and under Justice in very definite terms, admitting frankly that in some respects tire emperor was bound to Law, but emphasizing very firmly that the Prince exclusively had legislative power by divine inspiration as well as by the lex regia. He took it for granted that he himself was "The Law ," che lex animuta and incarnation of the very Idea of Justice-a concept of many hues, distinct enough to be valuable in matters legal and political, indistinci enough to be useful, when given a spiritual or messianic interpretation, for purposes of political and anti-papal propaganda. Of [hese high-flown ideologies and metaphysics we find little, if anything, in Bracton. To he sure, che idea of Justice also pervades date; see, however . Post, op.cit., 217 , n.104, and Stephan Kuttner and Beryl Smalley, "The 'Glossa ordinaria ' lo the Gregorian Decretala ," EHR, Lx ( 1945 ), 97105. 174 See, for those relations , my study "Petrus de Vinea in England;" Dlitteilungen des dsterreichischen Instituir für Geschichtsforschung , 1.1.74ff, Siff. See below, n.209. 17e5ee Maitland, Select Passages from the n'orks of Bracton and Azo (Selden Society, vut , London, 1894 ), who offers at the same time a useful edition of large passages of Azo's Sumina Instilutionum . See, for Azo and the imperial curia, e.g., Niese, in HZ , cvni ( 1912), 52!,n.2, and Capasso, "Storia esterna," 442 (William of Vinea, a pupil of Azo).

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his work; but Justicia is far from heing che Virgo of che Gulden Age, and even farther from heing incarnate in King Ilenry IIJ or, for that master, in any English king. England in che thirteenth ceuturv was less messianically minded tiran Italy and che res[ of the Continent, and che doctrine of tire ruler as a lex aniraata descending at cite command of God from high heaven down lo men seems to have fallen en particularly barren ground in England before che age of Oteen Elizabeth, tire new Astraca."° Te accept domination by an abstract idea has never bcen a weakness of England, though a useful fiction might more readily be accepted. Hence, also in Braccon's work che Idea of Justice is eclipsed by clic concreteness of Law. The question was not whether the king was at once "faclier and son of Justice," but whether he vas "aboye or under che Law." Bracton, though quite unwilling to diminish che sublimity of che Crown or impair the royal prerogative by binding it without qualification to the Positive Law of which the king was the lord, nevertheless emphasized strongly what Frederick admitted only with some reservation: that the king was "under che Law." In other words, where Frederick deduced from che Roman law-books a confirmation of his personal prerogative rights while conceding to some degree his subjection to Natural Law and co Reason, Bracton deduced from che same passages that the king was under the Law of the land, but acknowledged at the same time the unique position of che king against whom Law could nos legally be set in motion. Hence, Bracton's king, roo, was in some respects aboye and beyond che Law. There is, not co mention many other points of divergency between Frederick and Bracton, a very tangible difference of emphasis concerning che Prince and che Law; but it is nevertheless a difference within the same general system of politico-legal thought in which the Law as such, incarnate in che ruler or not, appeared as che true sovereign. One difficulty with Bracton and with so many another political theorist of that age is the equivocal usage of che word iex. It may 115 This does not exciude philosophizing on Justice . Bracton has many passages about pax et iustitia ¡ti che mediaeval cense, that is, as the germine raison d'Atre of che state; also political and parliamentary sermonizing on Justice will be found at any time ( see, for an interesting exainple, Chrimes , Const.ldeas, 121 f,t97); for che Elizabethan period, see Yates, "Queen Elizabeth as Astraca," Warburg Jornal, x (1947), 27-82.

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cover botli the Divine or Natural Law and the Positive Law, written or unwritten. There certainly was a strong tendency in thirteenth-century England to subject the king, in the language of Aquinas, not only lo the vis directiva of Natural Law, but also lo the vis coactiva of Positive Law, and thus lo establish that "tyranny of the Law" which, in the very days of Bracton, and so often thereafter, threatened to paralyze the orderly functioning of government. It is certainly going much too far lo maintain that Bracton endeavored lo bind the king lo Positive Law without discrimination or restriction. This has been clearly recognized by Professor Mcllwain who ingeniously extracted from Bracton's work the distinctions of gubernaculum and iurisdictio-the former being the sphere of Government within which the king was "absolute," 'lnd the latter the sphere of Right, over which the king had no I. And it is most gratifying to find that others also laid stress on che fact that even when lex seemed lo encompass also the leges humanae the terco would often refer lo that parí of the Positive Law only which "corresponda to the Divine Law and has been approved by the continuing consent of past generations."17r Or, as Aegidius Romanus later formulated the problem most accurately: When it is said that some Positive Law is aboye the Prince, such language does not refer to the Positive Law as such, but lo the fact that in the Positive Law there has been preserven some strength of the Natural Law.rra That is lo say, the king was bound only to the Divine or Natural

BRACTON its transcendental and meta-legal abstraction, but also in its concrete temporal manifestations which included the rights of clergy, magnates, and people-a very important point in an England which relied predominantly on unwritten laves and customs.

It is probable, or even quite certain, that in practice the body of Law by which Bracton considered his king bound, was materially much larger than that to which Frederick II had professed his allegiance. For all that, however, Bracton's expansion of the king's status "under the Law" did not abolish a status of the king also "aboye the Law." Nowhere can we deduce from Bracton's political theories an intention lo invalidate or even reduce those res quasi sacrae which pertained lo the Crown and which were to form what soon would he called the "Prerogative," that is, more or less undefined rights, along with clearly defined ones, which were not subjected to the customary Positive Law. It appears that not only modern, but already mediaeval overemphasis of the Bractonian maxim lex supra regem has led lo obscuring unfairly the opposite aspect of Bracton's doctrine: the king "aboye the Law."aro Needless lo say, the king's status "aboye the Law" itself was perfectly "legal" and guaranteed by Law. His supra-legal rights, serving "those things which pertain to jurisdiction and peace" and tlreiff protection, were granted lo the king by Law itself. They peertain lo norte except only lo the Crown and the royal dignity, flor can they be separated from the Crown, since they make the Crown what it is.reo

Lamí. However, he was bound lo the Natural Law not merely in 177 Mcllwain always emphasizes that tse Bractonian king was both aboye and

below the Law; see Growth of Polítical Thought, 361ff,367 (the king "absolute but limiten'), and even stronger Conslitutionalism, 75ff. His distinction between gubernaculum and iurisdictio is closely related to the pioblems outlined here and in the following pagel. If 1 do not avail myself of these notions, the reason is that the notions of "Crown" and "King" do not really coincide with gubernaculum and iurisdictio. The "Crown," aboye Law and Time, is not ideutical with gubernaculum in regard to which the mler is "absoluto," nor is iurisdictio identical with the king hody natural, nor could the identifications easily be reversed, It would vender a complicated problem even more complicated ir the notions gubernaculum and iurisdictio were integrated here, lince the resulling chiasm would make things almost incomprehensible. For the other quotation, see Lapsley, op.cit. (aboye, n.172), P.M. 175 "Si dicitur legem aliquam positivam esse supra principantem, hoc non est ul positiva, sed ut in ea reservatur virtus iuris naturalis," Aegidius Romanos, De regimine Principum, ni,2,c25 and C.29, quoted by Gierke, Gen.R., n1,612,n.259; Maitland, Pat. Theories, 175.

148

Also Bracton's most renowned maxims-lex facit regem, or that typical Bolognese lawyer rime Facit enim lex, quod ipse sit rexhave an obverse side and are not lo be read exclusively in the sense of restrictions.181 Similar statements were not too rare during the 119 The Addicio de cartis, e.g., may be an addition of the times of the Baronial War; see Schulz, "Kingship," r 73ff; Lapsley, "Addicio de Cartis," EHR, lxa (1947), s-19. 190 "Ea yero quae iurisdictionis sunt et pacis, et ea quae sunt iustitiae et paci annexa, ad nullum pertinent nisi tantum ad coronara et dignitatem regiam, nec a corona separar¡ poterunt, cuco faciant ipsam coronara." Bracton, De Legibus, f.55b, ed. G. E. Woodbine (New Haven, 1922), 11,167. Notice tbat the emphasis ¡s on Crown, and nol on the rex regnans. 181 Bracton, f.5b (Schulz, Q2), Woodbine, 11,33, and f.1o7 (Schulz, A,31), Woodbine, 11,306. Passage and paragraph of the texts discussed by Schulz, "Kingship," 137-145, are henceforth added in parenthesis. For the liale rimes of Bolognese

149

BRACTON LAII'-CIL,NTPRF,D KINGSIIIP

Middle Ages. Regeni iura faciunt, non persona-"Laves, and not the person, make tire king"-tan a statement well known to Canonists;182 ami according to the /ex digna itself the emperors confess: "On the authority of the Law our authority depends.`II Nor should we forget that the binding of the king's Person would usually allow, in the reverse proportion, an mercase and even exaltation of tire roya] Poseer. The king is botmd to the I-are that makes him king; hut the Law that nade him king enhances also his royal power and bestows upon the ruler extraordinary rights which in many respects placed the king, legally, aboye the laves. The king-making lave par excellence veas for Azo and the Civilians at large, very logically, the lex regia by which the Roman People had conferred all its power and imperium on the Prince. Bracton veas far from rejecting the opinion of his master Azo. The king has no other power, since he is the vicar of God and his minister en earth, save that alone which he has of right. And this is not to the contrary of that passage which says "What pleases the Prince has the power of Law"; for diere follows at the end ol that law (D,1,4,1): "because by the lex regia, which has been laid down concerning bis imperium, [the people transferred to him and en him al] its power and authority]."164 lawyers, see , e.g., for Placentintis , Hermana Kantorowicz , " Poetical Sermon ," 221f, 30; or, for Roffred, Ferretti , "Rolfredo Epifanio da Benevento ;' Studi znedievali, rtt(lgoe), g86f. 182 See the acts of the 8th Council of Toledo, in PL, cxXxlv,43iA; Hinschius, Decretales Pseudo-lsidorianae , 392; Schulz, " Kingship;" 169 , n-4. This Visigothic concept did not curtail the roya) power, hut rather exalied the power by binding the person . Also the famous maxim Nemo potest facere se ipsum regem lid, though for different reasons, to an enormous mercase of the king' s power: 'Tacto enim rege de regno euro repeliere non est in potcstate populi, en sic voluntas populi postea in necessitatem con vertitur" For the history of this theory, which first appcars in Pseudo-Chrysostonms ' Opus iniperfectu nr (aboye, Ch.Ir', 11 105), see Jordan, 'Ter Kaisergedanke in Ravenna ." u'arz6, and, for its spreading to England (Aelfric, in: Homilies of the Anglo-Saxon Church, ed. B. Thorpe [ 18441, 1,212 ) through the CoRectio monumentoru m, set walter Holtzmmnn , ''Zur Geschichte des luvestiturstreites : Englische Analekten , 2," Neues Archiv, 1.(1934), 28211. 183 Por the lex digna, see aboye, nos . 5lff, also 128 ,131,153; Schulz, "Kingship," 141 (A,31), also ,68f , where he emphasizes the reciprocity prevailing benveen law and power. The idea of the ¡ex digna is reflected also by Dante, Monarchia , 111,10: "Imperator ipsam [iurisdictionem ] permutare non potest , in quantum Imperator, quum ab ea recipiat quod est." 18+Bracton , fol.log (Schulz, A,16f), ed. lVoodbine, 11,305: ''Nihil enim aliud potest rex , cure sir Dei minister et vicarius in terris, nisi id solum, quod de iure potest. Nec obstat quod dicitur: 'Quod principi placer, legis hahet vigoren,' quia sequitur in fine legis : ' cure lego regia , quae de imperio eius lata est [, popultis el

The passage is not quite simple, even if we disregard the difficulties arising from Bracton's omission of the bracketed passage.rs" What Bracton obviously wished to express is ihis: The king's power extends only to what he derived from Lave (which, by the way, veas not little); this restriction, however, does not disagree with the famous saying "What pleases che Prince has tire power of Law"-for, the very fact that "What the Prince wills is Law" is derived from Law, is therefore legal, because it is based on the lex regia by which the people conferred on tire Prince, among other rights, exactly this power lo make Law "at his pleasure." Hence, from the lex regia Bracton deduced, like Frederick II and others before and after him, not only the king's allegiance to the king-making lex regia and his dependence on it, but also che king's legal power and legal authority to legislate en behalf of the people and interpret the Law as he pleases.

This, to be sure, might have led to a sound absolutism, as indeed Ulpian's Quod principi placuit very often did. We know that the jurists as well as the political philosophers customarily warded off that danger by quoting the lex digna in which the emperors asserted their allegiance to the Law ; and Bracton was not an exception : he, too, referred in the same paragraph to the lex digna and interpreted it rather thoroughly.186 But before citing Chis law, he inserted a qualification of the maxim Quod principi placuit by qualifying the very word placuit, "pleases." Unlike Frederick II, Bracton gave Ulpian ' s words a most significant twist lo fit "constitutionalism ": he deduced from the word placuil not an uncontrolled and God-inspired personal rule of the Prince, but a councilcontrolled and council-inspired, almost impersonal or supra-personal, rule of the king. What "pleased the Prince" was Law; but what pleased him liad, first of all, to please the council of maget in euro omne sumn imperium et potestatem contera[]. " For Azo, sea Maitland, Bracton and Azo, p.2; also Schulz, 141 (A,3'). For the bracketed section, added from D.1,4,1, sea next note. 185 See the ingeniosa and elegant solution of a Bractonian insolubile by Schulz, 153-156, who eliminared the awkward interpretation going back ro John Selden and according to which the words cure lege regia were to mean " together with the lex regia" thos replacing the conjunction (curo) by the preposition ; see loannis Seldeni, Ad Fletam Dissertatio , m,2, ed. David Ogg (Camhridge, 1925), 24f. Mcllwain, Constitutionalism , 158f, is reluctant to accept Professor Schulz' solution. 188 Eraeton , loe.cit., for the lex digna; cf. Schulz, 141 ( A,28.31); aboye, n.183-

151 150

LAIV-CENTERED KINGSHIP

nates, and therefore Bracton elaborated this arguinent, when he continued: [What has pleased the Prince is Law]-that is, not what has been rashly presumed by the [personal] will of the king, but what has been rightly defined by the consilium of his magnates, by the king's authorization, and alter deliberation and conference concerning it. . 187

The importante of Bracton's constitutionalist qualification of the dangerous word placuit cannot be minimized, especially in view of the contemporary and later constitucional struggles in mediaeval England whose focus was, over and over again, the problem of the king's council and its composition. In practice, of course, few kings of the thirteenth century could or wóuld have legislated without counsel; mor is legislation without counsel encouraged by Roman Law and the Civilians, and even less so by Canon Law and che Canonists: no prelate, no bishop, not even the pope could proceed without taking counsel, though they were not compelled lo follow it.188 Bracton, therefore, was in agreement with common practice, and actually followed the lead of Glanvil, the great English jurist of the tcvelfth century, when he quoted and used Ulpian's words, but qualified their tenor by relegating the king's pleasure lo che placet of his legitimate counsellors.180 For alI that, Bracton differed nevertheless from the Italian usr Bracton, loc.cit. (Schulz, A,IS): "id est, non quidquid de voluntate regis temere presumptum est, sed quod magnatum suorum consilio, rege auctoritatem praestante et habita super hoc deliberatione et tractatu, recte fuerit definitum." The word consilium, meaning bo[h counsel and council, may be left untranslated. Alto, [he Addicio de caros, containing a differen[ concept of che council's power and funetions, shall he ignored here; see ahoye, n.179, las For Roman Law, see C.1,t.t,8, quoted by Schulz, 139 (A.i8), and, in general, John Crook, Consilium Principia (Cambridge, 1955). See also below, nos 194f. A good remark was nade by Gerhoh of Reichersberg, De edificio Dei, C,21, MGH,LdL, 111,152,17, who claimed tha[ Constantine the Great could not have made his famous donation nisi consultis consulibus ceterisque regni maioribus, because publica can he giren away only conmunicato principum consilio. Canon Law, of course, had well-defined rules concerning counsel; see, e.g., the decretals united under [he sirle De his quae finos a praelato sine consensu capituli (X 3,10), ed. Friedberg, rt,5mff, including che glosses. The problem is tito unwieldy to he discussed here; but a comparative study of the practices observed in various European countries and of che theories of Roman and Canon Laws would be rewarding; cf. Brian Tierney, "A Conciliar Theory of che Thirteenth Cencury;" Catholic Historical Review, xxxvi (1950-51), 424f. The older works (e.g., V. Samanek, Kronrat und Reichaherrschaft ira r3. und rq. Jahrhundert, Freihurg, 19lo) are completely out of date. 180 For Glanvil and Bracton, see Schulz, 171.

152

BRACTON jurists also with regard lo che council. A maxim of Roman Law, adopted eventually by Canon Law, said that "the Prince (or Pope) has all the laws in the shrine of his breast," which meant that the Prince when legislating was supposed and expected to have all the relevant laws present to his mind, that is, lo act competently witlfin his sphere.190 This, perhaps, was demanding too much, for (said Mattha@us de Afflictis) 'raro princeps Turista invenitur, "rarely will ther@ be found a Prince who is a professional jurist."rtl1 Whether Bracton had that maxim in mind when he said that the king "has all the rights in his hand, which pertain lo the crown and the laical power, and lo the material sword which pertains lo the government (gubernaculum) of the realm," is not certain: the decisive phrase (haber omnia jura in manu sua) was liturgical.112 It is possible nevertheless; for a French jurist claimed that the French king, like the Roman emperor, "liad all the rights, especially the rights pertaining to his kingdom, shut in his breast."193 leo See, for Chis maxim, Steimventer, "Nonos;' a5of, and, for its meaning, F. Gillmann, "Romanos pontifex iura omnia etc.," AKKR, xen(1912), 3-17, and cvt (1926), 156.174 (see aboye, Ch.tt,n.i5); Post, "Two Notes," Traditio, rx,3 u, and "Statute of York," Speculum, xix,425,n.35. lec See below, n.195. Cf. Andreas of Isernia, on Feud.l,3,n.16 (" Qui succes. ten."), folsly: "Potest dici, quod quia princeps multos haber in suo consilio peritos . et ideo dicitur Philosophiae plenus ...: raro enim invenitur princeps turista." The whole passage deals wich the council. 102 Talking ahout the king as che ordinary judge, Bracton (fol.556, ed. Woodbine, 11,166) saya: "haber enim omnia iura in in ami sea, quae ad coronam et laicalem pertinent potestatem et materialem gladium, qui pertinet ad regni gubernaculum." Bracton, as Gaines Post (aboye, n.igo) cautiously suggested, may have ''paraphrased or vaguely recalled" the famous maxim. The wording, however, is Ii ulrgical; see [he prayer following alter the intercession Sor che emperor in che Oraciones solemnes en Good Friday: "... Deus, in camas mano sunt . . omnia iura regnorum." Those words, while abtent from che Gelasian Sacramentary, were added in che Gregorian Sacramentary; cf. H. A. Wilson, The Gelasien Sacramentary (Oxford, 1894), 78,n.28, and The Gregorian Sacramentary under Charles che Greco (Henry Bradshaw Society, 49; London, 1915), 52; alto PL, 1.xxvm,SoA. They are found furthermore in tire Frankish Coronation Order of ca. goa, where they appear in che Oratio super regem at the end of the nlass: "Deus onmipotens, per quem reges refinan[ et in culos manu omnia ¡ara regnorum consistun[." Cf. Schramm, "Die Krünnng be¡ den Westfranken und Angelsachsen," ZJRG, kan.Aht.xxnt (1934), 2o6,§i8; Sacramentarium ad usura aecclesiae Nivernensis, ed. A.J. Crosnier (Nevers, 1873), 112. The phrase is found also in che arenga oS a charter of Frederick II; cf. HuillardBréholles, 1,261; Schaller, Kanzici Friedrichs H., 83,11.123. 102 .See che ➢ femorandum of a French jurist (perhaps Thomas of Pouilly?) of 1296-1297, ed. F. Kern, Acta Imperii Angliae et Franciae (Tubingen, 1911 ), 200,13f, No.271,§5: "Curo rex Francie omne imperium habet in regno suo, quod imperator haber in imperio ... et de co potes[ dici, sicut de impera[ore dicitur, videlicet quod omnia iura, precipue iura competentia regno suo, in eius pectore sunt inclusa...:" Iris certainly an imperial prerogative which the jurist transfers te the French king; 153

BRACTON LALV-CES'TERLI) hING-S11IP

However that may be. in connection with this maxim the ?talian jurists liked to refer to dic councillors. Cynus oí Pistóia (12701336), for example, warned of a literal interpretation because, said he, 'shrine of his breast was to be understood in tlte cense of "in his court which shonld abound of excellent Doctors of Law' through whose mouths the most lave-abiding Prince himself speaks' ;i0' and nlau.haeus de Afflictis explained that "ora account of his councillors, who are parí of his body, the Prince is said ti) have all laws in the shrine of his breast."195 In other words, the council of experts and crowm jurists, who are the "shrine of the king's breast" because they really have all the relevant laws present to their mirad, appears here as the "mouth of the Prince," who speaks through his councillors, as liad been the custom also of Frederick 11.116 Contrariwise, lo Bracton the councillors do not appear as the "mouth of the Prince," but it was rather the Prince, or king, who appeared as the "mouth of the council," who promulgated laws "as he pleased" only after discussion with the magnates and en their advice; that is, the king's 'pleasure" is Law only insofar as it is "an authoritative promulgation by the king of what the magnates declare lo be the ancient custom."197

However, even the fact that legislation itself was to emanate from the council of magnates, at their advice and counsel, shonld again not be interpreted exclusively in the sense of royal restriction, since it was alter all "by the authorization of the king" (rege but he qualifies the iura in the king's breast: iura competentia regno suo , which is a phrasing vaguely related te Bracton ' s jura quae ad coronara ... pertinent and ad regni gubernaeulum. les Cynus , en C.6,23,1o (Frankfurt , 1678), fo1.367r: "Quod [princeps debet habere omnia iura in scrinio sui pectorisl non intelligas ad litteram ... , sed intelligi debet in scrinio sui pectoris , id est, in curia son, quae debe r égregiis abundare Doctoribus, per quorum oro loquatur iuris religiosissimus princeps." See, for the religiosissimus princeps , aboye, n.159 . The Prince speaks through the mouth of the Doctora as formerly God spoke through the mouth of the Reinan emperors ; see aboye, n.119. Cynus' pupil Lucas de Peona , oo Cos , t6,n.t, p.7o6 (" De silentiariis "), then interpreta the apostles as the council of Chrisq see helow, Ch .yn,n 341. los Matthaeus de Afflictis , en Lib.aug ., 1,37,0.12, fola57 : " quia ¡si¡ [the councillors of the consilium regis] tales consiliarii sunt para corporis ipsius regir : ut ¡n 1.quisquis . C.ad.1.iul.maiest . [ C.9,8,5 rubr . l: el propter istos consiliar ¡ os dicitur rex habere omnia iura in scrinio pectoris su¡ ... quia raro princeps Turista invenitur ." See also en Lib.aug., 11,30,11 1, votu,fo165r , where he repeats verbatim Andreas el bernia (the passage quoted ahoye , 0.191). loa See Erg .Bd., 89f, for the role of the logothetes Petrus de vinea. 107 See Mcllwain , Constitutionatism, 71.

ibH

aucloritatem praestante) that a law became Law. Besidcs, it is the king who bears the responsibility, sincc he is-Bracton stresses ir in his next sentence-the auctor iuris: The king's power refers lo making Law arad not Injury. Arad sincc he is the auctor iuris, ara opportun ity lo iniuria shonld nos be nascent at dte very place idierc tire laws are boro 100

Emphatically Bracton declared that it pertained lo the king to interpret the laves, because it pertained to him lo make them..1`t' And Bracton, like Frederick, empbasized that origin and protection of the Law concur in one hand, that of the king.600 In short, the king's power lo legislate derived from the Lave itself, more precisely, from the lex regia which made the king a king. Thus a king-making Law and a law-making Ring mutually conditioned each other, and therewith the well-known relations between the king and the Law reappear in Bracton: che king, Law's son, becomes Law's father. It is the kind of reciprocity and interdependence of Law and Prince which may be found in practically all politico-legal theories of that period. This spirit pervades the treatise of Bracton wherever he deals with kingship. We might be inclined lo admire the inrpartiality of the judge who tries to distribute evenly the elements restricting and those exalting the king. In fact, however, restriction and exaltation of the king seem evenly distributed only because they were interdependent; for his restriction alone produces also, and justifies, his exaltation: he is recognized as the "vicar of God" only when and where he acts "God-like" by submitting to the Law which is both his and God's. The king has no other power, since he is the vicar of God and His minister ora earth, except this alone which he derives froto the Law.2o1 los Bracton , f.107, Schulz , 140 (A,so): " Potestas itaque sua iuris est el non iniuriae, el cura ipse sir auctor iuris, non deber inde iniuriarum nasci occasio , unde iura nascuntur." 10°Bracton, f.34, ed. Woodbine, 11,109: "... cura eius sir interpretar ¡, sitios ese condene." The king is not only auctor and conditor legis, but also legis interpres and (see next note) protector. 200 Bracton, f.107 (Schulz, A,7), Woodbine, 11,305: "el supervacuum esset, legas rondare el iustit¡am facere, nisi esset, qui leges tueretur ." Cí. Lib.aug., 1,31 (aboye, n.34): "... ¡n eiusdem persona concurrentibus his duobus, ¡ cris origine scilicet el tutela." gol Bracton, f.107 (Schulz, A,t6): "Nihil enim aliud potes[ res, curo sir De¡ .¡.¡,ter el vicarius in terrls, nisi id solum, quod de jure potes [." Cf. Schulz, 14711 .

LAW-CENTERED KINGSHIP

BRACTON

Lven more telling and clarifying is yet another passage. Bracton starts by pointing out that the king has no peer in his kingdom, not to mention a superior , and then continues: The king himself must be, not under Man, but under God and the Law, because the Law makes the king.... For there is no king where arbitrary will dominates, and not the Law. And that he should be under the Law because he is God's vicar , becomes evident through che similitude with Jesus Christ in whose stead he governs on earth. For He, God's true Mercy, though having at His disposal many means lo recuperate ineffably the human yace, chose before all other expedients the one which applied for the destruction of the devil's work; that is, not the strength of power, but the maxim of Justice, and therefore he wished lo be under the Law in order to redeem those under the Law. For he did not wish to apply force, but reason and judgement.262

"Christ under the Law" is of course a frequently quoted and, in art, frequently represented episode. The Norman Anonymous, for exainple, referred lo the submission of Christ under the Law to prove the superiority of Tiberius as Caesar over Jesus as man.201 john of Salisbury stressed that the Rex regum submitted to the Law because "in the Law was his will."20' From Orosius to Dante mediaeval authors reflected on the supposed fact that Christ had chosen to be enrolled " as a civis Romanus in that unique register of the human yace" and, accordingly, succumbed like any Roman citizen to a Roman judge.201 Rarely, however, if at all, has the 202 Bracton , f, b, ed. Woodbine , 11,33. Schulz , 173, considers Ibis passage, which he has bracketedo ( p.144, C,4), " possibly an interpolation ," lince "the long theo. logical parallel seems to he out nE place." 1 cannot follow this argument . Bracton's Introduction is full of theological outlooks and parallels, so that Maidand remarked: "He soars even higher [han Azo" (Bracton and Azo, 15). Theological parallels are not so rare in Bracton that ore this ground alone the assumption of an interpolation seems justified . See below , 11.212, for "theological " additions which Bracton made lo Azo's text. 202 Aboye , Ch.n1, 1025; see also Pollock and Maitland , 1,182,11.3. 204 Policraticus , 5s3be, Wehb, 1,252,6ff; aboye, 11.52. 205 See Orosius , Adversos paganos, vr, c.2o, ed. Zangemeister ( CSEL, v) 418f, for Christ as a Roman citizen . The argument was used quite frequently during the Middle Ages ; see, e.g., Liber de unitate Ecclesiae , ¡,c.3, MGH,LdL , 1188,7; Dante, De Monarchia , 1l,c.12; Purg., xxx1,1o2. For the efforts to "romanize " Christ and "christianize " Augustus, see the brilliant discussion by Erik Peterson , " Kaiser Augustus im Urteil des antiken Christentums : Eire Beitrag sur Geschichte der politischen Theologie ," Hochland, xxx ( 1933), 289ff. The registration of Christ was a familiar topic hoth in art ( C. Diehl, Manuel d'art byzantin [2nd ed., Paris , 19251, 11.797 [fig.3g4 ], 832 [fig.4'5 ]) and in literature : The scribe of the Roman Legate Quirinus , asking Mary who the father of the child was, received the answer "God is

early christocentric concept of kingship arrived at demonstrating a Christ-likeness of the anointed king for the reason that both king and Christ were submitted to the Law, whereas similar argumenta are found with regard lo the pope, who was held lo pay the tribute money like Christ.200 Bracton's comparison impliedindeed in best mediaeval tradition - that only the servus legis could be, or become, also the dominus legis. It implied furthermore that the king was exalted aboye all others as vicarius Dei only if, and so far as, he submitted to the Law like the onlybegotten Son Himself, and that all roya] prerogatives depended bn the king's acknowledgment of being bound to the Law which granted to him those very prerogatives. In that case, indeed, the king shall nave no peer, not lo mention a superior, especially when exercising Justice, that there truly of bino may be said 'Great is our Lord, and of great power' [Psalm 1q7: 5], although in receiving justice [as plaintiff] he shall compare with the least man of his realm.20r

The king, though peerless as God's vicar, is yet bound by the Law, and he shall be like the least of his subjects before the judge-of course, only when being plaintiff, since it belonged to his prerogative that there lies no action against the king.201 Bracton ' s method is always the same : exaltation through limitation, the limitation itself following from the king's exaltation, his father ' ; whereupon the scribe registered the child "Son of God." See , e.g., John of Euboea, Sereno in conceptionem Deiparae, c.r8 , PGr, xcvr,1489. Bracton mentions a singulare privilegium of tire Virgin Mary te be supra legem although in her humility she submitted voluntarily te legalibas institutis . The history of Ibis privilege is unknown lo me, but it is mentioned in the acts of che Council of Trent, Sessio vr, canon 23, where it is said that no human being can avoid during his life venial sins "nisi ex speciali Del privilegio, quemadmodum de beata Virgine tenet Ecelesia." See H . Denzinger, Enchiridian symbolonun (Freiburg , 1937), 298, No.888. 206 Two passages in Gratian 's Decretum sucre usually quoted in this connection: cao,C.xxv,q.1, and c22,C.xxnl,q.8, ed. Friedberg, ¡, 1009 and 961. See, e.g., Marinus de Caramanico , Prooem. in Const., ed. Cervone, p.xxxiv, ed. Calasso, Glossatori, 186, 47ff: "Papa etiam regi obsequitur el ef se subesse fatetur . . . El ipse Christus Dei filius terreno regi subditum se ostendit qui curo pro se solvi tributum faceret.. . The Canonists shared Chis opinion; see , e.g., the Gloss ore c.ro,C.xxv, q.1, v. subditos (a glosa of Johannes de Fano). 207 Bracton , f.1o7 ( Schulz, A,. 1.13 ), Woodbine, 11,3155; see fol .5b, Woodbine, 11,33: the king is " zninimus , vel quasi, in indicio suscipiendo." 2us For the king as plaintiff , el. Schutz, 149 ; Pollock and Maitland, r ,5r5ff. For [he history of the non-suability of the Crown and for the state as plaintiff in England, see Robert D. Watkins , The .State as a Party Litigant (Johns Hopkins diss., Baltimore , 1927).

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On [hese seeming contradictions Bracton's political theory

from bis vicariate of God, wltich che king would jeopardize viere he not limited and bound by che Law. Lhis method may be callen dialectical. It relies upon die logie that rhere cannot he a genuinc "Prerogative" on che one hand rvirbout submission te the I.aw on the other, and that a legal status ahoye Ihe Law could legitiniately exist only if therc existen also a legal status uender the Late The Law-abiding king, tlierefore, becomes ijiso facto a "y'icar of God he becomes a legislator (auctor iuris) aboye tlte Law ami aceording lo the Law; and he becomes tire responsible expounder of che existing laws and of royal actions which may not be disputed by either officials or privare persons.209 For viere the king nor Lawabiding, he were nor a king at all but a tyrant.R10 20e For the king as actor auras, see aboye , nos.sg8f. The interpretation of laws (aboye, n.1gg ) belonged, of course, also Lo the king ; Bracton, 1.3 4, Woodbine , u,1oq: "De cartis yero regiis et factis regum non debent nec possunt iustitiarii nec privatae personae disputare , nec etiam , si in illis dubitatio oriatur, possunt eam interpretar¡. Etiam in dubiis el obscuras . . domini regis erit expectanda interpretatio et voluntas, cura cius sit interpretara cuius est condere." Schulz, 173, puts the words el factis regum in brackets because they "must be interpolated." Furrher, he claims that the following illa (aboye: illis) and caro "show that originally only' artae were mentioned in che beginning ." It is difficult to follow chis argumentation . The wortl caro clearly refers Lo dubitatio , and the word preceding dubitatio is nor alta but illis (at leas[ according to che, so tu say, standard text of Woodhine , who indeed failed lo mention in his apparatus che reading lila found in che edition of Sir Travcrs Twyss [Roll Series, London , 1878] 1,268). For grammatical reasons there is no peed to assume an interpolation . Moreover, et factis regum is perfectly sound. Cf. Lib.aug., 24, ed. Cervone , 15: "Est enim pars sacrilegii disputare de eius iudiciis, factis et constitutionibus atque consiliis .. " Frederick II repeated almost verbatim Assize XVII of the "Vatican Assizes" and Assize XI of the "Cassino Collection " of King Roger II of Sicily ; see Brandileone , Diritto Romano , 103 and 122 ; Niese, Gesetzgebung, 66. This was che current reading; see , e.g., Rudolf M. Kloos, "Ein Brief des Petrus de Prece zum Tode Friedrichs II.," DA, xm (1957), where en imperial notary writes : "... eo quod sacrilegii quodammodo censetur ad instar de factis principum disputare ." The source of all those laws is C . q,a9,2, a decree of che Emperors Gratian, Valentinian, and Theodosius, addressed in 385 Lo the praefectus Urbi Symmachus : ' Disputad de principali iudicio non oporleq sacrilegii enim instar est duhitare , an is dignos sic, quem imperator elegeriC' The word (acta is non found here , nor in che related decree 0.12,17,1, nor in Cod.Theod., 1,6,q. It appears, however, in both che Sicilian and English adaptations of che imperial decree, of which the Sicilian one is a century older (it was only re-issued in 1231 ). Finally, Schulz remarks : " Regum instead of regis is conspicuous ;" and believes again in an interpolation . I do not think so. The tille of Lib.aug ., 14, reads: "Ut nullus se intromittat de factis seu consilüs regum." The plural may have slipped in because C.g,29,2, has the hcading : Idem AAA. (= Augusti) ad Symmachum pu. (= prae. fectum Urbi); and the Byzantine plurality of emperors influenced South-Italian scriptoria and chanceries nor rarely ; see Ladner , " Portraits of Emperors ;' Speculum, xvn,l8gff. The plural, however , made sense, because it generalized the statement and made it refer also Lo former kings; it meant: " actions of kings shall nor he disputed ," and this is che meaning also in Bracton : " roval charters and actions of

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hinged. Such as the system of mediaeval Law was, witl its dualism of Divine and Positive Laws, a reasoned political theory other tllan che one pul foith by John of Salisbury, Frederiek 11, or Bracton could probably nor Lave developed at all. In one way or the other. ir would always result in che concept of a ruler who was at once "tender and aboye tire Law," os- was "father and son of )ustiee." oi "irnage and servant of Equity.'' Also che Englislt king in Bracton's treatise appears et maior et minor se i»so.

Bracton's comparison of the king with the humbled Christ before the Roman judge may lead us to yet another problem of Bracton's concept of kingship, a problem of political "christology." He writes: Por that end has he been created and elected a king that he may give justice to all, and that in him the Lord be seated [Ps. 9: 5; also 88: 15] and that through him the Lord discerns his judgement [III Kings 3: 111`

It would appear from the biblical passages , which Bracton quotes, that the "Lord" who dwells in the king and decrees justice through che king, is God the Father rather than the Son, although admittedly in the later Middle Ages it becomes increasingly difflcult to distinguish clearly between the first and second persons of the Trinity. However, in Bracton's treatise the king seems to be styled rather consistently vicarius Dei and not vicarius Christi, if we except the comparison with Christ submitting as man to the Roman judge. In fact we find that the vicariate of the Son of God has been reserved by Bracton for others. In bis Introduction Bracton discussed, in full agreement with the roles of legal rhetoric and ars dictandi, che "utility" of his treatise. On the whole kings shall nor be disputed ." How Lo explain thc similarities between Bracton and the Sicilian Law Codes is a differett matter; however , when Bracton wrote his Petrus de Vinea in treatise , England was swamped by Sicilians; see my study " Fleta and England," 74ff , 8sff, and also my forthcoming paper en "The Prologue to the School of Petrus de Vinea;" Specutum , xxxn ( 1957)2,° For "king and tyrant ," see Schulz , 151ff, who has conveniently summed up che essential material. 2,1 Bracton, f.1o7 ( Schulz, A,3-4), Woodbine , n,3o5: "Ad hoc autem creatus est res el electus , ut iustitiam facial universis , el ut in co Dominus sedeat et per ipsum sua iudicia discernat."

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he restricted himself to copying Azo almost verbatim. However, he added a few significant words (italicized here), as he wrote:

This distinction is indeed of greater interest than may appear at first glance, since it seems to reflect a doctrine of particular significance for mediaeval England. It was probably the so- called "Ambrosiaster," in the fourth century, who comed the maxim: Dei imaginero habet rex , sicut et episcopus Christi.210 This doctrine-the king an antitype of God the Father, and the bishop typifying God the Son-reappears with great consistency in the English orbit whereas it does not seem co occur elsewhere. It was quoted by an English scltolar, Cathwulf, in a letter to Charlemagne.L10 It turns up, unfailingly, in che tractate of the Norman Anonymous, though in a more christocentric version: "The priest prefigures one nature in Christ, that of che man; the king, the other, that of the God."21 Finally the whole doctrine, which later will be repeated by John Wycliffe,218 is found, around iioo, in Hugh of Fleury's De regia potestate et sacerdotal¡ dignitate, a traetate written for and dedicated to Henry 1 of England. The monk of Fleury wrote:

The utility [of the treatise ] is that it ennobles the apprentices and doubles their honors and profits, and that it makes them lo rule in the kingdom, and lo sit in the roya ] hall, on the very seat of the king, as it were, on the throne of God, judging tribes and nations, plaintiffs and defendants in a lordly order , in the king's stead, quasi in the stead of Jesus Christ, since the king is the vicar of God.212

What Bracton added lo Azo are a few phrases, seemingly edifying, about the Tfirone of God which che king occupied.211 The second addition, at the end of the passage, is related to che first, and though it may round confused, in fact it is not confused at all. In that whole section the king appears as one acting vice Dei, in the place of God and en the throne of God. Contrariwise, for example, the Ottonian miniature (fig. 5) showed the emperor in the place of Christ and on the throne of Christ. Bracton, however, in the second addition lo Aros text, makes a very clear distinction between the Father and the Son. He says that those acting vice regis-that is, the royal judges-act quasi vice Jesu Christi, whereas the king as the visar of God acts quasi vice Dei. In other words, the judges are in the place of the Son of God whereas the king is in that of God the Father.214 212 ''Utilitas autem est , quia nobilitat addiscentes et honores conduplicat et profectus, et facit cos principari in regno et sedere in aula regia es in sede ipsius regis quasi throno Dei, tribus et nationes , actores et reos ordine dominabili iudicantes, vise regis quasi vise Ihesu Christi , sum rex sit vicarius Dei. Iudicia enim non sunt Irominis sed Dei ..." Bracton, fab, Woodbine, 11,20. For a comparison with Azo, see Maitland , Bracton and Azo, 3 and 7 , and the notes en p.15. 211 Bracton , in calling the royal throne metaphorically the throne of God, remains within the tradition ; see, e.g., the Norman Anonymous , MGH,LdL, 111,669,45, and 67o,,f. Bracton apparently liked that simile, since he repeated it several times; see f.,b, Woodbine , 11,21: "Sedem quidem iudicandi , quae est quasi thronus Dei, non praesumat quis ascendere insipiens et indoctus . . . , ne ex alto corruat quasi a throno dei , qui volare inceperit antequam peonas assumat-" Again Bracton added the phrase quasi a throno Dei to a metaphor ( the fall of him who tries to fly before his feathers have grown ) which he borrowed from Azo and which is typical for the lingo of the Bolognese masters of the ars dictandi ; see for Thomas of Capua, Guido Faba , and the Fonnularium of Arnold of Protzan my study "Guido Faba," 280,11,1. It may be noted that Bracton in his more literary and less technical passages abounds in similes deriving from the Bolognese dictamen, though he may have horrowed most of this material from the jurists. 214 In other passages ( aboye, n.213 ) Bracton calls the judge's seas the "throne of God" without special referente m the kir.g . In a similar spirit, John Fortescue, De laudihus, cc . 111 and VIII , ed. Chrimes, pp.8,22, quotes II Chron. 19 : 6, where Jehosha-

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Verily, che king, within his realm, seems to take the place of God the Father, and the bishop that of Christ. All the bishops, therefore, appear to be rightly subjected lo the king, just as the Son is found lo be subjected co the Father-not according co his nature, but to his rank.219

The bishops thus are said to govern vice Jesu Christi while the king rules vice Dei. phat, Ring of Juda, "praecipiens iudicibus , 'Videte, ait , quid faciatis; non enim hominis exercetis iudicium sed Domini .'" See also ahoye , n.102. 21s Quaestiones Veteris el Novi Testamenti, cxxxv, ed. A. Souter, CSEL , 50 (1908), 63. 219 See aboye ,. Ch,11i, n.84, 2r1 MGH,LdL, ni,667,8ff (aboye, Ch.ni , 0.30); see also p.663,11f, where full eternity is only with the royal, and not with the sacerdotal Christ: "Ipse Christus rex est justicie , qui ab eterno regnat, et regnabit in eternum el ultra. Qui sacerdos dicitur in eternum , non ultra. Neque enim in eterno vel ultra eternum sacerdotium erit necessariurn ." The equation of the human Christ with the sacerdotal office is among the oldest traditions, and so is the conception of God the Father as king; see, e.g., Augustine, In Psalmos, cix ,4, PL, xxxvn, 1459; or, for the English orbit, Beda, Retractabo, 1rg6, who follows Isidorus, Etym., vn,2,2: cf. M. L. W. Laistner , Bedae Venerabilis Expositio Aetuuns Apostolonun et Retractatio (Cambridge, Mass., 1939), 105218 Wycliffe, Tractatus de officio regis, ed. A. W, 1'ollard and C. Sayle ( London, 1887). 13 sud 137 ; also De fide catholica, e . 1, in Wyclilfés Opera minora, ed. J. Loserth (London, 1913), 102. Cf. W. Kleinecke, Englische Fürstenspiegel ( Halle, 1937), 82,0.5; F. Kern , Gottesgnadentum und Widerstandsrecht ( Leipzig, 1915), 112, n.1g8, and 119 : " Die Gedanken des Anonymus con York, in ihrer Zeit fast ketzerisch, triumphierten an der Schwelle der Neuzeit" 219 MGH ,LdL, 11468, also 472,33 and 490,13-

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It is most unlikely liar tire tractate of the Norman Anonvmous was known lo Bracton; but the pampilet of Ilugh of Fleury may have come to his eyes.220 At any rafe, in Bracton's work the doctrine rex imago Dei, sacerdos Christi reas changed lo rex imago Dei, judex Christi. Ir seas rransferred from the tlicological lo tire legal sphere, from lile clerics to tic law clerks, or from the sacerdotes Ecclesiae lo the sacerdotes hostitiae."a' It is the "priests of Justice" sebo note act in the image and likeness of the judging Christ and who become the "throne-sharers" of the Father, represented en earth by the royal vicarius Dei. Hence the king, in Bracton's work, is in the first place che vicar of God. However, see should recall that as a vicarius Dei the king is claimed lo be also the antirype of the humbled Christ whose manhood has been submitted to the Law and co a Roman judge. In otlter words, the king, together with his judges, typified God the Father with the divine Christ en the Throne of Heaven; but also the king is the antirype of the human Christ whenever he is not the judge, but one who submits to the Law. He is at once God-like aboye the Law when judging, legislating and interpreting the Law, and is, like the Son or any ordinary man, under the Law because he, leo, submits lo the Law. We realize that the christological substratum , so powerfully effective in the Ottonian miniature , and in the tractate of the Norman Anonymous and stillperceptible in the Liber Augustalis of Frederick II, lingered en also in Bracton 's work. It may even be gathered from the angry outburst of the Countess of Arundel who openly rebuked King Henry III: "Oh Lord King, why do you turn your face away from justice? ... In the midst between God and us are you placed [medius inter Deum et nos constitueris], but neither yourself nor us do you rule sanely."222 To sum up: the Bractonian king had a dual position aboye and under the Law. In that respect he may appear comparable to Frederick II. But che resemblance, should it exist, would be quite 220 Schulz , 137 and 148. 221 Bracton , L3, Woodbine, 11,24, quotes the famous passage from D.1,1,1,1, fbllowing Azo; see Maitland, Bracton and Aso, 24. See also Fortescue , De laucjjbus, c.ns, ed. Chrimes, S.

222 Matthew París, Chronica maiora (ad a.1252 ), ed. Luard, Y,336. Viere is,' toward the end, a certain similarity between sise outery of the countess and the addicio de ca,ti.,. 1 alce the knowledge of this passage to Professor B. C. Keeney, of Brown University.

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superficial. Thc emperor, even sellen thcoretically submitting lo the directive poseer of Reason, which anticipated lo some exrent rhe later Reason of Srate, remained in fact undisputedly aboye tire Law; whereas in Bracton's England the king sub lege seas inrended ro have a very real and definite meaning, albeit not often clearly defined. Moreover, the scrious efforts lo define tire king's status "under the Laiv" produced con'espondingly the otlter effort, that is, co define in wliat respects he was, and perforce liad to be, also "aboye tlre Law." By the end of [he century, the roya] judges, in the often quored case of Humphrey of Bohun v. Gilbert of Clare ( 1292 ), argued that for the common utility he [the king] is in many cases by his prerogative aboye the laws and customs usually recognized in his realm .. . But also the Lord King is, in view of all and sundry of his kingdom, the debtor of justice.223

Here the king's court itself seemingly arrived at a self-contradiction by stating that the prerogative somerimes puts the king aboye the laws whereas at other times he was dehitor iustitiae, that is, under the Law. Again we are reminded of the Caesar's duty co be at once "father and son of Justice." However, the most genuinely English version of that lapidary formula should be sought in a totally different direction, in the no less lapidary formula of tire famous writ Praecipe Henrico Regi Angliae-a writ in which allegedly King Henry III enjoined king Henry III through his officers to remedy some act or else show cause why he refused lo do so R24 This writ, which a fourteenth-century lawyer claimed lo 223 Rotuli Parlamentorum . 1,7u "[rex] qui pro communi utilitate per prerogativam suam in multis casibus est supra leges et consuetudines in regno suo usitatas"; and p74: "dominus rex qui est omnihus et singulis de regno suo justicie debitar." CE E. C. Lodge and G. A.'Thornton, English Constitutional Documents, 1307-1485 (Cambridge , 1935), 9. The terno debitar iustitiae seems to derive from a decretal of Innocent III (c.11 X 2 ,2, ed. Friedberg, 11,251 ) and was often repeated ; see, e.g., Andreas of Isernia, Usos feudorum, fols35•" (De prohibita feudi alíen., § Quoniam ínter dominum , n.5: "Princeps quidem est debitor iustitiae '), and fol.301 (Quae sunt regalia , § Ad lustitiam, 0.64: "Quia sunt debitores iustitiae Principes et praelati"). The "king aboye the Law" found defenders in various strata of society; see, e.g., G. O. Sayles, Select Cases in the Court of King's Bench under Edward I (Selden Society, cvu1: London, 19339), ul,xli; cf. xlviii . Froto a totally different point of view, Walter Burley, in bis Commentary on Aristotle's Politics ( written ca . 1338), could say: "Est enim rex supra legem ni supra se ipsum"; see Cranz, Aristotelianism, 1664. 224 Pollock and Maitland, t,516ff; the writ, embellished by one Praecipe Jacobo Regi, was ridiculed by Francis Bacon, "Argument on che Writ De non procedendo

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have seen, was-if really it existed-either a joke or a school exercise of the times of the Barons' War, for no action lies against the king nor can he be summoned. Nevertheless, this jocular product displays most strikingly the idea of a king who was both aboye and under the Law, both greater and lesser than himself. Moreover, writs in which the King gave order lo the king must have been at least within the range of human imagination in midthirteenthcentury England. Alter all, Master Simon, the Norman, a high government official, was dismissed-if we may trust Matthew Paris-because he refused lo seal a charter contra coronara domini regis, a charter which the king wished lo issue, but which the officer found contrary lo the Crown and its interests, and therefore contrary also to the officer's oath.221 Nothing comparable lo that incident could have happened in Frederick's Sicilian monarchy. It will be within the field of administration, of legal practice rather than of legal theory that we have to look for the king's impersonal alter ego. CHRISTUS-FISCUs

In Bracton's work christological reflections were peripheral. His thinking and his true interest circled around legal, administrative, and constitutional matters rather than metaphysical ideas and theological distinctions. For all that, however, it is undeniable that in Bracton's days certain theologisms of the state were developing which we would not expect lo encounter in that sober constitutional and legal orbit of which Bracton was the exponent. The seemingly irrational maxims were itere nevertheless. They were partly the result of the adaptation of theological language and thought to the new conditions of the secular state, and partly the result of the establishment of an impersonal public sphere which emerged from the proper needs of the community of the realm itself. The maxim Nullum tempus currit contra regem, "Time run-

BRACTON neth not against the king," is of peculiar interese because the idea of sempiternity, or of a supra-personal perpetuity, is involved. The maxim itself presupposes the conceptual existence of at least two notions, "prescription" and "inalienability." Prescription usually meant loss, as its correlate "usucaption" usually meant acquisition, of a title or right lo property by uninterrupted, unchallenged, and peaceful possession in good faith over a variable, long or short, period of time as defined by law. The Englisli royal judges of the twelfth century most certainly were familiar with the legal concept of prescription, which had capital importance in Canon Law and lo which Gratian in his Decretum devoted a whole section on which naturally the Decretists commented over and over again. But the English judges apparently saw no need themselves lo reflect upon the idea of prescription, since they seem not lo mention it at all129 This indifference towards prescription changed in the following century: Bracton dealt repeatedly, and in a scholarly manner, with the principie Longa possessio parit ius, "Long possession creates right." Bracton's dependence en Roman Law is revealed by the tecimical term Usucapio heading the chapter in which he discusses the problem of prescription; but this is of minor interest here 227 What does matter is that, by his time, reflections upon claims lo prescriptive possession had become momentous lo the royal judges. In fact, prescription attained actuality within the public sphere once a certain complex of royal lands

rege inconsulto," Works, ed. Spedding (London, 1870), vn,694. See, for the general problem, L. Ehrlich, Proceedings against Me Crown, r2r6-5377 (Oxford, 1921); alzo R. D. Watkins, The State as a Party Litigant (Baltimore, 1927), 5ff; for the history of the writ itself, see Fritz Schulz, "The Writ Precipe quod reddat and its Continental Models;' Juridical Review, nrv (1952), 1ff. 225 Sir Maurice Powicke, King Henry III and the Lord Edward (Oxford, 1847), u,78off.

220 The passages on prescription aillected by Gratian (C XVt,q.3, ed. Friedberg, r788ff) are found, with few exceptions, already in the works el Ivo of Chartres and others. For English Canonists, see Stephan Kuttner and Eleanor Rathbone, "AngloNorman Canonists of che Twelfth Century." Traditio, 111(g49.51), 279-358, and, for prescription, pp.345354,355. It seems to be the common opinion that "prescription vas unknown to the Old English Law and alzo m Glanvil," as Carl Güterbock, Bracton and his Relations to the Roman Lazo, trans. by Brinton Coxe (Philadelphia, 1866), n8ff, pointed out; cf. Pollork and Maitland, tt,140tf ("Our mediaeval law knows no acquisitive prescription for land"). I was not able to verify the origin of the maxim Nudosa teso us cnrrit contra regeni (or occurrit regí) although similar phrases are found in Gratian's Decretum (c.14,C.XVI,q.3); the Civilians and Feudists are usually mate specific ''centenaria praescriptio currit contra fiscum' (Andreas of Isernia, Usus feudorum, on Prohibita feudi alienatio per Fredericum, n.51, fol.271v), oi "nulla praescriptio currit contra fiscum regium nisi centenaria' (Marthaeus de Aftlictis, on Lib.aug., 111,31,11.4, fol.i86); but 1 did not chance opon an exact parallel of the Bractonian formula. 227 See, aboye all, Bracton, £01.52, Woodbine, 11,157: "Longa enim possessio sicut mater ¡os parir possidendi"; also fols.4o43a,45h, Woodbine, 11,126,134,140, and passim; Güterbock, Bracton, 1,8; W, S. Holdsworth, A History of English Law (3rd ed., London, 1923), 11,284; Pollock and Maitland, n,141ff.

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and rights had been set asido as "inalienable." In that moment, prescription and the prescriptive effects of time acquired considerable importante hecause they claslied, or miglu clash, widh the notion of inalienability. That is lo say, the rosal judges frcquendy faced situations in which they had to decide not onIy wisether oi not a private person could legally claim posscssion by presa iption. bat also to what extent such claims would afleet ris al rights and lands which viere labelled "inalienable." Ilence, tire concept of inalienability of royal rights and Lands, together with that of prescription, forms the premise for the formula Nullum tempus currit contra regem, by which private prescriptive claims lo inalienable Crown property viere quashed. It has often been noticed that the principie of inalienability, implying the existente of certain imprescriptible rights of the Crown, developed slowiy and with great restraint on the Continent.221 In England, leo, the first official document stating clearly and succincdy that ehe rosal demesne was inalienable, was relatively late: the Council)ors' Oath, containing the clause "Item, 1 will consent to the alienation of none of those things which belong lo the ancient demesne of the Crown," fans in the year 1257, that is, in the times of Bracton 22° This, however, should not be read to mean that the principie itself of non-alienation did not exist before; it actually developed in England much earlier than on the Continent. Ir is, of course, perfectly true that in the first half of the twelfth century the concept of inalienability was completely absent from English governmental practice. A change, however, 228 Georges de Lagarcle, La naissance rle Pesprit laigue au declin du moyen dge, I: Bilan du XIII4 siécle (Vienna, 1334), 158,n. 23, remarks that the idea of inalienability of rights of the state "a été une des plus lentes á pénéaer." For a few remarks en the continental development, ser Schramm, EngHsh Coronation, 1981, and "Das kastilische Kdnigtmn in der Zeit Alfonso.s des w'eisen;' Festschrift Edmund F. Stengel (Münster and Cologne, 1g52), jo6; for Spain, also Gifford Davis, "The Incipient Sentiment of Nationality in btediaeval Castile: The Patrimonio real;' Speculum, x1(1937), 351-358. The non alienation clause leas added lo the French coronation oath in 1365 only (Schramm, Kdnig von Frankreich, 1,2371, nos ., and 7), but che principal was much older. See, in general, my paper "Inalienahilitv," Speculum, xxIx (1g54), 488-502, and the latest srudv en that subject: Peter N. Riesenberg, Inalienability of Sovereignty in Medieval Political Thought (New York, 1956). 229 J. F. Baldwin , The King's Couucil in England during the Middle Ages (Oxford, 1913), 346, 13; Powicke, King Henry III, ,,336f; Robert S. Hoyt, The Rosal Demesne in English Constitntional History: ro66- r272 (Ithaca, N.Y., '950), ¡62, one of the most importa os and in formatfve discussions of the prohlems touched upon here.

166

BRACTON

carne with the accession of Henry 11 whose consolidation of dtc royal demesne, together with his other administrativa and legal reforms, bred the understanding that certain domanial rights and lands were inalienable."' The two Iaws, Roman and Canon, werc c:ertainly contributiva factors in making the idea of inalienability of state property artiallate;221 but the essential factor vvas that Henry II crcated a de facto inalienable compiex of rights and lands which later, in the thirteenth century, carne to be known as the "ancient demesne" and which formed, in the languagc of Roman Law, tire bona publica or fiscal property of the realm.212 Moreover, the sheer existente of the "ancient demesne"-a suprapersonal compound of rights and Lands which was separate from the individual king and definitely not his private property-gave substance lo the notion of an impersonal "Crown'' which developed simultaneously.133 The officers of Henry II were compelled lo distinguish administratively "between lands fallino into the monarchy by feudal right, and lands which viere more properly the royal demesne of the king, or of the Crown."21; The result of this development may be gathered from an unoflicial proposition made at the very beginning of the thirteenth century. The anonymous compiler of a legal memorandum, jotting down his ideas about what the king's coronation oath should contain, suggested that the king swear lo "preserve all the lands of the Crown of this realm in their wholeness (in integrum cura omni integritate), and without diminution," and also lo recover all that had been alienated or lost.135 lao Hoyt, Demesne , 80,1231. 211 For the inlluence of Canon Law, see my paper "Inalienabiliry;' 4981{. Civil Law, of course , clarified the difference between patrimoniusn and fscus; but (he first reflections on inalienability seem to have emanated from a less technical problem, Ihat is, from the word augustus which was traditionally discussed along with the other titles of Justinian (perpetuus, sacratissi mus etc.); ser, e.g ., Fitting, Jurist. Schriften, 148. Augustus ( from augere , as was generally assumed ) meant an ''in creaser" of the empire ; hence, the emperor could noi be a ''diminisher ,- that is, he could not alienate property of the empire ; cf. Gerhard Lachr, Die Konstantinische Schenkung in der abendldndischen Literatur des Afitielatters bis mor Afitte des rq. Jahrhunderts ( Berlin, 1926), 64,n.44, cf.gg.

282 See Hoyt, Demesne, ,34ff, who has considerably elarified the meaning of "ancient demesne " and related subjects; see also his "The Nature and Origins of the Ancient Demesne," Engl.Hist.Rev., LXV (1950), 145-174. Zas See below , Ch.vn,2. 284 Hoyt, Demesne, 124. 2ss See the memorandum De iure el de appendiciis corone regni Britannie, forming a portion of the Leges Anglorunt saeculi XIII ineunte Londiniis collectae,

167

LAIF -CENTERED KINGSHIP

BRACTON

Bracton, as might be expected, was an ardent defender of the maxim nullum tempus. That in practice some of che most seign-

over, concerning the things public or quasi sacrae the king would become practically iudex in causa propria, which was true anyhow

orial powers and franchises were derived from prescription

in the case of lese majesty or high treason, since his own cause would appear as a causa publica or causa regni.240 Finally, wrongs committed against the res quasi sacrae would not underlie the otherwise valid law of prescription-Demanium nullo tempore praescribitur, as the Italian jurists explained24l-because, writes

against the king, would make little difference to Bracton, 236 since che de facto situation could not detract from a principie valid de iure; and Bracton's arguments, in that respect, were purely juristic. He explained, and reiterated his explanation, that things pertaining to the king's peace and jurisdiction were "things quasi holy," res quasi sacrae, which could no more be alienated than could res sacrae pertaining lo the Church.211 Those things quasiholy were "things public" existing for some common utility of the realm, such as the preservation of justice and peace. Bracton held that those things belonged lo the Crown as a royal privilege descending from the ius gentium which, in its turn , liad a semidivine, or even divine, character similar lo the ius naturale.238

With regard lo the res quasi sacrae the roya] power was definitely aboye the Law. The king, for example, was not in need to offer a proof when challenging a franchise, since he owned his roya] rights not ex longo tempore but, as we may say, ex essentia coronae; and therefore his challenge would be made, not for private comfort, but for the common utility of the realm.-3H Moreedited by F. Liebermann, Die Gesetze der Angeisachsen ( Halle, 1903-1gi6), i,635f. Cf. Schramm, English Coronation , 197; Hoyt, Demesne, 146,n.47. See also aboye, 0.225. 236 Bracton , fols. 14,56,103 , Woodbine, 11,58,167,293 , and passim . CE. Pollock and Maitland, 1 ,572ff,984, 11,140.44; Maitland considers the principie of Nullum tempus "a very wholesome maxim" but has his doubts concerning its validity in practice. Ogg, in his Introduction of Selden's Ad Fletam, p.xliv, quotes the maxim Nultum tempus as heing " his [Bracton ' sl osen or at least indigenous ." Bracton, however, only repeated or paraphrased a well known doctrine. Zar The most important place is Bracton, fol.,4, Woodbine, 11,57f; a free man, too, is a res quasi sacra because he can be sold as little as fiscal or Church property. Bracton (fol.407, Woodbine, 111,266 ) calls quasi sacra also everything spiritualitati annexa which was not per pontifices Deo dedicata. Drawing throughout from the Institutes of Justinian (Inst.,2,1) and from .Azo, Bracton confusos somewhat res sacrae and res religiosae , as has been indicated by Ghterbock, Bracton, 85 ; see also helow, n.3o2. 23s "De iure gentium pertinent ad coronara propter privilegium regir"; Bracton, fol.,o3, Woodbine, 11,293; cf. fol.55h, p167, and In.t., 2,,,4f . Ser also Gierke, Gen.R., 111,211,0.72, also G„ f, for the ius gentium; furiher, for the whole problem of "public utility," the ohservations of Gaines Post, "Puhllc Law," 42ff, and "Two Laws," 42,ff. 231 Bracton , fol.]o3, Woodbine, gsg3f: "el in quibus casibus nullum tempus currit contra ipsum si petat, curo probare non haheat necesse, et sine prohatione obtinebit - .. quia se ex longo tempore non defendet ." CE Maitland, Bracton and Azo, 175.

168

Bracton, "length of time, in that case, does not diminish the wrong but makes it worse."242 240 Treason was judged by "court and peers;' but with che king, too, acting as judge; Bracton , fol.ugb, Woodbine, 11,337 ( De crimine laesae maiestatis): " debent pares associari , ne ipse res per seipsum vol iustitiarios saos sine paribus actor sic et iudex" Cf. Lapsley, "Bracton ," Engl.Hist.Rev., LXII (,949), 1o- That che king with regará m the fisc, or the fiscus itself, can be judge in causa propria , is stressed perpetually; see, e.g., Cynus, mi C.7,87,1 (Lyon, 1547), fol.3o6v: "Imperator causas cuas non ipse cognoscit : sed iudices alios facit . Licet guando velit et ipse possit in re sua iudex esse." This was, by and large, also che opinion of Andreas of Isernia, Usos feudorum (en De prohib. feudi alíen ., nos.84ff), fol.281 . Further, Lucas de Penna, on C .u,58,7, n.16 (Lyon, 1582), 564, who holds that " princeps est iudex in causa sua " ivith regard m che fisc and whenever he revokes things alienated "in praeiudici a m dignitatis el coronae." For later times, see Gierke, Gen.R., iv,247,n.149. This is basically the idea also when the English king is judge in a cause de antiquo dominico corone Anglie; he is not judge in his own , prívate cause as an individual, but in a causa rerum quasi sacrarum , just as the hishop would he judge in causa eeclesiae (quae nunquam moritur) which again is not identical with a causa propria of che hishop ; see Gierke, Gen.R., 111,257,0.41. 241 See, for example , Marinos de Caramanico , gl. on Liber aug., 111,39, Cervone, 399. More cautious is Andreas of Isernia , en che same law, p400; also p312 (on Liber aug ., 111,8) where he 'cates: "Demania sunt publica quia fiscalia sunt publica. Fiscus, Populus Romanos et Respublica Romana ideen sunt." See also Andreas of Isernia, Usus feudorum, loc.cit., n.51, fol.272: "Demania sunt principis sicut publica populi Romani, quia fiscus et respublica idem sunt." Everything fiscal was public; see Glos.ord ., en D,,,1,2 , v. in sacris; cf. Post , "Two Laws;" 42!, n.18. Also. e.g., Cynus, en D .t,,,rubr.,n .,7 (Lyon, 1547), fol.2: "... lex dicit quod fiscale dicitur ius publicum ." Bracton does not indulge in those identifications and equations of fisc, people, state, crown, king, but implies essentially the same ideas , since Lo hin, likewise res quasi sacrae are things public to which the ancient deroesne belonged; see Hoyt, Demesne, 232ff, also 188. 242 Bracton , fol.,4, Woodbine, 11,58: "Diuturnitas enim temporis in hoc caso iniuriam non minuit , sed auget ." The principie referred Lo by Bracton is canonical; see c.11 X 1,4 (De consuetudine), ed. Friedberg, 11,41: "euurn tanto sint graviora pecrata, quanto diutius infelicem animan, detinent alligatam " The decretal, dealing with che problem of old custom (longaeva consuetudo) as opposed to Natural and Posi tive Laws, and with the prescriptive power of custom, is frequently quoted in connection with prescription; see, e.g., Andreas of Isernia, Usus feudorum, praeludia, n.3o, fol.4v: "Ea quidem quae pullo titulo, sed sola usurpatione tenuntur , nullo cempore pracscribu n tur - , nlaxime iure poli, ubi tanto gravius peccatur, quanto diutius." The glosses on c.u X 1,4 say ( rubr.): " Contra ius naturale nulla consuetudo valet. ítem contra ¡os positivum praevalet consuetudo rationabilis et praescripta ;" and (v. natural¡ ¡¡ir¡): " el naturalia quidem jura immutabilia sunt , civilia vero mutabilia ." Bracton, by applying that whole complex of 169

LA II'-GENTERFD KINGSHIP

BRACTON

In short, the maxim nullum tempus placed the king and his imprescriptible rights aboye the Law that bound all other men. Others, in the course o[ some limited time, ran che risk of loss by prescription; not so ahe king, vvho was protected even where minor rights were concerned which he was entitled to give away. Certain regalian rights, for example, wreckage, treasure troves, or big fish (tuna, star gcon, and others), avhich indeed pertained lo ahe Crown, were of no concern to "common utility" so that the king, if he pleased, could transfer these rights, or parts of them, lo private persons; because, says Bracton, "such translation would not do damage to any person except to ahe king or Prince himself.""' Here Bracton arrives at a clear distinction between the essentials "which make the Crown what it is," and the accidentals pertaining to ahe king; or, betiveen rights vested in ahe king for his public and common benefit of the community of the realm, and others serving ahe benefit of ahe king's person. However, even these minor regalian rights, as they, too, descended allegedly from the iris gentium, could be acquircd only by a special royal grant; they could not he acquired by prescription?'* This general protection against alienation through ahe effects of time did not prevent the king from being himself subjected to the law of prescription whenever res non ita sacrae, "things less holy," were concerned, things such as tolls or manorial jurisdic-

regard to some rights, lands, and liberties, which he vas entitled to give away at his pleasure, which did not touch ahe essence of bis office and therefore (lid not '"touch all,"e" and which acere said to serve only to snengthen his position (per quae corona regis roboratur), ahe king himself was bound to ahe law of prescription: "With regard to those things, time runs against the king as against any private person.""" To summarize, in some respects ahe king was tender the law of prescription; he was a "temporal being," slrictly "within Time," and subjected, like any ordinary human being, to the effects of Time. In other respects, however, that is, with regard to things quasi sacrae or public, he was unaffected by Time and its prescriptive power; like the "holy sprites and angels," he was beyond Time and therewith perpetual or sempiternal. The king, at least with regard to Time, had obviously "two natures"-one which was temporal and by which he conformed with che conditions of other men, and another which was perpetual and by which he outlasted and defeated all other beings249 rectly the glossators when he says : Fisci autem res sunt, quae in Principatus sum patrimonio [ not in the patrirnonium Principia ], quorum administratio, quasi stipendia laboris, in usum et usufructum Principi concessa co, pro tuitione imperii et populorum bono regimine ." It is from Chis puint of view that Accursius, en Cg,3y,3, v. omnia principia, explained : " Ve] venus omnia sua sunt, scilieet fiscalía et patrimonialia ." This opinion was represented also by Andreas of Iscrnia, en Lib.aug., 111,4 , Cervone, 293 : " Item, licet postquam bona sunt inco,porata , omnino sunt Principis "; however, he insists: "Differentia Lamen est inter res Dentanii et alia bona Curiae . , sic inter fiscalia el patrimonialia." 1 refrain from pushing this complicated problem, especially sine in Bracton feudal concepts interfere everywhere with the terminology of the Civilians. 24e Thfs, of course, is the gist of ahe problem: "What touches all" belongs tu things public aod cannot be affected by time; see Gaines Posta famous paper "Quod omnes tangit ," Tradujo, 1v (1946), tgyff. 248 Bracton , fol. 14 : " et in quibus cuma tempus contra regem sicut contra quamlibet privatam personam ." Cf. fol.56: "In alibí enim, uhi probatio necessaria buena, currit tempus contra ipsum sicut contra quoscumque alios. " Thc king's private property, needless te say, leas likewise exposed lo prescription.

tions,a " which did not belong lo the ancient demesne or ball among the regalian rights, things which che Civilians would call patrimonialia as distinguished from fiscalia."e That is to say, with ideas te the demesne or fisc, thus equates the res quasi sacrae, as it were, with Natural Law. 243-Sunt etiam aliac res quae pertinent ad coronam propter privilegium regis. el iza commnnem non respiciunt utiliza tem, quin dar¡ possunt et ad alium transferri, quia , si transferatur , translatio nulli erit damnosa nisi ipsi regí sive principia' Bracton, fol 14, Woodhine, n,58; ser also (01.56, p.,6¡. This is essentially the opinion of sil jurists. 244 Bracton , fol.'4,p . 58: "... quia si warantum non hahuerit specialem in hac libertate se defendere non poterit , quamvis pro se praetenderit long¡ temporis prae. scriptionem ... huiusmodi de iure gentitim pertineant ad coronar ." See aboye, n.238. 245 The res non ita sacrae are mentioned on fol .'4, P.58; cf. fol .551), Woodhine, 11,i66f. 244The distinction between fiscus, patrirnon iurn. and res privatae of Elle emperor was lacking clarity even in ancient times (see Vassalli, "Fisco" [below, n.2-,2j, 97tt), and ahe Civilians did not alwavs rcalize that ahe terms were used with a difieren[ meaning at different times . Peregrinos , De jure fisci, 1.,,o. 8,fol.tr , sucos up cor-

170

Roe We may reeall the Norman Anonymous who placed his rex sanctus beyond time and space (cf. Williams, Norman Auooymwts, rho, arad 2e5ff, [he Drcressio de vare "sanctus"), though not for fiscal reasons ; see aboye , n.4. Bra(ton seems so hace bcen somewhat conscious of the problem of Time. On one occasion (fol. u,eb-1o3, Woodbine, 11,293), he distinguishes , follorving justinian, I11st. ,4,,2, between perpetual and temporal actions; that is, actions salid perpetually ( laws, decrecs of ahe senate, or imperial consti tu tions) and actions limited by tire. Quite Ir nex pectedl r, however, he inserís -apparently challenged by the notions of pcrpetuahty and tinie limitation-a paragraph en nullurn tempus, although Use /nstitutes offer not Ole slightest foundation for this excursus ; cf. Mainand , Bracton and Aza, 175.

Í

171

LAW-CENTERED KINGSHIP

In other words, concerning Time the king was a gemina persona; he was Time-bound in some respects, and was aboye or beyond Time in others. At this point, however, a warning is needed. Bracton did not seem to make a distinction between the king as King who is sempiternal and aboye Time, and the king as a private person who is temporal and within Time. The idea of the king as a purely private person was, it seems , within the range of Bracton's political thought as little as it was within that of John of Salisbury or Frederick 11 .250 Nor is the cleavage conditioned by the king's "body natural ": it is a duality within the concept of rulership itself. This new geminatio of the king results from the establishment of a (so to say) extra-territorial or extra-feudal realm within the realm, an "eminent domain" the continuity of which, beyond the lile of an individual king, had become a matter of common and public interest because the continuity and integrity of that domain were matters "that touched all."251 The line of distinction, therefore, has to be drawn between matters affecting the king alone in his relations to individual subjects, and matters affecting all subjects, that is, the whole polity, the community of the realm. Better than distinguishing between the king as a private person and the king as a non-private person, would be to distinguish between a king feudal and a king fiscal, provided that we mean by "feudal" preeminently matters touching individual relations between liege lord and vassals; and by "fiscal," matters "that touch all." Bracton himself seems to support Chis discrimination in the passage in which he explained the terco res quasi sacrae and defined to what matters precisely he attributed sempiternity and 250 See aboye, p.g6. This does not imply that a distinction between public and privare capacities was entirely lacking in earlier times . Around ngo, for example, Gerhoh oí Reichcrsberg, De edificio Dei, e.21, MGH,LdL, 11t,152,12, when discussing the Donation of Gonstantine (aboye, n.agt ), remarked : ' De regni autem facultare, quae est res publica, non debet a rege fieri donatio privata. Ese cuico aut regibus in posterum successuris integre conservanda aut communicato principum consilio donanda. De re autem privata eam a regibus quam a ceteris principibus potes[ fieri donatio privata ." lrene Ott, "Der Regalienbegriff ira 12. Jahrhundert ," ZfRG, kan. Abt., xxx0948), 262f, certainly goes much roo far when she deduces from that passage an impl¡5ation concerning the state as a "juristic person." In later times, (he Civilians as well as the Canonists mention, time and time again , things owned privately by the king " non tanquam rex, sed tanquam horno et animal rationale," as Baldus, Consilia , 1,271,n.6, fol . 82, says. However , ntose res privatae are hardly discussed by Bracton. 251 Post , "public Law," 46ffd9 ; also "Two Laws," 421ff.

17°2

° BRACTON immutability. He obviously chose his words with consideration; for he distinguished carefully between the rex regnans (the "ruling king") and the "Crown" while identifying at the same time the res quasi sacrae with the res fisci. A thing quasi-sacred is a thing fiscal, which cannot be given away or be sold or transferred upon another person by the Prince or ruling king; and those things make the Crown what it is, and they regard to common utility such as peace and justice.252

Bracton clearly referred to the public sphere, to "common utility," when speaking about the Crown and the fisc. Aboye all, however, he attributed immutability and sempiternity not only to church property, the res sacrae or (as others called them) the res Christi, but also to the res quasi sacrae or res fisci. And therewith there emerges that seemingly weird antithesis or parallelism of Christus and Fiscus to which hitherto little or no attention has been paid and which nevertheless illustrates most accurately a central problem of political thought in the period of transition from mediaeval to modern times. In 1441, a monastery of Austin Friars was tried before the Court of the Exchequer because rector and monks claimed, in the case of some public emergency, tax exemption on the basis of a royal franchise granted by Edward III. It was a case of estoppel, since the judges felt that the king's personal grant lo the monks was prejudicing the king's normal rights lo taxation for the public welfare. In the course of that trial, John Paston, Justice of the Court of Common Pleas, and later well known as the collector of the letters of the Paston family, threw into the discussion an illustrative example. The details are of no interest here, but Paston supposed the case of a man who died a felon after having turned his lands to the dead hand, the Church. In such a case, 252 Bracton , fol14, woodbine, n,58: "Ese et¡am res quasi sacra res scatis, quae fi dar¡ non potest neque vendi neque ad alium transferri a principe vel a rege regnante, et quae faciunt ipsam coronara et communem respiciunt utilitatem, sicut est pax el iustitia quae multas habent species." Unfortunately Bracton does not discuss the various species of " Peace and Justice" coherently, but they are congruent with notions such as usos publicas or communis utilitas which Post ("Public Law," 5oft) has discussed . The "Crown" in Bracton 's treatise is certainly not the "personified state " nor is it as yet even a persona Acta, although crvpt o-corporative concepts begin Co make their appearance ¡ n Bracton , as Post, in bis study "Quod omnes tangit ," has demonstrated,

173

r.AIi'-CFSTERED AINGSruP

BRACTON

ran Paston's remarkable argument, the felon's chattels would he forfeited to the king "because what is nos snatched by Christus, is snatched by dse Fiscos"-quia quod non capit Christus, capit

ches[?214 The answer is simple enough: neither was the mnotto a felicity of Paston nor did Alciati horrow it frota the English judge; hut both Alciati and Paston merely quoted a plirase pro-

fiscos. The learned interpreten of thar law-suit took Chis remark apparently as a bou mor of Paston and quoted it in a footnote because he considered it "ioo good co be los[."252 But 1'aston's remark would not nave been lost anyleay. In bis collection of emblems of the grcat Italian jurist and humanist :\ndrea Alciati presented an emblem showing a king (fiscus) whet squeezes a sponge to the last drop, and the mosto: Quod non capit Christus, rapit fiscos (fig. 21)'04 Alciati's book was singularly influential; in its wake some 1300 authors published more [han 3000 similar emblem books, while Alciati's original work was translated into all European languages.205 Hence also the Christus-and-fiscus moteo wandered into a good many of those collections of emblems, devices, and proverbs of which the Renaissance was so fond.259 Did Justice Paston coin that phrase? Or did he think of, or happen to know, a disposition frequently repeated in the Dooms of Anglo-Saxon kings co the effect that certain fines were co be split between "King and Christ," the latter meaning the episcopal

verbially used by lawyers. Matchaeus de Afflictis, writing around 1510, quoted it repeatedly in connection with tithesY ' A century before Paston, around 135r^, the Flemish civilian Philip of Leyden, author of a legal tractate on government, virote about Ole rights of the Ese co intestate inheritance, and ou shas occasion he, roo, dropped somewhat unexpectedly the remark : Bona patriChristi et fisci comparantur , "One compares the patrimonial possessions of Christ and the fisc ."252 The Dutch jurist

monialia

apparently produced his comparison as a cornmon usage of legal language; and in that he was correct . For the ultimare source of all these lawyers was the Decretum of Gratian: Hoc lollit fiscos, quod non accipit Christus, "What is not received by Christus, is exacted by the fiscus."200 With [hese words Gratian concluded a brief discussion about tithes due God and Caesar, borrowing the whole passage from a Pseudo-Augustinian sermon in which the unknown preacher argued shas Laxes rendered to the fisc became the more burdensome the less tithes were rendered co God.t'

253 T. F. T. Plucknett, "The Lancastrian Constitution," Tudor Studies Presented lo A. F. Pollard (London, 1924), ,68,n.1o. For the principie involved (invalidation by a casos necessitatis of che king's private contraer with an individual), see Post, "Two Laws," 424, and ' Public Law," 53; see also the succinct formula of Philip of Leyden (below, 0.259), Tabula, rubr.I,n.9, p370: "lo rebus reipublicae consuetudo vel statutum non praeiudicant," which would apply also to charters and privileges. Miss Elizabeth Weigel, in London, was kind enough m copy for me the complete text of Paston's argument from the Block Letter Vulgate (London, 1679), u, pares 7-8, p.63. Donations of felons viere always legally interesting cases; see , e.g., Selden, Ad Fletam, 221,1, ed. Ogg, p.22. Paston actually cmnplicated his hypothetical case by assuming that the feto de se (self-murderer) died intestate so that legally the Ose was the heir also for lack of a last will, a feature interesting in so far as Philip of Leyden (see belmv, n.259) likewise mentions the Christus-fiscus parallelism in connection with intestate death. See, in general, my brief note "Christus-Fiscus," Synopsis: Festgabe far Alfred Weber (Heidelberg, 1948), 225ff, then written withoot a knowledge of either the origin or the later history of the comparison. 254 Andrea Alciati, Emblemata (Lyon, sq s), No. exlvn, p158. The mosto, nos yes found in the supposedly planned edition of 1522, first appeared in the editio princeps of 1531; see Henry Greco, Andrea Alciati and the Books of Emblems

217 See Edward and Guthrum, Pro(., cc.2 and 12; VIII Aethelred, cc2,15,36,38; 1 Canute, ec . 2 and 4; ed. Felix Liebermann, Die Gesetze der Angelsachsen ( Halle, 1903), 1,128f,134f,263 , 265,267,280f. 258 Matthaeus de Afhictis , en Lib.aug., 1 ,7 (De decimis), fol.53v; also prae/udia, q.XV,n.3, fol.14v. 259 Philippus de Leyden , De cura reí publicae el sorte principantis, l,n.g, ed. R. Fruin and P. C. Molhuysen ( The Hague , 1915 ), 13, a text co which my attention was called by Berges , Fürstenspiegel , 265; ser, for Philip, also F. W. N. Hugenholtz, "Enke) e Opmerkingen oven Filips van Leydens De cura re¡ publicae et serie principantis als historische bron," Bijdragen voor de Geschiedenis der Nederlanden, Nos, 3-4, 1953- On the basis of C.io,so,1 , the author discusses tire right of the fisc m intestate inheritance and rejects claims en che parí of cities or other local corporations (see, en the altercations between fisc arel cities , Cecii N. Sidney Woolf, Bartolus of Sassoferrato [Camhridge , 1813], 12off, and on the successio ab intestato en the parí of corporations , Gierke, Gen .R., 111,291 ,n.139); a legacy snatched by a city must be revoked by the Prince: "Et quasi bona patrimonialia Christi et fisci comparantur. Ui administratores rerum Christi pauperum cibos ad libitum non disponant ... , sic bona fisci in protectionem et conservationem reipublicae servanda sunt." Philip of Leyden, I,n . 15, p.14, actually quotes the relevant passage from the Decretum (see next note). For the very common legal concept according to which the peor are the owners of Church property, see Gierke , Gen.R., ut,293 , n.143.

(London, 1872), 324255 Green, Alciati, p.viii. 2s6 See, e.g ., Jolsannes Georgius Seyboldus, Se/ectiora Adagio latino -germanice (Nürnberg, 1683), 3o6; K. F. W. Wander, Deutsches Sptichwdrterlexikon (Leipzig, 1867), 1,538, Nos.54.56,57; 11,1102, No.95, cf. Nos.to3f; see also Gustavo Strafforello, La sapienza del mondo ovuero dizionario universaie dei proverbi di tutti popoli (Turín, 1883), n,86, s .v. 'risco.'

174

seo See c.8 ,C.XVI,q.7, ed. Friedberg , 1,802. This passage , of course , was widely known, and it was cited, in the 1340 's, by Albericus de Rosate in his Dictionarium luris taro Civilis quam Canonici ( Venice, 16oi), fol.12o, s.s. Fiscos : "Quod non accipiet Christus, ubi aufert fiscus." 291 [Pseudo -] Augustine , Sermones supposititii, lxxxvi,3, PL, xxxIx, 1912.

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However, perfectly authentic words of St. Augustine referring to

be recommendable to replace the term "dead hand," manus mortua, by "perpetual hand," manus perpetua, since the perpetuality was che truly significan[ feature common to both Church and fisc: they "never died,"21' Indeed, "Church and fisc walk together en equal terms,"288 as tire jurists remarked, for "there is no prescription against tire Empire and the Roman Church." 205 It was on chis basis that the lawyers began to challenge, not the genuineness, but the validity of the Donation of Constantine because, tan their argument, the Prince was not entitied to aliente property of the Empire, not to mention whole provinces; nor could the Church claim that by now the lands donated by Constantine were prescribed, since there was no prescription against the property of the Empire210 At any rate, by the thirteenth century'che concept had gained general acceptance that the fisc represented within empire or kingdom some sphere of supra- personal continuity and perpetuality which depended on the lile of the individual ruler as little as Church property depended en the lile of an individual bishop or pope.

the fiscus of Christ are available; they are found in his commentary on the Psalter: Si non habet rem suam publicara Christus, non habet fiscum suum, "Unless Christ has his state [or community] he lacks his fisc."282 In this case, the political notions of res publica and fiscus were used in a figurative and spiritualized sense: the community of mutual love and charity depended upon the spiritual treasure, and the one who practiced charity and gave alms thereby contrihuted to the ••fisc" of Christ without needing fear the temporal "fiscal dragon," that is, the "exactor of the fisc" of the empire283 This passage, too, was received by the lawyers; Lucas de Penna, for example, quoted ir in full when discussing ecclesiastical property.104 Actually those places were not unimportant to the Church, because in the course of the Poverty Struggle in the times of Pope john XXII they served with other material to preve that Christ, since he had a fiscus, must have owned property.262 It is not difftcult to detect what made Christus and fiscusincomparable magnitudes to modern ears-comparable to medi-

That Roman Law and its complex ius fisci were responsible for

aeval jurists. The comparison hinged upon the inalienability of

the new way of expounding the existente of an "immortal fisc"

both ecclesiastical property and fiscal property 288 Alongside of the

257 "Unde fiscales regni dicunt quod feudum pervenit ad manus mortuas; sed

spiritual "dead hand" of the Church there had come into being,

venus el proprius diceretur manus perpetuas ; nam ecclesia nunquam moritur . sicut nec sedes apostolica ... sic nec imperium quod semper est." See Lucas de Penna, on C., I,69,5,n.2 (Lyon, 1582), p515, who refers to Andreas oí Isernia, on Feud., 1,13,n 3, Y. Ecclesiue, fol.49v, Cf. Gierke, Gen.R., ur,365, n.43. See, for the phrase fiscus nunquam moritur, below , n.292. 205Bartolus , en C.11,62 (61),4,n. 1, fol.45 ": .• , , coro ecclesia et fiscus paribus passibus ambulent,' with an allegation oí C.1 ,2,23, where we find divinum publi. cumque ¡os set over against privata com ,noda.Accordingly, it was common among lawyers to emphasize that "ius divinum es publicum ambulan[ parí passu"; cf. Post, ''Two Notes;' 313,n.S1, quoting Jacques de Révigny (ca.1270.80). See n.267, and below, nos . 283,285. 209 See, e.g., Baldus, en C.7,38,1, fol _9: ". . nullo ternpore praescrihitur res Caesaris . . Contra Imperium et Romanam Ecclesiam non praescrihitur " (below, n.28o); also Baldus , on C.prooem .,n.38, fol.3: "quod non potest prescribi, non potest alienan." 270 For the actitude of the jurists and the problem in general , see Laehr, Konstantinische Schenhung, 98ff,,29ff,184E; also B . Nardi, "La Donatio Constantini e Dante;" Studi Danteschi , xxvr(1942), 8,ff; Ullmann , Mediaeval Papalism, 1o7ff, ,63ff; Woolf , Bartolus, 94ff , also 343ff. Baldus , en c.33 X 2,24, fol.261, supported the validity oí the Donation only because it was a "miracle ," but admitted that it was not legal; see also Consilia , rrr,l5g,n.3, £01 45", where he is rather outspoken: "nana quicquid dicatur de donatione Constantini , quae fuit miraculosa , si similes donaciones fierent a regibus, non ligarent successores, quibus regni tutela, non dilapidatio est commissa ." See, for England , Schramm, English Coronation , tg7ff; Hoyq Dernesne, 146.

or into legal awareness, a secular "dead hand" of the state: the fisc. Or perhaps, following a suggestion of Lucas de Penna, it might 202 Augustine, Enarration es in Psalmos, cxr.v1,17, PL, xxxvn, col. iy11. 263 "Ne putetis quia aliquis draco est fiscus, quia cura timore auditur exactor fisci; fiscus saccus est publicus. Ipsum habebat Dominus hic in cerra, quando loculos habebaq el ipsi loculi Judae eran [ commissi (John 12: 6)... . 204 Lucas de Penna, en C.lo,l,l,n.7 (Lyon, 1582), p.5; (Lyon, 1597), fol. nv. „ 202 The decisive passages are c.12 and c. 17,C.XII,q. 1, ed. Friedherg, r,681,683: "Quare habuit [Christus] loculos cui angeli ministrabant , nisi quia ecclesia ipsius loculos habitura crac? and '' Habebat Dominus loculos, a fidelibus oblata consecrans...." Both passages are taken from Augustine , In Johannem, 12,6 (aboye, n.263 ). These places were referred to by Pope John XXII in his decretals against the Spirituals ; cf. Extravagantes Ioannis XXII, titxrv,c.5, ed. Friedberg, rr,123off, esp.1233. The word loculus, meaning "purse ," could be taken to mean "fisc' as demonstrated by Augustine ( aboye, n.263 ). The jurists then elaborated on the question whether or not Christ had a fisc in the proper sense oí the word; see, e.g., Matthaeus de Afilictis, Praeludia , q.xv,nos .7.9, fol.,4v. 200 The designation Christus for the possessions oí the Church is explained by the fact thar Christ was considered the owner (Gierke, Gen. R., 111,250,11 18), or God (below, n. 2g8), or che peor ( aboye, n.259). See, for the early mediaeval hiscory oí inalienahility oí Church property, Arnold Póschl, " Kirchengutsverüusserungen und das kirchliche Veriusserungsverbot fin früheren Mittelaller ," AKKR, CV ( 1925), 3-96,349-448.

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detached from the person of the ruler is obvious; at the same time,

personal and private aspect of the fisc, die lawycrs proceeded quickly lo a more impersonal and puhlic exposition of fiscal property. They tried to find out what the fisc really was, and to whom it belonged. AVas it identical with the respublica? Or was che respublica only the usufructuary of che fise, as Placentinus maintained, or che owner of che fisc, wich full dominium ovcr it, as Azo believed? \loreover, what was the relation between the Prince and the fisc? Had, by che lex regia, the fisc been conferred upon the Prince together with che imperium? And if that viere so, would de fisc then be the property of the Prince or was he merely che administrator and vicar of the fisc, assuming the privileges which derived from it, but responsible for its undiminished preservation for the benefit of his successors ? And how did the fisc compare with the other appurtenances which the Prince was entitled to alienate, of which he could freely dispone, and which actually viere subject to the prescriptive effects of time? Finally, if one assumed that the fisc was neither identical with the respublica nor with the Prince, was it perhaps a fictitious person per se, a "person"

however, Canon Law concepts about the inalienability of Church property served as a model for che establishment of an independent and impersonal fisc."' From che twelfdl century onward che legists made efforts to interpret dte meaning of that strange thing called "the fisc."Ce Tbe word, of course, was very common in Carolingian times when it meant die private property of che king;273 and che jurists of che trcelfth century were inclined lo interpret, in a similar fashion, the fisc as che sacculus regir, "the king's purse into which che king's money was received," an interpretation which was repeated for centuries. 211 But from chis more 271 See aboye , n.226 . Whereas the perpetuality of Church property was stressed, time and again , during che Investiture Struggle (see, e.g ., Placidus of Nonantula, De honore ecelesia, c.7 , MGH,LdL, 11,577, 30: "Quod semel aecclesiae dato. est, in perpetuam Christi est , nec aliquo modo alienar ¡ a possessione aecclesiae potes["), the defenders of the imperial cause, who denied the perpetuality of the temporal properties of the Church, came to deny also the perpetuality of the secular power as such; they insisted on ever-repeated investiture, that is, confirmation of grants to the Church , on che accession of every new king and new bishop; see , e.g., Wido of Ferrara , De scismnte Hildebrandi , u, MGH,LdL, 1,564,42: "Sicut enim imperium et regnum non est successorium, sic jura quoque regnorum et imperatorum successoria non sunt, nec regibus et imperatoribus perpetim manere possunt . Si yero perpetim non manent illis, qualiter his [se. episcopis ], quibus traduntur , perpetim manere possunti " Wido, it is true, tríes to construct perennial imperialia iura, but he does not carry chis notion far enough to overcome the break of continuity which he was hound to construct in order to maintain the necessity of new investitures of the bishops at the hands of every new emperor. 272 FOr the following, see Gierke, Gen. R., n1,2o9ff; for the history of the fisc, see Filippo E . Vassalli, "Concento e natura del fisco;" Studi Senesi, xxv('908), 68-122, 377.23! . Very useful is the work of a Venetian canonist , Marcus intonius Peregrinos, De privilegüs el iuribus fisci libri acto (Venice , 2612 ), who, in his referentes, conveniently sums up che opinions of the mediaeval glossators. 273 The frequency of the word fisc in the Frankish documents , laws, and chronicles implies no more than a survival of the ancient administrative language; the farmer impersonal character of the fisc had given way to a purely personal concept already in the writings of Gregory of Tours. See the remarks of Vassalli , " Fisco,' 2S1ff. It is significan [ that in a work such as james Westfall Thompson' s The Dissolution of the Carolingian Fise in che Ninth Century (Berkeley, 2935 ), not the slightest effort has been made to determine wlrar "fisc" mean[. 214 See, e.g., Fitting, Juristische Schriften, 200: "Fiscos dicitur regius sacculus, quo recipiebatur pecunia regís . Per translationem vero dicitur omne dominium regie maiestatis ," This definition, of course, was quite unoriginal . For the personal concept of the fisc, see the charter for .Speier, of 1122 , in which the Emperor Henry V talks about his rights " in locis fiscalibus , id est ad utilitatem imperatoris singulariter pertinentibus "; cf. Vassalli, ''Fisco," 86 , n,2, who records also the change from imperatoris to imperii in the confirmation of the charter in 1182. For the survival of the definition sacculus regir , see, e.g., Bartolus , en C.,o,l,mbr.,n.u (Venice, 1567), fol.2v: "Fiscos est saccus cesaris vel regís vel reipublicae-; but (n.13) he calls ¡t also camera imperii , and (n.17 ) he makes a clear distinction between private and public: .. aut accipimus cameram imperatoris prout est impera-

178

having its own patrimony, having experience, its own council, and "all the rights in its breast"-that is, did the fisc have an independent existente all by itself as a body corporate?272 tor ... , aut prout est privatus , et tunc differt camera imperii a camera sua," See below, n.276, for considerably earlier distinctions of that kind ; also Peregrinos, De jure psei, 2.1,n.6. 275 For Placentinus and Azo, see Gierke, Gen . R., 111,211; also Post, "Public Law," 4g, and, in general, Vassalli, "Fisco ," 289ff. The lex regia was quoted , e.g., by Cynus , on C.2,544 ( Lyon, 1547), fol.82 , and (Frankfurq 1678), fol.114v: "Praeterea negari non potest , quin Respublica fisc¡ successerit ¡ n locura Reipuhlicae Romanorum per legem regiam , quae omne ius populi transtulit in principem.... Ergo eius privilegia et conditionem assumpsit. " The identity of fisc and Prince found support, e.g., in D.43,8,2,4: "res enim fiscales quasi propriae et privatae principis sunt." Baldas , en C.m,i, nos. u-13, fol.232v , discusses practically every possihle interpretation, including che pros and cons; he, too , considers the results of the lex regia (n.u2), and draws tbe conclusion that, en this basis, ultimately the Roman people owned the fisc "quia princeps repraesentat illum populum , et ille populus Imperium, etiam mortuo principe ." Baldus, of course, recognizes the diffculty of identifying the fisc with the Prince (n.28): "Quaero, mortuo imperatore , ubi est iste fiscos, cura sic mortuus ille qui eral fiscus? Responsum : fingitur non mortuus, donec alius creetur imperator , sed vice personae fungetur ." The fiscal interregnum, of course, was non existent in che hereditary monarchies and in the Italian republics. Baldas, like many another jurist, defined the fisc as the camera impera ( see next note). On the other hand, Bartolus , on D.49,14,2 ,n.2, fo1.254v, and elsewhere, in pursuance of his well known ideas about " sovereignty ," held that "populus liber est sibi ipsemet fiscus" Cf. Vassalli ,'' Fisco," 191,n3. Ser, for che relation of populus and fsscus , also P. W. Duff, Personality in Roman Private Law (Cambridge , 1938),

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by Justinian at a hundred years with regard to the Roman Church:2re prescription, so far as it could be claimed against the Roman Church and ecclesiastical property in general , was valid

There could not be any one answer to satisfy all those questions and solve the`problems involved, nor could there be unanimity among the jurists concerning the interpretation el "fisc." It be-

only after a period of a hundred years, which was more than any human being could remember.219 This prescription of a hundred

carne apparent, however, that the lawyers were trying to distinguish between "private" and "public" more effectively than had

years was in the West a privilege of the Roman Church alone; it served to protect the Church property and make it in practice inalienable . Baldus, however, like other jurists remarked repeat-

been done in an earlier era, and that they were about to create by their definitions the new sphere of things pertaining to Public Law-as it were, a new realm within the realm-which then the Church under Ecclesiastical Law and likewise forming a

edly that "the same prerogative against prescription, which the Roman Church enjoys, is enjoyed by the Empire," or that "the

realm within the realm since earliest times. Already the Glossa ordinaria had made the fisc public: the fisc was considered to be the aerarium, the treasury, not of the people or the Prince, but

prescription] as the Church." He declared even more specifically: "Today one does not seem to recognize a prescription el less than

could be set against, or compared with, the things pertaining to

Roman Empire enjoys the same prerogative [of a hundred-years

a hundred years [running against the Empire], which shows that the empire is treated as on a level with the Church"-or, when

of the empire. Unanimity there was in one respect: that fiscal property was normally inalienable and that the fisc was perpetual or immortal Rre

stressing the hundred-years prescription against the Church, he

A very different matter, of course, was the practical problem of how to recover fiscal losses and fiscal rights or possessions which had been in the hands of private persons, landlords and others for a very long time-"beyond which the memory of man runneth not to the contrary."2i7 The tempus memoratum had been fixed

added: "And the same prerogative seems lo be enjoyed today by the Empire."210 dubitatio ' [Lib.aug., m,8 , Cervone, 3o7ff 1 .... Videtur ergo dicendum quod praescriptio temporis cuius non extat memoria, procedat et in demanils ...." The same view is expressed also in Andreas ' gloss on Lib .aug., u1,S. See belmv, n.283278 See Nov . g (for the Roman Church), and C[,s,s3,3 - 4 (for churches in general in certain cases). Despite changes and a reduction lo 40 years ( cf. Nov.ut, also Nov.131 ,6), the praescriptio centum annorum remained v.lid in Rome and in Canon Law ; see Gratian 's Decretum , c.17,C.XVI,q. 3, ed. Friedberg , 1,796. ere The Glos . ord. on c.14 X 2,26, v. centum annorum, stresses sha[ a prescription of loo years is equal to no prescription at all: "Sed videtur certe impossihile probari praescriptionem centum annorum. Idem est ac si diceret Papa: Nolo quod curras praescriptio contra Romanam ecclesiam ." The glossator adds that a witness had lo be at leas[ 114 years old to piove possession of loo years, because he had to be 14 years old lo be admiited as witness . This, then , remained the customary interpretation of this Innocentian decretal; see , e.g., Baldus, on c.14 X 2,26,n . 2, foL273v; ateo Matthaeus de Afflictis , on Lib.aug., 111,7,16, fol.122 , who discusses [ he question with regard to the demesne " an autem sis aliqua difterentia inter praescriptionem centum annorum , el praescriptionem tanti temporis, cuius initii memoria non existiC' Those arguments were all raised by the early glossatms of the Sicilian Constitutions ; see Marinos de Caramanico , on Lib.aug., u1,39, Cervone , ggg, and also Andreas of Isernia (¡bid., p.400). 210 Baldus , on C.7,39,3,n . 17, fol.31: ". , . ecclesia sancta Romana, contra quam non praescribitur nisi spatio centum annorum ; contra Yero alias ecclesias praescribitur spatio 40 [annorum;." Ibid., 17b: "ltem ecclesiae Romanae et Imperio non prae' scribitur super his quae reservara son[ in signum universalis dominii." Ibid., 17d: "Qua enim praerogativa gaudet Romana ecclesia contra praescribentem eadem gaudet Imperium ." Ibid., 18: "Sed hodie non videntur praescrihi minore tempore centum annorum ex quo imperium aequiparatur ecclesiae ." See atso Baldus, on C.7,3o,2,n.2, fol.19v: "Hodie yero de iure authenticorum non sufficit minus tempus

52-61. For the personification of the fisc, see Gierke , Gen.R., 111,359 ,n.t7; and, in general, Vassalli , " Fisco,' 2ntf. ere See Clos . ord. on D.14 , 1,2, v. in sacris , and also on C.io,s,rubr .: " Fiscus dicitur ipsa imperialis vel imperü camera, non dico patrimonii Imperatoris ." The last words were often repeated with particular stress, e.g ., by Odofredus , on C.to,g,l,n.to (Vassalli, "Fisco ,' 189), who added to sise words camera imperü the remark: "non patrimonialis [ cameral principis." Bartolus, glossing the words patrimonii Imperatoris, made a clear distinction : " Quia tunc Imperator capitur ut privatus , el tunc eius [patrimonii ] procurator differt a procuratore fisci." Baldus , on C.i o,l,n.13, fo1.232, mates a generalizing remark: 'Tiscus est camera imperii: ubi ergo est fiscus, ihi est Imperium ." See, in general , Peregrinos , I,1,nos.a.4,8 , and passim , folio; Post, "Public Law;' 48ff, also " Two Laws," 421f , nn.18f; and , for the perpetuality of the fisc , Vassalli, "Fisco," 215, also for the customary etymology of fiscus from fixus in the sense of perpetual ; cf. Peregrinus , l,i,n.3i,fol.3v : " fiscus est fixus es stabilis, quia perpetuos es nunquam moritur, ... et quamvis mutetur domini persona, semper tamen idem est fiscus." 277 For the tempus memoratum see, eg., 6.7,39 ,4,2. Bracton , fol.s3o, Woodbine, nt,i86, gives a very specific reason for the validity of prescription against the fisc: "Itero docere oportet longum tempus el longum usum qui excedit memoria' hominum. Tale enim tempus sufficit pro jure, non quia ius deficia [ sed quia actio deficit vel probatio ." Andreas of Isernia, on Feud., 11,55 (De prohib . alíen. ), n.5o, fol.271v, discurses whether or nos prescription against the fisc is possible: "Item quaeritur an demania regni vel imperii possint praescrihi : periti regni Siciliae dicunt, quod non, sicut glossator [ Marinos de Caramanico ] in constitutione 'Si

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It is true that the word hodie, "today,'' meant very often the times of justinian to which che Civilians referred.2t1 This, however, is not true in che present case, lince Roman Law, where it did recognize prescriptioe rights against the fisc, was ignorant of a hundred-years prescription; tlte fisc teas normally protected by a period of forty or (accorrfing to 1 ombard Laty) of sixty years. Thereforc, the emphasis which Baldas laid repeatedly on the word "today'' is noteworthy, because it seems lo imply that only since relatively recent times were Church and imperial-royal fisc "equiparated" with regard lo tire hundred-years prescription.. In fact, this "equiparation" of Church and fisc does not seem to antedate Frederick II who transferred the ecclesiastical privilege to the secular state . In his Liber augustalis he states in plain words: We extend che prescription of forty and sixty years, which hitherto was appropriate in public matters [lo run] against the fisc, to a space of time of hundred years.223

And the Sicilian glossators made it perfectly clear that che fiscal hundred-years prescription vas established by Frederick's law and that this emperor transferred an ecclesiastical privilege to the fisc.'a' The aequiparatio of Church and fisc was thus carried centum annoruni , quia sicut Romanum imperium gaudet [ecdesia Romana] eadem p'raerogativa .... Attende tamen quod nec centum annorum sufficit praescriptio contra imperium vel Romanam ecclesiam in his quae etiam sibi reservavit imperium in signum praeeminentiae el superioritatis .. ." Also en C.7,4od, n.7, fo1.34: "non enim praescribitur [contra Romanum ecclesiam ] nisi spatio centum annorum... . El eadem praerogativa videtru hodie gaudere imperium :' See also Peregrinos, vi,8,n.6,fol.145v , who reten to Baldus and others, and who, being a Venetian, ineludes the Signoría of Veuice as enjoying the hundred years prescription like Enipire and Roman Church. 281 Hermann Kantorowicz, Glossators, 235. 282 Lib.aug ., 111 39, Cervone, 398: "Quadragenalem praescriptionem et sexagenariam, quae contra fiscum in publicis hactenus competebat , usque ad centum annorum spatium prorogamus." 283 Marinos de Caramanico , v. Quadragenalem : " Sed haec constitutio prorogat quadragenalem in centum annos , et sic redil ad ius antiquum . C.de sacrosan .eceles. !.fin. (C.t,2 , 23; see ahoye , o.279)" That is m say, Frederick reverted to conditions valid for churches and cides alike according to a law which in lis preamhle places divinum publiamlque ius on one level; see the Glossa ordinaria en this law. That Frederick ' s law was a novelty seems lo be indicated also by Andreas de Isernia, on Feud., 11,55,11 SI, fot271v, where he makes the general statement: " Centenaria praescriptio currit contra fiscum per constitutionem 'Quadragenalem ."' On the other hand, Aso, on C.7,38 ,n.7, fol.2i6v, seems to be as yet ignorant of a fiscal prescription of a hundred vears; he apparently approves of Justinian 's reduction of the hundred years prescription valid against the Roman Church (Nov.iii; aboye , 11.278) and argues: "Absurdum enim esset civitatem [Romam] maioris esse privilegii quam

182

through at an early date in Sicily, where it fell in with other related measitres of Frederick 11 and his Norman predecessors. A similar idea, however, must nave exisred also in Fngland where che "time beyond which che memory of roan runneih flor to che eontrary" likewise ticas defined as a period of roughly a hundred years: it was set , hefore 1237, to the vcar t 135 whcn Ilenrv f died; thereafter it was moved to the vcar i 1 rq, tire accession of i 1enrv 11; finally, in 12751, the year of the coronation of Ridiard 1 Ci sq became the starting point of man's memory," and there it remained.181

Christus and fiscus thus became comparable with regard to both inalienability and prescription . The juristic basis of that "equiparation " was found in many places of the Roman Law, for example, in Justinian 's Code where things belonging to the templa, the churches , were treated on equal footing with things belonging lo the sacrum dominium , the "sacred demesne" of the emperor.215 principenl." See, however, Glos.ord. on Nov,7,2,1, Y. nec ruulturn (see helow, nos. 285,296), discussing the diferentes and similarities between res sacrae and res publicas, which says: "similitudinem autem habent ; nam utriusque res ¡tire isto adhuc centum annis praescribuntur ." That the fisc was among the things public (res publicae) was raid by Frederick himself in his law; see Marinus de Caramanico's glosa en Lib . aug., ui,3g, Cervone , 398, v. in publicis: "Id est, fiscalibus rebus, quae dicuntur publicae (see aboye , n.241 )." He later adds (p.399): " Itero intellige principium constitutionis , quod praescriptin centum annorum , sicut dictum est, locura habeas contra fiscum , tam in feudis , quam in aliis bonis.. . Omnia enim feuda publica sunt ." The same words are repeated by Andreas o( Isernia , ¡bid., p.400; see also on Lib.aug., m,8, Cervone, 308: "Feuda quidem de publico sunt." This is, unless 1 am mistaken , not in agreement with the English concept concerning " things public." The prescription of loo years against cite empire must have heen common knowledge by the end of the '3th century, because the French use it lo prove France's independence of the empire by right of prescription; see Lagarde, Rilan du XIfIc si écle, 248,11 .56; Ullmann, "Sovereignty;" 14. 284 Pollock and Maitland , n,Si, also 141 ; W. Holdsworth, A History of English Law (3rd ed., London, 1923), nt,8, also 166ff. 285 'Loca ad sacrum dominium pertinentia ." See C.7,38,3, whose title indicates the parallelism : "Ne re¡ dominicas vel teniplorum vindicatio temporis exceptione submoveatur ." Another place frequently quoted lo prove tire aequiparatio of divise and public spheres was C.1,2,23 ( aboye, o.283 ); also Nov.7,2 ,1; "Nec multo differant ab alterutro sacerdotium et imperium , el sacrae res a communibus el publicis," with the Glos.ord., Y. nec multum ( aboye, n.283); cf. Bartolus , en Nov.7,2, v . sinimus, 11 .4, fol.13v : " dicitur enim hic quod imperium el sacerdotium aequiparantur." See also Baldus , on C.1o,i,3,n . 3, fol.236: "aequiparantur enim ecclesia et fiscus." Of course, Church and fisc equalled also a minor and a madman because all of them were under age; see, e.g ., Báldus en G.4,5,1,n.6, fol.12 : ". . nisi talis sentencia esset lata contra fiscum, ecclesiam , vel pupillunt , vel furiosum, quia aequiparantur pupillo." Cf . Gierke, Gen. R., 111.483, for chis comparison . Bracton (fof a2, Woodbine, n,5tf), shows that he was quite familiar with chese categories.

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LAW-CENTERED KINGSHIP BRACTON

Accordingly, the jurists would talk about the sacratissimus fiscus

We are familiar with that kind of language reflecting merely another version of the Christus-fiscus (heme. It does not imply, of course , that (hese metaphors were taken seriously, at their Pace value: sanctus Fiscus was never included in the official catalogue of saints . The metaphors do not (or not yet) betray an effort on the part of the jurist co "deify" the fisc, but to explain the perpetuity and general nature of the fisc; and for this purpose they availed themselves of theological tercos, whereby "God" or "Christ" took the place of symbols or ciphers of fictitiousness serving co expound the fictitious nature of the fisc, its ubiquity and eternity: "Concerning its essence che fisc is a thing eternal and perpetual ... , for the fisc never dies."292 We should not forget that, vice versa, imperial terminology was applied co the papal fiscal possessions which, probably sine the eleventh century, appeared as the regalia beati Petri, "the regalian rights of Blessed Peter," which emperors and papal feudatories swore co defend291-a technical term used occasionally also co bolster the rex et sacerdos doctrine of the hierarchy: the bishop a rex because he enjoyed regalia.294 Imperialization of che papacy and sanctification of thé secular state and its institutions tan in parallels.295

or fiscus sanctissimus, "the most holy fisc," a phrase having a curious ring only in modern ears, but explaining the case with which Christus and fiscus were put finto parallel.280 Perhaps it sounds more convincing lo us if Baldus, though holding that the fisc was quoddam corpus inanimatum , 287 nevertheless called it the "soul of the state."288

The parallelism between things holy and things fiscal, however, was not restricted lo Time; it referred also lo Space. The lawyers ascribed ubiquity lo the fisc. Fiscus ubique praesens said Accursius in a gloss on the law of prescription to point out that the argument of "absence of the owner" was worthless in the case of the fisc, because the fisc was "everywhere and ever present."289 The same words were repeated a little later by Marinus de Caramanico in his gloss on the Liber augustalis.290 And Baldus, who likewise pointed out that the fisc could never be claimed lo be "absent" from the realm, drew the final and logical conclusion: "The fisc is omnipresent and in that, therefore, the fisc resembles God."293 280 In C.7,57 , 2, che sacratissimus fi scos and sacratissimum aerarium are mentioned, che adjective meaning nothing but "imperial. " To chis law referente is made, e .g., by Lucas de Penna, en C.1o,1 ,n.8 (Lyon, 1582 ), p.5: "Fiscus dicítur sanctissimus."

incorporalis et ideo ubique ... Quandoque est [possessiol de non corpore in non corpus, ur fiscus ve¡ ecclesia in abstracto ... ;' which may oren something incorporeal, e.g., an easement , and thus possidetur mistice. 292 Baldus , Consilia, 1,271,11.3, fol.8l y : , . cuco respublica el fiscus sin( quid eternum, el perpetuum quantum ad essentiam , licet dispositiones saepe mutentur: fiscus egim nunquam moritur." Concerning the "changing dispositions" and the "identity despite changos." see Gierke, Gen.R., n1,365,n.43; below, Ch.v1,s. 293 See, for a br?éf discussion of the problem and for sume material , my study "Inalienabilityó ' 492,n .26. There is a high degree of probal>ility c har the notion was introduced, by the Reform Papacy , at the time of che infeudation of the Norman. Irene Ott , " Der Regalienbegriff mi 12. Jahrhundert," ZfRG, kan.Abt., xxxv(0948), 234-304, rightly distinguishes between the regalia in the sense of the temporalia of bishops (the predominantly German version), and the regalia in the sense of royal prerogative rights or fiscalia ( the predominantly legalistic version in the sense of fiscus); unfortunately, however, she omitted co discuss the regalia S. Petri, which belonged definitely co the second category. Arnold Pbsehl, " Die Regalien der mittelalterlichen Kirchen," Festschrift der Grazer Universitüt für 1927 (Gran, 1928), was not accessible Lo me. See, for a few remarks , Niese, Gesetzgebung , 54,n.1. 294 The political pamphleteers picked that notion up and elaborated on it. See, e.g., Gerhoh, De investigatione, 1,65, MGH,LdL, 111,388,45: the bishops Nave not only the sacerdotalia of tithes and oblations, but alto the regalia en the parí of the king; they may claim, therefore, to be quodammodo et reges et sacerdotes Domini, and are enritled co demand of the people not only obedience, but also an oath of fealty " ad defensionem videlicet regalium simul et pontificalium beati Petri " See also Gerhoh, ¡bid., 389,1o; Dialogus de pontificatu, ¡bid., 538,30. 295 Schramm , " Sacerdocium und Regnum ," discusses excellently the problem for

287 Baldus , Consilia, 1 ,363,11.2, fol.u8: " . . fiscus per se est quoddam corpus inanimatum consensam per se non hahens, sed simpliciter repraesentans." See Gierke, Gen . R., 111,281 (with n.1io), for the origin of chis doctrine. 282 Baldus , Consitia, 1,271,11.2, fol.8ly: "et , ut ira loquar , est [fiscus] ipsius Rei. publicae anima et sustentamentum." The comparison of the fisc with the stomach, in analogy with the story of Menenius Agrippa, is found at an early date in Corippus ' In laudem Iustini , 11,24gff, MGH , Auctant., m,2 ,p.133; it is repeated by Lucas de Penna, en C . rr,58,7,n.1o ( Lyon, 1582 ), 564: the fisc is instar stomachi. 289 Glos.ord . en C.7,37,1, Y. continuum ; also in the margin: "Fiscus ubique prae. sens est." 290 Marinus , en Lib.aug., 111,35, v. in publicis, Cervone , 399: "et specialiter ubi dicit 'praesente in regno adversario sud etc.; sic non loqui cur de fisco , qui semper est praesens ," with allegation of the Glos. ord, (preceding note). See alto Matthaeus de Atffictis , on the same constitution n.3 , fol.186: " . nec requiritur probare de praesencia fisci, quia fiscus semper est praesen $" Cf. Peregrinos, 1,2,n.42, fol.7. 291 Baldus , on C.7,37.1,n .2, fol.37: "... quod fiscus es[ ubique, et sic in hoc Deo est similis . Et ideo fiscus non pocest allegare absentiam ." See also Baldus en C.4,27,1,n.27 , folgo": "quia fiscus est ubicunque ." A similar ubiquity was attributed co the Roman Church and its fisc ; see Peregrinos , 1,2,11.22, (015: "in spiritualibus et inde dependentihus Papa, qui es [ caput Romance Ecclesiae , fiscum generalem ubique habet, ut pro delicto in his commisso ... bona delinquentis sin( confiscenda; in fiscum Romanae Ecclesiae bona illius , ubilibet sin (, cogantur , quia sicut Romana Ecclesia ubique est, sic fiscum Ecclesiae Romanae ubique existere oporteC' Baldus, on c.9 X 2,14,n.38, fol . sgo", "equiparares" fisc and Church : " Fiscus est persona

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1

185

BRAC'TON

LA TU-CENTERED KINGSIIIP

A Novel of Justinian has to be mentioned hcre. It svas often cited lo prove che parallelism of Church properry and state properry, since in it che legislator stated in clear svords char between imperium and sacerdolianr tire difierence was not roo great, uor between res sacrae and res cornee sees et publica(>.->i0 At chis point Bracton [ell ni wich che building fiscal °Ihcology" of his agc. Bracton, to he sure, s1-as remoce lrom che subtle distinetious of tlte Bolognese sebo argued whether Ilic fisc seas identical scith thc people or wich tire ruler or wich itsclf; nor did it occur co hico co conceive of che fisc as a persona ficia although that concept was introduced in his days.11 And yet he carne very close co che concept of a fictitious person when he used tire technical terco of nullius, stating thac both che res sacrae and che res quasi sacrae were "properry of none," bona nullius. "That is, nccy are nor properry of any single person, but only properry of God or the fisc."288 We discover-owing co our long digression into later legal thought-that Bracton likewise produced that scrange combination of divine and fiscal. The common denominator for Deus and fiscus was, in his case , che res nullius; and Chis nocion covered che legal synonymity of both ecclesiastical and fiscal possessions jusc as effectively as any "equiparation" of che later jurists cebo compared Christus and fiscus. It was in that connection, roo, that Bracton distinguished between che rex regnans and che Crown200wisely so, because che Crown itself, racher than che mortal king, appeared to have, in many respetes, an inner relacionship with che res nullius, that is, wich che impersonal and supra-personal fisc. The development of che abstract nocion of "Crown"-to anticipate here some results of a later chapter-was, alter all, conche earlier Middle Ages (secular irnitatio saccrdotii , spiritual imitatio irnper¡r), but for che later Middle Ages lude has leen done; fm' a few remarks, ce ni,, studY " Mysteries of State," Harvard Tlreological Reviera, xr.vnr (rgrh), 65-91. 228 Nov.7,2,1; see aboye, 91.285, 297 See , concerning che concept o[ persona ficta, Gierke, Gen.R., 111,27911, for Innocent IV, and ¡bid., 204, for some forerunners; also Maitland, Polilical Theories, xviii f; below , Ch.vi. 298 Bracton , fo114, Woodbine, 99,57E "Huiusmodi vero res sacrae [including res quasi sacrael a nullo dar¡ possunt ncc possideri, quia in nullius bonis sunt, id est, in bonis alicuins singularis personae, sed tanqusin in bonis De¡ vel bonis fisc¡."- Cf. fol.i2, Woodbine, 11,52f, where Bracton emphasizes that "primo et principaliter fi[ donatio Deo et ecclesiae, et secundario eanonicls," that is, God or the Church are che true owners, horca, che clones ''nihil habent nisi nomine ecclesiae suae." 299 See aboye, 11.252.

186

comitant wich che development of che fisc or "royal demesne" under Henry II. And jusc as Bracton paralleled God and che fisc, so would bis contemporary fellow-judges tend to refer co che abstract Crown racher than to che king whenever they wanted to juxtapose che public sphere of che state and che public sphere of che Church.000

About che sources of Bracton very few svords are needed. 1, ven were it quite unknown co what extenc Bracton actually depended on Azo's Sumnia Institutionum, the legal nocion of res nullius in connection wich res sacrae would make it perfectly clear that che English lawyer was following, or paraphrasing, che Law of Things of Justinian's Digest and Institutes.801 Bracton called che nonecelesiastical things owned "by none" res quasi sacrae, whereas Roman Lace called checo res publicae.A0' His technical term for things public or fiscal (res quasi sacrae) was no[ popular among che Bolognese, and chere may have heen some misunderstanding en che parí of Bracton.108 However, che designation he chose was 300 ti seems that che referentes te "Crown" and "Dignity" were chosen wich some regularity when che king's courts were set against tire como, Christian as, e.g., in Bracton's chapter De exceptionibus (fols.399b-444h). See, e.g., fol.4oob, Woodbine, 15,248: "Est etiam iurisdictio quaedam ordinaria, quaedam delegata, quae pertinet ad sacerdotium et forum ecclesiasticum .. . Est et alia iurisdictio, ordinaria vel delegata, quae pertinet ad coronara et dignitatem regís et ad regnum . o . in foro saeculari ." Cf. fol.401,p249; fol.4o3b,p.251: "Vice versa non est laicos conreniendus coram iudice ecclesiastico de aliquo quod pertineat ad coronara , ad dignitatem regiam et ad regnum." The same phrases occur in che writs, e.g., 101 .402, p.252 (three times ); fol.4o3b, and 404, p.251f; fol.4o4b, p.259; fol.4o6b, p.264, and passim. Bracton, co be sure, uses dignitas regir et corona also elsewhere , e.g., fol.tos, Woodbine, 99,293. The problem needs further investigation. See below, Ch. vn,nos.lo7f. 301 D.1,Sa: "Quod autem divini iuris est , id nullius in bonis est .... Quise publicae sunq nullius in bonis esse creduntur." Cf. Inst.2,1, 7: "Nullius anteco sunt res sacrae et religiosae et sanctae." 301 Bracton (fo1.14) confuses ( aboye, 91.237 ) res sacrae , religiosae , and sanctae, because he uses che terco quasi sacrae for both che res publicae and the res sanctae: "Donar¡ autem non poterit res quae possideri non potest. sicuc res sacra vel religiosa vel quasi, qualis est res fisci [_ res publicae], vel quae sunt quasi sacrae sicut sunt muri et portae civitatis [-res sanctae]." The basis is Brst.2,1,10, or D. 1,8,99, where walis and city-gafes are repeatedly called res sanctae, nor res quasi sacrae. The 'holiness" oí eity-walls could nor have meant very much te Bracton, nor tire fact that it was a sacrilegicus act te leap over a wal), although che death of Remos is mentioned in Da,8, ii, and tire glossators liked te comment en that place. 303 Inst.2,1 ,8, explains that only such things are res sacrae whirh have heen consecrated cite et per pontífices, and then adds : "... si quis yero auctoritate sua quasi sacrum sibi constitucnit, sacrum non est, sed profanum ." The term quasi sacrute has here a somewhat derogatory meaning, and it is highly improbable char Bracton knowingly applied it in Chis sense te che res publicae; but tire terco mar

187

BRACTON

LAW-CENTERED KINGSHIP

convenient for bringing property of the Church and property of the fisc juristically into parallel, even though Bracton on the whole shows hardly a tendency to exalt the secular state in general, or to raise its immutable Time-defeating essence lo the quasi-holy stratum lo which Frederick II and his advisers aspired in many respects. Res sacrae and res quasi sacrae could be reduced lo che same denominator because as res nullius they were che property, not of a natural person, but of a legally fictitious person ("Christ" or "fisc"), which was not exposed to the contingencies of Time. In the last analysis, the seemingly weird parallelism of Christus and fiscus goes back lo the earliest layers of Roman legal thought. To the Romans the property of the gods and the property of the state appeared by legal definition on the same level: res divinae and res publicae were beyond the reach of.any individual because they were res nullius.304 In later times, che pagan notion of "things pertaining lo the gods" was logically transferred lo che Christian Church, so that St. Ambrose could remind the young Emperor Valentinian II that "things divine are not subjected lo che imperial power,"305 meaning, of course, that che res divinae were beyond che reach even of the Prince, since they were res nullius. During che feudal age, with its patriarchal concepts of social organisms, those notions, especially that of res publicae, lost their former significante and became practically irrelevant despite occasional recollections. 901 It was under che impact of the have been in his mind in some other connection. In che writings of che glossators, 1 did not find che cerro res quasi sacrae replacing res publicae. 304 See aboye, n.301, also my study, "Christus-Fiscus;" 234f. 305 Ambrose, Ep., xx,8, PL, xvi,,o39A: "quae divina sunt, imperacoriae potestad non este subiecta." The passage is later found in canonical collections; seo, e.g., Deusdedit, nc,c.2ra, ed. Victor Wolf von Glanvell, Di, Kanonessammlung des Kardinals Deusdedil (Paderborn, 1905), r5u,tg; Gratian, c21,C.xxui,q.e, ed. Friedberg, 1,959. For the interpretation, see H. Lietzmann, 'Das Problem Staat und Kirche im westrómischen Reich," Abh.preuss.Akad. (Berlin, 1940), Abh.,i, p.8; siso Kenneth M. Setton, Christian Attilude towards che Emperor in che Fourth Century (New York, 1941), 110. 308 One is reminded of che famous remark which, according to Wipo, Gesta Chuonradi, c.7, ed, H. Bresslau, 29f, Emperor Conrad II was supposed to have made when, alter che death of his predecessor, che people of Pavia destroyed che palace fortress in their city because, they claimed, che owner had died and che palace now belonged lo no one. Conrad is said to base made a distinction between domos regis and domos regalis, admitting that not che king's house was destroyed because at thac time there was no king, but stressing che destruction of che ''royal

188

Bolognese movement only, and as a result of the recovery of learned jurisprudence, that, in the twelfth and thirteenth centuries, the ancient complementary notions of res sacrae and res publicae reclaimed their former significante under new conditions. They became applicable, not only co the property oí the Church, therein following che late-antique and mediaeval tradition, but also co things pertaining lo che nascent sovereignty of the secular state. And again, as in ancient Roman times, the technical.term res nullius gave expression lo che idea that things public and fiscal were sacer, were as "untouchable" and therewith as perpetual and "beyond Time" as the things belonging co the gods, betokened in the later Middle Ages by the legal cipher of "Christ."

Hence, che formula Christus-fiscus appears simply as a shorthand expression for a long and complicated development by which something definitely secular and seemingly "unholy" in the Christian and every other sense, namely che fisc, was turned finto a thing "quasi holy." The fisc finally became a goal in itself. It was taken as a hall-mark of sovereignty, and, by a total reversal of che original order, it could be said that "che fisc represents State and Prince."301 Moreover, already Baldus pointed out that not only fisc and commonwealth were on one level, but also fiscus and patria.3°8 We may wonder whetlier it is logic or irony of history that the solemn Roman culi of gods and public functions should be found at the root of modern deification and idolization of state mechanisms. building:" and then continued: "Si res periit, regnum remansit, sicut navis remaneat, cuius gubernator cadit. Aedes publicae fuerant, non privatae." This is legal tenninology; seo, on che issue, A. Solmi, "La distruuione del palazzo regio in Pavia nell'anno 1024," Rendiconti dell'lstituto Lombardo di Scienze e Lettere, LVII (1924), 97fi. See also ahoye, n.250, for che distinction between publica and privata in che writings of Gerhoh, or che remark in che Anuales Disibodenbergensens, ad a.' 125, MGH,SS, xvn,23, according to which Lechar III ordered concerning confiscaced property, "potius regiminis subiacere ditioni, quam regís proprietati." Cf. Vassalli, "Fisco;" 187.

coi Vassalli, "Fisco;' 213,0.4, quotes fierre Grégoire (Tholosanus), De re publica, v1,20,31, as saying: ''Fiscos repraesentat principem et rempublicam/' This is che rubric quoted in che índex (s.v. Fiscos); che test (Lyon, 1608, p237) shows che reading: "Fiscus publicam rem et principis ceferC' 30s Glos.ord., on D.3,1,,o, has a marginal note saying that Baldus considered chis law unique "quia fiscus, respublica et etianr patria aequiparantur quoad reverentiam eis exhibendam." 1 ,as not able co spot che place, though it is most likely that Baldus made Chis remark because patria is mentioned in that law.

189

JIRACTON

LA iV.CENTERED KINGSHIP -a

owner, but as the guardian of rhe public appurtenances which

In Bracton's political them'y tire notion of res nonius did dot serve as the main leve' for moving rhe problcros of Public Law. However, togedrer witr a great number of odie' impulses originating from Romano-Canonical practicc. dtc parallelisni of God and fisc contributed lo articulate the concept of a sempiternal public sphere withm the realm. A split, as yet hardly visible, between the "reigning king" and the finantal "lioly districi' within tire realm began lo show ir¡). But wcrile rhe English kings reigning in the thirteenth centm-y tried to ignore even rhe existente of a cleavage between themselves and tire things public, the various baronial opposition groups viere ready to widen that split and to pit the res publicae against the rex regnans. It is significant that during the constitutional struggles of the thirteenth and fourteenth centuries, the baronial objections were always centered en the fiscal-domanial sphere, including the prerogative rights attached to it, whereas the strictly feudal sphere-including feudal aids and other rights exercised by the king as personal liege lord-remained, en the whole, unchallenged. Within the orbit of public affairs, however, and especially public finances, the barons could venture to control the king, to bind him to a council of their own choice, and tlms to demonstrate that things of public concern no longer touched the king alone, but "touched all," the king as well as the whole community of the realm.005 In fact, the Bolognese lawyers also considered the ruling Prince in many respects only the administrator and vicar of the fisc;110 and the English barons looked upon their king certainly not as the personal

served rhe benefits and rhe security of tre whole body politic, and viere supposed to servc drat polity ¡ti pcrpetuity-far beyond tire lifc of tic individual king.

Wliatever tire ingle from which we may rvish lo inspect dre development of Englisli political tbought, and rchatever the strand we niav choosc to study and isolatc for tris purpose, always will rhe Bractonian age stand out as the most critical period. It was then that rhe "community of the realm" became conscious of the difference between the king as a personal liege lord and tic king as che supra-individual administrator of a public sphere-a public sphere which included the fisc that ''never died" and was perpetual because no time tan against it. Religious tbought, which had profoundly influenced, or even determined, the concepts of government in an carlier piase, was carried over to the new orbit of public affairs in a seemingly scurrilous fashion-by comparing the sempiternity of the fisc to the eternity of God or of Christ. The Norman Anonymous had expressed the king's supra-temporal qualities by attributing to him a divine and God-like nature by grace. But the ideas of the Norman Anonymous propounding the king as a gemina persona because he was the "image of Christ' even with regard to the two natures, belonged to the past. Frederick II, as the lex animata, had sought the sempiternal cssence of his rulership somewhere in an undying Idea of Justice, and had changed, so to speak, from a vicarius Christi to a vicarius Iustitiae, an office which still had semi-religious connotations. Ilowever, the metaphysical concepts and eschatological ideas of the imperial court may have fitted the conditions of Italy and of the great war against the papacy; they did not fu Bractonian England. Bracton himself was more sober and, in a way, more secular than were the lawyers at the court of Frederick II. To be sure, the king in che Bractonian age changed also; and if we viere to make an overstatement and understand by "fisc" the public sphere at large, we might perhaps say that he changed from a vicarius Christi to a vicarius Fisci. That is, the perpetuality of the supra-personal king began te depend also on the perpetuality of tire impersonal public sphere to which the fisc belonged. At any event, what ultimately the rulers of the thirteenth century

SO-Post, "Quod omnes tangir ," 235f, 250, and passim; also "Two Laws;" esp. ), for things rouching (o) the head principally, ( 2) tire members 425i1 (with 11.35 distinetions do not coincide principally , and (3 ) head and members equally. Those estate was, or could king's privare since the pubiicae, res and with res privatae become at any moment , a nratier oí public concern. sao The tenet oí rhe Prince as administrator oí che fisc was based en D.41,4,7,3: "nam tutor in re pupilli tunc donuni loco hahetur, cum tutelam administra[, non cum pupillum spoliat:' Por the fisc as a minor, see ahoye, 0.285; in general, , but the Gierke, Gen , R., 12,226f,332 ,482. That tire Prince was not tire owner over and over again; legitimus administrator, ooí tire fisc, was a maxim repeated i,2,11.47, fol .7v. The see, e.g., Baldas , Consiiia, t,271 ,nos.2-3, fol.8av ; Peregrinos , maxim served also so refute rhe legality oí Constantine' s Donation (above, 11.270); donation see, e.g., John oí Paris , De potestate, C.21, ed. Leclereq, 244f: a private ona[ de patrimonio fisci quod semper d but 'non guando , would have been salid deber manere," because rhe Prince is "administrator imperii el reipublicae. . . . Sed si imperii administrator est, donatio non valer" ( referente to rhe rex regia and to D.41,4,7,3).

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had in common was that they borrowed their touch of sempiternity not so much from the Church as from Justice and Public Law expounded by learned jurisprudents-be it by name of Iustitia or Fiscus. The ancient idea of liturgical kingship gradually dissolved, and it gave way to a new pattern of kingship centered on the sphere of Law which was not wanting its own mysticim. The new "halo" began to descend upon the nascent secular and nacional state, headed by a new pacer patriae, when the state began to claim for its own administrative apparatus and public institutions a sempiternity or perpetuity which hitherto had been attributed only to the Church and, by Roman Law and the Civilians, to the Roman Empire: Imperium semper est.311 Clearly, the mediaeval dichotomy of sacerdotium and regnum was superseded by the new dichotomy of the King and the Law. In che Age of Jurisprudence the sovereign state achieved a hallowing of its essence independent of the Church, though parallel to it, and assumed the eternity of che Roman empire as the king became an "emperor within his own real"." But chis hallowing of the status regis et regni, of state institutions and utilities, necessities and emergencies, would have remained incomplete had not that new state itself been equated with the Church also in its corporational aspects as a secular corpus mysticum.

C H A P T E R V

POLITY-CENTERED KINGSHIP: CORPUS MYSTICUM INFINITE cross-relations between Church and State, active in every, century of the Middle Ages, produced hybrids in either camp. Mutual borrowings and exchanges of insignia, political symbols, prerogatives, and rights of honor had been carried on perpetually between the spiritual and secular leaders of Christian society.r The pope adorned his tiara with a golden crown, donned the imperial purple, and ivas preceded by the imperial banners when riding in solemn procession through che streets of Rome. The emperor wore under his crown a mitre, donned the pontifical shoes and other clerical raiments, and received, like a bishop, the ring at his coronation.2 Tliese borrowings affected, in the earlier Middle Ages, chiefly the ruling individuals, both spiritual and secular, until finally che sacerdotium had an imperial appearance and the regnum a clerical touch. A certain state of saturation was reached by the beginning of the thirteenth century, when both the spiritual and secular dignitaries were rigged with all the essential attributes of their offices. The borrowings between the two orbits, however, did not then come to an end; only the objectives changed during the later Middle Ages when the center of gravity shifted, as it were, from the ruling personages to the ruled collectives, the new national monarchies, and the other political aggregates of human society. In other words, the exchanges between Church and State con tinued; but the field of mutual influence, expanding from individual dignitaries to compact communities, henceforth was determined by legal and constitutional problems concerning the structure and interpretation of the bodies politic. Under the pontifi calis maiestas of the pope, who was styled also "Prince" and "true emperor,"3 the hierarchical apparatus of the Roman Church

311 See, eg., Nov.6,cpi1., in addition to many other places (see below, pp. 291ff).

1 See, in general, Schramm, "Austausch;" for che earlier period; also my Laudes regiae, 1z9ff, z For the imperial mitre and other symbols, see Schramm, Herrschaftszeichen und Staalssymbotih (Schriften der NGH, xu1 [Stuttgart, 19541), esp.68ff. 3 For the title pontifcalis "atestas, see Nfochi Onory, Fonti, 113; cf. Laudes regiae, 140, nos. 94, 95.

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tended lo become the perfect prototype of in absolute and rational monarchy on a mystical basis, ss-hile at ¡he same time the State showed inereasingly a tcndency us become a quasi-Church or a mystical corporation on a rational oasis. While it has often Leen felt that tllc neto monarchies viere in many respects "chorchas" by transferencc, it has far less often Leen pointed out in detail lo schat extent late mediaeval and modern commonwealths actually viere influenced by the ecciesiastical model, especially by the all-encompassing spiritual prototype of corporational concepts, the corpus mysticum of the Church. r. Corpus Ecclesiae mysticum The corporational doctrine of the Roman Church has been summarized and dogmatized, in 1302, by Pope Boniface VIII in the lapidary sentences of the bull Unam sanctam: Urged by faith we are bound lo believe in one holy Church, Catholic and also Apostolic .. , without which there is neither salvation nor remission of sins ... , which represents one mystical body, the head of which is Christ, and che head of Christ is God.

The general context of the bull leaves no doubt about the meaning of the introductory sentence. lt betrays the supreme effort en che part of the spiritual power lo answer and, if possible, lo overcome the challcnge of the nascent self-sufhciency of the secular i bodies politic. Pope Boniface was bent upon putting political entities in what he considered their proper place, and therefore stressed, and overstressed, the hierarchical view that the political bodies had a purely functional character within the world community of the corpus mysticum Christi, which was the Church, whose head was Christ, and whose visible head was the vicar of Christ, the Roman pontiff.4 4 Ladner, "Aspects," esp. 4ogff, also bis more recent study, "The Concepts: Ecelesia, Christianitas, Plenitudo Potestatis," Sacerdozio e regno da Gregorio VII a Bonifacio VIII (Miscellanea Historiae Pontificias, xvnr; Rome, 1954), 49-77, esp. 53ff. The literatura en corpus myslicum is very extensive, especially alter the publication of the encyclical Myslici corporis in 1943; see, far a more recen[ compre hensive study, Emile Mersch, Le corps mystique du Christ, études de théologie historique (2 vols., Louvain, 1933). An excellent evaluation with regará to the history of ideas is owed to Henri de Lubac, Corpus mysticum (2nd ed., Paris, 1949), also in Recherches de science retigieuse, xxlx (1939), 257-302, 429-480, and xxx (1940), 40-80, 191-226; in the following pages I have merely ransacked the wealth of his material (miren of which Iras inaccessible lo me) and his ideas. For early

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The Church as the mystical body of Christ-and that means: Christian society as composed of all the faithful, past, future, and present, actual and potential''-might appear to the historian so typically mediaeval a concept, and one so traditional, that he would easily be inclined to forget how relatively new that notion was whcn Boniface VIII probed its strength and efficiency by using it as a weapon in his life-and-death struggle against Pbilip the Fair of France. The concept of Use Church as corpus Christi, of course, goas back lo St, Paul;° out ihe tenn corpus mysticum has no biblical tradition and is less ancient than might be expected. It first carne into prominente in Carolingian times and gained some importante in the course of che controversy about the Eucharist carried en over many years by Paschasius Radpertus and Ratramnus, both of the monastery of Corbie. On one occasion, Ratramnus pointed out that the body in which Christ had suffered, was his "proper and true body" (proprium et verum corpus) whereas the Eucharist was his corpus mysticum. Perhaps Ratramnus relied on the authority of Hrabanus Maurus, who had stated, shortly before, that within the Church the corpus mysticum-meaning the Eucharist-was administered by the priestly office.7 Here then, in the realm of dogma and liturgy, there originated that notion whose universal bearings and final effects cannot easily be overrated. Corpus mysticum, in the language of the scholasticism, see aleo Ferdinand Holbüek, Der Eucharistische und der Mystische Leib Christi in ihren Beziehungen zueinander nach der Lehre der Frühscholastik (Rome, 1941). The very important hook of Brian Tierney, Foundatious of the Conciliar Theory: The Contribution of the Medieval Canonists from Gratian lo lita Grcat Schism (Cambridge Studies in Medieval Lile and Thought, N.S., 1v; Cambridge, 1955), appeared loo late to be considered itere; sea esp. 1'art n, 87ff, 1o6ff, 13211. s Aquinas, Summa theol., ni, q.vn1, a-3. -For St. Paul's metaphor, see 1 Cor. 12: 12, and 27, also 6: 15; Eph. 4: 4.16,25, and 5: 30; Col. 2: 1g. The study of T. Soiron, Die Kirche als der Leib Christi nach der Lehre des hi. Paulus (Ditsseldorf, 1951), was not yet acccssible to me. For the place of St. Paul's organological concept within antique philosophical tradition, sea Wilhelm Nestle, "Die Fabel des Menenius Agrippa;' Klio, XXI (1926-27), 358f, also in his Griechische Studien (1948), 5o2ff; also the study of A. Ehrhardt, ''Das Corpus Christi und die Korporationen im spst-rümischen Recht," ZJRG, rom.Abt., Lxx (1953), 299-347, and Lxx1 (1954), 2540, is relevant for the present problem, aml so is M. Roberti, "ll corpus mysticum di S. Paolo nella storia della persona giuridica," Studi in Onore di Enrico Besta (Milan, 1939), 1v, 37-82. 7 For the Carolingian controversy, sea Lubac, Corpus mysticum, 3911; el Of, fe] Hrabanus Maurus, De clericorum institulione , t,e.33. PL, cv1,324A.

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Carolingian theologians, referred not at all to the body of the Church, nor to the oneness and unity of Christian society, but to the consecrated host. This, with few exceptions, remained, for many centuries, the official meaning of the "mystical body," whereas the Church or Christian society continued to be known as the corpus Christi in agreement with the terminology of St. Paul. It was only in the course of a strange and perplexing development-un curiex chassé-croisé°-that finally, around the middle of che twelfth century, those designations changed their meaning. The change may be vaguely connected with the great dispute of the eleventh century about transubstantiation. In response to che doctrines of Bercngar of Tours and co the teaching of heretical sectarians, who tended lo spiritualize and mystify the Sacrament of the Altar, the Church was compelled lo stress most emphatically, not a spiritual or mystical, but che real presente of both the human and the divine Christ in the Eucharist. The consecrated bread now was termed significantly the corpus verum or corpus naturale, or simply corpus Christi, che narre under which also the feas[ of Corpus Christi was instituted by che Western Church in 1264.1 That is co say, the Pauline term originally designating che Christian Church now began to designate che consecrated host; contrariwise, che notion corpus mysticum, hitherto used to describe the host, was gradually transferred-after 1150-to the Church as the organized body of Christian society united in che Sacrament of the Altar. In short, the expression "mystical body," which originally had a liturgical or sacramental meaning, took en a connotation of sociological content. It was finally in that relatively new sociological sense that Boniface VIII defined the Church as "one mystical body the head of which is Christ." Concomitant with che new emphasis laid upon che real presente of Christ in che sacrament-a doctrine finally culminating in che dogma of transubstantiation of 1215, by which the Eucharist was officially designated as corpus verum-was the development of a Luhac, B8. s For the reaction against Berengar , see Lubac , Corpus mysticum, 1 o4ff, 162ff, and, for che " inversion" in general , p.19. For the institution of che feast of Corpus Christi, see P. Browe , "Die Ausbreitung des Fronleichnamsfestes ," Jahrbuch für Liturgiewissenschaft , vnc (1928 ), 107-143, who has collected also che early sources in his Textus antiqui de festo Corporis Christi ( Münster, ' 934); and for the most recent studies , Anselm Strittmatter , in Traditio , V (1947) , 396ff ,

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the term corpus mysticum as a designation of the Church in its institucional and ecclesiological aspects. It was adopted at a critical moment in Church history. Alter che Investiture Struggle there arose, for many reasons, the "danger of coo much stress being laid on the institucional, corporational side of che Church" as a body politic.'° It was the beginning of the so-called secularization of the mediaeval Church, a process which vas balanced by an all the more designedly "mystical" interpretation even of che administrative body and technical apparatus of the hierarchy. The new term corpus mysticum, hallowing, as it were, simultaneously the Corpus Christi Juridicum," that is, the gigantic legal and economic management on which the Ecclesia militans rested, linked che building of the visible Church organism with che former liturgical sphere; buc, at che same time, it placed che Church as a body politic, or as a political and legal organism, on a level with the secular bodies politic which svere then beginning lo assert themselves as self-sufficient entities . In that respect che new ecclesiological designation of corpus mysticum fell in cvith the more general aspirations of that age: lo hallow the secular polities as well as their administrative institutions . When in che twelfth century the Church, including the clerical bureaucracy, established itself as che "mystical body of Christ," che secular world sector proclaimed itself as the "holy Empire." This does not imply causation , either in che one way or the other. It merely indicates the activity of indeed interrelated impulses and ambitions by which che spiritual corpus mysticum and the secular sacrum imperium happened to emerge simultaneously-around the middle of che twelfth century.32 By that time, it is true, che expression corpus mysticum as a designation of che ecclesiological body corporate was found only sporadically. Nevertheless, it was then that both theologians and co Ladner, ''Aspects," 415, who noticed, and vigorously stressed , the connections hetween the new corpus mysticum interpretation and che ecclesio- political and constitutional development of che thirteenth century; see, for some related observations, G. Le Bras, "Le droit rolnain au service de la domination pontificales" Revue historique de droit franyais et étranger, xxv11 (1949), 349. lr This useful notion, quoted by Ladner, "The Concepts of Ecclesia , eta;' 53,0.2., was introduced by Alfons Stickler , "Der Schwerterbegriff bei Huguccio," Ephemerides Iuris Canonici, 111(1947), 2,6, who sets it against che corpus Christi mysticum. 12 The term sacrum imperium seems to appear programmatically first under Frederick I, in 1157; MGH, Const., 1,224, No.,6q cf. Kern, Gottesgnadentum, 134, 0.245.

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canonists began to distinguish between che " Lord's two Bodies"one, the individual corpus verunt on the altar, the host; and the other, the collective corpus mysticum, the Church.,` Around 1200, Simon of Tournai, who began to teach at Paris in 1165, could writc: Two are die Bodies of Chrise thc human material body which he assumed froni tito Virgin, anrl the spiritual collegiate body, the ecclesiastical eollegc.

The question shall be left aside here wliether, or to what extent, corporational diction may have been contributive when Simon of Tournai described the supra-personal body of Christ as a spirituale collegium, a collegium ecclesiasticum. What matters here is that the distinction between Christ's Two Bodies was not simply identical with the ancient christological distinction between the Two Natures of Christ, divino and human. What Simon of Tournai produced was rather a sociological distinction between an individual body and a collective body, a distinction put forth very clearly by Iris contemporary Gregory of Bergamo, who explained: One is the body which is the sacrament, another the body of which it is the sacrament ... One body of Christ which is he himself, and another body of which he is the head.35 In the writings of other authors of that period we find a similar dichotomy. Guibert of Nogent, for example, discussed the "bipartite body of the Lord" (corpus dominicum bipertitum) and distinguished between the corpus principale, the individual body as the prototype, and the corpus mysticum which he called also the corpus figuratum; he claimed that Christ liad intended to lead mankind from his individual corpus principale to his supra-individual corpus mysticum.11 The scholars around 12oo-Sicard of 13 Lubac, Corpus mysticum, 1 i6ff. 14"Duo sunt corpora Christi. Unum materiale, quod sumpsit deo virgine, et spirituale collegium, collegium ecclesiasticum;' quoted by Lubac, Corpus mysticum 122.

15 Gregory of Bergamo, De veritate corporis Christi, c.18, ed. H. Hurter, Sanctorum patrum opuscula selecta (Innsbruck, 1879), vol. xxxix, 75f: "Aliud est corpus, quod sacramentum est, aliud corpus, cuius sacramentum est....: Christi corpus, quod videlicet ipse est, aliud autem corpus, cuius ípse caput est." Cf. Lubac, Corpus mysticum, 18516Guibert of Nogent, De pignoribus sanctorum, n, PL. ecvi,629,634C (corpus

CORPUS ECcLE.SIAE AIFSTICUM

Cremona, for example, or Lothar of Segni (later Innocent fII)in their discussions of tire Sacrament of the Altar almost customarily distinguished between the individual body (corpus pe)sonales and the collective body (corpus mysticum) of CJirist. And in the firsi quarter of the thiricenth century, William of Auxerrc refiected opon the duplex corpus Christi and coutrasted the body natural (corpus natura le) tvith the corpus mysticum.'' I-Iere. at last. in that new assertion of the ''Lor(Fs "I'sco Bodies"-in tire bodies natural and mystic, personal and corporate, individual and collective of Christ-we seem to have found the precise precedent of the "King's two Bodies." It will remain to be seen whether interrelations between die ecclesiological and the political spheres were effective. It should be recalled that the definitions quoted aboye were still connected, more or less directly, with the Eucharist and with the liturgical sphere at large. However, the terminological chante by which the consecrated host became the corpus naturale and the social body of tire Church became the corpus mysticum, coincided with that moment in the history of Western thought when the doctrines of corporational and organic structure of society began to pervade anew the political theories of the West and to mold most significantly and decisively ehe political thinking in the high and late Middle Ages.1H It was in that period-to mention only the classical example-that John of Salisbury wrote those famous chapters of his Policraticus in which he compared, under the guise of Plutarch, the commonweal with the organism of the human body, a silnile popular also among the jurists.la Similar comparisons of the Church evith a human body, stimulated by St. Paul (I Corinthians 12: 14ff), are found sporadically throughvoluit traducere." Cf. Lubac, Corpus mysticum, 46, who explains (p.93) the word principalis as the equivalent of the Greek npwrironov. 17 Lubac, ¡bid., 123f, also 185 (n.155), with additional examples for the duplex corpus Christi. 18 For the following, see Gierke, Gen.R., 111,546ff; also Nestle, "Menenius Agrippa" (aboye, n. 6), for the ancient model. le John of Salisbury, Policraticus, v,2ff,54oa, Webb, 1,e82ff, pretends co borrow his metaphors from Plutarch's Institutio Traiani; see H. Lieheschütx, "John of Salisbury and Pseudo-Plutarch;" Warburg Journal, v1 (1943), 33-39, who suggests that Pseudo-Plutarch was none but John of Salisbury himself; see, however, A. Momigliano, ¡bid., x11(1949), 18gff. For contemporary jurists, see, eg., Fitting, Jurist. Schriften, 148,2351, gloss un ''princeps" (below, n.42).

figuratum), and 65oA: "... a principal¡ corpore ad mysticum Dominus noster nos

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"body natural" became sociologically the model of the supraindividual and collective mystical body of the Church: corpus Christi mysticum . . . ad similitudinem corporis Christi ver¡." In other words, the customary anthropomorphic image comparing the Church and its members with a, or any, human body was sided by a more specific comparison: the Church as a corpus mysticum compared with the individual body of Christ, his corpus verum or naturale . Moreover, corpus verum gradually ceased to indicate solely the "real presenté' of Christ in the Sacrament, nor did it retain a strictly sacramental meaning and function. The individual body natural of Christ was understood as an organism acquiring social and corporational functions : it served with head and limbs, as the prototype and individuation of a super-individual collective, the Church as corpus mysticum. The development did not stop here. Aquinas, quite frequently, used the term corpus Ecclesiae mysticum, "the mystical body of the Church." Hitherto it liad been the custom to talk about the Church as the "mystical body of Christ" (corpus Christi mysticum) which sacramentally alone makes sense. Now, however, the Church, which liad been the mystical body of Christ, became a mystical body in its own right." That is, the Church organism became a "mystical body" in an almost juristic sense : a mystical corporation. The change in terminology was not haphazardly introduced. It signified just another step in tire direction of allowing the clerical corporational institution of the corpus ecclesiae iuridicum to coincide with the corpus ecclesiae mysticum and thereby lo "secularize" the notion of "mystical body." In that development Aquinas himself holds a key position. For it is not devoid of some inner logic that the Doctor angelicús on several occasions saw lit lo replace, straightforwardly, the liturgical idiom by a juristic idiom.

out the Middle Ages, and it was only an adaptation to the new tertinology that Isaac of Stella, a contemporary of John of Salisbury, applied the metaphor of the human body with great precision lo the corpus mysticum the head of which was Christ and whose Iimbs were the archbishops, bishops, and other functionaries of the Church.'° That is lo say, the anthropomorphic imagery was transferred as a matter of course to both the Church as che "mystical body of Christ' in a spiritual sense and the Church as an administrative organism styled likewise corpus mysticum. The organic pattern furnished the standard interpretation of the corpus mysticum during the thirteenth century, especially alter Thomas Aquinas liad started lo apply the term "mystical body" rather freely lo the Church as a social phenomenon. In many respects he remained within the tradition. Like Isaac of Stella and others he compared the corpus mysticum with man's body natural: Just as the whole Church is styled one mystical body for its similarity lo man's natural body and for the diversity of actions corresponding lo the diversity of limbs, so is Christ called the "head" of the Church.... 1

Aquinas, lo be sure, was still fully aware of the fact that the mystical body really belonged to the sacramental sphere, and that corpus mysticum was to be set over against the corpus verum represented by the consecrated host. Even he, however, spoke of both bodies-the true and the mystical-without referente lo the Eucharistic bread. In his teaching, the "true body" repeatedly signified not at all the Eucharistic Christ of the altar but Christ as an individual being, physical and in the flesh, whose individual zo Isaac de Stella, Serm . xxxiv, PL, cxcrvp8oiC; Lubac, Corpus mysticum, 120. Isaac compared Christ with the roo[ of a tree (" in hoc mystico corpore sub uno capite Christo et una radice . .. membra multa sunt"), a tree having the roots aboye while branching down to earth; Lubac, very correctly, calls chis mystic body "semblable k un arhre renversé ." That strange inverted tree, however, has a long history which may be traced back to Platos Timacus, goa , where-in agreement with ancient plant physiology according to which the root of a plant is its "head"-man's head is called also p (la, the roo[, which is suspended and which " directs the whole body" ( dpOoi nñv 76 ompa ). The metaphor has a very complicated history; see the forthcoming study of Otto J. Maenchen- Helften, The Inverted Tree, who has collected, aboye all, the archaeological material. al Aquinas, Surnma theol., ul,q.vnl ,l; Gierke, Gen.R., nl,y8,n.7; Lubac, Corpus mysticum, ,2 7 ff,nos.6o-64 , who has collected the relevant places.

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The term corpus mysticum, despite all the sociological and organological connotations it had acquired, nevertheless preserved its definitely sacramental ring simply because the word "body" still recalled the consecrated sacrifice. That last link lo the sphere of the altar, however, was severed when Aquinas wrote: "It may be said that head and limbs together are as though one mystical 22 Lubac, Corpus mysticurn, 129, n.71. 23 Lubac, Corpus mysticum, 128, n.63, stresses these changes emphatically.

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while quoting Aquinas, could say: `Hence the Church compares with a political congregation of men, and the pope is like to a king in his realm en account of his plenitude of power."2D To the extent, however, that the Church was interpreted as a polity like any other secular corporation, the notion corpus mysticum itself was charged ivith secular political contents. Aboye all, that oriá inally limrgical notion, which formerly served lo exalt tse Church tinited in the Sacrament, began to be used ¡ti tlie hieran hical Church as a means to exalc the position of the emperor-like pope, "the chief Prince moving and regulating tlie wliole Christian polity" (primus princeps movens et regulan totam politiam Christianarn ) -" We now find all the well-known similes, metaphors, and analogies centered on the new primum mobile, the pope as vicar of Christ.

person."21 Nothing could be more striking than this bona fide replacement of corpus nlysticurn by persona mystica. Here the mysterious materiality which the terco corpus rnystieum-whatever its connotations may have been-still harbored, has been abandoned: °The corpus Christi has heen changed roto a corporation of Christ."2E Ti has buen exchanged for a juristic abstraction, the "mystical person," a notion rumioiscent of, indeed synonymous with, the "hctitious person," the persona sepraesentata or ficta, which the jurists liad introduced roto legal thotrght and which will be found at the bottom of so much of the political theorizing during the later Middle Ages.R° Undeniably the former liturgical concept of corpus mysticum faded away only to be transformed into a relatively colorless sociological, organological, or juristic notion. It has been observedcorrectly, it seems-that this "degeneration" made itself felt very strongly in the circle of theologians around Pope Boniface VIII." This is certainly true with regard to the papally-minded pamphleteers of the early fourteenth century. In their writings, the Church appeared, tse later the more so, as a "Christian polity"regnum ecclesiasticum or principatus ecclesiasticus, apostolicus,

Just as all the limbs in the body natural refer to the head, so do all the faithful in the mystical body of the Church refer to the head of the Churcli, the Roman Pontiff.sr

The implications of the terminological changes become obvious: the pope could be che head of the "mystical body of the Church" as a corporation or polity or regnum more easily iban head of the "mystical body of Christ." However, even the latter was nos beyond reach . In order to preve that it made no difference whether

papalis28-so that even a Civilian as, for example, Lucas de Penna, es membra sunt 24 Aquinas , Summa Lheol., m.q.xrvm,a.2: "Dicendum quod caput 6o, for a number of similar quasi una persona mystica." See Lubac, ¡bid., 127,n . places. Granans 2s Rudolph Sohm, Das altkatholische Kirchenrecht und das Dekret (Munich and Leipzig, sgo8 ), 582: "Aus dem Kbrper Christi hat sich die Kirche in cine Kbrperschaft Christi verwandelU" 28 See Gierke , Gen.R., 111,246ff, for the general development; aleo G. de Lagarde, . See also che Ockham es son temes ( Paris, 1942 ), n6ff, for the persona representata remark of Le Bras, "Le droit romain " (aboye, n.1o), 349, concerning the political corpus mysticum which he styles "un concept ... que Ion en venait k classer dans

(Deutsches Mittelalter : Kritische Studientexte der MGH, iv, Weimar, 1949). pp.32, 46,66,78; see aleo Lubac, Corpus mysticum, 129 , for james of Viterbo; also Scholz, Pubtizistik , 14of. See further, Scholz, Streitschriften , 1,252, for principatus christianus (Anonymous); 11,34 and 42 , for principatus ecclesiasticus (Perros de Lutra); u456ff, 468479 for principatus papalis and apostoticus (Ockham); aleo Scholz, IVilhelm von Ockham als politischer Denker und sein 'Breviloguium de principatu tyrannico' (Leipzig, 1944), 59ff, and passim ; for politia christiana , see Scholz, Streitschriften, 1,252ff, n,142f, and passim; Ladner, "Aspects," 412,n.34. See also Lubac, Corpus mysticum, 226,n.55, quoting the Roman Catechism, according to which the clergy's sacerdotal power (potestas ordinis) refers to the corpus verum (the eucharist), whereas che political power ( iurisdicfionis potestas ) refers tu the mystical body of Christ; both the body natural and the body mystical dms hecome the source of clerical potestas , bus the mystical body is che source of jurisdiccional power, See, for chis doctrine , james of Viterbo, De regimine christiano, ce .4-5, ed. H: X. Arquilliére ( Paris , 1926 ). tg9f, 201. 29 Lucas de Penna, en C .11,58,7,0.8 (Lyon, 1582), p.563: ''Unde et ecclesia comparatur congregationi hominum politicae et papa est quasf rex in regno propter plenitudinem potestatis" (a referente te Aquinas, Summa sheet., Suppl.ul,q.xxvl,a.3): see, for the papal plenitudo potestatis , Ladner , "Concepts," 6off,67,n.64. eo See Scholz, Streitschriften , 1,253, for the anonymous tractate De potestate ecclesiae (14th century). 81 Hermann of Schilditz, Contra hereticos, n,c.3, ed. Scholz, Streitschriften, 11,143f.

1'album des personnes juridiques." 27 Lubac, Corpus mysticum, s3off, sume up most interesting material concerning the degeneration of the corpus mysticum idea. The legalistic interpretation of this idea is anything but surprising in an age when the question was frequenny discussed whether the souls of Christians were better taken tare of by a jurist, or by der Frage, ob a theologian , as supreme pontiff; see M. Grabmann, "Die Erfirterung regiert die Kirche besser durch cinen guten Juristen oler durch Binen Theologen werde;" Eichmann Festschrijt (Paderborn, 1941 ), who discusses Godfrey of Fontaines and Augustinus Triumphus; some additions (Franceseo Caracciolo) have been made by Michele Macearon , "Teologia e diritto canonice nella bfonarchia, 111,3," Rivista exposes di storia delta Chiesa in Italia, Y (1951). 20, an artide which skillfully Dante's profound dislike of the domination of jurists in the Church. 28The expression regnum eeclesiasticurn was very common in the thirteenth century; see, e.g., Alexander of Roes, Memoriale, cc 34,24,37, 38, and Noticia saeculi, c.8, ed. H. Grundmann and H. Heimpel, Die Schriften des Alexander ven Roes

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the pope resided in Rome or in Avignon, since che pope was che Church,32 Alvarus Pelagius exclaimed: The Church, which is the mystical body of Christ . . . and the community of Catholics ... , is not defined by the walls [of Rome]. The mystical body of Christ is where the head is, that is , the pope (Corpus Christi mysticum ibi est, ubi est caput, scilicet p apa) 33

Ubi est fiscus, ibi est imperium was the twist given by Baldus to the ancient maxim "Rome is where the emperor is."e4 That Rome is where the pope is-"even were he secluded in a peasant's hut"was a saying repeated over and over by the Canonists who linked also Jerusalem, Mount Sion, the limina Apostolorum, and the "common fatherland" to the person of the pope." In a sacramental a2 For the famous formula "summus pontifex qui tener apicem ecclesie et qui potest dici ecclesia," see Acgidius Romanos, De ecclesiastica potestate, 111,C.12, ed. Scholz (Weimar, 1929), 209; also Scholz, Publizistik, 6o . The resistance against that identification hagan soon alter 1300, and the decretalist Panormitanos (d. 1453) expresses his view perfectly clearly: "Capuz et sponsus est ipse Episcopus [Christus]; papa antem est vicarius Episcopi, et non vere caput Ecclesiae ." See Lubac, Corpus mysticum, 131,n.85. 33 N. Jung, Alvaro Pelayo ( L'Eglise et I'état au moyen áge, 111; Paris, 173x), 150, n.2, quotes the passage , but omits the decisive second sentence. See Scholz, Stre,tschriften , i,5o6ff. One may be inclined to think of Ignatius , Ad Smyrn„ vm ,2, usually rendered " Where the bishop is , there is the Church " (e.g., H. Lietzmann , Geschichte der alcen Kirche [ Berlin, 1836], 11,49). However , the text says "where Christ is, there is che Catholic Church," and says about che bishop that "where he shall appear, there Iet the mul t itude be"-that is, the people shall gather where the bishop is. 84 Baldus, en C.1o,i,n.13, fo1 . 232 (aboye , Ch.iv, n.276). For the origin of the maxim, see Herodian , 1,6,5 (lxei re p 'Púµtl ror' ay 6 pacsxtLs ñ), with interesting parallels quoted in the old edition of Herodian by T. G. Irmisch ( 1789), 1,209. See also Paneg.lat., x1 , 12 (Mamertinus , Genethl. Maxim .), ed. W. Baehrens ( 1911 ), 285,2, and Cambridge Ancient History , 3111,374,386 - Further, Claudian , In Rufinum, u, 246f, ed. flirt , MGH, Auct.ant., x43: "quocumque loco Stilicho tentoria figat, hace patria esta ' which makes the military camp the soldier 's fatherland ; see Reinhard Hbhn, "Der Soldat und das Vaterland wáhrend und nach dem Siebenjáhrigen Krieg," Festschrift Ernst Heymann (Weimar, 1940), 255, quoting from an anonymous traetate by S.B . N., Die wahren Pffichlen des Soldaten und insonderheit cines Edelmanns (trans. from che French, 1753), p.12: "Der Ort wo der Feldherr sein Lager hat, muss Euer Vaterland seyn." See also Modoinus , Ecloga, 40f, MGH, Poetae, ,,386, referring te Charlemagne and Aachen: "Quo caput orbis erit , Roma vocitare licebitl Forte loculn ..:' Also Frederick 11 availed himself of that maxim ; see Huillard - Bréholles, 11,630 (June, 1226): "... ibi sit Alemanie curia, ubi persona nostra et principes imperii nostri consistunt." See Erg.Bd., 41. ss See, e.g., Oldradus de Ponte, Consilia , Lxn,n.3, fol.sav : "... ista intelligantur de ecclesia Romana universali , quae est uhicunque est papa." Hostiensis, Suma aurea, en X i,8,n.3, COI 155 : " . quia non ubi Roma est, ibi Papa, sed econverso; locos enim non sanctificat homincm, sed homo locum ." See, for the maxim non locos sanctifi cat hominem , etc., Hermano Kantorowicz , Glossators , 22. Johannes Andreae, Novella Commentaria , en c.4 X 2,24 ( Venice , 1612 ), fo1.tS5r: "limina enim

sense, it was rather usual to say that " where Christ is there is also Jordan," meaning, of course, that every baptismal font was "Jordan" with regard lo Christ and with Christ being present.16 The new twist produced by Alvarus Pelagius, however, carried the idea considerably further: not where the consecrated host is, but where the pope is, there the corpus mysticum was supposed to be present. It was a long way from the liturgy and the sacramental corpus mysticum lo che mystical polity headed by the pope. The curious definition of Alvarus Pelagius was matched by yet another terminological change which at least should be mentioned. When William of Ockham denied the pope the power to alienate Church property he merely repeated what scores of jurists had pointed out before him, though one of his arguments is of interest here. Ockham said the pope could not alienate these possessions because they did not belong to hitn personally, but belonged to "God and his mystical body which is the Church" (Dei et corporis eius mystici quod est ecclesia).et The Church as the mystical body of tod, not of Christ , is a concept demonstrating che swiftness with whiclfthe corpus mysticum idea had been moving away from th€ original sacrificial sphere, from altar and Eucharist, so apostolorum esse intelliguntur, ubi est papa." Cf. Jung, Alvaro Pelayo, 148,n.: "Et quod ubicumque est papa, ibi est Ecclesia romana., :' Baldus, en D.,,,8,rn.s6, fol.44 "• .. puta ubi est palatium regia vel episcopi, sicut in regno regia civitas dicimr caput regni . . . Et in mensa, ubicumque est dominus, ibi capup sicut ubi Papa, ibi Roma, etiam si esset in quodam tugurio rusticano reclusos." Baldus, on D.3,2,2,3,n.2, fol.164, brings a new note (important for the formula rex et patria; see below): "nota quod Roma et Imperator aequiparantur. Unde verum quod notat Inn[ocentius IV] uhi est Imperator, ihi est Roma, scilicet intellectualiter, quia idem inris est de Imperatore et de urbe ..." Baldus then can draw the condusion (en D.5,i,2,3,n.1, fol.258r): "... Roma sit communis patria, et intelligo ubicunque est Papa vel Imperator." See al.so Baldus, en c4 X 2.24,n.u, fol.249, quoting Innocent IV: "Dicit Innocentius quod ubi est Papa, ibi est Roma, Hierusalem et mons Sien, ihi et est communis patria." For Rome as the comrnuni.s patria, see aboye, Ch.ns, n,8g, also below, p. 247; ancl for che connection of Rome with Jerusalem, see Tierney, "Conciliar Theory," 428,n.57, quoting Hostiensis ("Urbs isla [Roma] altera Ierusalem intelligatur") and referring to the Norman Anonymous. The theory of Rome-Jerusalem, of course, is ancient Christian; ir was important in Christian art (see, e.g., for che Presentation in Santa Maria Maggiore, A. Grabar, L'empereur dans I'art byzantin [Paris, 1936], 216t, and it played later en a cerraja role also in legal literature; see, e.g., Oldradus de Ponte, Consilia, lxxxv,n.1, fol.32. It would be certainly rewarding to investigate systematically che transfer of the JerusalemIdea te Rome. See, for a few remarks, Williams, Norman Anonymous, 137ff. ss Ambrose, Sermones, xxxvui,c.z, PL, xvIt,7o213: "Ubique enim nunc Christus, ibi quoque Jordanis est." 37 Scholz, Streitschriffen, 11,428, where che expression occurs twice

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2. Corpus Reipublicae rysticum

that a later jurist could easily define tire Church as a corporation "representing a person which cannot be said ever to have lived, because that person is neither corporeal nor mortal, since it is God."8' Admittedly, Ockham could have defended his diction, since the hrst and second persons of the Trinity no longer were distinguished as clearly in bis tinte as they were in the earlier has a false ring; Middle Ages30 Neverdteless, corpus mysticum Dei it is an expression indicative of that new direction of which

While tire lofty idea of the Church as corpus mysticum cilios caput Christus was inflated with secular contents, corpoational as well as legal, the secular state itself-starting, as it were, faorn the opposite end-strove for its own exaltation and quasi-religious glorification. The noble concept of the corpus mysticum, alter having lost much of its transcendental meaning and having becas politicized and, in many respects, secularized by the Church itself, easily fell prey lo the world of thought of statesmen, jurists, and scholars who were developing new ideologies for the nascent territorial and secular states. Barbarossa, we retal], hallowed his empire by che glorifying titte sacrum imperium-a perfecdy legitimate para-ecclesiastical term which he borrowed from the vocabulary of Roman Law, and not from that of the Church. The efforts, however, lo provide the state institutions with some religious aureole, as well as the adaptability and general usefulness of ecclesiastical thought and language, led the theorists of the secular state very soon lo a more than superficial appropriation of the vocabularies not only of Roman Law, but also of Canon Law and Theology at large. The new territorial and quasi-national state, selfsufficient according lo its claims and independent of the Church and the Papacy, quarried the wealth of ecclesiastical notions, which were so convenient to handle, and finally proceeded lo assert itself by placing its own temporariness on a level with the sempiternity of the militant Church. In that process the idea of the corpus mysticum, as well as other corporational doctrines developed by the Church were to be of major importance.40 An early example of setting the state as a "body" over against the Church as a "body" emerged from the pamphlet literature of the Struggle of Investiture, when an imperial wrjter advocated unum corpus reipublicae to supplement unum corpus ecclesiae.'1 The antithesis reflects hardly more than the customary organological concept of both the state and the Church; nor does John of Salisbury' s famous statement res publica corpus quoddam all by

William of Ockham was, in so many respects, the exponent. designating To summarize, the notion of corpus mysticum , originally the Sacrament of the Altar, served aher the twelfth cenof the tury to describe the body politic, or corpus iuridicum, Church, which does not exclude the lingering en of some of the distincearlier connotations . Moreover, the classical christological tion of the Two Natures in Christ, still powerfully alive in the political theology of the Norman Anonymous around A.D. 1100, has all but completely disappeared from the orbit of political discussions and theories. It has been replaced by the corporational, non-christological concept of the Two Bodies of Christ: one, a verum, body natural, individual, and personal (corpus nalurale, and collecpersonale ); the other, a super-individual body politic mystica. persona also as a tive, the corpus mysticum, interpreted through the agency of the dogma of Whereas the corpus verum, Corpus of the feast of transubstantiation and the institution mysticism of its own, the corpus Christi, developed a life and a as time passed mysticum proper carne lo be less and less mystical on, and carne to mean simply the Church as a body politic or, by transference , any body politic of the secular world. 1 .91, quoting Paulas ele Castro (d1439): "[ecdesial unfas Gierke , Gen.R., 111,277 5 versitas repraesentans personam quae nunquam potest dici vixisse, quia non est could not have made Chis remark corporalis nec mortalis , ni est Deus :" The jurist body of Christ of whom it could not as the mystical of the Church had he thought be said that he never lived. VIII, en the basis of 1 Cor. n: ae In the ball Unam sanctam , e.g., Pope Boniface caput est Christus , Christi body of the Church "cuius g, referred to the mystical ad 2. For the extreme , Satnma theol., ni, q.vnó arta, vero Dcus ." See also Aquinas the Pather capa[ ecclesiae, see, e.g., Petee reluctante of earlier centuries to sude God and, dependent en him, Quaestiones of Poitiers , Sentenliae, lv ,c2o, PL, ecxld215C, Miscellanea Giovanni ed. F. Stegmhller , , Varsavienses trinitariae et christologicae ir, and 6. 13,3o3f, §a4 ), 122, Rome, 1946 Mercad ( Studi e Test¡ ,

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+°See Pollock and Maitland , History, 1,495, for some remarks on the influence which the corpus mysticum idea exercised en che growth of the Las‹ el corporations. Cf. Tierney, Conciliar Theory, 134ff. 41De unitate ecelesiae , in MGH,LdL, 11,228,16, quoted Iry Ladner, "Aspects," 413,n . 36. See also Flugh of Fleury, De regia potestate , 1,3, ibid., 11,468,28ff: —rex in regni su¡ corpore."

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itself imply a deviation from customary thought." It was, however, a very different matter and a different aspect of the state as an organism when, in the middle of the thirteenth century, Vincent of Beauvais, in order lo designate the body politic of the state, used the term corpus reipublicae mysticum, "mystical body of the commonweal."" This was a clear case of borrowing from the wealth of ecclesiastical notions and of transferring to the secular commonweal some of the super-natural and transcendental values normally owned by the Church. An intention te raise the state beyond its purely physical existente, and to transcendentalize it, may be gathered perhaps from the Mirror of Princes of Vincent's contemporary, the Franciscan Gilbert of Tournai.t" He visualized a perfect kingdom directed by the king as the vicar of Christ and guided by the ministers of the Church, and he, too, used in that connection the term corpus mysticum. But Gilbert of Tournai wanted his ideal kingdom to be a distinct entity within the traditional mystical body signifying che oneness of Christian society, whereas for Vincent of Beauvais the secular entity itself was a "mystical body."45

Thip notion of corpus mysticum signified, in the first place, the totality of Chjistian society in its organological aspects: a body composed gf head and members. This interpretation remained valid throughout the later Middle Ages until early modern times, even alter the notion had been applied, by transference, lo smaller groups of society. In addition, however, corpus mysticum acquired certain legal connotations; it acquired a corporational character signifying a "fictitious" or "juristic" person. We may recall that already Aquinas had used, as an alternative of corpus mysticum, the term persona mystica, which hardly differed from the persona ficta of the jurists. In fact, it was chiefly among the lawyers, though not lawyers alone, that the organological interpretation was sided by or amalgamated with corporational contents, and that accordingly the notion of corpus mysticum was used synonymously with corpus fictum, corpus imaginatum, corpus repraesentatum, and the like-that is, as a description of che juristic person or corporation. The jurists, thereby, arrived, like the theologians, at a distinction between corpus verurn-the tangible body of an individual person-and corpus fictum, the corporate collective which was intangible and existed only as a fiction of jurisprudence.41 Hence, by analogy with theological usage as well as in contrast with natural persons, the jurists defined their fictitious persons not seldom as "mystical bodies." This term was applicable lo every size and rank of universitas within the hierarchy of corporate communities of which mediaeval social philosophy, in a bleuding of Augustinian and Aristotelian definitions, distinguished five: household, neighborhood, city, kingdom, and universe.11 Accordingly, a late mediaeval jurist, Antonius de Rosellis (b. 1,386), enumerated, if with

42 Policraticus , v,c.2, ed. Webb, t,282ff. The organic doctrines certainly did not begin with John of Salisbury; they were fulty developed, without then being original, in the works of contemporary jurists. See , e.g., Fitting , Jur.Schr., 148,20 (ahoye, n.19), the gloss on princeps: ''Quasi primum caput , iudices enim capita sunt aliorum hominuni , qui ab eis reguntur , ut membra a suis capitibus ; sed princeps est caput aliorum iudicum el ab co reguntur ." There follows an explicit comparison of the dignities ( ¡Ilustres, spectahiles , etc.) with eyes , hands, chest, feet, etc., and also a comparison of che ecclesiastical dignities with the limhs of the human body. The organological metaphor, of course , is found also in Roman Law; see, e.g., C.9,8,5 (Cod.Theod., 9,14,3): ' virorum illustrium qui consiliis et consistorio nostro intersunt , senatorum etiam, nam ipsi pars corporis nostri sunC' This passage was quoted, time ancl time again (see below, Ch. vu,nos.34ff), and was applied also co the papacy; see , e.g., Johannes Andreae, Novella, on c4 X 2,24 ( Venice, 1(312 ), fol 184: "cura ipsi [cardinales ) cum papa constituant ecclesiam Romanam, el sint pars corporis papae, ar.C. ad l. Jul.ma.l.quisquis (C.g,8,5)." See, in general, Nestle , " llenemos Agrippa" ( aboye, n.6). ea Speculum doctrirmle , vn,c.8, quoted by Gierke, Gen.R., 111,548,n 75; cf. Maitland, Political Theories, 131 . 1 admit that 1 was unable lo find Chal place, but the expression , no doubt, became popular in Vincent's time and surroundings ; see, e.g., Berges, Furstenspiegel, 195, n.1, and 306, §15. r+Gilbert of Tournai, Eruditio regum et principum, 11,c2, ed. A. de Poorcer (Philosophes Beiges, 1x, Louvain , 1914), 45; Berges , Fürstenspiegel, 156. as For reasons of conveniente , the concept of "the state within the Church" has been called the "Carolingian tradition " by Ladner, " Plenitudo potestaeis ," 5nf, who very skilfully poirus out (p.73) that Chis tradition began lo evaporare ¡n the 13th century and thit from the chought of Aquinas , for whom che refina were natural i n origin and character, all traces of the Carolingian tradition seem co be absent.

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16 The tranition from corpus mysticum to universitas in the legal sense is well illustrated by Oldradus de Ponte, Consilia, 204,0.1 (Lyon, t5go), 78v. The question was raised whether the Abbot of Cluny was che only head of tbe whole Orden of the Cluniacs. Oldradus answers by pointing at the analogy with the mystical body: "El quod unum tantum sit caput, prout probatur primo ex corporis mystici ad corporis ver¡ similitudinem. Sicut enim in corpore naturali unum est capuz, alias dicetetur declinare ad monstrum .... sic et in corpore mystico.. . Constar autem quod universitas el religio unum corpus repraesentat" (follows allegation of the ]ex mortuo; see below, Ch.vr,ng3). See Gierke, Gen.R., 111,428, for the various expressions describing the juristic person as distinguished from the natural person. See also aboye, n,16, for the expression corpus fi,guratum as an equivalent of corpus mysticum. For universitas and corpus mysticum, see Ticrney, Conciliar Theories, 134ff. 47 For the problem, see Fritz Kern, Humana Civilitas (Leipzig, 1913), u,n.I; Dante, Monarchia, r,c.3.

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slight alterations, five corpora myslica of human society-the corpus mysticum of each: village, city, province, kingdom, and world.4s This was certainly a levelling down and a banalization of the originally very complex liturgical terco. However, die notion of corpus mysticum vas easily transferred to other secular units as well. Baldus, for example, defined populus, the 15tople, as a mystical body. He held that a populus was nos simply the sunfof individuals of a community, huí "men assembled into une mystical body" (hominum collectio in unum corpus mysticum), men forming quoddam corpus intellectuale, a body or corporation te be

ethical code. jurists and political writers gained a new possibility to compare che state as a corpus morale el politicum with, or lo set it over against. the corpus mysticum el spirituale of the Church.11 After Aquinas had ecclesiasticized dre Philosopher, there remained no difficulty in conlbining Aristotelian concepts with ecclesiastical thought and terminology. Godfrey of Fontaines, a Belgian philosopher of rhe late thirteenth century, for example, succeeded in integrating very neatly the corpus mysticum into the Aristotelian scheme.62 To hico the "mystical body" appeared not as a supra-natural foundation, but as a gift of nature. His major premise was that "everyone is [by nature] part of a social community, and thereby also a member of some mystical body." That is, man is "by nature" a social animal; as an animal sociale, however, man is "by nature"-not "by grace"-also parí of some mystical body, some social collective or aggregate, which Dante, a little while later, would easily define as "mankind" or humana civilitas, whereas others might define it, as need be, in the sense of populus, civitas, regnum, or patria, or as any other social community and corporation, the ends of which were "moral" per se. A new halo descended from the works of Aristotle upon the corporate organism of human society, a halo of morals and ethics different from that of the ecclesiological corpus mysticum, yet by no means incompatible with it; in fact, corpus mysticum and corpus morale el

grasped only intellectually, since it was not a real or material body.*0 In a technical sense, Baldus' "mystical body of the people" appears plainly as an equivalent of "polity" or universitas or, in the language of Aquinas and Aristotle, of any multitudo ordinata.10 Nevertheless , the designation corpus mysticum brought to the secular polity, as it were, a whiff of incense from another world. There was yet another notion which became popular during the thirteenth century, the notion of "body politic," whicli is inseparable from both the age of early corporational doctrines and of the revival of Aristotle. Before long, the term "mystical body" became applicable to any corpus morale el politicum in the Aristotelian sense. It cannot be ventured here to assess Aristotle's influence on late-mediaeval political language, or even to ask what it meant that henceforth, owing to Aristotle, the state not only was interpreted as a "body politic," but also was qualified as a "body moral" or "ethical." The state or, for that matter, any other political aggregate , was understood as the result of natural reason. Ir was an institution which liad its moral ends in itself and had its own

sa Aristotle, Palie., ni,glf (1 a8oaa282b ), and Aquinas, In libros Politicorum Aristotelis, ni, lect .vn and vnr, ed. Raymundus M. Spiazzi (Turro and Rome, 1851 ), 14,ff. For the moral character of the state according to Aristotle , see also Max Hamburger, Morals and Law: The Growth al Aristotle's Legal Theory (New ¡laven, 1851), esp. 177f. The essence of che state as a corpus morale consists, of course, in the fact that its ends aim at some good , actually "the greatest good and the good which is most pursued; for the good in the sphere of politics is justice." Aquinas, in his Prooemiurn to the Aristotelian Patines (§6, ed. Spiazzi, ps), stressed that the scientia política was aucording te customary classification a scientia moralis. Aristotle, though of course nos a "corporationalist" in Che later sense, has nevertheless supported corporational interpretations by his doctrine holding that the city-and, for that master, every whole-was prior m its parís, and that neither foot nor hand cvould exist were there not a whole body, a doctrine which was grist to the milis of the organologists and which Aquinas emphasized also very strongly (In Polis. Arist., 1,1, §38f, ed. Spiazzi, 1if). e2 Godfrey of Fontaines, Quaestiones ordinariae , 1,2,5, ed. Odon Lottin (Philosophes Beiges, xiv, Louvain, 1937), 89; el. G. de Lagarde, "La philosophie sociale d'Henri de Gand et de Godefroid de Fontaines," L'Organisation corporalive du moyen dge a la fin de l'ancien régime, vtt (Receuil de travaux d'histoire et de philologie, Ime serie, xviii; Louvain, 1843), 64-

48 Antonius de Rosellis , Monarchia sive Tractatus de potestate imperatoris et papae, u,c.6 , ed. Goldast , Monarchia (Frankfurt, 1668), 1,312: "Naco sicut est in uno corpore natural¡, ita est in pluribus mysticis corporibus [that the monarchy is the test form of government ] . . . Et idem est in aliis mysticis corporibus universitatum, quia melius se habent cuco per unum reguntur . Sunt enim secundum 1'hi. [cf. Gierke, Gen.R., [99,545, o.64]" See, for losophum quinque communitates the anchor , Karla Eckermann , Siudien zur Geschichte des monarchischen Gedankens im zy. Jahrhundert (Abh. zur mittleren und neueren Geschichte, 1.xx111 [BerlinGrunewald , 19331). 49 For Baldus , see Gierke , Gen.R., nT428,n.37 and 43rf; aleo 433,99.61 ; see below, Ch.vnt,n.yo. so Aquinas, Summa theoL , iii,q.vin,a.l , ad 2: "corpus . . . aliqua multitudo ordinata."

210

a

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politicum became almost interchangeable notions, and they were lined up with the same case with which Dante assembled the terrestrial paradise and the celestial paradise on one denominator as the two goals of mankind.

for example, Cynus of Pistoia produced it in a more or less casual fashion in his commentary on Justinian's Code. While discussing che extent of power accorded to an emperor elect, he considered the Prince' s election on the parí of che respublica and his aceeptance of che election as a kind of contract or mutual consent similar co the one upon which matrimony was based, and then briefiy expanded on that comparison which obviously impressed him because he thought it was striking.

This assertion will be borne out by the jurists who, especially when discussing che inalienability of fiscal property, fell to the metaphor of che ruler' s marriage to his realm. This metaphor, though not unknown in Antiquity,óe will not easily be found in che earlier Middle Ages. It is trua, of course, that ever since Carolingian times, che mediaeval Prince received at his coronation, together with other symbols and insignia , a ring. The ecclesiastical writers, however, were careful co point out that chis ring was conferred only as a signaculum fidei and to distinguish it from the episcopal ring by which the bishop, at his ordination, became the sponsus, the groom and husband of his church, to which he was married, a simile on which the canonists sometimes expanded at great length.54 The secular marriage metaphor, however, became rather popular in the later Middle Ages when, under the impact of juristic analogies and corporational doctrines, the image of che Prince's marriage co his corpus mysticum-that is, to the corpus mysticum of his state -appeared to be constitutionally meaningful. It would be difficult co tell when and where or by whom che canonistic metaphor was first transferred co secular legal-political thought.55 It may have been fairly common around 1300 when, 53 See below, n.59. 54 For a brief survey of the history of the ring in connection with the imperial coronations , see Eichmann , Kaiserkrdnung , ir,94ff (also Index , s.v. "Ring"). The significante of the episcopal ring was widely discussed during che Struggle of Investiture; see the numerous tractates and poems De anulo et baculo, in MGH,LdL, 11,5o8fE; 111,7aofh723ff ,726l1. The ritual of the "Bestowal of the Ring" at episcopal consecrations differed sometimes very little froto the corresponding ritual at coronations: the episcopal ring likewise was called fidei signaculum , and che marriage formula ( quatenus sponsam . . custodias) was not alwavs included at the ordinations; see , e.g., Andrieu, Pontifical romain, 1,48 and 149. See below, nos.5q and 6i, for the canonistic marriage metaphor. sISee Mochi Onory, Fonti canonistiche, i51,n.r , for excerpts from Huguccio's gloss on c.to ,D.63, Y. 'subscripta relatio,' che complete text of which (from Clm. 1o247,fol. 6grb-vas), together with referentes to later canonists , 1 owe lo the kindness of Dr . Robert L. Benson. Without referring specifically to D.50.17,30 ("Nuptias non concubitus, sed consensos fati[" ) he compares a bishop's election to a matrimonial consent " Itero electio dicitur vinculum , quod ex mutuo consenso , scilicet eligentium et electi, contrahitur ínter eos matrimonium spirituale , ut ille iam dicatur sponsus istius ecclesie vel istorum clericorum et hec ecclesia sponsa ipsius." The same idea is repeated in che Glos. ord. (Johannes Teutonicus ), en c.to,D.63, Y.

$12

And che comparison between che corporeal matrimony and che intellectual one is good: for just as the husband is called che defender of his wife ... so is che emperor che defender of that respublica.50

Cynus, whose arguments were repeated almost verbatim by Albericus de Rosate,sT wrote his commentaries on the Code between 1312 and 1314. In [hose years others as well availed themselves of that comparison. In 1312, for example, one of che Italian jurists 'relatio; and in che Apparatus vus naturalé ( Kuttner, Repertorium , 671f), on the same canon , v. 'subscripta ' (Paris, Bibl.natnlS.lat.15393, fol.49), where Huguccio is quoted: "et secundum Ug(uccionem) ex election el electi consenso legitimo." See also a decretal of Innocent III (e 2 X 1,7; Friedberg, 11,97): ". . non debeat in dubium revocare, quin post electionem et confinnationem canonicam ínter personas eligentium el electi coniugium sit spirituale concractum." Finally Bernard of Pavia, Sumnua dccretalium, 14,5, ed. E. A. T. Laspeyres, Bernardi Papiensis Faventini episcopi Sunnna Decretaliuvn (Regcnsburg, 1860), p S: "... (lulo approbat [ electos] de se factam electionem , ecclesiae sponsus efficitur propter mutuum consensum," Both Huguccio and the Apparatus Tus naturale' parallel the bishop's election with that of the emperor; sea , for Huguccio, Mochi Onory, loc.cit.; the Apparatus says quite succinctly : "et sicut principes imperatorem dicuntur facere, et ita clerici prelatum electione ;" whereby che preceding clause mentions che "matrimonium ínter episcopum et ecclesiam contractum ." Fíente it may be said that sooner or later the matrimonial idea was almost bound m be transferred to che Prince and the respublica . See next note. 55 Cynus, en C-7,37,3,n.5 (Frankfurt , 1578), fo1.446rb: '(juia ex electione Imperatoris et acceptione electionis Reipublicae iam praepositus negari non potes[ et euro ius consecutum esse, sicut consensu mutuo fit matrimonium ... El bona esc comparado illius corporales matrimonii ad istud intellectuale: quia sicut maritus defensor uxoris dicitur . . . , ita et Imperator Reipublicae " The allegations of Cynus refer exclusively to Civil Law; it is obvious nevertheless that bis arguments follow those of the canonists , though it is noteworthy that the matrimonian spirituale of che canonists has been transformad finto a matrimonium intellectuale. 1 was unable co ascertain whether perhaps one of Cynus' teachers , Jacobus de Ravanis (Révigny) or Petrus de Bellapertica (Belleperche), had used che marriage metaphor before. 57 Albericus de' Rosate , on 0.7,87,B,n .12 (Venice, 1585), fol.so7vs: "quia sicut matrimonium consenso perficitur ... [D.5o,17so], sic ex mutuo consenso eligentium ec electi ius plenum consequitur Imperator . . Nota ergo quod ex quo res administrat , et est bona argumentatio matrimonii carnalis ad istud intellectuale, quia sicut marina est defensor uxoris ... [Inst. 4,4,21, eta Imperator Reipublicae .. . 213

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in che surroundings of Emperor Henry VII found it suitable lo compare the emperor's cnronation to a marriage riteP° Nene, however, was so explicit about tisis comparison or carried it to such •an extreme as Lucas (le Penna, che Neapolitan jul-ist, cebo wrote his commentary on the Tres Libri, the last three books of the Code, around the middle of the fourteenth century.

Lucas de Penna commented on a Iam, concerning "Occupation of Desert Land" (C.1 1,58, 7), excepting, however, lands helonging to the fisc and dle princely patrimony. He started his arguments with a quotation from Lucan's Pharsalia, where Cato was styled "father to the City [of Rome] and the City's husband."59 From Chis opening, the jurist made his way to the apostolic lesson of the Matrimonial Mass, which gave him a chance lo discuss a fundamental law of the state en the basis of Ephesians 5. To Lucas de Penna, the Prince was plainly tire maritus reipublicae whose wedlock with the state appeared as a matrimonium morale el politicum. Based on this premise, Lucas then could argue by analogy. There is contracted a moral and political marriage between the Prince and the respublica. Also, just as diere is contracted a spiritual and divine marriage between a church and its prelate, so is there contracted a temporal and terrestrial marriage between che Prince and the state. And just as the church is in the prelate, and che prelate in the church .... so is the Prince in the state, and che state in the Prince.B°

-e

doctor of Pavia, en. ss See che Memorandum of _John Branchazolns, legum Edmund E. Stengel, Nava Alemanniae (Berlin, 1921), i,No.go,ii,§6, p.5o. For nnother vague comparison of that kind, sce Ullmann, Lucas de Penna, t76,n.i, who, however, does not seem lo have evaluated che interesting passages referred tu in che notes following below. s° Lucas de Penna, on C.up563: ''ítem princeps si verum dicere vel agnoscere volumus , est maritus rcipublicae iuxta illud Lucani . . ." There follows che quotation from Lucan, Pharsalia, 11,388: urbi pater urbique maritus. , of Alftildi, "Die For che history of iba Roman pater tale, sea che admirable essay Gehurt der kaiserlichen Blldsymbolik;' Museum Hetveticum, 1x(1952), 204-243; X(1953), 103-124; x1(1954), 133-169. The title urbi maritus is noc too rare either; see, e.g., Servios, XI,472, who, like Priscian, quotes Lucan. See, however, Aristophanes, Aves, 17o6ff, where pav0.ela is callad che bride of Alcibiades. Lucas de Penna actually may have elaborated on Cynus whose writings he used abundantly. See, for che following paragraplis, also my paper on '11oysceries of State," Harvard Theological Reviera, XLVIII (1955), 76ff. °° Lucas de Penna, loccit.: "Irte principem et rempublicam matrimonium morale contrahitur et politicum. Itero, sicut ínter ecclesiam es praelatunl matrimonium spirituale contrahintr et divinum .... ita inter priocipem et rempubliwm matrimonium temporale contrahitur et terrenum; et sicut ecclesia est in praelato et praelatus in ecclesia . ita princeps in republica et respublica in principe." There follows che passage quoted aboye, 11.29. The simile of che Prince's marriage

214

VVe notice that che jurist availed himself of the very old metaphor of dle mystical marriage contracted between the bishop and his see in order to interpret che new relations ben,een Prince and state.1' Acenally, Lucas de Penna quoted verbatim a passage from Gratian's Decretum: "Tlle Bishop is in che Church, and che Church in the Bishop."°_ What che history of this formula implied remains to he seen;ea but it is noc ton difficult lo recognize whence the Tudor lawyers deriNed their maxims, when they explained that "che king in his body politic is incorporated with his subjects, and they with him."14 To illustrate his argument, Lucas de Penna quoted Seneca addressing Nero: "You are the soul of the respublica, and the respublica is your body."85 He achieved the same effects, however, by continuing his political exegesis of Ephesians 5, and applying to che respublica has peen carried by Lucas de Penna to far greater detail than it seemed necessary lo indicare here. In chal respect, however , he had a predecessor in Huguccio ( aboye, n.55) who noc only compared che election tu the matrimonial consensos , but considered the consent to che election on the parí of che ecclesiastical superior synonymous with che consummation of che marriage , or else the ordination with che concubitus (" Sicut enim in matrimonio carnal¡ precedit matrimonium in desponsatione per verba de presenti , et postea sequitur carnalis commixtio, sic et hic in mutuo consenso precedit matrimonium spirituale et postea sequitur quasi carnalis commixtio , cuna iam ecclesiam disponit et ordinat 'D. And even for che case chal the bishop should be debarred temporarily from his office or otherwise suspended Huguccio found a matrimonial simile: "Idem est in manto et uxore tempore menstrui vel partus vel dierum quadragesimalium , , :' ea The metaphor , of course , goes back to Eph. 5: 25 (" sicut et Christus dilexit ecclesiam "), which is basic also for che nuptial mass. The early Christian marriage rings, therefore, displayed on the bezel che marriage of Christ co the Church; sea O. M. Dalton , Catalogue of Early Christian Antiquities and Objects from the Christian East , .. o ( the British Museum (London, 19oi ), 13o and 131 ; there are many more specimens , a particularly beautiful one in che Dumbarton Oaks Research Library and Collection , at Washington , D.C. The bishop ' s marriage co his sea is mentioned in che rice of che episcopal ordination ; see aboye , 11.54. See further the decretal of Innocent III, C.2 X 1,7 , ed. Friedberg, 11,97. Pope Clcment II, who refused te divorce himself from his bishopric Bamberg, alluded to chis marriage in most celling words ( Clement II , Ep., vio, PL, cxu1,588B); contrariwise, che abdica. tion of Pope Celestine V was interpreted , especially by the adversaries of his successor Pope Boniface VIII , as an uncanonical "divorce" from the universal Church lo which che pope was married ; see, e.g., P. Dupuy , Histoire du difjdrend d'entre Pope Boniface VIII el Philippe le Bel (Paris , 1655), 453ff, and passim ; Burdach, Rienzo, 52f. 62 See c7,C .VII,qu.1, ed . Friedberg , i,568f. °a Sea below , Ch.v,i, nos . 399-409. s+See aboye , Ch,i,n.13; Bacon , Post-nati, 667-s Serreta. De clementia, 1,5 , 1: '... tu animus reí publicae tuse es, illa corpus tuum." Lucas de Penna, loc . cit., 11 8, p564. The passage is quoted, in che same connection, al so by Andreas of Isernia, Prooemium in Lib.aug., ed. Cervone, p.xxvi.

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to the Prince the versicle: "The man is the head of the wife, and the wife the body of the man ." And logically, or analogically, he concluded: "Alter the same fashion, the Prince is the head of the realm, and the realm the body of the Prince.""" The corporational tenet, however, was formulated even more succinctly, as he continued:' And just as men are joined together spiritually in the spiritual body, the head of which is Christ .... so are men joined together morally and politically in the respublica, which is a body the head of which is che Prince.""r

We may record again the Aristotelian undertone. Aboye all, however, we envisage here that bold equation by which "the Prince, who is the head of the mystical body of the state" ( as Enea Silvio later phrased it"A), was compared with Christ, the head of the mystical body of the Church. Lucas de Penna, by his quid pro quo method, thus arrived at an equiparation not only of Prince and bishop as the grooms of realm and diocese, buz also of Prince and Christ. In fact, the jurist made the parallel with Christ poignantly clear, when he added: Just as Christ joined to himself an alien-born as his spouse, the Church of Gentiles .... so has the Prince joined to himself as his sponsa the state, which is not his.... 89

Thus, the venerable image of sponsus and sponsa, Christ and his Church, was transferred from the spiritual to the secular and adapted to the jurist's need for defining the relations between "° Lucas (le Penna , loc.cit.: "... itero , sicut vir est caput uxoris, uxor vero corpus viri [Eph, 5: 231 .. , iza princeps caput reipublicae , el res publica eius corpus." Lucas de Penna adds: secundum Plutarchum , meaning Pseudo - Plutarch, quoted by John of Salisbury , Policraticus, v,tff (aboye , Ch.lv,n.2o), whom the mediaeval jurists alleged very frequently ; see Ullmann , " The Influence of John of Salisbury en Medieval Italian Jurists ,' EHR, LIX ( 1944), 387,n4. 87 Lucas de Penna, loc.cit .: " Itero, sicut membra coniunguntur in humano corpore carnaliter , el homines spirituali corpori spiritualiter coniunguntur , coi corpori Christus esa capuz . , sic moraliter el politice homines coniunguntur reipublicae quae corpus esa: cuius capuz est princeps .. . es Enea Silvio Piccolomini , De orto et auctoritate imperii Romani, ed . Gerhard Kallen, Aeneas Silvius Piccolomini ala Publizist (Stuttgart , 1939), 82, fines 418ff; see below, n.212. 69 Lucas de Penna, loc .cit.: "Amplios sicut Christus alienigenam , id esa, gentilem ecclesiam sibi copulavit uxorem . , sic e[ princeps rempublicam quae, quantum ad dominium , sua non est, cure ad principatum assumitur , sponsam sibi coniungit " Lucas de Penna here refers te c.un.,Cxxxv ,qu.r, ed. Friedberg, 1,1263 (Gratian's commentary on Augustine , Civ.Dei, xv,c.t6).

Prince and state-a state which, as a mystical or political body, was an entity in its own right, independent of the king and endowed with property which was not that of the king. What Lucas de Penna aimed at when enlarging on tire Prince' s matrimonium morale et politicum, was to illustrate a fundamental law: the inalienability of fiscal property.10 Very appropriately, therefore, he interpreted the fisc as the dowry of the bridal respublica, and explained that a husband was entitled only tu use the property of his wife, but not to alienate it. He further paralleled the vows, exchanged by groom and bride at their marriage, to the oaths taken at their consecration by king and bishop, by which both dignitaries promised not to alienate property belonging to the fisc and to the church respectively." It is perhaps of minor importante here lo retan that Aristotle compared matrimony to a "political" government, whereas he claimed that the power a man had over his children resembled a "regal" government. Lucas de Penna may or may not have thought of this particular passage;7 1 his debt to Aristotle, at any rate, should not be minimized. The real importante of Lucas de Penna's juristic analogies and equiparations has to be sought elsewhere. His model for the relations between Prince and state was-on the a° See below, Ch.vu, en " Inalienability." 71 Lucas de Penna, loc.cit ., n.g, p564: "Nam aequiparanmr quantum ad hoc etiam iuramentum super his praestitum de alienatione ( acta non revocando episcopus et rex. Ita el principi alienado rerum fiscalium , quae in patrimonio imperii el reipublicae sunt el separare consistunt a privato patrimonio suo, fuste noscitur irte. dicta, Ita e[ fortius non potest princeps fiscalem rem alienare quae plus est in bonis reipublicae quam actio iniuriarunl in bonis ecclesiae .... Nam e [ fiscus est pars reipublicae.. ." On [his basis, Lucas de Penna then identified the fisc with the dos of [he respublica . Naturally, the patrimonium Petri figures as the dos of [he papal sponsa, the Roman Church ; see, e.g., Oldradus de Ponte, Consilia , , vxxv, n.a (Lyon, 1550), fo128v, who admonishes the pope in Avignon "ut sanctitas vestra revertatur ad sponsam . el reparet suum patrimonium el suam dotem, quae multipliciter est collapsa ." See, for the problem of the dos in the spiritual are rriage of Christ te [he Church, Aquinas, Summa theol., Suppl.m,qu.xcv, art . s and 3; the da ficulties of assessing the dos were particularly great because , as Aquinas points out (arta , ad 2), "pater sponsi ( scilicet Christi) est sola persona Patris; pater autem sponsae est toca Trinit as"; also, because owing te the oneness with the "mystical body." Christ "nomina [ se etiam sponsam , el non solum sponsum" ( art.3, ad 3). 72 Aristotle , Polit., 125ga ; Aquinas, In Polit. Arist., t, lect.x, §152 , ed. Spiazzi, 471: "Vir principatur mulieri politico principatu , id est sicut aliquis, qui eligitur in rectorem , civitati praeest. In addition , Aristotle discusses the despotic and paternal governments. Perhaps Lucas de Penna, loc.cit,, had this passage in mind, when he added: "Praclat us quoque e[ vir non nisi per electionem assumitur , sicut el princeps."

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with his status , for otherwise l'ordre du corps mystique de la chose publique seroit [ out subverti;'" on thc other hand, he demanded that Laxes for tlre protection of the king and the realm should be distributed evenly per totum corpus mysticum;'^ and it tras likewise in connection with the three estates, whcn, in une of his letters about the education of che Dauphin , he lets the young Prince meditare : "Tltou hast [hose of the first estafe [che chivalryj as the very strong arm to defend tliy mystical body, which is the

basis of Gratian's Decretum-the bishop in bis relations lo bis church, patterned after the model of Christ in his relations lo the universal Church. The Chureis as ibe supra-individual collectivc body of Christ, of which lic veas botlr the head and the husband. found its exact parallel in the state as the supra -individual collective body of the Prince, of which lic teas both the head and tbc husband-"The Prince is the head o[ die rcahn, and the realm the body of the Prince." In otlter words, the jurist transferred to the Prince and the state the most important social, organic, and corporational elements normally serving to explain che relations between Christ and the Church-that is, Christ as the groom of the Church, as the head of the mystical body, and as the mystical body itself.

royal polity ''- an identification of the Prince with the body politic or mystic which was by no means che rule, but which led Gerson promptly lo attribute to the king , not as yet two bodies, but at least two lives, one "natural " and the other "civil or political."" Jean de Terre Rouge, a French jurist (ca. 1418-19 ), a vigorous defender of the Dauphin ' s (Charles VII ' s) right to succeed to the French throne, and an ardent constitutionalist , mentioned the corpus mysticum of France likewise in connection with the estates. He argued that the succession lo the throne was established by ancient custom and was introduced by che consent of the three estates "and of the whole civic or mystical body of the realm." He pointed out that the royal or secular dignities of the realm viere not privately owned but public, because they belonged "tu the whole civic or mystical body of the realm" just as did the ecclesi-

Strange though this kind of political theology may appear to us, it was not the result of a personal whim of Lucas de Penna. The analogy of the corpus mysticum served to clarify the relations between the estates of the body politic and their king, and the marriage metaphor served to describe the peculiar nature of che fisc. Hence, comparisons of that kind were not restricted to Lucas de Penna, though it must be admitted that his arguments exercised a surprisingly great influence in later times, especially in sixteenth-century France, where both the corpus mysticum analogy and the metaphor of the king's marriage to his realm were linked with the fundamental laves of the kingdom of France. The comparison of the state with a corpus mysticum liad deep roots in France. It fell in with the mysticism of French kingship, which reached its first growth in and after the times of Charles V, and at the same time it counterbalanced the royal mysticism by a mysticism of the estates. Jean Gerson (1363-1429), the Chancellor of the University of Paris, for example, spoke with some regularity about the corpus mysticum of France whenever he discussed the organic structure of the realm as it appeared in the three estates. He reverted to a customary argument and declared that just as in the natural body all members exposed themselves lo protect the head, so viere in the "mystical body" all subjects held to defend their lord;" he warned the people that each be content

1706), tv,597B/C: "Secundum quod per naturalem instinctum omnia membra in uno solo corpore sese exponunt pro capitis salute, pariformiter esse debent in corpore mystico verorum suhditorum ad suum dominum." 74 Schifer, 58,n.tot, quoting the oration of 1413, Rex in sempiternum vive, in Opera, Iv,676. re Schtfer, 53,n.77, quoting Vivac rex, in Opera, tv,616CJD: "Postquam necessarium est ad protectionem et vitae civilis, regis et regni nutritionem et conservationem accipere es levare subsidia, id in bona aequalitate aut aequitate per totum corpus mysticum fieri deber." re Opusculum de meditacionibus quas princeps deber habere, as, ed. Antoine Thomas, jean de Gerson et I'éducation des Dauphins de France (Paris, 193(5), 37: "Habes illos de primo statu tanquam brachia fortissima ad corpus tuum misticum, quod est regalis policia, defendendum" Gerson renders here, as it viere, a soliloquy of the Dauphin. For the king's "two lives," see Gerson, Vivac rex, It, prol., in Opera, iv,592: "De secunda Regis vita verba faciemus, civil¡ videlicet et politica, que status regalis dicitur aut dignitas. Estque co melior sola vira corporali, quo ipsa est diuturnior per legitimara successionem." See also Vivac res, r,consid.iv, in: Opera, 1v,g9r: "Pacer post naturalem, aut civilem, mortem in filii su¡ adhuc vivit persona" (the "civil death" of the king would take place, e ,g., in the case of an abdication or of mental incapability, which was trae in 1405, when Gerson wrote his tractate, lince Charles VI was insane). Actually Gerson sectas to add a third or spiritual life; for in the salutatio of the tractate he exclaims: "Vivac [rex] corporaliter, vivac politice et civiliter, vivat spiritualiter et indesinenter."

as Carl Schkfer , Die Staatslelire des Johannes Gerson ( Cologne disg , 1935), 55,n.86, quoting Vivac rex , in Gerson , Opera omnia , ed. Ellies du Pin (Antwerp,

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astical dignities which belonged lo the churches; therefore, the king could not make arbitrary dispositions about the succession to the throne . 11 Claude de Seyssel, a jurist in the administration under Louis XII, availed himself of words similar lo those of Jean Gerson when he warned that, unless che subjects of every estafe were content with their lot, the result might be "che ruin of the monarchy and the dissolution of this mystical body."18 And at the end of the sixteenth century, Guy Coquille, a jurist going his own ways, stated in so many words that the king as the head and the three estates as the members "together form the body politic and mystic" of the realm.l° Here as elsewhere we find that in the organological concept of "body politic and mystic" the constitutional forces remained alive which limited the royal absolutism. This became manifest when, in 1489, the Parlement of Paris, Francés supreme Law Court, remonstrated against the pretensions of the King's Council under Charles VIII. The Parlement, a body headed by the king and composed of the Twelve Peers, the Chancellor, the four Presidenta of Parlement, a few officers and councillors, and of a hundred other members (allegedly after the model of the Roman Senate), objected to interferente and proclaimed itself "un corps mystique meslé de gens ecclésiastiques el lais ... representans la personne du roy," because chis highest court of the kingdom was "the sovereign Justice of the Realm of France , and the true throne,

authority, magnificente , and majesty of the king himself."80 The idea was, of course, that the king and his council could not act

r1 Jean de Terre Rouge, Tractatus de jure futuri successoris legitimi in regiis hereditatibus, 1, arta, condusio 24, published as an Appendix of Fran9ois Hotman, Consilia (Arras, 1586), p.34: "Consuetudo . fuit el est introducta ex consenso trfum statuum el todas corporis civilis sive mystici regni [follow allegations from the Decretum , including c.a4, D .xcan: " exercitus imperatorem facial,' tendered by Terre Rouge: "exercitus populi facit regem, sive imperatorem "] . Praeterea dignitates regiae sunt totius corporis civilis sive mystici regni : sicut dignitates ecclesiasticae sunt ecclesiarum ." See, for Terre Rouge, A. Lemaire, Les lois fondamentales de la monarchie frangaise d'aprés des théoriciens de /'anden régime (Paris thesis, 1go7), 58; J. M. Potter , " The Development and Significante of the Salic Law of the French," EHR , r11(1937), 244; Church , Constitutional Thought, 29, n.2o; also Hartung , " Krone," 29,n.3; Jean Comte de Pange, Le roi trés chrétien (Paris, 1949), 427f. re Church , Constitutional Thought, 34,n.36. sa Guy Coquille , Les oeuvres ( Paris, 1666), 1,323, quoted by Church, 278, n.,6: "Car le Rey est le Chef, el le peuple des Trois Ordres sont les membres , et toas ensemble sont le corps politique et mystique .. ." Coquille adheres te the customary organological interpretation : " Cette distinction des Trois Ordres au corps politique a correspondance 5 ce qui est cha corps humain qui est composé de trois principales parties . qui sont le cerveau [Clergy ], le coeur [Nobility] el le foye [Third Estafe]:"

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against the Parlement, because this "mystical body" was representative of, or even identical with, the person of the king. Likewise in the sense of limitation , the French jurists used the metaphor of the king's marriage lo the realm; for this metaphor harbored another fundamental lace of the country, the inalienability of the fisc. Here che French authors were largely under the influence, direct or indirect, of Lucas de Penna. His formulations were repeated verbatim by Charles de Grassaille, writing under Francis 1, who styled the king the maritus reipublicae and talked about the matrimonium morale et politicum which the king contracted after the model of the prelate who wedded his church s' He as well as others-René Choppin, Francois Hotman, Pierre Grégoire, finally also Bodin-held that the king, when marrying the realm of France, received from the respublica the fiscal property as a dowry, and that this dowry was inalienable.82 The jurists, however, were probably responsible even for an actual change in the coronation ceremonial of the French kings. Grassaille wrote his great work On che Regalian Rights o f France in 1888.88 On the SO The Remonstrance of 1489, to which Dr. R. E. Giesey kindly called my attention, was published by Édouard Maugis, Histoire du Parlement de Paris ( Paris, 1913), 1,3708- Charles de Grassaille , Regalium Franciae libri duo, 1, ¡os xx (Paris, 1545)• 217: "Rex dicitur maritus reipublicae .... Et dicitur esse matrimonium morale et politicum: sicut ínter ecelesiam el Praelatum matrimonium spirituale contrahitur... . Et sicut vir est caput uxoris, uxor vero corpus viri . . . , iza Rex est capuz reipublicae et respublica eius corpus ." The whole passage siems from Lucas de Penna; see aboye , nos. 59 and 66 . See, for Grassaille , Church, Constitutional Thought, 47ff, 57ff. It may be mentioned obiter that the comhination el "moral and political" is founj over and over again sine che 13th century ; see, e.g., Pierre Dubois, De recuperatione Terrae Sanetae , c.1og, ed. Langlois (Paris, 1891 ), 96: "moraliter et politice loquend'o" (fnllowing and preceding quotes from Aristotle). Sa René Ghoppin, De Domanio Francia,,, tl,tit.,,n.2 (Paris, 16o5), 203: Sicuti enim Lege Julia dos est a marito inalienabilis : ita Regium Coronae patrimonium individua Reipublicae dos' (see also below, n.83 ). Fran4ois Hotman, Francogallia, c.1x,n-5 ( Frankfurt , 1586 ), 661f: "Est enim Domanium regium quasi dos regni," and "Par idemque esse ius Regium in sumar Domanium quod est viri in doten suae uxoris," quoting Lucas de Penna (Francogallia was first published in 1576, though without Chapter 1x). See Lemaire, Lois fondamentales , loo, for the marriage metaphor, and 93, n.2, for the editions ( also 9g,n.2 ). Pierre Grégoire, De Republica, tx,1,1 (Lyon, 160g; first published in 1578 ), 267A: che Prince as sponsus reipublicae and [he fisc as che dos pro oneribus dando. See , for Eodin ( De republica , vt,2,n.641) and others, Vassalli , ' Fisco,' 1g8,nos.3-4 , and 201. sa Aboye, n. 8,. Ir is most unlikely that Grassaille should have been che first lo hark back te the formulations of Lucas de Penna, whose work was reprinted in

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Gratian's Decretuni in i[s twisted version-the realm is in the king, and the king in the realm; tire subjects are incorporated in the king, and the king in die subjects.sc Little wonder Usen that the doctrine of the corpus mysticum of the Ghurch, married to its divine sponsus, carne full circle, avisen one of clac jurists, René Choppin, went so far as to say that "the king is the mystical spouse of the respu b lita."e'

accession of Henry 11 of France, in 154 ¡, we find, for the ffrst time in a French Coronation Order, the alnlost juristic rubric before the Bestowal of the Ring, saving that by this ring "the king solemnly married bis reahn" (le voy espousa solemrtellement le royanme).a* The rlrbrics of the Order of 159} acere more explicit. They said that the king, on the day of bis consecration, married his kingdom in order lo he inseparably bound to his subjects that they may love each oil,er mutun]ly like husband and wife, and that the Bishop of Chartres presented to die king the ring pour marque de teste reciproque conjonctiora.93 Tisis is tire spirit of Cyprian and

In mediaeval England, the marriage metaphor seems to hace been al] but non-existen[, though in the speech to his first Parliament (1603) James 1 said:

France no less [han six times during the 16ih century, beginning with the edition of Paris, 1509; see Ullmann, Lucas de Penna, ,4,ns. Actually, Afaster Jacques Cappel, the king's advocate in the Parlement of Paris, may nave availed himself of Lucas de Peonas metaphors in a plaidoyé of 1§36, which is quoted by Pierre Dupuy, Traitez touchants les droits du Roy (Paris, 1655), 275: " .. par les droits commun, divin et posi[if le sacre patrimoine de la Gouroune el anden domaine du Prince ne tombe asa commerce des hommes, et n'es[ rouvimable .1 autre qu'au Roy qui est mar¡ et époux politique de la chose publique, laquelle luy apporte á son Sacre el Couronnement ledit domaine en dot de sa Couronne, lequel dot les Rois 1 leur Sacre et Couronnement iurent solennellement ne iamais aliener ponr quelque cause que ce sois, comme aussi il es[ inalienable." CE Plaidoyez de feu maistre Jacques Cappel (Paris, 1561), p. 11. ti is easy to recognize the argumen[s of Lucas de Penna, and there is no peed te assume risa[ the passage could not hace been writ[en before the revision of che rubrics at the "Bestowal of the Ring" in the French coronation ceremonial (see nos. 84-85). 54 Th. Godefroy, Le Cérémonial de France (Paris, 1619), 348. It is true that a "Benediction of the Ring," borrowed from the rite of episcopal ordinations, was in[roduced ¡Dio che Coronation Order of Charles V; see The Coronation Booh of Charles V of France, ed. E. S. Dewick (Bradshaw Society, xvi, London, 1899), 83 . (cf. p.83). Schramm, Kónig van Frankreich, 1,238f (cf. 11,117), holds risa[ Chis bor' rowing from [he episcopal rice, ala by itself, wuuld imply use king's marriage to the realm. However, risa decisive words of the episcopal "Bestowal of the Ring" (sponsam Dei ... illibate custodias) are lacking; nioreover, the jurists had used the image at a far earlier date, and in the French Ordines of [he Coronation the meta phor is first found in 1547. That the prayer at the Bestowal of [he Ring in the episcopal oodonation has also its history is a master which is of no concern here. See aboye, n54-

"What God hath conjoined then, let no man separare." 1 am the husband, and all [he whole island is my lawful wife; 1 am the head, and it is my body; 1 am the shepherd, and it is my flock 88

With the corpus mysticum tener, however, England was indeed very familiar. After all, England's greatest jurist of the Lancastrian period, Sir John Fortescue, talked without hesitation about the "mystical body" of the realm. In an important chapter of his De laudibus leguen Angliae, in which he rendered the essence of his political doctrines, Fortescue discussed the origin ofo kingdoms ruled "politically"-that is, according to Aristotelian tcrminology, ruled by the whole body politic of the realm-as opposed to kingdoms such as France, which were ruled "regally"-that is, by the king alone.aa If a people, wrote he, wishes to establish itself as a contracté avec latir couronne (1) une espite de mariage communément appellé saint el politique." 88 See aboye, nos.6o,64-66. 87 Choppin, De Domanio Franciae (aboye, n.82), in, tit.5, 116, p449: "Res, curator Reipublicae ac mysticsts . ipsius coniunx." The doctrine come the full circle also the o[her way round when jurists conceded to the pope fiscal and oiher rights in the States of [he Church because they considered him huius reipublicae temporalis maritum, although in oiher respects he reas, spiritually, the vir Ecdesiae anyhow; cf. Vassalli, "Fisco," 209, quo[ing Cardinal de Luca. 86 Parliamentary History of England (London, 18o6), 1,930.

85 Godefroy, Cérémonial, 661: "ANNE.AU ROYAL: Paree qu'au jour do Sacre le Roy espousa solemnellement son Royaume, et fui comme par le doux, gracieux, e[ amiable lien de mariage inseparablement uny avec ses subjects, posar mutuellemene s'entraimer ainsi que son[ les epoux, luy fu[ par le di[ Evesque de Chartres presenté un anneau, posar marque de teste reciproque conjonction." The rubrie alter the prayer says [has the same bishop "mis le di[ anneau, duquel le Roy espousoit son Royaume, asa quatriesme doigt de sa main dextre, don[ procede certaine veine attourhau[ asa cocar." See, for the last remark concerning che ring finger, Gratian's Decretum, cq,Cxxx,qu.5, ed. Friedherg, i,uuG. Allusions to chis marriage ritual are found frequcntly ¡n lacar times; see, e Rensezl des anc¡ens lois frangaises, ed, lsambert, Taillandier, and Decrusy (Paris, 1829), xv,3e8, No.,91, where Henry IV, in his edict (of 1607) concerning the reunion co the Crown of bis private patrimonv of Navarre, says about his predecessor kings [has "¡Is ont

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89 Fortescue, De laudibus, crin, ed. Chrimes, 3o,17; see also Chrimes' remark (p.156): "This chapter is the mote famous in all Fortescue's writings." Fortescue, of course, is quite proficient in the jurists' method of "equiparating" secular and ecclesiastical institutions; see, e.g., op.cit., c.viii, ed, Chrimes, a2, where lie sets against che misterio ecclesie the misterio legis Anglie and warns the Prince to [ry legis sacramenta scrutare, which is the business of professional jurists only trained in legal science (cf. cc.us and vii, pp.6if,18f). This is the very argument which so gready displeaserl Ring James 1 when Coke, ¡n ,6o8, referred te it; see Coke, Reports, xn,63ff (Case of Prohibitions).

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kingdom or any other body politic, it will have to set up one man for the government of the whole body, a king. This necessity Fortescue tried to evidente by harking back to the customary expedient, the analogy between the social and the human body:

the terms corpus politicum and corpus mysticum promiscuously and without clear distinction. This is true also of another parliamentary preacher of that century, John Russell, Bishop of Lincoln and Chancellor of England. In his sermon at the opening of Parliament in 1483, he discussed che body politic of England com-

Just as the physical body grows out of the embryo, regulated by one head, so does there issue from che people the kingdom, which exists as a corpus mysticum governed by one man as head.

posed of the three estates with the "sovereign Lord, the King," being its head. Referring lo the locus classicus of 1 Corinthians 12: 12,92 he compared the natural body in which every limb has

On another occasion Fortescue compared the functions of the heart and the nerves of the natural body lo the structural system of the body politic. While identifying the nerves of the body with the laves of the state, he explained:

its proper function, with che body politic of the realm: "So ys hyt yn che mistik or politike body of the congregation of the peuple."'3 In another draft of his sermon he repeated the phrase concerning;he "mystical or political body" of the people,'* and occa-

The Law by which a cetus hominum is made into a populus resembles the nerves of che physical body; for just as the body is held together by the nerves, so is the corpus mysticum [of the people] joined together and united finto one by the Lawps

sionally remgrked that chis "grete publick body of Englonde [ys] but that and there where the Kyng ys hym self, hys court and hys counselle."86 We recognize a similarity with imperial and papal language:

Fortescue apparently visualized che corpus mysticum as che last stage of perfection of a human society which began as a simple multitude (cetus) of men, acquired then che status of a "people," finally culminated in the development of a "mystical body" of the realm, a body incomplete without a head, the king. Fortescue's usage of the term corpus mysticum in political mat-

che empire is where the emperor is; and the corpus mysticum where the pope is. We are reminded, however, also of the French constitutionalists, the Remonstrance of 1489 or the assertion of Guy Coquille; for Bishop John Russell significantly specified the word "King" by adding "his court and his council."98 That is to say, the body politic, mystic, or public of England was defined

ters was not excepcional. At the opening of the Parliament of 1430, Master William of Lyndwood, Doctor of Laws and Professor of Divinity at Oxford, later Bishop of Hereford and well known for his Provinciale of Canterbury, delivered alter the sermon che usual keynote speech. He expounded the organic oneness of the realm and compared it to that of the human body and its limbs and,, with regard lo the unanimity of the will and of mutual love, lo a corpus mysticum'' Both lawyers, Lyndwood and Fortescue, used

not by the king or head alone , but by the king together with council and parliament. This concept of a "composite" body, and therewith of "composite" authority, was not quite new by that time.' As early as 1365, a justice of Edward III opined that "Parliament represents che body of the whole realm."98 Though corporis mi.stici unanima voluntate et dilectione ." For William of Lyndwood, see Maitland, Roma. Canon Law in che Church of England (London, 1898); Arthur Ogle, The Canon Law in Mediaeval England (London, 1912). 22 See ahoye, n.6. aa Chrimes , Ideas, iSo, has re - edited che sermon, first puhlished by John Gough Nichols, Grants from che Crown during che Reign of Edward che Fifth (Camden Society, LX , London , 1854), pli. s+Chrimes , Ideas, 185; Nichols , Grants, p.lviii. ns Chrimes , Ideas, 175 , also 332, n.6 ; Nichols, Grants , p.xlvi. e6 See ahoye , nos.34f, and , for che French doctrines , nos. 79f. sr B, Wilkinson , " The 'political Revolution ' of che Thirteenth and Fourteenth Centuries in England ," Speculum, xxiv (1949), 502-509, has carefully felt his way through che constitutionally truly "dark centuries ." In fact , what he calle the "composite " sovereignly seems to be inseparable from that " organic unity of the state" (P504, n.8) che perseverante of which prevented England from succumbing to che "abstract state" concepts that developed en che Continent. es Year Books , 39 Edward 111, f.7a, quoted by Maitland , Sel.Ess ., 107; see also

9019e laudibus, c,xu, ed. Chrimes , 28. For the stages cetus, populus, corpus, ultimately derived from Aristotle , see Vincent of Beauvais , Speculum doctrinale, vn,c.7 (Venice, 1494), fol911. 91 Rot. Parl., lv,367: che speaker " causara summonitionis eiusdem Parliamenti... egregie declaravit. " This was common procedure : " Post praedicationem deber cancellarius Angliae ... vel alias idoneus , honestus , et facundus justiciarius vel clericus .. . pronuntiare causas parliamenti , primo in genere , et postra in specie." See Modus Tenendi Parliamentum , in Stubbs, Select Charters, 5o3 . Lyndwood observed that scheme ; he spoke on I Chron. 22 : lo: "Firmabitur solium regni eius ." He then discussed a triplex unio of the realm : " unam . collectivam , ut in rerum mo. bilimn congerie et congregatione ; alteram . constitutivam , ut in corpore humano diversorum memhrorum annexione ; et tertiam consentaneam , ut in cuiuslibet

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el regale) and in Che government of Israel's 3udges whose role was supported by God himself as their king. lortescue, especially in his earliest writings, ventured to prove that this ideal tlorr1inirnn regale el 1»oliticum had been actualized a third time, thai is, in Lngland. Hence England fell in witla the 1tallowed soodels of 1siacl and Rome. The English king, in contrast to 1he French king who ruled only "regally," appeared to Fortescue definitcly politycentered. A'ice versa, however, ibe polity itsclf, or the mystical body of the realm, could not exist without its royal head.r1 The English forro of government by the whole body politic led to an apparently unique fashion of analogizing secular and ecclesiastical institutions. We are used lo a semi-theological mysticism with regard to the Prince and the interpretation of his functions, but are perplexed to find in England similar features with regard to Parliament. Before the close of Parliament in 1401, the Speaker of the Commons saw fit lo compare tbe body politic of the realm with the Trinity: the king, the Lords spiritual and temporal, and the Commons jointly formed a trinity in unity and unity in trinity. On the same occasion the Speaker compared the procedures of Parliament with the celebration of a mass: the reading of the Epistle and the expounding of the Bible at the opening of Parliament resembled the initial prayers and ceremonies preceding the holy action; the king's promise lo protect the Church and observe the laws compared with the sacrifice of the mass;102 finally, the adjournment of Parliament had its analogy in the Ite, missa est, the dismissal , and the Deo gratias, which concluded the holy action.103 Although those comparisons do not mean very much all by themselves, they nevertheless refiect the intellectual climate and show to what extent political thought in the "high Gothic" age gravitated towards mysticizing the body politic of tbe realm.

this view should not. ietrospectiaely, be considerad an inveterate rule of English constitutionalism, it is nevertheless true that indications of this conccpt may be found a bit everywhere00 Related ideas may hace guided. for cxaniple, a philosopher of tire rank of Walter Burley, who in his Commentary on Aristotle's Politics (around 1338) deviated from the offtcial interpretation by Aquinas and Peter of Auvergne only lo insert a sentence about the 'multftude composed of tlte Ring, the powerful and the vise'(so lo speak, the king with lords and commons) summoned lo Parliament "for the dispatch of hard business," and about the fact that they "rule together in the king and with the king," sicut hodie patet de rege Anglorum-"as it appears today with regard lo the king [Edward III] of the English."roo It all amounts eventually lo Fortescue's famous definition of England as a dominium regale el politicum, describing a kind of government in which not the king alone but king and polity rogether bore the responsibility for the commonweal. Fortescue borrowed bis famous formula, which in its turn was an effluence of Aristotelian political thought, from the continuation of Aquinas' unfinished tractate De regimine principum. The continuator, Tolomeo of Lucca, found the prototypes of that forro of government in imperial Rome (which "holds the center between a political and regal government"-medium tenet inter politicum, Mcllwain , Constitutionalism , 89, n.32; Wilkinson , op.cit., 504 , nos.14'15. According to the Modus, ed. Stubbs , Select Charters , 5 03, the king is "caput, principium, et finis parliamenti ," and therewith alone constitures the primus grados of Parliament (the Modus distinguishes six ranks). 90 One might think of Fleta, n,c.2: "haber enim rex curiam suam in consilio seo in parliamentis sois." With Wilkinson (op.cit., 504, n . i3), 1 too would hesitare to take those words to imply " the king and the magnates cxercising sovereignty in the arate." Impottant new points of view haya been put forth by Gaines Post, "The Two Laws and che Statute of York," Speculurn , xxlx ( 1954), 4t7-432. 100 S. Harrison Thomson, "Walter Burley's Commentary en the Polities of Arisrotle," Mélanges Auguste Pelzer ( Louvain, 1947 ), 577: "er adhuc in regno multitudo constituta ex rege et proceribus et sapientibus regni quodammodo principatur. Raque tantum vel magis principatur huiusmodi multitudo quam rex solos, et propter hoc rex convocar parliamentum pro arduis negociis expediendis." And later, while producing the customary Aristotelian argumenta, Burley alluded to Edward III : " In optima enim policia ... quilibet diligit gradum suum et contentos est, et quilibet vult singularem honorem, regir , et videtur sibi quod in rege et curo rege conregnat , et propter intimam dileccionem civium ad regem est intima concordia inter ches, et est regnum fortissimum sicut bodie patet de rege Anglorum.

Im For the problem of Fortescue and Aquinas, sea, in addition to A. Passerin d'Entréves , "San Tommaso d'Aquino e la costituzione inglese nell ' opera di Sir John Fortescue ;' Atti della R. Accademia di Tocino, I.xii ( 1927 ), 261.285, the funda. mental study by Feliz Gilbert, "Sir John Fortescue' s 'Dominium regale ca politi. cura,> " Mediaevalia et Humanistica, 11(1943), 88-97, esp. g1ff, where the literature en the subject has been discussed. 102For the connection of Law and sacrifice , see aboye , Ch. iv, nos.ga-g2. loa Rot.Parl ., 111,459, §32 ( comparison with Trinity), and 466, §47 ( comparison with Mass); Chrimes, Ideas, 68f. Parliamentary comparisons are sometimes picturesque. Bishop Henry of Winchester, e.g., compared in his parliamcntary sermon of 1425 the king's councillors with elephanrs beta sise they should be ''sine (elle, inflexibilis, et immens' ae memoriae ." Rot.Parl., av,261.

For the passage quoted by Thomson, compare Aquinas, In Polit. Arist., §¢73, cd. Spiazzi , P.167.

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Moreover, che analogy of king, lords, and commons with the Trinity may be taken as an additional evidente that a relatively clear idea about the "composite" nature of authority existed, and that in England not the king alone, but the king jointly with lords and commons formed the "mystical body" of the realm 101 That the king alone should have represented that "mystical body" appears unlikely in mediaeval England, even though Sir Edward Coke in 16o8 made a marginal note to that effect: he referred to the Year Books of Edward IV where (said he) the king's "body politic" was styled corpus mysticum. This contention is not quite correa , since the Year Book does not refer to the king but to an abbot.l°' The passage shows nevertheless how lar advanced corporate concepts were in England by the end of the fifteenth century. However, despite a smattering of strictly corporational interpretations-"The parliament of the king and the lords and the commons are a corporation," declared Chief Justice Fineux in 1522108-the old organological concept distinguishing between head and limbs still prevailed, and the king was merely the head in which the mystical or political body of the realm culminated. In that sense, Henry VIII, in 1542, addressed his council:

We still recognize the old organological doctrine which had proved useful long before when it served Philip IV of France, in his struggle against Pope Boniface VIII, to bring the whole "Gallican Church" pare and parcel into the French patria headed by the king. It now served Henry VIII to incorporate the Anglicana Ecclesia, so lo speak, the genuine corpus mysticum of his "empire," finto the corpus politicum of England, of which he as king was the head109 The fusion of bodies politic and spiritual was absolute and complete, and the resulting confusion was sensed very strongly by Cardinal Pole, who in a pamphlet addressed himself to Henry VIII, saying: Your whole reasoning comes to tire conclusion that you consider the Church a corpus politicum.... Great as the distante is between heaven and earth, so great is also the distante between the civil poseer and the ecclesiastical, and so great tire difference between this body of the Church, which is the body of Christ, and that, which is a body politic and merely human.110

Here the fronts have been curiously reversed. Instead of treating the state as a corpus mysticum Henry treated the Church as a simple corpus politicum and therefore as parí and parcel of the realm of England. Contrariwise, Cardinal Pole tried in vain te restore the supra-political character of the Church and to undo the

We be informed by our judges that we at no time stand so highly in our estate royal as in the time of Parliament , whercin we as head and you as members are conjoined and knit together in one body politic.'°.

the Institutos of the Lasos of England, c.74 (London, 1809), 341, adduces that Act in order to prove that England was, and at all times has been, an " empire." For the prohlem, see A. O. Meyer, "Der Kaisertitel der Stuarts ," QF, x(1907), 231ff, who starts with the imperial tide of Henry VIII (for some additions , see E. E, Stengel, "Kaisertitel und Suveranitdtsidee ," DA, 101 [19391, 46), but without exhausting in any respect a most promising suhject which still demands a thorough and systematic investigation.

That is the same spirit in which earlier, in 1533, the preamble of the Act in Restraint of Appeals had been phrased, when Henry VIII declared that according lo the most ancient authorities the realm of England was an empire,

105 See below, pp. 250ff, for Philip IV. The discussion about the realm's "body politic" ( see Chrimes , Ideas, 304, 332f, nos.6 -8) was greatly intensified under Henry VIII; see, e.g ., Richard Sampson , Oratio qua doces, hortatur , admonet ommes etc. (London, 1733), fol.Bv ( pagination according to a microfilm oí chal rare pamphlet in (he University of California Library, at Berkeley): "Quis nescit totum regnum

governed by one supreme head and king, and having the dignity and royal estate of the imperial crown of the same, unto whom a body politic compact of all sorts and degrees of people, divided in terms and by names of spirituality and temporalty, be bounden.. , 103

unum esse politicum corpus, singulos homines eiusdem corporis membra esse? Ubi nam ese Euros corporis caput? Estne aliad quam rex?" Cf. A. Passerin d'Entréves, ''La teoría del diritto e delta política in Inghilterra all' inizio dell ' eta moderna,' R. University di Torino : Memorie del]' Istituto Giuridico ( Soco, Non', 1929), 27, 10.15.

101 See, en that point, Chrimes, Ideas, 116 , also 332, n.6. 105 See Coke, Rep., vn,toa ( Calvin's Case), referring to 21 Edward IV, f.38b. See below, Ch vn,n.312. 106 Quoted by Maitland, Sel.Fas., 107. 1°4 Sce, for that famous passage, Letters and Papers of Henry VIII, vol.xn, p.iv, 0.3, and p.107, No.221; cf. A. F. Pollard, The Evolution of Parliament (London, 1926), 231. 105 Statutes of the Reales, 111 ,427f; Stephenson and Marchara , Sources of English Constitutional History, 304 , No.74B ; Maitland , Sel.Ess., to7f. Coke, The 4th Part of

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11°"iota tija ratio concludit te Ecclesiam existimare corpus politicum esse. . Quantum enim dista[ caelum a terra, tantum inter civilem potestatem et ecclesiasticam interest : tantum hoc corpus Ecclesiae quod col corpus Christi, ab illo, quod est politicum et mere humanum , differt." Cardinal ]'ole, Ad Enricutn VIII ... pro ecclesiasticae unitatis defensione , in Juan T. Rocaberti , Bibliotheca maxima pontificia (Rome, 1fig8 ), x0111,204, quoted alter d'Entréves, op.cit., 27, 10.15. f

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process of secularization which the corpus Ecclesiae ruysticuot liad succumbed lo ever since che thirteenth century. Tlhac che corporational doctrines could result in an identification of the whole body politic witli che head alone has been shown by papal writers who claimed that che mystical body of the Church was where che pope was.111 The laten French identification of the body politic with che monarch, to which jean de lene Rouge and other constitutionalists still objected,12 would likewise suggest that che head could engulf the body, although legistic conceptsPrinceps est imperium, est fiscos, said Baldusfls-were probably more important in France. It is quite likely that also in England under Henry VIII che Cyprianic formula of the Decretum and of che Italian jurists began to gather volume, implying now by a new twist that all Englishmen were incorporated in the king, and that the king's personal acts and deeds were those of a body politic absorbed by its monarchical head. But even while resorting to those formulae , the English jurists, as in the case T illion 'e. Berkley, still distinguished between head and members, when they said: the other [Body] is a Body politic, and the Members thereof are his Subjects, and he and his Subjects together compose che Corporation ... and he is incorporated with them and they with him, and he is the Head and they are che Members, and he has che sole Government of them....114

carefully refrained, as in che case of Richard II, from allowing the body to be swallowed by che head, just as on another occasion protests were voiced against the severance of che limos fronm the head.111 Perhaps Fortescue's definition of England as a true dominium regale et politicum remained che most accurate deseription, che one which preserved its value even though it was temporarily obscured. That magic formula, so inuch atore important in English political thought than among the scltolastic philosophcrs from whom it hailed, implied that head and body depended mutually en each other and that as the king was supreme in some respects, so was che polity in others. It will not be inappropriate here to recall Fortescue's contemporary, Nicholas Cusanus, who, in his Concordantia catholica, said that only so far as the Prince recognized himself "che creature of all his subjects collectively, did he become the father of the individual citizens,"116 a concept later reduced to che more lapidary formula Princeps maior singulis, minor universis , "The Prince is more than che individual citizens, but less than their totality."117 Fortescue seems to ]cave cherished similar ideas when he developed his doctrine about an England both regal and political. His king was both aboye and below che body politic of che realm, just as the thirteenth-century king was both aboye and under the Law 11s Late mediaeval kingship, from whatever point of view it be considered, had become polity-centered after che crisis of che thirteenth century. The continuity, first guaranteed by Christ, then by the Law, was now guaranteed by the corpus mysticum of the realm which, so to speak, never died, but was "eternal" like the corpus mysticum of the Church. Once che idea of a political community endowed with a "mystical" character had been articu-

All by itself, however, the corporational doctrine, so long as it was primarily organologic , did not necessarily result in that complete identification of the limbs with che head, nor did it actually in mediaeval England. One could accept che precise words of che Bishop of Lincoln when he declared that England's body politic or mystic was where king and council and parliament were; but one 1,1 Ahoye, n.gg. See aleo Gierke, Gen. R., u1,59G,n.214.

11s Aboye , n.95. See the exclamation in che Gesta Edwardi of che canon of Bridlingcon ( Chronicles of the Reigns of Edward 1 and 11, ed. Stubbs, 11,70): "Mira resl ecce qualiter membra a capite se disjungunt quando fit considerado per magnates in parliamento , regis assensu minime requisito " (referring co che action against che Despensers in 152' ). See Wilkinson , "The Coronation Oath of Edward Il and che Statute of York," Speculum , xIx(1944), 46o,n.4. 1r6 Gierke , Gen.R., 111,590; Johannes Althusius, 126. 117 Gierke , Johannes Althusius, 144, quoted by d'Entrtves, "La teoría," g6,n.27; see aleo Holdsworth , History of English Law, w,2 tg, and his referente to Hooker's Ecclesiastical Polity, 1, §2,7. lis Unless I am mistaken , Professor Mcllwain, Constitutionalism, 8qf, indicates precisely Chis change , when confronting Fortescue with Bracton.

112 For Terre Rouge, see aboye, o 77 . Church, Constitucional Thought, has excellently brought to the fore che struggle between constitucional and absolutist ideas in sixteenth - century France , and one sometimes wonders to what extent che persuasive antitheses of Fortescue were valid in his tinte. 115 Baldus , on Cod. 10,1 , rnbr.,nos.t 2 , 1 g,t8; Gierke , Gen.R., 10,696, n.216; aleo Gierke, Johannes Althusius , 137, n.47. The essence of l'dtat c'est me¡ (cf. Fritz Hartung, "L ' Etat c'est moi," Historische Zeitschrift, c1.xIx [tggq], iff) may be traced very far back , as Victor Ehrenberg, " Origins of Democracy," Historia, 1 (ig50), 51g, has pointed out recendy ("Thou art che state, thou che people" in Aeschylos' Suppliants, gyoff), though che profound differences of the general climate are probably more worth stressing than the similarities of diction. 114 Maitland , Sel.Ess., ioS; Plowden, Reporte, 2g3a; aboye, Ch-1, n.ag.

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PRO PATRIA MORI POLITY.CENTERED KINGSHIP

lated by the Church, the secular state was almost forced to follow the lead-to respond by establishing an antitype. This view does not detract from the complexity of other stimuli which were perhaps even more effective: Aristotelian doctrines, Roman and Canon Law theories, the political, social, and economic development at large during the later Middle Ages. But those stimuli seem lo have worked in the same direction: towards making the polity co-eternal with the Church and bringing the polity-with or without a king-to the center of the political discussion. However that may be, the corporational problem of the later Middle Ages began to eclipse the preponderante of the legal problem and the "tyranny of the Law" of the preceding period. This does not imply that the king's relation to the Law had become an irrelevant question, but that it was absorbed by, and included in, the far broader problem of the king's relation to a polity which itself coul$ claim lo be the Law and which, by its inherent dynamics, quickly developed its own ethical and semi-religious code-apart from the Church. g. Pro patria morí PATRIA RELIGIOUS AND LEGAL

Neither from the idea of polity-centered kingship nor from that of the state as corpus morale, politicum, mysticum can there easily be separated another notion which carne to new life independently of, though simultaneously with, the organological and corporational doctrines: the regnum as patria, as an object of political devotion and semi-religious emotion 11° Patria, in classical Antiquity so often che aggregate of all che political, religious, ethical, and moral values for which a man might tare to live and die, was an almost obsolete political entity 119 For the general problem, see Halvdan Koht , "The Dawn of Nationalism in "Pro patria mori," AHR, Europea' AHR, 1,11(1g47 ), 265-280, as well as my paper 472.492, where the subject has been treated from a somewhat different rv1(1951 ), angle and en a narrower basis, though occasionally with fuller documentation. In in the Middle Ages: the meantime , Gaines Post , "Two Notes en Nationalism 1. Pugna pro patria," Traditio , IX(1953), 281ff, has published an excellent study in the legal material which he, most gratifyingly, supplements my paper by reviewing which 1 badly neglected. 1 received 1 had not been aovare and which of on patria book had been conduded, and I could barely do his study only after the present material and more than te integrate , in a last revision, sume of the wealth of his some of his suggestive results.

23°3

in the earlier Middle Ages.120 During the feudal age, when personal bonds between lord and vassal determined political life and prevailed over most other political ties, the ancient idea of patria had all but completely faded away or disintegrated. This does not imply that the word patria vanished entirely from the vocabulary of mediaeval Latin. Though hardly applicable lo che actual conditions of life and badly fitting the political reality, the terco will be found quite frequently in the works of mediaeval poets and scholars who drew their inspiration from Vergil and Horace and other classical authors.121 The word patria existed also in the daily language. In a narrow and purely local sense it referred lo the native hamlet, village, township, or province, designating, like the French gays or the German Heimat, the honre or birthplace of a man; 122 and in that sense it was used, for example, in English legal language: per patriam se defendere was a means of defense by which the defendant submitted lo the judgment of the community in which he lived.123 Literati, lo be sure, might continue to extol a man's death pro patria; but death for that narrow local unit, which the word patria actually described, had-beyond the natural defense 12° See "Pro patria morfi," 474,n.8; further Louis Krattinger, Der Begriff des Vaterlandes im republikanischen Rom (Diss. Zurich , 1944), a useful discussion of the problem showing that Italy began to be patria only in the times of Cicero and Caesar (p59) and that the imperium was not called patria in the classical period (p.6g), whereas the res publica as well as the city of Rome were patria without restriction . This is borne out also by the mediaeval jurists, who , as Post, "Two Notes," 286 , 11.22, has shown , distinguished between the home-town as minor patria and Rome as communis patria. See below, nos.165ff. 121 A few remarks in "Pro patria morí," 477,11.16. The poets and literati, when describing the heroes of classical Antiquity, used patria over and over again; sea, e.g., Walter of Chátillon, Alexandreis, 111,313 (ed. F. A. W. Mueldner , Leipzig, 1863), in bis description of the battle of Issus: "Pro domino patriaque morí dum posset honeste ... " Also ¡bid., 11,35,: "Pro patria stare el patriae titulis et honore) Invigilare decet...." More interesting is Wipo, who uses patria consistently in the sense of the classical tradition , without ever defining it ; sea his Cesta chuonradi, prol., ed. Bresslau (MGH, SS.r.gersn.), pq,20, whcre he mentions as his causa serfbendi the fact quod proderit patriae ; see also p9 , 14, and passim (cf. Index, 123, s.v. patria). 122 Do Cange , in his Gtossarium (s.v. pa(rta), refers exclusively te the local meaning. See also Ernest Perro (, Les institutions publiques el privies de l'ancienne . n'avait France jusqu'en 1789 ( Paris, 1935), 4oof: "Le mot méme de patria jusqu'alors qu'une volear géograpllique avec le sens restreint de 'region .'" See also Koht, "Dawn of Nationalism ," 266f,n.6; Post , "Two Notes ," for the often very indefinite usage of patria. 123 For the English trial per patriam, lo which Professor Joseph R. Strayer kindly called my attention , sea Pollock and Maitland, English Law, n,62of,624,627.

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of house and borne-no political consequences: wanting, with few exceptions,124 the broader político-philosophical background it would have appeared as a private rather than a public sacrifice. Wars, after al1, were norrnally not fought bv the citizens, but by an army composed of feudal vassals and knights summoned to defend their lord and bis political aims or personal interests. A liegeman's death for bis personal lord, of course, rated high as a sacrifice for Ioyalty, and the mediaeval sagas abundantly glorified victims of fideli4u and of lides. But ihose warriors offered themselves up pro domino, not pro patria, and ir only illustrates the general shift of the center of political lile, when jurists in the early thirteenth century pointed out "that the duty to defend the patria was higher than the feudal obligations of vassal to lord.-121 There was nevertheless one domain in which the idiom patria retained, as it were , its full original meaning and its former emotional values , if only by transference and in a transcendentalized form: in tse language of tire Church. The Christian, according to the teaching of tire early Church and tire Fathers, had become the citizen of a city in another world. His trae patria was the Kingdom of Heaven, the celestial city of Jerusalem. The final return to that spiritual and eternal "fatherland" was, according lo the Apostolic Epistles, the natural desire of the Christian soul peregrinating en earth. It was not simply a poetic metaphor, but a word spoken in the spirit of the Epistle to the Hebrews ( i1: 13-14 ), when, in the exequies , the priest entreated God that the holy angels be ordered to receive the soul of the defunct and lo conduct it ad patriam Paradisi . The community of the blessed and saints was, after all, the civic assembly of the celestial patria which the soul desired to join . For the sake of that communis patria in heaven the martyrs had shed their blood. The Christian martyr, therefore, who had offered himself np for the invisible polity and had died for his divine Lord pro fide, was lo remain--actually until the 124 We may think, c .g., of Anglo-Saxon England during the Norman inrasious, and of similar events. One great exception, of course , was formed by the Italian sities which never quite los[ the character of ancient city-states ; the ideo ti tication of Italia with patria is of a later date ; above, n.,2o, ancl, for a good suggestion, Post, "Two Notes," 292 . See also the survey', unfortunately very incomplete , of Hans Haimar Jacobs, "Studien zur Geschichte des Vaterlandsgedankens in Renaissance und Reformation ," Die 4Felt ala Geschiehte , xr1(,952), 85-106. 12s See Post, "Two Notes ," 288,0 . 13, quoting Johannes Teutonicus (en c.18, C.xxtbq.5 ) and others.

PRO PATRIA MOR]

twentieth century-the genuine model of civic self-sacri fica."" Christian doctrine, by transferring the political notion of polis to the other world and by expanding it at tire same time to a regnum coelorum, not only faithfully stored and preserved the political ideas of Use ancient world, as so often it did, hut also prepared new ideas for the time when the secular world pegan lo recover its former peculiar valles. Fronr tse outset, therefore, one sllould at ]casi consider tire possibility whedfer-before the full impact of legal and humanistic doctrines became effective-the new territorial concept of patria did not perhaps develop as a re-secularized offshoot of the Christian tradition and whether the new patriotism did not thrive also on ethical values transferred back from the patria in heaven to the polities en earth. In fact, some changes pertinent to this problem occurred in the wake of the crusades. After the pattern of the crusading taxes "for the defense (or needs) of the Holy Land" (pro defensione [ necessitate ] Terrae Sanctae), taxes were introduced by the Western kingdoms "for tlte defense (or needs) of the realm" (pro defensione [necessitate] regni). What was good for the regnum Christi regis, Jerusalem and the Holy Land, tvas good also for the regnum regis Siciliae, Angliae, or Francorum. lf a special and extraordinary taxation was justifiable in the case of an emergency of Jerusalem, it seemed justifiable too-especially in the age of the purely political and secular crusades of the thirteenth century-to meet the emergencies of the territorial kingdoms in the same fashion.127 By the middle of the thirteenth century, however, and especially in France, we find an emotional 12e For the " political" aspect of the heavenly world as

patria,

Augustine , De civ. Dei , v,c.,6. Sea, in general, Karl Ludwig Schmidtsee, aboye al], , Die Polis in Kirche und lVe14 ( Rektoratsprogramm der Universittt Basel, 1939 ); llans Bietenhard, Die himmlische B'elt ira Urchristentum und Spoljudentum ( Tübingen , 1951), 192-204. The quasi-political concept of celestial Jerusalem has been made a focal point in the works of Erik Peterson, now united in his Theologische Trahtate (Munich, 195,), esp. 165ff: "Zeuge der Wahrheit"; 323ff: "Ven den Engeln," and passim. Heaven as the communis patria of the Christians compares with the xomit ras-pis which in ancient times had designated the nethenworld ; see Plutarch, Moralia, ,13C ; also 'Pro patria morir' 475f, and ibid ., 472f, for che 2oth-century controversy berween Cardinals Mercier and Billot. 127 For the problem in general, see Joseph R. Strayer, " Defense of the Realm and Royal Poner in France," Studi in Onore di Cine Luzzatto (Hilan, 1949), 289ff; Helene Wieruszowski , Fom Imperium zum nationalen IKdnigturn ( l-listorische Zeitschrift, Beiheft 30 , Munich and Berlin, 1933 ), 168ff and passim ; also "Pro patria morir' 978f, and below, n.129.

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element integrated finto the prosaic business of taxation: Laxes then were often imposed ad defensionem (tuitionem) patriae or, as Philip IV of France phrased it, ad defensionem natalis patriae, "for the defense of the native fatherland."129 This new terminology was not the result of some shrewd inventiveness on the part of French nationalists , but an application of legal language to national ends. The word patria was found in Canon Law, and it was indeed very frequent in Roman Law. The glossators were prompted to comment on it and to use it freely. When discussing the notion of bellum iustum, the ' just war," the Canonists, ever since che late twelfth century, pointed out that war was justified, in case of "inevitable and urgen[ necessity," for che defense of the patria as well as for che defense of the faith and the Church, and they repeatedly exemplified such necessitas by referring to che wars which che Oriental Christians waged against che infidel in che Holy Land.32" They concurred wich che Civilians who held that in a case of emergency the emperor was entitled to levy new tases for tire defense of che patria and who followed the model of che Digests cohen talking about che "sweet" or "sweetest fatherland."130 The jurists originally spoke of patria in general terms without specifying what the term mean[, and it will be shown presently how they gradually carne to express themselves wich greater precision. There can be no doubt, however, that in the case of France in the age of Philip che Fair the word patria had actually come to mean che whole realm, and that by 128 Strayer , " Defense;' 292 ,51.7, quotes, for che year 1265, a case ad tuitionem patrie senescallie Carcassonensis where doubtless a limitad military service for the protection of che seneschal of Carcassonne was demanded ; however, chal seneschalsy together wich chal of Beaucaire had belonged , since 1229, to the King of France directly ( see F. Kern , Die Anfdnge der franzasischen Ausdehnungspolitik ['rübingen, 19101, 319) so chal in chis case che local patria was also directly connected wich the Crown of France. In 1302 (August 29 ), King Philip IV wrote tu the clergy of the bailiwick of Bourges concerning subventions " ad ciefensionem natalis patrie pro qua reverenda patrum antiquitas pugnare precepit , eius curara liberorum preferens caritati ." See "Pro patria morfi," 479,n.26; also Wieruszowski, Vom Imperium, 173, 0.107. The tener of Philip IV is modelled after D.49,15,19,7 (" disciplina castrol' um antiquior fui[ parentibus Romanis quam caritas liberorum"), a passage occasionally quoted by che juriscs ; see, e.g., Petrus de Ancharano, Consilia, cccul,n.4 (Veni£e, 1574), fo1.i62. Cf. Post, "Two Notes," 287, n.28, and 290, 0.42. 129 Post, "Two Notes,' 2821f . For the fight against che infidel as che prototype of che jusc war, see also below , nos.155ff, the opinion of Henry of Ghent. 130 Post , "Two Notes," 2851E Cf. D.32, 1,101, where the Greek words rñ yXvxvrárf µ0v narplSi are rendered patriae mece suavissimae or (in che Glos . ord.) dulcissimae; cf. Post, 286 , n.22, and passim.

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chis times che territorial-perhaps we may even say nationalmonarchy of France was strong enough and sufficiently advanced lo proclaim itself as the communis patria of all its subjects and lo demand extraordinary services in che narre of che fatherland.1" In England, such terminology developed in approximately the same period in literature as well as in legal language. 132 Bracton, drawing from legal material of the first hall of che century, used the word patria as a matter of course. He distinguished, for example, between services due lo che feudal lord and services pertaining to tire king ad patriae defensionem et hostium depressionem, a distinccion reflecting also che frequent dilemma between feudal and public obligations.133 Again, in connection with Essoign-that is, valid "excuses" for failure to appear in court-Bracton declared that a proper excuse was service with the king's army ad defensionem patriae, but also recognized, as an alternative excuse for che normal servitium regis, the servitium regis aeterni overseas-a fact which demonstrates once more that che defense of che Terra sancta and the defense of che patria were in juristic language as well as in court on the same level.1d4 Perhaps here is the place to recall that in France che "holy soll" of the Terna Sancta overseas and che "holy soil" of la dulce France were not at all incompatible and incomparable notions, and that both were equally filled wich emocional values. The kingdom of France, Francia, whose very narre suggested co }ter children that she was the Land of che Free (franci), was considered the honre of a new chosen people.133 Pliny, on one occasion, had praised 131 See below , nos.,65ff, for che communis patria. 132 The English material en patria has as yet been neither collected nor sifted, but [here is every reason co assume chal che word vas used in che twelfth century for designating che whole territory o( che island monarchy (sce below, nos.145ff, for Geoffrey of Monmouth). 113 Bracton , fol.35b, ed. Woodhine, 11,113 and 114. For che priority of che patria over the feudal lord, see Post, "Two Notes," zBA,n.13; 288 ,nos.34ff; sea also Andreas ofIscrnia , mi Feud. 51,6 (De forma f, delitatis), n.,, foLgov: The vassal is obliged co support bis lord "etiam contra filium vel patrem [ see below, n . s61] . . . non tatuen cric [ohligatusj contra seipsum vel contra patriasu , quia plus tenetur patriae quam filiis " (wich more material in cho gloss, v. patriae). 134 Bracton , fol.336b, Woodhine, iv,71: "Si autem ex causa necessaria el utili ut rci publicae causa, ita quod profectus sic in exercitum curo domino rege ad defensionem patriae per praeceptum domini regis , cum ad hoc obligaras sir, excusatur. ..:' See also fo1 .339, Woodhine, iv,76: "ítem de ultra mate excusatur quis per essonium de servicio regis aeterni sicut de Terra Sancta...." 133 For Franci = liben, see, e.g., A]exander of Roes, Memoriale, c.i 7, cd. H. Grundmano and H . Heimpel ( Deutsches Mittelalter : Kritische Studientexte der MGH,

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Italy as "a land sacred lo thc gods" (Hace est Italia dis sacra)"' Now France appeared like a Francia Deo sacra, a regnttm benedictum a Deo,'a' which God clubraeed with special lote, which Christ honored with tate prerogative of a special eminente, in which the Holy Spirit dwelled, ami for whose sacred soil it was worth while and even sweet to make the supreme sacri6ce. To defend and prote( t the soil of France, therefore, would Lave semireligious connotations comparable to dte defense and protection of the sacred soil of che Holy Land itself.138 ' To grant some religious glorification lo the knight who sacr ficed his life in the service of the Church and for the cause of God, had become customary even before the crusades."d Through the crusades , however, the possibility of acquiring that glorification was expanded from the chivalry to the broad masses, and the privilege of becoming a soldier-martyr was extended to classes which normally would not have engaged in fighting at all. A crusader w; Weimaq 1949), p..38, 13, and passim; alto the sermon of William of Sauqueville, ed. Hellmut Ktmpf, Pierre Dubois, 112f; further, the anonymous sermon, published by Leclercq (below, n.176), p.17of, fines to3ff; alto Schramm, Frankreich, 1,138, for Pseudo.Turpin; Berges, Fürstenspiegel, 76f. For the French as a new chosen people, see a letter of Pope Clement V, the first Avignon pontiff: "regnum Francie in peculiarem populum electum a Domino in executione mandatorum celestium specialis honoris et grabe titulis insignitur." Registrurn Cferuentis F Papae, No. 7501, quoted by KSmpf, Pierre Dubois, 99. 116 Pliny, Naturalis historia, ni, xx, 135. 117 Innocent III, in his decretal Novit: c.13 X 2,t, ed. Friedberg, 11,242; cf. Post, " Blessed Lady Spain," Speculum, xxsx(1954), 203,0.28. rssSee, e.g., Richier, La vie de Saint-Remi, ed. \V. N. Bolderston (London, 1912), fine 6t: "Molt fait dieus aporte monstrance 1 D'especial amour a Francé ; or lino 114: "A bien Dicus [en] France eslargie 1 La grace don Saint Esperite." Sorne material has been collected by Kümpf, Pierre Dubois, 91, 99, and passim; Wieruszowski, Vom Imperium, 147f, n.26; Schramm, Frankreich, 1,228f. The legists-Flotte, Plafsians, Nogaret, Dubois-repeated the [heme of Francés election incessantly, and the royalist Dominican William of Sauqueville, harping on the Franci = liben formula, daimed that "proprio loquendo nullum regnum debet votar¡ regnum Francie nisi solum regnum Christi el beatorum." Tice sermon of the Dominican, together with others by the same author, has Leen transcrihed Eran Paris, BihlNat.MS lat.16495, fols.98-1oov, and discussed by my formar pupil Miss Hildegard Coester, Der Kdnigskult in Frankreich um 1300 im Spiegel der Dorninikanerfnedigten (Thesis [Smatsexamens-Arheit] Frankfurt, 19,35 .36, typescript), p vm; similar phrases are found in the sermon edited by Kdmpf, op.cit., 113. We may recall here alto the epithets in praise of Paris, in lean de Jandun s Traelatus de landibus Parisius, in: Paris et ses historien ame XI Ve et XVe siéctes, ed. Le Roux de Lincy ami L. M. Tisserand (Paris, 1857), 32-79 (instar triumphantis Jerusalem, locos sanctus, etc.). All that was not restricted to France, as Post (ahoye, n.'37) has shown for Spain; but it was practiced in France more conslstently in that period. 1ssThis ¡s one of the lending themes of the excellent study by Erdmann, Kreuzzugsgedanke.

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who battled against the infidels for the Christian faith and died for the cause of the Holy Land in the service of Christ tito ICing, was entitled, according to common belief, to expect his immediate entry into the celestial Paradise and, as a reward lar his self-sacrifice, the crown of martyrdom in the lile hereafter. He that embarks to the Holy Land, lle that dies in tisis campaign, Shall enter finto heaven's bliss And with the sainis there shall he dwell.190

Whether the confidente in other-worldly reward, as reflected by che crusaders' song, was dogmatically sound or rather a misunderstanding of papal decrees (which granted crusaders not remission of sins, but remission of such punishments as the discipline of the Church might have imponed) made little difference then, nor shall it make any difference here. Belief in the crusader's assumption to paradise was shared by everyone; and it was still shared by Dante: he met his ancestor Cacciaguida, slafn in the Second Crusade, in the heaven of Mars where the martyrs and champions of God had their place, and made him speak: "I come from martyrdom unto Chis peace" ( Venni dal martiro a questa pace).'41 In a similar fashion, to be sure, the death of a liegeman for his feudal lord might be glamorized , especially in a battle for the Christian faith. At a council in Limoges, in lo3t, where a truce of God was discussed , the vassal of a duke was told: "For your lord you have lo accept death ... and for this loyalty you will become a martyr of God."142 That is, the vassal offering himself up for his lord who defended a holy cause, compared w'ith a Chrfstian martyr who gave himself up for his divine Lord and master, for Christ. Accordingly, the Frankish warriors in the Song of Roland were told by Archbishop Turpin of Reims: 140 "Illuc quicumque tenderit , l Mortuus ibi fuerit,l Caeli bona receperigl Et curo sanctis permanseri t." See Dreves , Analeeta Hymnica , xLvb, 7S, No. 96; Erdmann, Kreuzzugsgedanke, 248. 1+1 For the " remission of sins," see Erdmann, op . cit, 316f, alto 294, and passim. The confusion was general , even among Canonists ; cf. Su roma Parisiensis, en o.14,C.XVI,q. 3, ed. Terence P. bfcLaughlin , Toronto, 1952, 184: "... ad resistendum Saracenis Christianos hortatur ecclesia cosque quae profecti defensione moriuntur a peccatis absolvit." For Cacciaguida , see Paradiso, xv,148. 142 PL, cxr11 , ,4ooB: "Debueras pro seniore tuo mortem suscipere ... et martyr Dei pro tal ¡ fide fieres ." Cf. Bloch, Rois thaumaturges, 244, n.3.

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PRO PATRIA MORI

For our king we have to die. Help lo sustain the Christian faith ... 1 shall absolve you, heal your souls. If so you die, you shall be holy martyrs Obtaining seats high up in paradise.'49

Fight for your patria arad sulfer even death for her if such should overwhelni you. Victory itsclf is a mearas o[ saving the soul. For wlioevcr suffers death for his brothers, offers himself a living host to God, arad unambiguously he follows Christ who for Iris brothers deigned lo lay down his lile [I john 3: 16]. If, tlicreforc, one of you be overcome by death in this war, let that dcath be atonement for, apd absolution of, all his sins.... 47

Since the warriors in the saga of Charlemagne were fighting the Saracens in Spain, they rated as crusaders and enjoyed the privileges by which, in the times of the poet, crusaders were normally distinguished.144 However, the death of those "French" crusaders waging war against the Saracens was at the same time a death for the supreme lord, for Charlemagne, li empereres Caries de France dulce, a fact which, for a French reader in the twelfth century, gave to the martyrdom of the slain unfailingly also a national flavor. With due reserve it may be said that, what the Song of Roland meant lo the French, Geoffrey of Monmouth's History of the Kings of Britain meant to the English. To Geoffrey of Monmouth patria designated clearly the "monarchy of che whole island" (totius insulae movarchia) which King Arthur, after having obtained it by right of inheritance,141 had lo defend against the infidel: Saxons, Scots, and Picts. Once, when the Saxons made an inroad on the British patria, King Arthur assembled his army and addressed his soldiers briefly to praise his own faithfulness as opposed lo the faithlessness of the Saxons who had disregarded the truce. The main harangue, however, was again made by a bishop, Saint Dubrick of Caerleon, who admonished the soldiers to be valiant defenders of pietas et patria"' for the sake of their fellow-citizens,

The speecli of the Bishop of Caerleon, like that of Archbishop Turpin of Reims in the Song of Roland, vas perhaps patterned alter sermons of crusade preachers, except that the spiritual rewards-absolution and salvation of the soul-as promised to the victims of the "holy wars" were conferred here on the martyrs dying for their patria. That the Welsh warriors of King Arthur died for the Christian faidi as well, since they were battling the Saxon pagans, and tbat they died also for their lord and king, is perfectly true. Nevertheless, the death pro fide-for faith and fealty-is eclipsed by, or included in, the idea that they died pro patria, that is, pro totius insulae monarchia. Moreover, their death was interpreted as a self-sacrifice pro fratribus, and the author compared it with the self-sacrifice of Christ for his brothers.1f9 Therewith the death pro patria appeared as a work of caritas rather than of fides, although the latter should not be excluded. The note of "brotherly love'' was occasionally struck before, in connection with the crusades, Pope Urban II, for example, in a letter to the Spaniards defending Tarragona against the Saracens, declared that none who shall be killed in this campaign for the love of God and his brothers shall doubt that he will fiad remission of his sins and the eternal beatitude according Lo the merey of God 149

'"La Chanson de Roland, ]fines 1128-1135, ed . J. Bédier ( Paris, rg31), 96; Leonardo Olschki, Der ideale Mittelpunkt Frankreichs ( Heidelberg , rg13), 10; see also Franz Cumont, Lux perpetua ( Paris, 1949), 445144 Concerning Charlemagne himself, Jocundus , Translatio S. Servatii, MGH,SS., xrt,93 ( written around 1088), says: "Karolus morí pro patria , morí pro ecciesia non timuit. Ideo terram circuir universam et quos Deo repugnare invenit, impugnabas" ( I am indebted Lo Professor M. Cherniavsky for calling my attention Lo this place). See, in general , Robert Folz, Le Souvenir el la Légende de Charlemagne daos PEmpire germanique médiéval ( Paris, 1g5o), 137f. 145 Geoffrey of Monmouth, Historia Regum Britanniae , ix, c.1, ed. Jacob Hammer (Mediaeval Academy of America Publications, No. 57 [Cambridge, 1951]), 152,7: "Dubricius ergo, calamitatem patriae dolens , associatis sil)¡ episcopis , Arthurum regni diademate insigniviC' Ibid., ]fine 17: ". . . cura [Arthurus] tmis insular monarchiam debuerat hereditario jure obtinere." 14e Hist.Reg. Brit., tx,c.s, Hammer , 154,80: "[Sazones ] patriam usque ad Sabrinum mate depopulanC ' For Arthui s allocution , ¡bid., unes 88ff; see unes 95f , for pistas

240

el patria, two inseparable notions in ancient Roman thought which Aquinas (Somera iheol., ir ir, gu.ror,art.1 and 3) neatly Iinked together again. 147Ibid., 154,97-104: "Pugnare pro patria (see helow, n. 159), el mortem , si supervenerit, ultro pro eadem patimíni . Ipsa enim victoria est el animae remedium. Quicumque enim pro confratribus sois mortem inierit, vivam hostiam se praestat Deo Christumque insequi non ambigitur, qui pro fratribus sois animam suam dignaras est ponere. Si aliquis igitur vestrum in hoc bello mortem subierit , sir mors illa sihi omnium delictorum suorum paenitentia el absolutio. . . .' 1 am most gratefui Lo the late Professor Jacob Hammer for calling my attention Lo this ínteresting passagc. 145The seriptural passagc 1 John 3: 16, was repearedly adduced to draw a comparison between the victim pro patrio (fratribus) and Chrisq sce, e.g., below, 0.157. 149 Pan1 Kehr , Papsh'rk v n den ira spnnien, 1: Lio sa la n ieu (Abl1. Gbttingen, N.F.,

xvn1 :2, Berlin, 1926 ) 287f, No_3: ''In qua videlicet expeditione si quis pro Dei et

1

341

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POLIT}CENTLRFD KINGFH!P

tions whidi che lawyers customarily produced,l"t and -Folomeo himself was well versed in handling at least Canon Law. Tire whole problem of patria, stimulated not only by tito Tico Laws but also by intensified study and practical-political interpretation of Aristotle, was more lively discussed in che age alter Aquinas tiran ever before in tire bliddle Ages. Aquinas himself touched opon the problem quite frequently. Tic too demanded that che virtuosas citizen expose himself to tire danger of death for che conservation of tire commonweal, and he lleld that tire N ¡cine of pietas, often hardly distinguisbable from caritas, was che power animating devotion and reverente te both parents and patria.'"" Later in the century, Henry of Ghent, the Doctor solemnis teaching at Paris, carne te discuss related problems . 165 Taking as Iris starting point the Christian retreat from Acre and the fall of chis city in 1291 , he dealt with the question under what circumstances a soldier should either sacrifice his life or turn his back and flee. Henry strongly rejected any self-sacrifice for selfish reasons (vainglory, rashness, injustice, and otlrers) and made it clear that flight and self-preservation might often be more valuable and cotnmendable-except in die case of a priest who was not allowed te flee if his presente were demanded for the salvation of souls or the tare of the sick.168

And a little later. Ivo of Chames assembled in bis fundamental works, Decretuw and Panecmia, relevant sections from tire Fathers and from papal letters in which celestial reward leas promised te those dying "for dte truth of faith, tire salvation of the patria, and tire defense of Christians" sections which soon passed en te Gratian's Dectetum and exercised permanent infiuence'"° Ti was, however, only in the thirteenth (entury that tire Christian virtue of caritas became unmistakably political, asad that it was utilized more persistently tiran hitherto and activated to sanctify and justify, ethically and morally, die death for the political "fatherland." Amor patriae in radice charitatis fundatur-Love for the fatherland is founded in the root of a charity which puts, not the private things before those common, but the common things before the privare.... Deservedly the virtue of charity precedes all other virtues because the merit of any virtue depends upon that of charity. Therefore the amor patriae deserves a rank of honor aboye all other virtues.

Therewith a theological standard of amor patriae was authoritatively established; for these words passed for the opinion of Thomas Aquinas even though tlrey were actually written by Tolomeo of Lucca, the continuator of Aquinas' De regimine principum.1b1 In his discussion about patria, Tolomeo of Lucca followed, by and large, Saint Augustine's reflections en the superiority of the fatherland in heaven over that en earth; but he0Juoted also Cicero saying that parents and children , relatives a,pd household members may be dear te us, but that " the fatherland etabraced caritate all those relations." With Cicero he exclaimed: "What good citizen would hesitate te welcome death if it were profitable for tire patria?"1"2 Those were arguments and quota-

1ss Post, "Two Notes," 287, n.28, and passim. 154 Summa theol ., t,qu.6o,art.5 , resp.: "Est enim virtuosi civis ni se exponat mortis periculo pro totius reipublicae conservatione ." See ahoye, n.t47, for another passage en patria, and also the good commentary en the notion patria according to Aquinas, in Die Deutsche Thomas-Ausgabe ( Heidelberg , 1943), xx,343ff. Usually, however, Aquinas means "Heaven " or "Paradise" when talking ahout patria; see, e.g., Summa theol ., n-gqu.8s,art. u; nt,qu.8,ar t. 3, etc. 1ss Henry of Ghent, Quodlibeta, xv, qu-16 ( Paris, 1 ,518 [Quodlibeta Magistri Henrici Goethals a Gandavo ]), fols.594R ( Dr. Schafer Williams kindly provided me with photocopies). The argument, inspired ultimately by Cicero, De off., 1,83, is: "Quod miles praevolans in exercitum hostium non fati[ opus magnanimitatis." Ser Paul de Lagarde, "La philosophie sociale d'Henri de Gand et de Godefroid (le Fontaines " (aboye, n.52), Boff, through whose article my attention was called to chis Quodtibet. 1s6 Henry discusses, fol.5g6, those who cake a stand while the otlrers fice: "l loe licitum est eis, et nmc alff tenentur cuna eis contra hoscos stare et esse parad asar cum aliis hostes devincere aut simul morí cum illis; aut si sint aliqui inter illos qui tenentur eis ministrare spiritualia, fugere non possunt." Also che preceding passages (fol.595v) bring a discussion de fuga praelatoram . Henry finds it difficult ni decide "si licitum sir fugere bellum , quod contra patriam aut patrias leges attentamm est ab hostibus legis et fidei christianae . Et censeo in hac materia idem de fuga praelatornm maforom et minorum, et principum superiorum et inferiorum . . . quia sicuc praelati tenentur ministrare populo in spiri tualibus ad fomentum et

fratrum suorum dilcctione occuherit , peccntomnr profecto suoruln indulgen tiara et eterne vite consortium in venturum se ex clementissima Dei nostri miscratione non dubitee." Cf . Erdmann, Kreuzzugsgedanke, 294. 15" Cf. "Pro patria morí," 48if, nos . 34.36; Erdmann , op.cit., 248 ; Post, "Two Notes," 282 , for che places in che Decretum of Gratian. 151 Thomas Aquinas, De regimine principum , ut,c4, ed. Joseph Mathis (Romo and Turín , 1948), V. Tolomeo quoted che Reinan examples , with che lame references to Augustine (De civ. Dei , v,C.12-19), also in his Determinatio compendiosa, C.21, ed. Mario Krammer, lgog (MGH, Fontes inris Gennanicí antiqui ), 42f. See Theodore Silverstein , " On che Genesis of De Monardvia , 11, v;" Speculum , xnt (1938 ), 326ff, and, in general , Héldne Pétré, Caritas (Louvain, 1948 ), 35f1.

152 Cicero , De off., 1,57, a passage quoted frequently.

24 2

1

243

POLITY-CENTERED KINGSHIP

PRO PATRIA MORI

On the other hand, however, Henry praised the magnanimity of a soldier's sacrifice if dictated by love. He quoted the Song of Solomoti (8: 6)-'Tor love is strong as death"-to demonstrate that a soldier's sacrifice for bis friends was a work of charity and of faith. He defended [he bellum iustum, the just war for the protection of the patria and nce spiritualia. To give emphasis to his arguments , Henry quoted maxims from ancient authors. He quoted Vegetius; he quoted Cicero to the effect that none should love himself and his own life more tlian the respublica; he held with Plato (as transmitted by Cicero's De officiis) that man is not borra for himself alone; and he accepted Cicero's religion: Patria mihi vita mea carior est, "The fatherland is dearer to me than my life." Despite those gleanings from Antiquity, Henry of Ghent centered en the traditional Cllristian arguments. Death in defense of the fatherland appeared, also lo him, chiefly as a work of caritas, and Henry gave, as it were, the final blessing to pro patria morí by comparing-like Geoffrey of Monmouth-[he sacrifice of a citizen for his brothers, and for his community, [o the supreme sacrifice which Christ made for the salvation of man, and of mankind.l" Thus it happened that in [he thirteenth century the crown of martyrdom began lo descend on the war victims of the secular state.

In the argumenta of Henry of Ghent the humanistic note is audible. It is even stronger with Dante lo whom those giving their lives for the salvation of the patria, like the Roman Decii, ap-

conservationem vitae corola spiritual¡s, sic principes ministrare tenentur eidem in temporalibus ad fomentum et conservationem vitae eorom temporalis ." Henry of Ghent, in his attitude toward the duties of clerics, is of course in foil agreement with the teaching of scholasticism; U. Aquinas, Snmma tico!., n11, qu.,85, arto and 5; also [he remark by Post, "Public Law;' 48. He is , in general , also in agreement with the teaching of Canon Law; ct. Stephan Kuttner, Kmronistische Sehuldlehre von Gratian bis out die Dekretaten Gregors IX. (Studi e Test¡, 64; Vatican City, 1935), 254f; also A. M. St¡rkler, ''Sacerdotimn et Regnum rae¡ decretist i e prinli de(retalisti," Salesianum, xv()g53), 551, en c-1g,C.XXIILq.8 (fighting of prelates having regalia). 517 Fol.5g6, Henry quotes, with regard te [hose who could [lee hut prefer to Cake a las[ stand (m1[ pariter vivn ,t aut parifer moriantur), the passage 1 John 3: 16 (above, 1.148): 'Vine max¡me probatur illa charilas quatn Johannes apostolus commendat dicens: 'Sicut pro nobis Chrisms animan, suam posuit, sic et los d ebemus animas nost, as pro era tr(bus ponere.''' For [he passages fro,n Cícero in« others, sce fols.5g5y' and ,rq6. A fourteenth-century canonis[, Petrus de Ancharano, Consilio, ca,xxx,,n.q (Venicc, 1574), 101.148, quotes also the passage I John 3: 16, and parallels che milifia arma la (kniglrthood ) and che milicia cocieseis (clcgy). It is, said che jurist, heconling tor a cleric''et mnr[em etiam non fugere tanquam miles Christi , qui an imam suam posuit pro ovibos suis , nam et miles armatae militiae obligatur iuramento mortein non vitare pro Republica, Lit I.E.A. ex qui. cau.ma. [0.2,53(5.1).5? The allegation ¡s faulty], quanto magia ad hoc adstringitur miles cocieseis niilitiae pro Ecelesiae onitate."

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peared as "most sacred victims," bringing "that ineffable sacrifice" (illud inenarrabile sacrificium)15e of which Cato 3vas praised as the exemplary offeror. Pugna pro patria, `Tight for the fatherland," was supposedly Cato's device, for so it was found in the Distichs falsely ascribed lo him 101 Bo[h litetati and lawyers liked to refer to this maxim, apply it, expound it, and thereby ethicize the idea of patria alter the model of the suicidal pagan. With patriotic ethics, of course, Roman Iaw abounded. The lawyers could not fail lo come across that passage in the Institutes where it is stated [hat those who "fell [in batile] for the respublica are understood lo live forever per gloriam," and lo gloss en this passage in which eternal fame or glory so conspicuously takes tire place of eternal beatitude or is paired with it. Nor could they fail lo come across that law in the Digest, formulated by a Roman jurisprudent of the times of Hadrian, which said that for the sake of the patria a son might kill his father, and a father his son."" The mediaeval jurists, when interpreting Chis law, pointed out that ara action normally considered parricide was a praiseworthy deed roben committed in [he name of patria, though only when committed in self-defense.161 They did not revel in the idea of patriotic massacre as occasionally humanists did-for example Coluccio Salutati, who exclaimed: Thou knowest not how sweet is the amor patriae : if such would be expedient for the fatherland's protection or enlargement [sic!], it would seem neither burdensome and difficult nor a crime to thrust the axe finto one's father's head, lo crush one's brothers, to deliver from the wornb of one's wife the premature child with the sword.162 158 De monarchia, and the importan[ study en [hat chapter by Silverstein (above, n.151). i,s5V. J. Chase, The Disticlu of Cato (Madison, ,922), rc; and for the whole problem, of course, Poses note en Pugna pro patria ('''1 sao Notes," 281ff). 1601nst .1_5,prok; D.11,7,3J; cf. Post, op.cit, 287. r61 Ser, for Actorsius' glose en that lave, Post, 287,11 .25, and, for the canonists, 283,n.,o. See also helow, nosa63 in(¡ 178, for Lucas de Peona and Nogaret. The argument, el course, was repeated over and over again . Sce, eg., 6urandus , Speculum iuris, le , par[. iii, .112, n.se (Ven¡ce, 16o2), 111,32,: "Naco pro defensione pa[riae licitum est patrem in [erbcere."

162 Salutati , Ep., 1,,o, ed. F. Novati, Epistolario di Coluccio Salutati (Ronce, 1881), 1,28,22ff: "... ignoras quani sit dulcis amor patriae : si pro hla tutanda augendave e4,5

POLI'TY-CFXTFRFD d'INGSHIP

PRO PATRIA MOR?

This type of scholarly hlood-lu.st and overheated desk patriotism

nized Rome as their "common fatherland."185 The notion of Rome as Sise comtunis Patria changed its mcaning rapidly. Tire Canonist of the early thirteenth ccntury may liase thought of the Rome of the Aposdes as tire coturnos Patria, or of the Church as the virtual entbodiment of tire inlperium Romanum, or of ocidser, when he contradicted the Digest: "Today that is no[ so, for not al¡ are tender tire emperor, but uder tire Church."'"e The legista used the cyplter of Rome as tire communis patria for other purposes: they transferred it to the individual monarchies. That the capital city, for example, Paris, could be equated with the communis patria because Paris-France' s Rome, as it were, just as

was, on the whole. not lo Use taste of tlte more soberly thinking jurists, who woulel hace contradicted Salutati on almost every point.'"" However, liorrors justified by the nanies of God or patria are as old as tlscy are neu'_ Baldus could maintain that a soldier killing an enemy for ibe salce o[ tire patria performed no less tiran an opus (1itrztutm, bringing a sacrifice to the Creator-. And this was done in the narre of caritas-no looger, to be cure, the evangelical virtue of Charity as an expression of active brotlierly love, but its secularized counterpart: a publica caritas, as Baldus called it, for the protection of tire naturalis patria.164

Secularization liad other facets as well. It is true, crusaders fighting for the Holy Land and warriors fighting pro patria were en equal terms; but the standards of die Holy Land were transferable to secular kingdoms only to a limited extent. Other standards were provided by Rome; for what held good for Rome, the capital of the world, was to hold good also for the budding national monarchies: Roman imperial ideologies were transferred, and became applicable, to the kingdoms of France and Sicily, England and

Avignon became the Church's Rome-was "the more common and excellent city of the kingdom of France," was only one aspect of that development.'or It ivas of far greater momentum that the city concept of patria now yielded to a kingdom or monarchy concept of patria. The kingdom of France itself, the territorial monarchy as represented by the king or Crown, took the place of Rome when contrasted with a man's local patria: now France became the communis patria of all Frenchmen. "Just as Rome is the communis patria, so is the Crown of the realm the communis patria," wrote a French jurist around 1270, when summing up the opinions of the doctores legum. The idea of Rome's sovereignty passed en lo the national monarchies and with it the idea of loyalty to Rome

Spain. The Digest distinguished between two patriae: a man's individual city in which he lived-patria sua or propria-and the City of Rome, the communis patria. That is to say, every individual had his own local fatherland, but all subjects of the empire recog-

and to the universal empire.188 In other words, the loyalty lo the new limited territorial patria, tire common fatherland of al¡ subjects of the Crown, replaced the supra-national bonds of a fictitious universal Empire. In agreement with Law, one admitted that a just war could be declared and waged only by the Prince, but

expediret , non videremr molestum nec grave vel facinus paterno capiti seeurim iniicere , fratres obterere , per uxoris uterunl ferro abortmn educere ." Cf. A. von Martin, Coluccio Salutati una das humanistisehe Lebensideal ( Leipzig and Berlin, agi6), 126, who claims that [hose pagan (?) views were corrected by Salutati in his later years. loa There is no dissent mnong the jurists that war may not be waged pro patria augenda; ef. Rutiner, Schuldlehre , 255; also aboye , p. 243, for Henry of Ghent; Post, 282,n .g. Lucas de Penna, on Clo,gs{321 , 35,n.2 ( Lyon, 1582 ), p.162, has a remark concerning a warrior ' s wife: "Et pro patria filius in patrem , et pater in falium, ac vir in uxorem insurgere deben[" His allegations are D.u,7,35, and a decretal of Celestine 111 (c.2 X 3,33 , ed. Friedberg , 11,587), which of course are perfectly sober and lack any similarity to Salutati ' s theory. 164 Baldus , Consilia, 111 ,264,n.1, fol,74r: ''Qui fervore publicae charitati[s] pro tutela naturalis patriae accensus cruentissimum eiusdem patriae hostem occidit, non dicitur fratricida , sed pugnans pro patria nuncupatur opus divinum faciens plenum laudis, si quidem convenir hostiles beluas manare , et fit sacrificium creatori- ..:' Andreas of Isernia, on Feud. 11,24 , n.7 ("(tuae sic priora causa "), fo1.126r-v, has a full discussion ( roo long to be quoted here) en publica chantas, spiced with Stoic quotations , esp. Seneca.

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105D48,22 , 7,15; cf. Post, op.cit., 286,n.22 . See D.5o,1,33 , and Post, 291 , n.45, for Rome as cammunis nostra patria ( see aboye , n.i26, for Plutarch 's related expression). For the origins of that concept ( Cicero, De lege agraria, 2, 86), see Tierney , Conciliar Theory, 140,11.1. 168 See tire Decretist who composed the Apparatus " Ecce vicit leo" (2202-1210), quoted by Post, 301,1122 : " Odie tatuen non lit, quia non sunt omnes sub imperatore, sed ecclesia.. ... 167 See Post , 291, nos 45 , 46, and 293 , n,54, quoting Pierre de Belleperche . The sane was true with regard te Avignon . Sea Baldus , en D.5,1,2,3,0 . 5, fol.258v Rome is where pope or emperor reside; aboye , n.35): . tatuen ibi [ Romel non possunt conveniri legal¡ ... et hoc est notaudum pro clericis , quia vadunt A vinionem, an possint ibi conveniri , quia non habent alium iudicem quam Papam . 168 Post, ego , quoting Iacques de Révigny ( n.44): ", . , quia Roana est communis patria, sic corona regir¡ est communis patria, quia vapor." See aboye, 11.35.

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POLITY-CENTERED KINGSHIP

added "unless it be so that che patria has no superior,"' and from the premise or fact that "today che empire is in pieces," one concluded that every Prince est in patria sua im perator.'T° It is evident that the equation of Rome as communis patria with tire national kingdom as communis patria fans in with che general trends of that age-with che new theories concerning kings not recognizing a superior and kings being emperors in their realms nl And to chis cluster of ideas [here belongs also che cede of patriotic ethics which then was built up and remained conventional until the present: °Justice it is lo defend che patria and che brothers,""2 for the cause of the fatherland would always be the just cause; "virtue demands to live for the patria and procreate children for che patria";172 or "Ve must ]ove tire Prince and the respublica more chan our father,"174 and similar maxims. It would be wrong lo overhear in chis symphony of theology, scholastic philosophy, and law the voice of humanism, or lo underestimate the influence of classical literature en the development of Western patria ideologies. Nothing would be easier than to extract many relevant passages from the writings of Petrarch, Boccaccio, Salutati, Bruni, and others, and to show how the secularized Christian notions of martyr and caritas henceforth were sided by the classical notions of heros and amor (patriae). But it would be superfluous to spread out more material here just to preve what is self-evident: that humanism had some easily recognizable effects en the cult of patria and en nacional self-glorification, and that the final heroization of the warrior who died for the fatherland was an achievement of the humanists. There is no doubt but that the Roman amor patriae-resuscitated, cultivated, 190 See Ileydte, Geburtsstunde des souver¢ nen Staates , 73, who quotes "Ulrich ven Strassburg, Summa theologiae , v0,3, Cod.Vat,lat." 'ro See Philip of Leyden, De cura reipublicae, Tabula Watt., rubr. vn,1o5, ed. Fruin and Molhuysen , p421: ''Quomodo intellegitur ,' scissum est imperium hodie' et 'quilibet est in patria sua imperator '7' The summary refers m Casos 1x,28 (p.q4), where, however, che word patria is not repeated. 171 This, of course, did not escape Post, 2921, whose second note ( 296ff) deals with the "Rex imperator - theory in particular. 172 Lucas de Peona, on C.lo,7o•1,it.7, P 345 "Ideo, iustitia est patriam et socios defendere." va Lucas de Peona, on C.10,31¡g2),g5,n.2, P .162: "Pertinet autem ad virtutis officium, et vivere patriae et proptel patriam filios procreare." rlc Andreas of Isernia, nn Feud.11,24 ("Quae sit prima causa''). 71.21, fol. 13c "Ante omnia , principem et rempublicam plus qumn patrem diligere debcrnus"

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and glorified so passionately by the humanists-has moulded the modern secular mind,11e The humanistic influence, however, became effective only alter, and not before, the idea of patria had taken shape and had been ethicized by both theology and jurisprudence. The original quasireligious aspect of death pro patria as a "martyrdom" clearly derived from tire teaching of the Church, from the adaptation of ecelesiastical forms lo che secular bodies politic. This source was tapped persistently, especially in France where the leading politicians began lo deploy the forces of religious sentiment systematically and malee them subservient to che undisguised political goals of the new corpus mysticum, the national territorial monarchy. It is of great interest to note how unimportant and almost absent (if we except Roman Law and Aristotle) vas the humanistic influence during the first great outbreak of a compact patriotism which followed in che wake of che "crusades" launched by King Philip IV against Pope Boniface VIII and che Knights Templar. This struggle shows, for che first time, the new pátriotism at work. All the-more or less casual -argumenes which theologians and jurists had previously put forth lo justify on religious and legal grounds the devotion to and death for any patria, were on chis occasion, so to speak, drawn together and summed up and placed as a coherent system and consisten [ ideology in che service o£ a clearly defined patria: che nacional nfonarchy of France . It is not intended here co rehash well known details of a well known process. An interesting document, however, which carne lo light only in recen[ years, may demonstrate how che currents coming from many wells could flow together, and may illustrate at the same time some new factors relevara to the present investigation. PATRIOTIC PROPAGANDA

In 1302, alter the bull Unam Sanctam had been hurled against the secular governments at large, and against France in particular, aher Philip IV had summoned the first Parliament of the three estates of France to bolseer Iris position againsi che pope by a public manifestation from the whole kingdom, and alter che king, 171 See Jacobs, "Vaterlandsgedanken" (aboye, 7.124); for Petrarch, H. W. Eppelshcimer, Petrarca ( Bonn, 1926), 137ff, 203( 1; for Salutati , ahoye, 0.162.

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POLITI-Ce.4'TLRPD KIN(151IP

the Prench bishops, following che doctrines of the canonists, viere nevertheless bound lo admit in a letter to the Holy See that the ecclesiastical privileges and immunities had to he suspended velen all [he forces of France viere mobilized ad deJensionem regni el patriae 'ro Actual ly another great French jurist, William Durandus, Bishop of Mende, liad discussed in his Speculttm inris, some twenty years earlier, the extraordinary steps a king veas entitled to take pro defensione patriae el coronae-a not uncommon juxtaposition of "fatherland" and "Crown" which naturally made patria synonymous with the whole kingdom or body politic over which the "Crown" or its bearer ruled.'ao Within chis general propaganda action-uniting the king, the legists and the reluctant bishops- the sermon of the unknown Prench cleric of 1302 has its place.]`' He preached en 1 Maccabees 3: 19-22:

in his disastrous campaign against the craftsmen and peasants of Flanders, had suffered tse tenific defeat at Courtrai (July i i, 1302), an unknown French cleric delivered a sermon on the departure to war o[ a royal army. The sermon may hace becn designed to intensify the political propaganda which the king was then releasing. Philip ordered prayers throughouf the (ountry; he made, in a somcwliat moclcrn fashion, a general appcal to the amor patriae of all his subjects: he raised new funds for the continuation of the war, and asked subventions froto all, inclttding the clergy, "for the defense of tite native fatherland."I" That the terco patria then did not mean the native hamlet, village, or province, but meant the whole kingdom of France, is not only implied, but this time also stated expressis verbis by one of the outstanding legal councilors of the Crown, William of Nogaret. He repeatedly declared that he, Nogaret, like everyone elle, was ready to defend, together with the Catholic faith and unity of the Church, "his king and his fatherland, the realm of France," and that he himself as a knight reas willing lo die to defend patriam meara regnum Francia`,'rr explaining on one occasion-like other jurists-that in defense of the fatherland it was a merit rather tiran a crime if a man killed his oven father.1ra Without going to these extremes.

They march against us in the plenty of pride and lawlessness... . We, however, will fight for our souls and laves; and the Lord himself will crush them before our faces.

lt was a suitable text for a patriotic proclamation and it had been selected by others before, a text which wotild lend itself probably in any century as an ideal motto for justifying any war in a selfrighteous fashion.'s'

170 Dom Jean Leclercq, "Un sermon prononcé pendant la guerre de Flondre sous Philippe le Be¡." Revue du rnoyen dge lalin, 1 09,15), 165172. The sermon, as noticed oí William oí by Leclercq , 165, n.2, also 176, n.8, is closely related to sermons It should be coroSauqueville ( see Kiimpf and Miss Coester; aboye, nos . !3g, i3B). pared, however , also with ideas oí the official propaganda and oí speeches made by Nogaret and other legists . For the French propaganda action, see Leclercq, 166,n,6;

aro Dupuy , Histoire du différend , 26, the letter oí the Archbishop oí Reims to Boniface VIII (1297), which begins : " In hac terrestri patria Ecclesiam giilitantem constituens providentia conditoris ..." Thereafter the writer toros to l he narrower secular patria , the Kingdom oí France, where the king and magnates " cuco munes tuco singulos incolas dicti regni ad defensionem regni el patriae ... votare praetendunt." Cf. Wieruszowski , Vom Imperium , 173; and, for the canonists en taxation oí the clergy in a case oí necessity , Post, 2841, nos-,6-s8. aso See Durandus, Speculuni iuris, rv,part. iii,§2,n.31 (aboye, n.16t): In the case oí war with a foreign power , the allegiance to one's oren king precedes that to a baron, "nato vocati sunt [tenentes ] ad maius tribunal ... Et hoc verum est. nam Res, qui haber administrationem regni, vocat cos pro communi bono, scilicet pro defensione patriae et coronae . unde sibi iure gentium obedire tenentur Hartung, "Die Kronc ," 21,n.2, hesitated to accept this quotation which Perros , Institutions publiques, 4oof, had cited without locating fu Phrases such as pro corona regni defendenda, ltowevcr, were anything but rara in that period; see, for en example oí 1197, Strayer, '' Defense," 292 , 0.4; also my article "Pro patria morí;' 483,0 .40; and ahoye, n.168. 181 See Leclercq , " Sermon," 166. 182 Leclercq , " Sermon;' 169 , 12-26. Henry oí Chent (aboye, n.i 55), Quodlibeta, xv,gu.t6,fo1 . 595 (last lino), regrets that the Acconftes did not resist the infidel by placing their confidence in 1 Mace. 3 : tqf; he adds that, had they confided in those words, they might hace thought also of Psalm 115 : 15: "Pretiosa in conspectu domini mora sanctorum eius." In other words, the Acconites, if killed, would hace become martyrs and saints.

also aboye, 0,128. Ira The phrase turns up time and again in NogarePs " selfdefenses " in matters concerning the attempt on Boniface VIII at Anagni, and in his prótesis against that pope. See, e . g., Robert Holtzmann , l1'ilhelsn van Nogaret ( Freiburg, 18gS), 268 (Beilage 1x,3 ): "... uror et estuor in immensum etenim pro fidei catholice de: vitando por¡fensione , pro sancte matris ecelesie unitate servanda scismatisque culo ... , nihilominus pro defensione domini mci regís ac patrie, regni Francorum.'' Fistoire See also Nogaret 's pica to Benediet XI in 1303 ( next note); further, Dupuy, me¡ patriaeque do différend , 310, §25 ("pro defensione quoque salutis dicti domini mea`, regni Franciaé '); similarly p .312, §37, and 585, where Pope Clement P quotes do ninum those words (". . dictus Guillelmus de delito fidelitatis eral astrictus suam Regem praedictum defendere . . . nec non el patriam suam regni Franciae"). Strayer for addiSee also Strayer , " Defense;' 294 , n.6 (I am indebted lo Professor tional information). 178 Dupuy , Histoire du différend, 309, §20 (Nogaret's plea lo Benedict XI): "Item cum quisque teneatur patriam suam defendere, pro qua defensione si patrem occidat, meritum habet nec poenam mereretur [ see aboye , nos.i6off], nedum mfhi licebat, sed necessitas incumbebat patriam meam , regnum Franciae ... defendere et pro ipsa detensione exponere vitam meara."

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To prove the righteousness of the French and the just cause they viere fighting for, the preacher started by exalting che saintly The French character of the nobiles et sancti reges Francorum. kings, raid he, viere saints (i) for the perfect purity of the blood royal which was holy because purity itself was a kind of holiness (puritas quae est sanctitas quaedam), (2) for their protection of holiness with regard to che Church, (3) for their spreading of holiness by siring new saints, that is, holy kings, and (4) for their working of miracles. These arguments were current and ever repeated in the years of nascent dynasticism in France when the king' s sancti praedecessores were invoked with the same case with divi praedewhich in the Hohenstaufen circles the emperor's reges christianissimi cessores were remembered.183 That the French were che hereditary special protectors of the Church was an ancient claim which, for obvious reasons, had to be reiterated in a campaign pretending to protect the Church and the true faith , the "king's against the pope. The royal miracle of healing scrofula ovil," was a popular topic of preachers and orators to prove the French king's general superiority over other kings and his spiritual sovereignty within his realm.184 Only che claim saying that the of theology at che University of Paris —aseo, e .g., for che answer of che masters de l'atlaire des Templiers (Paris, dossier Le (March 25, r3o8), Georges Lizerand, sanctorum predecessomm vestrorum mores laudabiles irritantes." 1923),62: "... vos regia el papali, c.xx,, ed. Leclercq, 246,22: "TenueCE Jean de Paris , De potestate sancti" The sermons of William of Sauqueville runt . . . regonas Franciae reges are full of those ideas. See also Schramm , Frankreich , 1,228; Bloch, ) (above, n.138 ; K3mpf, Pierre Dubois, 59; Wieruszowski, 1, and passim Rois thaunaturge.s, 214,n intention of the preacher is obvious when he Porra ¡roperium , 1451E The dynastic says (Leclercq, 169, 15): "aliis enim sanguinibus foedatis per spurios et spurias, sanguis regum Franciae purissimus remanet, cum a Priamo primo eorum rege usque nunquaas spurios est exortus ." For the divos titles ad stmo , reges scilicet XLVIII, , che sanctus titles, including of ihe Hohenstaufen , see Erg.Bd ., 222f. To be cure are not missing in che Hohenstaufen sorroundings ; cf. Erg.Bd-, sanctus Friderinas, for Frederick II, ed. Kloos , in DA, xi of Bar¡, in his encomium 209; also Xicholas Hec est virga de radice (1954), 169ff, uses almost excltisively saintly metaphors (" gracia Dei Iesse, id est de aso [los") and apostrophes ("Ave, domine iroperasor, el regia domos Franciae pleno, dominas tecum" ). Vice versa, che expression divina -Baldeschi, " Rolandino Passais found olso, at Ieast in Italy; sea, e.g.. Luigi Colinf la slarin detl 'Universita di Bologna, per mernorie e gerii e Niccoló III," Sto di v111(1924), 181f, rcferring m A.o. 1277.

, casa hi solf reges rs+Leclcrcq, " Sermon," 169 ,24: "Quarto sanctitatem declarant vivi miracula operentur el ah illa inhrmitate curen[." Concerning Iba miracle of under Philip IV, see Bloch, Rois healing and the French political propaganda iso, n.1, for Nogaret and Plaisians; u6, n.3, for che tuyal surgeon tlraurooturges , the Surgeon with the French king); Henry of 5fondeville ( comparison of Christ contaming also a comparison with 129f, 11 .1, for che Quaestio in utramque parten (

252

sancti reges Francorum also "begot holy kings" seems to carry slightly further than usual some essentially familiar'ideas of that age; it may have been inspired by Vergil, who called the young Trojan Ascanius, Aeneas' son, a "son of gods and sire of gods to be"-a verse which had been effective in Antiquity and which now was applied, not unsuitably, to the French dynasts who, according to popular sagas, could claim Trojan origin and trace their descent from King Priam.184 From tite holiness of che clynasty che preacher could easily make the deduction a fortiori that the cause of "holy kings" could not be but che cause of Justice herselE Naturally, the Flemings were fighting for an unjust cause, since che French viere fighting for the just one- cum autem nos bellemus pro iustitia , illi pro iniustitia. The wicked Flemings were almost lo be congratulated, though, because through a war carried against them by a king who was a saint, they had a fair chance to be, as it viere, 1iberated" from their injustice. Better to be conquered by the holy king of France iban by some wicked philosophy of life or by Evil itselfan idea, rellecting the doctrines of scholastic philosophy, which conveniendy, put the Flemings in che position of political and moral "infidels" and made che war a crusade for justice.1e8 Moreover, che preacher asserted that cite king's peace-the necessary corollary of che King's justice-was the peace not only of che kingdom of France but also of the Church and of Learning, Virtue, Justice, and that che peace of the realm would permit the concentration of forces for the salce of che Holy Land. To Christ. Plaisians has been suggested as author of this tractate ; in fact, che words ,perla miracula 0f che Quaestio ate found also in che Memorandun of Plaisians); 130, for the historiaras ; 131, for William of Sauqueville See also Kümpf , ' Pierre Dabois, 34,38,98. rea Leclereq , " Sermon;' 169 , 21: "... sa nditatent generan [ cursi generen [ salados coges." Seo Vergil, Aeneis, 1x,642: "dms genite es geniture deos." See also Seneca, Consolalio ad Marcurn, x1 , 1: "Cacsares qui (lis genili deosque genituri dicuntur", ánd che inscription CIL, 111, 710 (Diodetian asad Maximian ): " düs genio et deorum cneatores." Sce Alfbldi, "Insignieo," 84,n.2, for additional places. The preacher himself had previously referred to the French kings' descent from Priam (above, n.a83), which makes che adaptation of che Vergil lino nos unlikely ; see, for che French Trojan legend, Leclercq, "Sermon;' 567,0.12; ako 170,91-102.

rss Leclercq, "Sermom" 170,78ff, and 172,163ff: "Someta comas victoria ese su, vitiis debellatis , secundum rationem horno vivat , quia si ipsi [Flamengil volunc ab injusticia vinci, orahimus ni a potestate el exercitu regio devincantur . Melius est enim eis a rege vinci quam a malo et in injusticia perdurare ." For the underlying scholastic doctrine, see Harry Gmür , Themas von Aquino und der Krieg ( Leipzig and Berlin , 1933 ), 7f and 46.

2:,53

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PRO PATRIA AMOR!

stress the cultural and educat ional tnission of France liad beconie a fad, at once aggressive and politically importan[, in aii age in which France was generally, even by forei,ners. given c edit for having almost monopolired t te sludiini, jusa as Italy liarbored the sacerdotiurn and Germany the imperium.117 Also, to make the plight of che 1-Ioly Land a lever for foreign and honre policy was a stratagem used incessantly by France in the second hall of che thirteenth century, and by others as tcel1.'°° Finally, the oneness of French issues and Church issues, ahvay's strongly emphasized, was a most effective means of political propaganda in che days of Philip the Fair: Pax regis, pax vestra; salas regís, salas vestrae90 was the key-note for nationalizing che clergy and gallicanizing the Church of France. Hence, it was not difficult for che preacher to draw his conclusion straightforwardly:

Here a general equation of anything with cverything has been achieved: war for the king, war for France, war for justice, war for culture and education, war for the Church, war for the Christian faith-al1 [hese were interrelated, interdependent arguments placed on the sane general denominator. We can hardly be surprised when tve find another preacher of those years proclaiming that "properly speaking, no kingdom should be called regnum Franciae except che Kingdom of Christ and the blessed," thus projecting che holy realm of this world finto the odrer world as che model of ehe regnum coelorum.'11 Already we seem to hear the iron-clad maid of Domremy saying: "Those who wage war against the holy realm of France, wage war against King jesus,"182 Even that bulky freight of moral-political ideas interspersed with religious values was not beyond enlargement, for che preacher was capable of integrating yet another argument. As might be expected he demanded from his compatriots readiness to suffer death, if necessary, for che holy king of France. He demanded such willingness nos on the grounds of the old feudal ties between lord and vassal , but on che grounds of "natural reason" and of che organological concept of che state.a03 Natural reason, argued the preacher,

He that carries war against che king [of France], works against che whole Church, against che Catholic doctrine, against Holiness and Justice, and against the Holy Land.lss 1s' Leclercq, "Sermon," 17o ,63ff: Fax regis est pax regni ; pax regni es[ pax ecelesiae , scientiae , virtutis et iustitiae , et est acquisitio Terrae Sanctae ." For the translatio studü from Athens and Rome to Paris, see the interesting study by Herbert Grundmann , " Sacerdotium - Regnum-studium ," Archiv für Kulturgeschichte, xxxtv (1 951), 5-22, who , without exhausting [he subject, analyses the trichotomy upon which the trac[ates of Alexander of Roes hinge ; see, aboye all, Noticia seculi, e.12 ("sacerdotium , regnum et studium una esset ecclesia "), ed. Grundmann and Heimpel, 84 ; also Memoriale , c.25, p48: "... in sicut Romani tamquam seniores sacerdocio , sic Germani vel Franci tamquam iuniores imperio, et ita Francigene vel Gallici tamquam perspicatiores scientiarum studio ditarentur ," whereby the triad seniores.iuniores- perspicatiores represents not the author 's independent phrasing, bus a formula going back tu I'riscian , Instituciones grarnmaticae, t,1 ("grammatica ars ... cuius auctores, quando sunt iuniores , tanto perspicaciores "). Alexander el Roes [hus fans in with the catchword of che idea of progress in the sath and i3th centuries . For the studium in French political propaganda , see also Scholz , Publizistik, 427ff ; Kern, Ausdehnungspolitik , 51ff; K3ntpf, Pierre Dubois, 97ff. 'S8 I[ is sufficient here lo recall che connections hetrveen the crusading idea and che various efforts to secare the imperial crown for the French dynasty; see, e.g., che Memorandum of Charles of Anjou (1273), inserted in a relation of French ambassadors to the Holy See, in MCH, Const., ni, No.618, pp. 587f; or [he Memoriale of Pierre Dubois (' 308), ¡bid., tv , No.245, pp.2osff, where, elosely akin [o his suggestions in the De recuperatione [ erre rancie ( cd. Ch.-V. Langlois [Collection des textes, ix], Paris, 1891 ), the crusade serves as a pretext for devetoping a full program for French world conquest. 189 Disputatio ínter clericum et militen, in : bfelchior Goldast, Monarchia Romani imperü (Hannover , 1611-13 ), 1,i6, quoted by Baethgen , in: ZfRG, kan.A bt., xxiv (1935) , 380 (review of Wieruszowski , Vom Imperiurn). See aboye , n.187, for a similar remark in Leclercq, "Sermon ," 17o,631f. 190 Leclercq , "Sermon," 170,65ff: 'lgitur qui contra regem invehitur , laborat contra totam ecclesiam , contra doc t rinam catholicam , contra sanctitatem et iustitiam et Terram Sanctam."

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lo% see che sermon of William of Sauqueville en the [ext lit erunt signa in sale et luna (Luke 21: 25), in which he compares the two banners of the king of France-the lilies and che red oriflamme -with che two advera tus of Chrisq [ ha[ is, che Incarna [ ion and che Second Coming: "Proprie loquendo nuilum regnum debe[ vocari regnum Francie nisi solum regnum Christi e[ beatorum : Sola illa que sursum est, Jerusalem libera est ( Gal. 4: 26 ). Omne regnum mundanum est regnum servorum. Merito summus pontifex maior in regno mundo vocat se servum servorum Dei. Modo rex Francorum Christus in duplo adventu sao usos es [ et utetur duplici vexillo. Vexillum enim adventus Christi fuit depictum cura florihus liliorum. Signum enim adventus su¡ primi fui[ Ros vel lilium virginitatis ... Set vexillum adventus secundi, quando veniet contra adversarios ad peccatores debellandum , erit totum coloris sanguinei .... Primum vexillum non indicahit furorem sed pacem et mansuetudinem regis [ Franciel.... Sed secundum vexillum sanguineum ab co indicabit furorem regnum, quod non erit ita audax , qui non tremat totus." See Coester, Kdnigskult in Frankreich (aboye , n.138 ), p.viii; Bibl. Nat.MS lat.s6495 , fol.g9r. 192 "Tous ceulx qui guerroient au di[ saint rovaume de France guerroient mntre le rey Jhesus....- Cf. Jales Quicherat, Procés de condamnation el de réhabilitation de Jeanne d'Are ( Paris, '841 -49), v,126. 1sa The ratio naturalis pervades all the documen[s of cha[ period ; see, e.g., Wieruszowski, Vom Imperium, 173, n.107, ,86, n .1 46; 198, n.s83 , quoting places such as Philip's decree of embargo en money, weapons , horses, etc . ( 1296 ), which the king introduced because naturalis ratio suggerit el aequitas persuadet (Dupuy, Histoire du digéreud, 's); or Nogaret' s selfdefense of 1304 in which he asserts (ibid., 2431) that every Christian , even a privare person, should he held, ley che authority of divine and human Laws, to resist failings of che spiritual and secular powers: et si [sollo tex lene expri meres , satis hoc ratio naturalis ostendit. Passages

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POLITY-CENTERED KINGSHIP

dictates that all limbs of the body not only be directed by the head and serve it, but also be willing to expose themselves for the head. Tire head of the realm is the king. Therefore, any parí of the realm that assails the king, assails the head and ventures to destroy the whole body and finally himself.'°' To fight for the body politic of France meant, at the same time , to fight for the cause o£ justice as represented by che holy king. Consequently, to those killed on che battlefield for that just cause , spiritual rewards were promised such as would be granted to che crusader. Since che most noble kind of death is the agony for justice, there is no doubt but that [hose who die for the justice of the king and of che kingdom [of France] sball be crowned by God as marlyrs.11'

In other words, death on the battlefield for the political corpus mysticum headed by a king who was a saint and therefore a champiop of justice, became officially "martyrdom." It equaled che self-sacrifice of [he canonized martyrs for che corpus mysticum of the Church, the head of which was Christ. The "agony for justice," exemplified by Christ, was the price paid for the national martyr's such as [hese could he multiplied o0 end. This ratio naturalis is related lo, though nos quite idenlical with , che ratio prepotens ( aboye, Ch.1v , n _54) of Frederick 11; che latter derived from Roman Law and was almost a personification , whereas che former betrays the influence of scholastic and Aristotelian thought. 11a Leclercq , ' Sermon," 169,52 ff: '11oc dictat ratio naturalis , aun dictas quod omnia membra dirigantur a capite, subserviant capiti el pro capite se exponant, et ideo membrum quod contra caput inveheretur , niterelur tonu i corpus destrucre et per conscquens seipsum. Caput autem regni rex est, et ideo quaeaunque pars regni contra regem invehitur , mento est punienda ." The argument of self-destrucdon is frequently found in that connection ; see Dupuy , Histaire da difjdrend, 21[ (helow, 0.200); Duhois, .Summa, ed, Klimpf, 53 , 28 (Kmnpf, Pierre Dubois, 72,n.16): "Qui contra re ni ublicam vadit, se ipsum impugnar ." Vire versa , it col (1(1 he said that "qui se ipsum impugnat , contra rempublicam vadit;' that is, with regard te suicide which was treason.

1es Leclercq, " Sermon," 17o ,871 'Cum enim nobilissimum moriendi genus sic agonizare pro iustitia (Ecclus. 4; 33 ), non dubium quin isti qui pro iustitia regis et regni moriuntur , a Deo un niartyres coronentur ." See Nogaret ' s self-defense of 230t ( Dupuy, Histoire da dipdrend, 250, §60):.. .. concludit dictes Guillielmus se in praemissis bono zehi Dei et fidei ac defensionis Ecclesiae sanctae Dei, et specialiter sui domini Regis el regir¡ Franciae . . ac legitime processisse , agonizando pro ¡ ustitia, pro Romana Ecelesia , pro Republica ... ac pro sua patria dicti regni ac pro seo domino Rege Franciae ... ... The enumeration of faith, Church, justice, rcalm , fatherland, king is conmino to both the Sermon and Nogarebs selfdefense; die phrase agonizare pro iustitia , though going back tu Ecclus . 4: 33, is very specific . The verb itself mearas "lo struggle " or "fight," mainly, however (according to Du Cange , Glossarium , s, agonizare), in a rehgious sense; that is, "lo sufer agony ," especially with regard lo Christ and che martyrs . The notion has been transferred here co che patria.

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crown and palm branch, even though '' justice" meant , purely and simply, anything that cuas expedient, according lo natural reason, for che body politic of France and its head, che holy king. In the garb of justice che idea of "reason of state" began to betray itself.1" In all chis, as throughout his sermon, che preacher echoed only thoughts which others, too, had expressed, including che king and his councillors. Quisque teneatur patriam suam defendere, "Everyone shall be held lo defend his fatherland," declared William of Nogaret,107 a statement which certainly agreed with legal opinion and with che customs of France around 13oo. Ever since che battle of Bouvines in 121.1, tlte armed contingente of citizens formed part of the royal armies. In addition to the third estate, howevet, the clergy loo ranged as "limbs" of the national body politic of France, and hke ordinary citizens they liad to contribute at leas[ financially to Che burden of defending tire French patria and with it che Gallican corpus mysticum.'°, Philip himself threatened to confiscate, in 1302, che possessions of those refusing lo observe the king's orders of embargo and thus to contribute to the defense of the realm, because those "deserters of che fatherland' s defense" were not worthy to enjoy proceeds and returns resulting from the efforts of all and from the burdens shouldered by others.18° The organic-corporational concept, looming in back of King Philip's decree, was actually asserted with greatest precision in a pamphlet of 1296, pretending to be an answer lo a papal letter in connection with the taxation of the clergy. The pamphlet itself was appar196 That the expression ratio status, which Henry of Ghent uses ora one occasion, may be understood as "in atiticipation oí 'reason of state,"' has been pointed out by Post, 'Statute of York," 421,n.t6, who adds, however, that status meant the common welfare, and not [he personified state. 197 Aboye, n.i78. lss Aboye, n.179. 199 See che king 's decree of embargo of 1302 (Dupuy, Histaire du diffdrend, 87): .. dignum est enim et compctens , ut defensionis patriae desertores bonorum habitatione priventur et excludantur a Eructo , qui opera recusant debita supportare, et nihilominus transgressor hu¡us extra gratiam nostram positus, et indignationem illa prorsus se nostrum el regni nover ¡t inimicum." Those exporting money, weapons, horses, etc. thus forfeited their possessions and were threatened with the "king's indignation" and loes o ( the ''king's grace." Por tale interesting history of those sanetions , which, by that time, had completely eclipsed the spiritual sanctions, whereas che imperialized papacy of the eleventh century introduced che notion of indignatio papae , seo Rudolf KSsiler, Huldentzug ate .Sirafe (Kirchenrechtliche Abhandlungen , oxn; Stuttgart , tolo); aleo foachim Studtmann , - Die Pbnformel der mittelalterlichen Urkumlen," AUF, xn('932 ), 302,32of,32dlf, and passim.

257

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POLITI-CE.'`'TERFD KINGSI1IP REX ET PATRIA

ently composed by one of thc royal legists, probably Peter Flotte,

William of Nogaret asserted more than once that he was ready ro die pro rege et patria, lle seas, on one occasion, even more specific when he said that "by bis oath of fealty he was astricted to defend his Lord tire King .. as well as bis patria, che kingdom of France."2D^ What Nogaret mean[ is obvious: as a miles, a knight, he vas bound lo defend his feudal lord, and as a member of thc body politic of France he, like every other Frenclunan, tras oblige<1 to defend chis very body, the patria. That being a Christian he was held also lo defend the Church was repeated by Nogaret over and over again; bus this point is less relevant here. The formula pro rege et patria, °for king and fatherland," survived until modero times; normally it would nos llave been felt-in che rwentieth century as little as in the thirteenth-that in fact ovo different strata overlapped and two different obligations coincided: one feudal, and che other public. After all, che feudal lord was, at che same time, the head of che body politic, and what difference did it make whether a man offered his ]¡fe to che "head" or lo thc "limbs" or lo che "head and limbs" together? It would be difftcult to tell where exacdy che une of separation should be drawnand yet, che possibility of a conflict of obligations was certainly

who bluntly declared: Depraved is the parí that does nos conform n'ith irs whole, and useless and quasi paralvtic a limb that refuses lo support its own body; layman or cleric, nobleman or man el low birth, whoever refuses ro come lo che support of his head and his body, that is, che lord king and the kingdom jof Francej, and lastly of himself, proces to be a non-conforining part and a useless and quasi paralytic limb.=0°

The royal legist tlms stigmatized "non-conformance with che body politic of France" as an offense almost of laesa maiestas o£ which, according to this interpretation, the Roman Pontiff had tried lo make the Gallican clergy guilty. To parry [hose efforts, che French jurist drastically called upon che organic nature of the French kingdom. The Gallican clergy, which together with che French laity formed che "Gallican Church," was exhibited as an integral part of che body of patria-limbs of the French body politic, no master what in other respects the clerics' place may hage been within che mystical body of che universal Church. By thgs levelling che Gallican clerics lo the status of French nationals che authpr succeeded in transcending, at leas[ politically, che dualism o£ of che Church, bus clergy and laity, not by the corpus mysticum of che French patria.'-1 The by che mystical corpus politicum che corpus mysticum corpus mysticum patriae was set over against ecclesiae.202

nos precluded'°4 Things had a slightly different aspect from che point of view of for che king. He could fight and die pro patria, bus nos pro rege, himself. He might, in that case, die for the dynasty, for the succes-

différend, 21f): 200 See the pamphlet Antequam essent clerici (Dupuy, Histoire du "Et quia turpis' est pars, quae suo non congruit universo, et membrum mutile el quasi paralyticum, guod corpori suo subsidium ferre recusar, quicumque, sive derici sive laici sive nobiles sive ignobiles, qui capiti suo vel corpori, hoc est domino regi et regno, imo etiam sibimet auxilium ferre recusan[, semetipsos partes incongruas et membra inutilia et quasi paralytica esse demonstrant. linde si a talibus pro rata sua subventionum auxilia requiruntur, non exactiones vel extorsiones vel gravamina dici debent, sed potius capiti el corpori el membris debita subsidia" See aboye,

sion to che throne; or for che "Crown" and che "Royal Dignity," provided that he should choose to fight at all. That che mediaeval, king himself went lo battle and brandished his sword was a master of course, at leas[ in che West. This ideal of a fighting king was, te Pope Benedict XI and its various repetitions. Philip IV, at che l'arliament of Tours, in 13o8, said: "... qui sumos unum corpus regnaturi cum co [sc. Domino Salvatorel pariter" (Lizerand, Dossier, 104; also 184, for a similar uttcrance of Plaisians ); these passages, however, do nos refer te the king's oneness with the body of Chrisq as Wieruszowski, Fono Imperium, 147, and others seem co assume, bu[ te che futura oneness of all Christians w'ith Christ.

11.194. 201 See, for Antequam essent clerici, Scholz, Publizistik, 359ff; also, \ieruszowski, ,83f, who rightly emphasizes that che author of che pamphlet Poro Imperium, energetically brushed aside the curial doctrine that tried te identify che Church body with the hierarchy ("non solum est ex dcricis, sed etiam ex laicis'). See also Gallikanismus im 13. Jaltrhundert (Historische Studien, Kurt Schleyer, Anfünge des 314; Berlin, 1937), 91f. 202 The ecclesiastical corpus mysticum doctrine was quoted very often by the Galicana was one of che most French legists te demonstrate that the ecclesia différend, 243f, 585f, important members of that body; sea, e.g., Dupuy, Histoire du and passim. On che other hand, che assaults of Pope Boniface VIII were often rejected with an organological argument ("qui tangit aurem hominis, roturo homi309, §ig, Nogaret's plea nem tetigisse videtur"); cf. Dupuy, Histoire du différend,

258

MORI

203 Aboye, n.177.

(Für 204 The formula pro rege el patria, which survived in che Prussian army Kdnig und Vaterland) until che recen[ past, brought about contlicting obligations in igiS, when the officers felt free te serve che res publica only after che flight of William II to Holland, when their "feudal" oaths of loyaley became obsolete. A similar situation arose in 1945, when che personal oath bound them against the patria.

la,

259

POL!TY.CENTERED KINGSIIIP

PRO PATRIA MORI

on the whose, unquestioned in the thirteenth century. In 1283, the kings of Naples and Sicily, Charles of Anjou and Peter of Aragon, were ready to carry out their political differences by means of a duel.201 The jurists claimed that the man waging war for the common good of the realm, was also the one most worthy of the crown of tlle kingdom.208 The French people, in 1308, took it for granted that their king would lead his arury lo war sus le peril de votre vie.207 It would be easy lo add scores of similar utterances picked at random from the writings of the humanists.208 Nor is there any lack of fighting warrior kings in the annals of che later Middle Ales or the Renaissance. Actually, one of the philosophically most interesting discussions about a king's obligation to offer his lile pro patria, which combined traditional arguments of the thirteenth and fourteenth centuries with humanistic ideals, carne from the pen of a late-mediaeval author, Enea Silvio Piccolomini, later Pope Pius II. This learned humanist dedicated to the Hahsburg emperor Frederick III, in 1446, a tractate the title of which-De orto el auctoritate imperii Romani-betrays its descent from the political literature of the preceding century.200 In t11is pamplilet, Enea Silvio discussed among other topics wars and emergencies of the state. In traditional fashion he claimed that in case of a necessitas of the commonweal the Prince was entitled lo take away the private property even of meritorious citizens. The Prince, said he, may demand ad usum publicum even the lile of a citizen, " lince we are not born for ourselves alone."110 He reminded the emperor

of illustrious men arad women who for the sake of a cominunity, a cremo, a people, liad been sacrificed, and recalled in that connection jonas and Arion, the Roman Curtius and the Greek Iphigeneia: Expedit enim unum hominem morí pro populo, "It is

205 The source material for chis duel of kings has last been summed up by ' Johannes Haller, Das Papsttum : Idee osad Wirklichkeit ( Stuttgart , 1953), V,341f. Cf. A. Nitschke, in DA, xu (1956), 184. 207 Lizerand, Dossier, 88. 209 Post, op.cit., 284,11 15. 208 See, for an early example , Gerbert of Reims, Ep. 183 (to Otto III), ed. J. Have[, Loores de Gerbert ( Paris, 1889), 168: "Et quaenam certe majar in principe gloria ... quam ... scipsum pro patria, pro religione , pro snorum reique publicae salute maximis periculis opponere." 2°2 Aeneas Silvius Piccolomini , De orle et auctoritate imperü Romani, ed. R. Wolkan, Der Briefwechsel des Eneas .Silvius Piccolomini (Fontes rerum Austria(arum, LXVII [Vienna, 1912]), 8ff; ed. Gerhard Kallen, Aeneas Silvius Piccolomini als Publiziat (Stuttgart, 1939). 52lf, gro De orle, ed. Wolkan, 18; ed. Kallen, 8o,383ff: "... nempe liberum est imperatori, non solum homini nequam sed etiam viro bono ac de re publica bene merito, proprium agrura, proprias domos propriasque possessiones auferre, si rei publicae necessitas id expostulat." For the principie Necessitas non habet legem, sea c11, De consecr., D.t, ed. Friedberg , 1,1297; Post , "Public Law," 56. For [he maxim non nobis sobeos nati sumos , sea Cícero , De off., 1,22 (quoting Plato).

260

proper that one man should die for the people."I11 The influence of the Renaissance is reflected by the motley assemblage of classical and biblical figures. But tlien Enea Silvio turned back again into more traditional lanes, and argued: It should not appear roo hard if we say that for the benefit of the whole body a foot or hand, whidi in the commonweal are the citizens, must be amputated, since the Prince himself, the head of the mystical body of the respublica, is held to sacrifice his life whenever the commomveal detnands it.212

We notice that the "mystical body of tire Church the head of which is Christ," has been replaced-as in the writings of the juristsby the "mystical body of the respublica the head of which is the Prince." And Enea Silvio-like Lucas de Penna before him-left no doubt what parallel he liad in mirad: he added that Christ sacrificed himself even though be-like the emperor-was a "Prince," the princeps el rector of the Church which he headed 218 Enea Silvio mentioned both the sacrifice of che members -foot or hand-and the sacrifice of the liead. The ordinary citizen offering himself up for the commonweal became, no doubt, a martyr whose caritas imitated that of Christ. But the sacrifice of the Prince for his corpus mysticurn-the secular state-compared with the sacrifice of Christ more directly and on a different level: both offer 4d their lives not only as members but also as the heads of their mystical bodies. Here, at any rate, the parallelism of spiritual corpus mysticum and secular corpus mysticum, of the mystical body's divine head and its princely head, of self-sacrifice for the heavenly transcen211 De orto, ed. Wolkan, 18f; Kallen, 82,4o3ff.

212De ortu , ed. Wolkan, 1g; Kallen, 82,418ff : " Turpis enim est omnis pars. que seto toco non convenit et semper minas malura tolerandum est. ut evitetur maius; nec grave viderl deber, si pro salute corporis pedem vel manum, ut sunt in re publica cives, dicimus resecandam , cura princeps, qui capuz est mystici rei publicae corporis, cura salus communis expostulat , vitam ponere teneatur. . 211 lbid .: '' Imitandus est enim Christus Jesus, qui ... ipse quoque , cura esset caput ecclesiae , princeps et rector, ut nobis mortero demeret, voluntariam mortem subivit." See , for similar comparisons , aboye, nos . 147 (Geoffrey of Monmouth), and 157 (Henry of Ghent).

261

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PRO PATRIA AMORI

dental commnnlty and self-sacrlfice for tlte terrestrlal-inoral and

Ages: the Prince tvho did not himself fight, ])in stayed at lutme

political-community has come to a certain conclusion. The mutual loyalty between lord and vassal as prescribcd bv feudal custom was not the issue liere: the sacrifice of tire Prince leas just as polity-centered as that oí Christ himself. In the politieo-legal discussions of the eitilen's sacrifice pro patria as well as in die patriotic propaganda campaign launched by Philip IV of France around A.D. it teas naturally the tnembers of the body politic who viere required to expose tlicroselves in defense of king and country. About the royal head and bis duty lo offer himself up for the body politic, the legists were less eloquent. Apparently they took it for granted that the king would take upon hirnself the same burdens and dangers as his subjects. It is, therefore, most surprising that one of the French jurists, Pierre Dubois, expressed quite explicitly the opposite opinion. He declared that in case oí war the king should not expone himself or even join his arnry. The king, wrote Dubois, was to remain " in his native land and indulge in the procreation of children, their education and instruction, and in the preparation of armies-ad honorem Dei."01 That is to say, whereas the ordinary

while ,enerals fought his tears. It ulay be that the nrodel of justinia ❑

the "Roman emperors" Pierre Dubois had in mind? Nor is it impossible that the Pscudo-Aristotelian tractate De mundo, which was nvice translated into Latín during tire thirteeuth century, bears soine responsibility for that neto vision of kingship. [ir ibis work, che Persian Great King was depicted as an antitype of God: "invisible to all" he resides in his palace at Susa or Ekbatana; ''he sees all and hears all" in his seclusion, because by means oí a clever intelligence system he is speedily informed about every event in his far-flung empire; he acts through Iris offrcers, for it would be unseemly for the king to be in person everywhere, and more dignified and venerable anyhow lo reside, like God, in che remoteness of the suprerne region and yet to be che cause of everything wholesome "by the power extending from the king through the whole world."ale Some reflection of this, so to speak, "celestial Versailles" and chis rational type of rulership perhaps is found in the philosophical romance called Sidrach, which was popular reading in the thirteenth century. The wise Sidrach, asked by his

citizen was expected and even obliged to sacrifice fortune and lile for the patria, the head of the body politic was not expected to bring the same sacrifice but supposed to submit to another patriotic occupation after the model, as Dubois added, of some Roman emperors and of the Khans of the Tartars "who rested quietly in the middle of their kingdorn" while sending their génerals out to wage war."s With Pierre Dubois, apparently, the

interlocutor , a fabulous king of che Levant, whether the king should go to battle, gave the advice that the king himself should not fight, but stay in the rear of his arnry; for "if the army is lost and the king escapes, he can recover another arnry; but if the king is lost, all is lost."218 We cannot tell whether Pierre Duhois 216 We may think also of many another Byzantine emperor; between Theodosius I and Heraclius no emperor had gone so war personally ; see G. Ostrogorsky, Geschichte des byzantinischen Staates (bfunich, lg4o), 60. 217 Ps. -Aristotle, De mundo, 398a-b, ed. W. L. Lorimer ( Paris, 1933 ), 83ff; for che two Latin versions , see Lorimer , The Test Tradition of Pseudo -Aristotle 'De mundo' ( St. Andrews University Publications , xvIII, 1924), 76ff, and his final edition in: Aristoteles latinus (Rome, 1951 ), xu1 2, pp.42 and 70; see also my sketch "Invocatio nominis imperatoris ," 461, nos.4,ff. 218 Roman de Sidrach , c333, edited ( the Italian version of che 14th century) by Adolfo Bartoli, Il Libro di Sidrach (Bologna, 1868 ), 355f: see, for an abstract, preceded by an excellent introduction , Ch.-V. Langlois, La connaissance de la nature es de monde au moyen dge (Paris, 1rtt ), 18off and 25i . Sidrach is not at all "heroic." When , however, he says "bfieux vaut un bon fuir que mauvaise demorée," he is not cynical , bus simply conforms with the scholastics who defended flight as well as resistance ( see aboye , nos.155ff, for Henry of Ghent). The king, says Sidrach, should never be found in battle, only in che rearguard of his arnry . " Si Post cst perdu es le seignor eschape , il recoverra J. autre ost ; et se il est perdu, tout est perdu" Those are the places apparently referred to by Heydte, Geburtsstuude des

expediency of the realm rated higher tiran the divine model. Pierre Dubois may have been rather crude in his formulation; but the idea itself which he expressed, was not original. In fact, a new ideal of kingship is found sporadically in the later Middle 214 Duhois , Summaria brevis, cd. Kiimpf , ig,21 E: "... remanentes in tema vestra natal¡ liberorum procreacioni , corum educacioni , instruceioni , exercituum preparacioni vacando-ad honorem Dei- ..:" See also Dubois' De recuperationes cc.ugff, . Cf. gtmpf, Pierre ed. Langlois , tiitf, where chis doctrine is discussed at full length Dubois, 70. 2151bid.: "Si quin arguat iste modus regendi est alias inauditus .... respondeo: ymmo legitur nonnullos Romanos imperatores sic quamplura mundi regna et climata gubernasse . Audivi quendam qui cum Tartana conversatus fuerat, recitare quod rex terre eorum quiescens circa medium regni su¡ sic mittit ad singulas partes cius pugnans per alios , cum necessitas hoc exposcit-

262

(domineering, as it was, in che age oí the jurists) leas

au thori tati ve also in this reSpec1:1'-leas not he perhaps one oí

E

263

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PRO PATRIA :11ORI

was influenced by the Sidrach. However, the idea of che "nonfighting king" gradually gained ground, though Froissart still mentions it as a somewhat paradoxical fact that King Charles V of France, estans en ses cambres et en ses deduis, reconquered everything tus predecessors-la teste armée et l'espée en la mainhad lost en the battle-field.21' A king not exposing himself to the dangers of war implicitly demanded from his subjects a unilateral sacrifice. This idea of unilateral sacrifice for che head by the members of che body politic was carried to extremes on the scholastic side of the fence. Augustinus Triumphus, admittedly a radical curialist (d. 1328), discussed in his work On the Supreme Ecelesiastical Power also various legal aspects of the problem of appeal from the pope: Could a person appeal from the pope lo God? Was not an appeal from che pope to God an appeal against God? Was there an appeal to the College of Cardinals? To a General Council? The author rejected an appeal lo a General Council en the ground that God approved of his creation as "very good" (Genesis 1: 31) chiefly in view of the order of things; and "of che whole ecclesiastical order the leader and head was che pope." He then argued:

Here [he head, so to speak, has devoured che whole mystical body. What mattered was not che corpus Ecclesiae, but the caput Ecclesiae, as though lile itself or che continuity of life rested in the head alone, and not in head and members together. It is plausible lo assume that some problem of continuity vested in the "head" was behind che curious statements of both Pierre Dubois and Augustinus Triumphus. In che case of Dubois it was obviously che continuity of che dynasty which, for che sake of che whole body politic, appeared more importan[ [han the king's exposure to che contingencies of warfare. In che case of Augustinus Triumphus che problem of continuity is more difficult to disentangle. His strange statement was caused by a misinterpreted and misapplied passage of che Afetaphysics, where Aristotle investigated che nature of che "good": did che good consist, immanently, in che orderly arrangement of che parís fonning the whole, or did it exist, transcendentally, as something separare and independent beyond che whole? Aristotle decided that che good existed probably in both senses as illustrated, for example, by an army. For the efficiency of any army consists partly in its own order, and partly in che general; chiefly, however, in che latter, because the general does not depend upon che order, buz che order depends upon hito 221

just as this order would be overthrown by an appeal [lo a General Council], so would chis good be brought lo naught, because the good of an army would be non-existent were it not for the good of the general; and the good of che Church would be non-existent were it not for tlie good of che pope. Tlie good of che general is superior Lo that of the whole army, and tire good of tire pope superior to tliat of the whole Church.22°

Aristotle, of course, vas far from saying that che whole army may "go lo che dogs" for che good of che general. But it is evident also that his simile could easily be interpreted in a hierarchical and teleological sense, This liad been the tendency already of Aquinas, who, however, made it perfectly clear that che "general" himself was not che goal: che order of che army was "for che fulfilment of the good of che general" only insofar as it served "the fulfilment

souverlinen Slaates, 329f, 0.31 (who guotes "Cod.franc. 24195 der Nationalbibliothek in Paris ¡' without el ther folio or chapter of chis volu minous work ). See also, for a similar attitude , che "Mirror of Princes ," wriuen for King Konradin by 1'eter of Prece ( ca. 1266-1267), ed. Kloos, "Petrus de Prece und Konradin ," QFIAB, xxly (1954), 107, §14, and to8. 215 Frofssart , Chroniques , 11,c.87, ed. Gasten Raynaud (Paris, 1894), , x,127; see also Christine de Pisan, Le livre des fais el bonnes meurs du sage roy Charles P, ed. S. Solente ( Paris, 1936), 111, who mentions che fact that Charles V was highly successful in his eampaigns non obstant n'y alas[ en personase . Cf. Heydte, op.dt., 334,0.42. Charles V, by the way, owned several copies of .Sidroeh; see Langlois, op.cit., ,8o,n.t. 220 Augustinus de Ancona, De summa potestate ecelesiastica, 1, qu.vi, ad 6 (Augsburg, Johannes Schüssler, 1483), fol.66rv (the title usnally, given is Sumnm de potestate ecclesiastica ; buz the incu nabulum of the Lihrary of Congreso , which Dr. Schafer Williams kindly inspected for me, has a dilferent title ). The author discusses various possihilities of appealing from che pope (" Primo: Utrum a papa possit appellari ad Deum. Secundo: Utrum a papa appellare ad Deum sic appellare

264

contra Deum," etc.). The sixth question is "Utrum a papa possit appellari ad concilium generale," m which he remarks: "... Vidit deus cuncta que fecerat, et eran[ valle bona. Omnia a leo producía bona quidem eran[ in se ; sed valde bona propter ordinem quem ad invicem retinent , culo ergo totius ecclesiastici ordinis dux el capuz sic ipse papa; sicut per appellationem tolleretur talis ordo, ira tollereeur tale bonum , quia curo bonum exercitus asan sit nisi propter bonum ducis, et bonum ecdrsie non nisi propter bonum pape. Malos bonum est bonum ducis quam totius exercitus; el bonum pape maius quam totius ecclcsie." Cf. G. de Lagarde, "lndiviHualisme el corporatisme au moyen ige." L'Or,anisation corporativa du moyen dge a la fin de l'anclen régin,e (Recucil de travaux d'histoire el de philologie, eme sér., XLIV; Louvain, 1937), 11g2,n.3..See also Gierke, Gcn. R., u1,596,n.214. 221 Arismne, Afetaph., L 1>7,5a., 2-17 (XII,lo,,-2 ); ser, for tire Latin version , Thomas Aquinas, In Melaph., ed. Cathala and Spiazzi (Turin, 1950), 611, §l tozf.

1

265

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PRO PATRIA MORI

of the general's desire to achieve victory.''u" And en another oecasien he made it clear once more that the "general" teas himself just as little a goal in itself as a mediating angel, since the ultimate good vas none but God.r, Augustinus Triumphus seems lo have faltered at this very point: despite the warnings of Aquinas, he obviously mistook the vicarias Christi for the One whose vicar the pope was, thus conveying tire impression that the pope (os Aquinas' ''angel") was the ultimate-

and therewith eternal-good of the visible Church. The continuity, in his case, will have lo be sought in the supremum bonum, falsely or rightly believed to he actualized in the pope and therefore justifying the unilateral sacrifice of tire limbs for the head, be he angel or pope or general. In other words, a martyrdom for the head alone was indeed justified so long as the caput corporis mystici uvas Christ himself who was not simply a mortal man but also the immortal antl eternal sharer of the tlu-one of God: he uvas, as Aquinas said,22' the head of the Church secundum omne tempus, whereas the pope, an ordinary mortal man, seas head of the (visible) Church secundum determinalum lempus only, having no claim to that eternity or continuity which distinguished the eternal head of an eternal corpus mysticum. There was, no doubt, some impasse in the organological doctrines: they may have suggested a continuity of the bodies politic or mystic, but not a continuity of the head alorfe; and yet it uvas quite customary lo say that, just as in the natural body, every member was bound lo protect the head.225 This impasse should be kept in mind, since precisely by tktis fiaca cae may be led lo che core of the matter and ro the essence of the problem whose nature will be recognized more clearly once the results of our investigation are garnered.

222 Aquinas , In Metaph., §§262711, ed. Cathala and Spiazzi, p.612; see, especizlly, §2630: "Sicut videmus in exercitu : nam bonwn exercitus est et in ipso ordine exercitus et in duce qui exercitui praesidet: sed magis est bonum exercitus in duce quam in ordine : quia finis potior est in bonitate his quae sunt ad finem: ordo autem exercitus est propter bonum ducis adimplendum , scilicet ducis voluntatem in victoriae consecutionern ; non autem , e converso , bonum ducis est propter bonum ordinis ." In the next paragraph ( 2631 ), Aquinas makes the order of the universe refer to the primum movens: "Ita etiam bonum separatum , quod est primum movens, est melius bonum bono ordinis , quod est in universo . Totus enim ordo universi est propter primum moventem . . . .- Augustinus Triumphus , therefore, made simply the equation : primum movens=papa; also, he left bonum vague and undefined (" the good in the general " as opposed to "the good of the general"). Dante, who quotes the passage in Monarchia , 1,6,2, follows Aquinas (cf. Convivio, lv,4,5). See next note. 222 Aquinas mentions tire passage severa ( times; see , e.g., .Summa theol., 1, qu.so3,arts ,ad 3: ". . finis quidem universi est aliquod bonum in ipso cxistens, scilicet ordo ipsius universi ; hoc autem bonum non est ultimas lino, sed ordinatur ad ducem, ut dicitur in XII. Metaphys." Aquinas simply paraphrases Aristotle, but since he says that the order of tire arnty is ordered "towards the general;" he is far from holding that the whole army is of little value as compared with the general. He is more outspoken in bis answer to a proposition (Summa theol ., o-¡K, qu ,5,art.6), where the Aristotelian general compares with an angel : ' Videtur quod horno possit fieri beatus per actionem alicuius superioris creaturae , scilicet Angel¡ . Cum enim duplex ordo inveniatur in rebus-unos partium universi ad invicem, alius totius universi ad bonum quod est extra universum -primus ordo ordinatur ad secundum sicut ad finem [ 1], ut dicitur XII. Metaphys.: sicut ordo partiuan exercitus ad invicem est propter ordinem totius exercitus ad ducem...:' Hence , the proposition takes, like Augustinus Triumphus , the general , or angel, as the finis. Aquinas answers very logically that to the art of the helmsman , who is in command of the ship, there pertains that use of the ship for which the ship itself was built, just as in his commentary en the Metaphysics he said that the final goal of an army's orcler is victory through the craft of the general . And therefore he can easily conclude: "Sic igitur in ordine universi horno quidem adiuvatur ab angelis ad consequendum ultimum finem . . . ; sed ipsum ultimum finem consequitur per ipsum primum agentem qui est Deus ," The metaphors of Aquinas make it suficiently clear how nonsensical it would be , e.g., to say "the good of the hebnsntan is superior to the good of the whole ship ." On the other hand, however , a curialist such as Augustinus Triumphus could easily derive from the phrase propter bonum ducis the farreaching statement that "¡he good of the pope is superior to that of the whole Church," which , to say the least, is liable to he misundcrstood and to appear both un-Aristotelian and noChristian - not to mention that it preves nothing with regard to an appeal from tire pope to a General Council . The problem, however, is involved , and no more could be done here than to indicate boca Augustinus Triumphus could have arrived at his astounding statement.

266

At the beginning of this chapter (p. igg) the question was raised whether interrelations were effective between the corpus mysticum of the Church and the new secular polities. This question now may be answered in the affirmative: the idea of the corpus mysticum was undeniably transferred and applied to the political entities , no matter whether the ecclesiological designation itself was used or whether one preferred more specific equivalenis such as the Aristotelian corpus morale et politicum or the more emotional patria. There were many strands which made up the new pattern: theological, legal, philosophical, humanistic; and the transfer of the Rome or Empire ideologies to the territorial monarchies was hardly less momentous than the applications of religious thought. In the earlier phase, however, the main contents of the veneration of patria were derived from a world of thought which was religious in a broad sense; and the mainspring 22+Summa theol. , ni, qu.8,art.6 (resp.). 267

225 See, e .g., aboye, n.t94.

POLITY-CENTERED KINGSHIP PRO PATRIA MORI

of this devotion was that at a certain moment in history the state appeared as a corpus mysticum comparable to the Church. Hence, pro patria morí, death for the sake of that mystico-political body, mide sense; it became meaningful, as it was considered equal in value and consequence to the death for the Christian faith, for the Church, or for the Holy Land. If indeed every Christian "who lives in the body of the Church is held to rise in defense of that body," it was a straight and simple conclusion to maintain that every Frenchman who lived in the body of France, was held to rise in defense of that national body.22e By analogy, therefore, death for the body politic or the patria was viewed in a truly religious perspective and was understood religiously even without classical heroization and the later amplifier of the humanistic tuba. It was a sacrifice all the more worthy to offer because it was made for the sake of a body moral and politic which cherished its own eternal values and had achieved its moral and ethical autonomy alongside of tire corpus mysticum of the Church. Far more difficult it is te answer the question raised simultaneously: whether or not the concept of the duplex corpus Christi, the "two bodies of Christ," had any bearing upon the idea of the "king's two bodies." The tenet of the two bodies (not "natures") of Christ-his bodies natural and mystical, or individual and collective-hinged of course en the organic-corporational concept of the Church. While the Church as corpus Christi was a notion going back to St. Paul, the Church as corpus Christi mysticum was a concept of a more recent date which attained its legalistic connotations in the course of the thirteenth century. Did the idea of doubleness-"One body of Christ which is he himself, and another body of which he is the head"227-find its equivalent in the secular sphere when the corpus reipublicae mysticum carne into being? At ftrst glance we might be tempted to look here for the solution of the whole problem of the king's two bodies. The analogies built up by jurists and philosophers were indeed nurnerous: the Prince, being the head of the mystical body of the state and sometimes even that body itsclf, paralleled Christ who was both che head of the mystical body of the Church and that body itself; also, 220 Dupuy, Histoire du difjdrend, 243f, §§26,29,29; d586, and passim, Not onty kings and knights, hin every Cbristian had to rise as a member of the corpus Ecciesiae for the protection and conservation of the Clmrch. 227 Gregory of Bergamo, De veritate , c.1S, ed. Hurter, 75f; see aboye , n.t,q.

268

just as Christ laid down his lile for his corporate body, so was the Prince supposed to sacrifice his lile for the commonweal. We may recall also the persistente of those analogies: the suicide committed an act of felony not only because he acted against Nature and God, but also (as the Tudor jurists pointed out ) against the king "in that hereby he [the King] has lost a subject, and he being the Head has lost one of his mystic members."22s Obiter it may be mentioned that according to the Nicomachean Ethics the suicide did not wrong himself or any other person, but he wronged the polis, the commonweal-in Christian language: the corpus mysticum, or its head.225 It evould be probably not too difficult to assemble more material which might make the parallelism of the spiritual head of the corpus mysticum and the secular head of the corpus politicum even more striking. Why, then, should we not deduce from the duplex corpus Christi the duplex corpus regís, and let the whole problem remain at that? On furIher thought, however, it will appear less likely that the organig concept of the commonweal, though otherwise highly effective, led per se to a theory of the "king's two bodies" or, for that matter, to the secular equivalent of the "two bodies" of Christ. To begin with, out sources do not support that suggestion: nowhere do we find, merely en the basis of the organic concept of the state, the idea expressed that the king as the head of the body politic has two bodies.230 Nor is there any reason why he 228 Aboye, Ch.r, n.2i. 225 Eth. Nicom., 1138a,9f1 (v,t5); see, for the Latín version , Aquinas, In Ethic. ad Nicom., ed. Spiazzi (Turín, 3949). Son, §§983It, and also Aquinas ' commentary, 303, §1094: "Sed considerandum est cuí iniustum fati[. Facit enim iniustum civitati quam privat uno cive, sive non facit iniustum sibiipsi.' Cf. R. Hirzel, "Der Selbstmord," Arehire filr Religionswissenschaft, xt(19o8), 291; Hamhurger, Morals and Law, 8of. According to Roman Law confiscation of property and disinheritance of the heirs followed a suicide, provided that the act was committed to escape punishment for some crime ; otherwise suicide was not punishahle. In England, suicide was considered an act of felony (Jeto de se) ami punishable, although Bracton was inelined to follow Rornan Law practice; see GBterbock, 190; Pollock and Maitland, n, 488. Between the amcept of the state as a "body politic" and the intcrpretation of suicide as in act of "felony" there is a connection which , however, is still in peed of further clarification ; see ahoye, n.r94 ( who rises against the Ponce and the body politic cnmmits suicide); also "Pro patria morí," 491,n.62. 280 Baldus , of course , distinguished Between a persona personales and a persona ideales, and other jurista attributed to a judge a duplex persona (see below, Ch.vil, nos 275,397,1 22); but in all those cases , the organie rvncept has been eclipsed by the corporation theory. Seneca, Ep.85,30, talks about the two persona of a helmsman (Duas personas habet gubernator) because he is hoth passenger and master

269

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should. King Philip IV of France was the head of the body politic of France as a natural man, and like every French citizen he was merely one parí, though the most prominent part, of that body. Canon Law, it is true, ¡nade a olear distinction between lile bishoft and the chapter: each was said to represent a corpus separatum, even though in other respects bishop and chapter together formed one body of which the bishop was lile head.z11 But chis tener presupposes other than organologjcal doctrines, and lile theorists of the secular state do not seem lo have recognized the head of the commonweal as a corpus separatum; they were, on the contrary, most reluctant to separate the limbs from the head, or vice versa, and the idea of the organic unity of head and limbs was too strong lo allow a separation of one from the other.232 That che king could appear in two different capacities-that is, as feudal overlord and as head of the whole body politic-has been pointed out hefore: death pro rege et patria would suggest this double aspect of royal authority. But chis doubleness had no analogy in the natural and mystical bodies of Christ. For what would it llave meant, or what would have been gained, had one comed an analogous formula saying: "There is one body of the king which is he himself, and another body of which he is the head?" It would have been a definition without consequence or obligation, amounting to nothing. Another possible argument may he disposed of quickly: the state as a persona ficta, an abstract personification beyond its members. It is true, the Church was occasionally defined by Aquinas as a persona mystica.233 Would that questionable term enti.tle us to understand accordingly also che state as a persona politica et moralis? The term does not seem lo occur; for the state, around 1300, was not a 'fictitious person" but an organic or organological whole. It did not exist apart from its members, nor was the "state" some superior being per se beyond its head and members or beyond moral values and the Law.131 To put it succinetly, che regnum or patria was not "personified"-it was oí a vessel ; but Chis passage , though known, apparently was referred lo only by very late jurists ; see Vassalli , "Fisco;" eo5ff. 231 Gierke , Gen.R,, ut,266ff ; see also Post , "Two Laws," 425,0.85. 232 Wilkinson , in Speculurn, xix (sq.¡q), 46o,n.4; aboye, 11 115. 233 Aboye, 0.24. 234 Cf. Post, "Public Law," 45f; "Two Laws;' 422.

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"bodified." Mainly because the state could he conceived of as a "body," could there he constructed the analogy rvith lile mystical body of the Church. The parallel hinged, as it mere, opon che word corpus, and not on che word persona, just as the theologians reflected on the duplex corpus Christi, and not on che duplex persona Christi-which would have been Nestorianism anyhow, In like fashion, che Tudor lawyers argued about the "king's two bodies," and not about the "king's two persons''-even though they might slip occasionally. The terminology itself should prevent us from lightheartedly discarding the old organic oneness of head and limbs in the body politic and from rashly replacing it by the abstraction of a personified state.235 Out laborious quest for the interrelations between the corpora mystica of Church and state will nevertheless have been not quite fucile once we change our question. Instead of asking for features transferred from the spiritual to the secular, we should ask: In what respect did lile concept of the "two bodies of Christ" fail to be transferable or even indirectly applicable to the head of the mystical body of che state? Where is the ffaw in the analogy? The answer will be simple enough once we recognize that perhaps the chief problem involved is a problem of Time. The head of the mystical body of the Church was eternal, since Christ was both God and man. His own eternity, therefore, bestowed upon his mystical body likewise the value of eternity or rather timelessness . Contrariwise, the king as the head of the body politic was a common mortal; he could die, and did die, and was not eternal at all. That is lo say, before che king could represent (as in the language of Tudor jurists) that strange being which, like the angels, was immortal, invisible, ubiquitous, never under age, never sick, and never senile, he had either to stop being a simple zas For the notion oí " State," see Post, "Two Laws," 42off,n.8. Aquina' Commentary on Aristotle's Potitics should be considered in that connectioti. He uses status in a descriptiva fashion without any connotation oí abstractness , e.g., §§8q8. 898, ed. Spiazzi , 130, where status popularis (Democracy), status paucorurn (Oligarchy), status optimatu,n (Aristocracy ) are mentioned time and time again. See also §414, p.347, where William oí Auvergne (Aquinas' continuator) hrings those various status roto line with the regnum, though always with referente to the form oí government . In other words, status has nor the meaning oí "well being" (bonos status regni, ecctesiae, etc.), nor, oí course, oí "estafes" (though that notion then became current loo), nor oí state in che abstract . It means "government;" the status publicus oí the community- which later on, admittedly -came lo mean "State."

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mortal or to acquire somehow a value of imnortality: the eternity which Christ, in the language of theology, owned "by nature," had to accrue to the king from another source. Without some character aeternitatis he could not have his character angelicus, and without some inherent value of eternity he could not have "two bodies" or have a super-body distinct from his natural mortal body. Admittedly, Grace as well as Justice and Law remained eternityvalues not easily to be discarded, and they were co-operative at building up tire continuity of the new monarchies; for the idea of rulership "by the Grace of God" gained new lile in the dynastic ideologies, and the continuity of a Justice "which never dies" played a inajor part with regard to the continuity of the Crown. But the value of immortality or continuity upon which the new polity-centered rulership would thrive, was vested in che universitas "which never dies," in the perpetuity of an imrnortal people, polity, or patria, from which the individual king might easily be separated, but not the Dynasty, the Crown, and the Royal Dignity.

C H A P T E R V I

ON GONTINUITY AND CORPORATIONS i. Continuity UNDOUBTEDLY the concept of the "king's two bodies" camouflaged a problem of continuity. This was less evident, or perhaps only more concealed, in the earlier Middle Ages. But the truly essential point became manifest as well as articulate when, as a result of the reception of che Aristotelian doctrine of the "eternity of the world" and its more radical Averroist interpretation, the question of perpetual continuity itself became a philosophic problem of the first order.

The revival of the doctrine of the eternity of the world, which captivated Western minds alter the middle of the thirteenth century,' coincided with analogous, if independent, tendencies towards "continuity" in the constitutional and legal-political spheres. For it would be a mistake to assume that the new philosophic tenet produced, caused, or created a new belief in che perpetual continuity of political bodies. Facts of chronology would preclude such a hypothesis anyhow, because the development towards continuity in the fields of law and politics was already in fuil swing before an influence of the new philosophy could have been effective. Practice, as usual, preceded theory; but existing practice made the minds all the more receptive for a new theory. However, simultaneity does not imply causality, and all that can be said is that the philosophy defending the infinite continuum of Time made its appearance as a concomitant of related trends in other fields; further, that the ground was peculiarly well prepared to receive a doctrine which confirmed and justitied what one thought or did anyhow, and thereby intensifled and accelerated existing conditions; finally, that both strands-the philosophic-scholastic theory and the politico-legal practice-together decisively influenced the general pattern of Western social and political thought in its formative period. 11rederick II liad already asked Ihn Sabio for cae proofs of the eternity of the world; see Erg.Bd., 102,1 52.

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For all those restrictions it would he nevertheless inexcusable to ignore the impact of the new trends in philosophy, because such neglect would whittle down our capability of understanding more profoundly the corresponding phenomena in other sectors of thought-constitutional, legal, or pol itic:al. The heated arguments between philosopliers and theologians about Ineaning and effects o£ an infinite continuity contribu ted, lo say the leas[, lo theoarticulation of some pltenornena uhicli previously had beendifficult to express, or had not been expressed at all because they liad nut penetrated the conscious mind. Now, in the wake of the Aristotelian revival, the Averroist extremists, the moderate Aristotelians, and the anti-Aristotelians had each to produce their reasons for and against an eternity of the world. The very fact that the definition of continuity, duration, perpetuity, sempiternity, eternity, and related notions formed, over and over again, a matter for discussion and argument seems telling enough: it reveals to the historian that something formerly stable and settled had become unstable and unsettled-or even questionable-and that some serious change was taking place within the realm of Time, and in man 's relation to Time. Whereas the philosophic aspects of that change have been studied frequently and are known well enough, the historical inferences of that new attitude toward Time, difficult to substantiate as they are, have hardly been investigated.e However, a new approach to Time and a new conception of the nature of Time must be considered not only as a philosophical but also as a historical factor of great moment. The new valuation of Time, which then broke to ttte surface, actually became one o£ the most powerful agencies by which Western thought, at the end of the Middle Ages, was transformed and energized; and apparently it still holds sway with unabated vigor over modern thought. After al¡ (lo mention only one item), the optimistic philosophy of unlimited progress, which the generations preceding the two World Wars

saw lit to cherish, had its roots and premises in those intellectual changes which stirred the thirteenth century-stirred it no less profoundly than the combats between empire and papacy, or between spiritual and secular powers at large. AEVUYM

The great crisis in man's approach to Time, while previously laten[, canee to a head when the doctrine of the unereatedness and infinite continuity of the world was recovered from Aristotelian philosophy. This tenet dealt an all but mortal blow to the supremacy of the traditional Augustinian concepts of Time and Eternity. Time, under the influence of Saint Augustine's teaching, had enjoyed a bad rather than a good reputation. Time, tempus, was the exponent of transitoriness; it signified the frailty of this present world and all things temporal, and bore the stigma of the perishable. Time, rigorously severed from Eternity, was of inferior rank. For whereas the Eternity of God was conceived of as a Now-and-Ever without Time, the fugitive Time showed all the weakness of the evanescent moment. As Saint Augustine pointed out in one of the most famous passages of the Confessions,l Time-like sun and moon, plant, beast, and man-was created. It was created, not before, but together with the transitory world as a short span which, like a blind alley, was doomed to meet an abrupt end at any given moment , just as the whole created cvorld might be overtaken at any hour by the Last Events. Time was finite . It covered no more than the hours from Creation to the Last Day, and words suela as temporalis and saecularis, indicating the, so to speak, moral degradation of Time, were hurdened to express the brevity of an only relatively important life of this world and the nearness of death in it. The validity of the Augustinian teaching on Time and Eternity 4 Augustine , Confessions, xi. The literature on Christianity and Time is next co infinite, and the flood has been swelling constantly during ¡he ]ast years ; see, e.g., J. Baudry, Le probléme de !'Origine el de l'Eternité du Monde ( Paris, 1931); Jean Guitton, Le temes el Péternité selon Plotin el saint Augustin ( Paris, 1933 ); Oscar Cullman, Christus und die Zeit (Zollikon-Zurich, 1948); Henri Marrou, L'Ambivalence da temes de ('histoire chez saint Augustin ( Montreal, '9go); and, for a brief bibliographic survey of more recen[ publications , Paul Henry, "The Christian Philosophy of History," Theological Studies, xut ( 1952), 4igff. In general , see the useful study of Frank Herbert Brabant, Time and Eternity in Christian Thought ( Bampton Lectores, 1936; London, ,g37).

2 See, however , Hans Baron , "A Sociological Interpretation of the Lady Renaissanee in Florence ," South A tlantic Quarterly, xxxvul ( 1939), 436ff, who called attention lo the opposite trend of revaluating Time: the preciousness of Time. There may be other historians who dropped occasional remarks en that suhjecn on the whole, however, it is surprising how rarely the element of Time has been considered as a decisivo historical factor in the innumerable studies en the genesis of the modem state and of modero economy.

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limited span of terrestrial Time, thereby lost its ephemeral frailty

was broadly attacked, together with the most fundamental premises of the Christian faith, by the Averroists who carried Aristotelianism to sweeping conclusions; but even a moderate Aristotelian such as Aquinas had to admit at least the potentiality of a world without beginning.' In the long lists of errores con-

and limitation, and as character also changed morally: Time no longer appeared predominantly as the symbol of caducity, of Death; Time, to the Averroists, became a vivifying element, a symbol of endless duration, of Life.

To he sure, not the individual life was immortal; but immortal ivas the lile of the genera and species which the mortal individual represented. Time now became the symbol of the eternal continuity and immortality of the great collective called the human yace, of the species of man, of the seminal powers, of the forces of germination. It gained, through its connection with ideas of religious and scientific progress,' an ethical value when one recognized that "the daughter of Time was Truth."a Finally, the unlimited continuity of the human race itself bestowed a new meaning on many things. It made meaningful, for example, the craving after worldly faene, the perpetuandi nominis desiderium, which increasingly became a decisive impulse for human actions. Perhaps this trail, too, was first trodden by the jurists: "Notice that che dead lives through glory," says an Accursian gloss, while in another connection the glossator lield that those who fell in battle for the respublica as well as those killed in tournaments lived forever in

demnati which Church authorities drafted to curb the Averroist plague, the tener of the 'eternity of che world" played a major part. The Church proclaimed it an error to maintain that motion had no beginning; that Time was eternal; that heaven was not created; that there would be no resurrection of the dead; that corruption and generation followed each other successively without a beginning or end; that there was no such thing as a first man, and that there would never be a last man; that there always was and ever will be a human yace and a generation of man from man, and many similar or related maxims.' All those condemned errors pointed in the same direction: they all asserted that there was neither Creation nor Last Day, that by corruption and generation the dispositions of the world might change but that the presenJ world itself was permanent by the laves of nature, and that Time was infinite, a continuum of successive moments rolling forth perpetually from endlessness to endlessness.e Tempus, the 4 See the famotis passage in Summa theol., 1,qu.46, arta: " Respondeo dicendum, quod mundum non semper fuisse, sola fide tenetur , ct demonstrative probar¡ non potes[,

twelfth century in a scholarly fashion; see Heinrich Flatten , " Die primordialis materia in der Schule von Chartres ;" Archiv für Geschichle der Philosophie, xc(!931), 5865. 7 The problem of progress in the thirtcenth century will he discussed separately en a broader basis and in another connection . For the religious aspect of the problem, which is inseparable from the doctrines of foachim of Fiore and the Spiritualists, see most conveniently Ernst Bene , Ecclesia spirilualis (Stuttgart , 1934), 265ff, and passim ; the ever increasing literature on Joachim ( see Herbere Grundmano, Nene Forschungen über Joachim von Fiore [M arburg, 195o ]) rarely fails to consider siso the idea of progress as an implicaban of Spiritualist doctrines. The scientific idea of progress , stimulated very strongly by Priscian , Institutiones gramnmticae, t,, ( see ahoye , Ch.v, n.187). has bcen briefly discussed by R. Klibansky, "Standing on the Shoulders of Giants,' Iris, xxvi (1936), i IIf; cf. G. Sarton, ''Query 11.53,'' Isis, xxrv (1935-6), 1o7ff; J. de Ghellinck, "Nani et gigantes," Bulletin Du Cange, xv111(1945), 2529- The bese source en that snbject, however, has passed almost unnoticed ; that is, the philosoph ical reflections of the jurists.

s Best known is the long lis[ of 219 errors drafted by Bishop Stephen Tempier Universitatis Parisiensis of Paris (1277) and published by H. Denifle , Charlularium J. Koch, (Paris, 1889), 1,544ff; but there were many other lists published as well; see Mélanges Mandounet ''Philosophische und theologische Irrtumslisten ven 1270-1329 ." (Paris, 1930 ), 11,305-329. Those lists were, in fact, the hect propaganda for Averroism insofar as they condensed most difficult problems into easily conceivable slogans. No hibliography on Averruism will be required here; but Martín Grahmann's Der und teme Stellung zar christlichen lateinische Averroismus des rg. Jahrhunderts der Iveltanschauung (Sitz.ls(-r., Munich, 1931, No.s ), his Studien über den Ein/luss über das Verh d ltnis aristotelischen Philosophie auf die mittetalterlichen Theorien van Kirche und Stoat ( Sitz.Ber.. Munich , 1934, Nos ), as well as the studies collected ]) may just he menin his Mittelalter:iches Geistesteben ( esp. vol. n [Munich, 1936 during the las[ tioned as a landmark of sdmlarship on mediaeval Aristotelianisnl tractate of decades. Attention , however, sh0uld be called to che recently discovered de BOéce de Dacie découvert Un traité recemment of Dacio, ed. Géza Sajó, Boethius critique (Budapest, "De mundi aetenziíate," texte inédit avec une introduce ion

sThe phrase costes down from Gellius, Noctes Ahitar , x5,11,7. For the earlier hismry of chis maxim, often represented in Renaissauce art and found also in Erasmué Adagio , see the remarks of F. Saxl, "Ventas filia Temporis ," Philosophy and History : Essays Presented co Ernst Cassirer ( Oxfor(l, 1936), 200, n.1. For the pre-Renaissance period the material has nor yet heen investigated ; but it was probably again the jurists who equated Time ami Trn ( h; see, e.g., Baldus, 0n D.1,3,32,

1954).

s By rejecting the Aristotelian cenets concerning the infinity of Time and the impossibility of a spatial void, Bishop Tempier most curiously was compelled to defend che possibility of a plurality of worlds; see Alexander Koyré, "La vide et du moyen 1'espace infini su XIVe süxle;" Archives d' histoire doctrinale et littéraire dge, XXIV ( 1949 ), 45-91. The problem oí primordial matter was discussed in the

276

n.88, fo1.23, discussing the validity of unwriaen customary Law, that is, of custom "of which human mensory is out to the contrary ," to which he remarks: lempus loco verilntis esl.

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fame and glory.o Other jurists virote, and Frcderick 11, their pupil, built, for che perpetua) fame of thcir narres.,'' The new continuity of Time did not create, but d intensified, the desire for ti e per petuacion of a man's fame and narre. Fame, alter all, made sense on]y if chis world and if mankind werc believed te, be, in one way or another, pcrmanent and inmortal; and if Time reas Lile, and noc Death. WV'e may cmisider, perbaps, "immortal ¡ame ' in this world as che equivalent of or secular substitute for che immortal beaticude of che ocher world, and Dance consequently was implored by che lost souls in Inferno to keep alive their memory and their fame en earth in order to compensare for che forfeited, and often even despised, eternal beatitude of che soul aa It would be tempting to understand che infinite duration of che

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Aristotelian uncreated "world without end'' likewise in terms of some secularized Ecernity. But if we were to proceed on that assumption, che difficult question arises immediately: AVhat kind of Ecernity was it that was secularized and became immanent in Chis world, It teas certainly noc che Eternicy of die Divine Being which Augustine liad set against che short span of creaced Time allotted to chis world and co mankind. For che aeternitas of God was timeless; it was a static Ecernity without motion, and without pastor future; ir was, as Augustine called it, "a Now ever standing still" (nunc semper stans), or, as Dante put it, "che point at which all times are present."12 This was certainly not che continuously flowing mutable Time of permanently successive moments which che Averroists had in mind and defended. The answer comes from scholastic philosophy. A readiness on

o See Post, "Two Notes;" 286,n,24. The essential place of reference is Inst.1,25,pr. (aboye, Ch.v, n.16o) to which the Glos.ord., v. per gloriam vivere, says: "Nota, mortuum vivere per gloriam," with an allegation of D.9,2,7,4 (no punishnrent if "in publico certamine alias aliara occiderit ... , quia gloriae causa el virtutis, non iniuriae gratia videtur damnum datum"), lo which the Glos.ord., v. gloriae causa, remarks: "Per gloriam quin occiditur, ut hic [che one killed in publico certamine, interpreted as tournament ]: et ideo post per gloriam vivere potest, licet sic mortuus dicatur." Also Glos.ord., en D.3,2,25, v. ceciderit: "Qui per gloriam vivere intelligi tur," with allegation of Inst.s,25,pr. 1o Placentinus , Summa in Tres Libros, prooem., ed. Savigny, Ceschichte des Rdrnischen Reehts im Mittelalter (end ed., Heidelberg, 1850), tv,245: "Secundo, credidi multum expedire mihi ad memoriam meique nominis famam in perpetuam conservandam .. ." See also the prooemium of che Margarita super Feudis (late 13th century) of Dulius Gambarini: ". . . cunctos literatoriae scientiae amarares expedir dare operam studio indefesso ut sua in evum memoria relinqua tur"; acE. Jean Acher, "Notes sur le droit savant au moyen 9ge;" Nouvelle revue historique de droit franyais et étranger , xxx(1go6), 125. See also Angelo de Ubaldis, omf D.,,1,1,n2 (Venice, 1630), fol.3r (v. perpetui): ''Ve) dic gaarco quod Justinianus est peg petuus perpetuitate memoriae ... [C.1,3,231." 'f-te same jurist (ioccit., v. Itaque procul dubio, n.7, fol.2v) draws also an interesting parallel with saints: "Memoria not[a]: post mortem quis salvatur in sua memoria. Item no[ta] quare omni aneo celebrantur testa Sanctorum." Por Frederick II, see Huillard-Bréholles, v,907, che reconstruction of an aqueduct ad lauden el gloriara nostri nominis; see also che places quoted Erg.Bd., sss. See also Dance, Monarchia, t,c "ut palmam ... in meara gloriam adipiscar ." Or Andreas of Isernia , In usos feudorum, prooem.,n.t1 , fol.,,, quoting Seneca : immortalis est ingenü memoria. 11 Inferno , xnt,53 (Petrus de Vinea): "... tua fama rinfreschif Nel mondo su ..." Also Inferno, vt,SSf; xv1,85; xxx1,127; J. Burekhardt, The Civilization of che Renaissanee in Italy, trans . by S. G. C. Middlemore (Vienna, n.d.), 307, nos. 285-287. It is, of course , perfectly logical that per perpetuara gloriam vivere is desired by [hose in Inferno , since only che Inferno is of perpetual duration (Purgatory ends and Para dise is timeless), an idea expressed by che inscription of che Gate of Hell (1nf., m,7f: Dinanzi a me non fue cose create Se non eterno, ed lo eterno duro. See below, n.t5.

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the parí of theologians and scholastic philosophers to revise che Augustinian dualism of Time and Ecernity and to embark en che problem of an unlimited continuity which was neither tempus nor aeternitas, may be noticed as far back as che twelfth century. The revival of Pseudo-Dionysius, John the Scot, che theological writings of Boethius, and che reception of che works of Avicenna by the school of Gilbert de la Porrée produced, so it has been said , "a powerful whiff of dynamism." 19 It led, among ocher things, to che revival of che notion of aevum ("eon"), a category of endless infinite Time which Saint Augustiné s forcefully simplifying dualism had noc real]y accounted for. Something comparable to a great intellectual clearing began, since it now became che task of scholastic philosophers to distinguish between che various categories of Time. It was not roo diflcult to explain che difference between aeternitas and aevum. Ecernity, of course, was God's timeless and motionless Now-and-Ever, knowing neither past nor future. Aevum, however, was a kind of infiniteness and duration which had motion and therefore past and future, a sempiternity which according to all authoricies was endless. There was differ12 Paradiso , xvn,s8. 1' See M. H. Vicaire, "Les Porrétains el l'Avicennisme avant 1215 ," Revue des sciences philosophiques et théologiques, xxvc('937), 449-482 (p455: ''un souffle dynamique puissant"); R. de Vaux, Notes et testes sur l'Avirennisme latín aux confitas des XIII et XIIIe siécles (BibliothFque Thomiste, xx [Paris, 1934]); alto J. M. Paren[, La doctrine de la création dans l'école de Chartres (Publications de l'Inscitut d'études médiévales el'Ottawa, sin [Paris and Ottawa, 1938]),

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ente of opinion though, whether that sempiternity, which was created, was created before Time or together with Time; that is lo say, whether aevum was infinite only in view oí the future or also in view of the past. Whatever tlie correct answer may be, the fact remains that a third category had been worked into tlie former dualism of Eternity and Time, the aevum, which had a share in

and tlterefore had, afcer their peculiar angelic fashion, a Before and an Afcer. Aevum (in fact a for more coniplicated notion than can be demonstrated here), bridged the chasco between timeless Eternity and finite Time. If God in bis Eternity was the Immutable beyond and without Time, and if man in his tempus was the Mutable within a mutable and changing finite Time, then the angels were the Immutable within a changing, though infinite, aevum."

both Eternity and Time and which Aquinas later defined very accurately as something "placed in the middle between aeternitas and tempus."r° Hence, scholastic philosophy had to distinguish between three categories: aeternitas, aevum, and tempus. But which belonged to whom? The distribution of aeternitas and tempus was self-evident. The timeless Now-and-Ever was identical with God alone; and the finite created Time of this world, lasting from Creation to the Last Day, belonged to man. And aevum? The answer tnust nave

To summarize this brief excursus into meta-history, there existed indeed an otherworldly equivalent of the changing and infinite Time which the Averroists claimed for this present world: the aevum of the angels in heaven. This fact is less surprising than it may seem once we realize that tlie celestial IntelligencesSpirits without a material body-were the created Ideas or Proto.types of God. They wese the transcendentalized Christian descendente, not really of the Platonic Ideas which had an independent status, but of the Aristotelian €(8177, the itnmanent actualizations of the separate types. The revival of the Aristotelian "eternity of the world," which presupposed and resulted in the immortality of the genera and separate species, was therefore indeed a "secularization" of the angelic aevum: an infinite continuum of Time was, so to say, transferred from heaven to earth and recovered by man. It was the secularization of the Christian concept of continuity perhaps even more tiran the classical belief in the circular motion of an infinite time, which che Averroists likewise endorsed, but which was one of tlie least acceptable of their theses. Public opinion quickly discarded this theorem implying a periodical recurrence of events, and replaced the circular continuity by the conventional linear continuity characteristic of Christian thought in general-and probably also of the angelic aevum.1t

been likewise self-evident to an age which began to discover the intellectual joy and stimulus emanating from angelological investigations: aevum, of course, belonged to the angels and celestial Intelligences, the "eviternal" beings which were placed between God and man. The angels, like man, were created; but man's transitory tempus could not be theirs, since angels were eternal beings, bodiless, immortal, and outlasting the Last Day. On the other hand, being created they could not be coeternal with the Creator. It was, so to speak, true that che angels by their permanent vision of the divine glory participated, like the souls of the blessed, in the timeless Eternity of God. But the immortal spirits had a share also in terrestrial Time, not only because they could appear to men within Time, but also because they were created de théologie 14 For aevum, see the survey by A. Michel, ''Eternité," Dictionnaire catholique, r1, col.glg. In general , Brabant, Time and Eternity, 74ff. Oí course, the philosophers did not always interpret aevum in the same way; see F. BeemelBeitrage zur Geschichte der mans, Zeit und Ewigkeit nach Thomas ven Aquino ( The Philosophy Philosophie ira Mi lt elalter, xvrt , ,; Münster , 1914 ), 52ff; E. Gilson , Scotus (Oxford, of St. Bonaventura (New York, 1938), 26off; C. R. S. Harris, Duns 1927 ), 11,141ff; Gilson , jean Duns Scot (Eludes de philosophie médiévale, xcu [Paris, 19521 ), 4oiff. The notion of aevum was certainly not unknown in the earlier Middle Ages; in 799, Alcuin defined it on the whole correctly (MGH, Epp, 1v,263ff, No.163). Philosophicaliy' and theologically , however, oevum gained new imperas by its integration roto the angelologies oí scholasticism . For the infinity of Time with Hexaemeron , 1,1,3, regard either to past and future or to future alone, see Ambrose , PL, xm,135, who connects those differing concepts with Aristotle and Plato respectively ; cf. Richard McKeon, 'Aristotelianisna in Western Christianity," in Environmental Factors in Christian History ( Chicago, 1939), 224, n.68.

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11 See Brabant , Time and Eternity , 77. 1 am fully aware oí the fact that aevum has many other aspects as well, and that the Time continnum oí the angels is a most involved problem, discussed ayer and over again by the scholastic philosophers in their Quodlibet literature and elsewhere . That Hell belonged to aevum is suggested by Aquinas, Quodlibet, v,7, ed. P. Glorieux, La littérature quodlibétique de r26o 4 r320 (Bibliothéque Thomiste, v . [ Kain, 1925 ]), 1,28c Utrum Lucifer sir subiectum aevi ? See, aboye , n.u, for Dante , in whose system the, three categories are represented : te the Paradise belongs aeternitas , to the Purgatory tempus, and te Hell aevum . It would be senseless , oí course, should the sinners be made to Buffer in timelessness , since in that case there would not he an infinite succession oí ponishment and pain.

1e Por the doctrine oí eternal recurrence in periodical circlcs, see, in Bishop

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be said that the political and legal world of thought of the later Middle Ages bogan lo be populated by immaterial angelic hodies, large and small: tbey were invisible, ageless, sempiterna], immortal, and sometimes even ubiquitous; and they were endowed with a corpus intellectuale or mysticum which coulcl stand any romparison with the "spiritual bodies" of the celestial beings. ITndeniably tbe problem of "Dime and Continuity was Glose lo tlie Gentes of discussions carried on bv both scholastic and secular philosophers. To maintain shas dle problem of Time liad the effects of an activating intellectual undertow throughout the later Middle Ages and the Renaissance would probably be an understatement . Man's new attitude in his relation to Time affected almost every sector of life. The world, of course, did not turn "Averroist" as a result of che teaching o£ a Siger of Brabant, Boethius of Dacia, and other masters in the faculty of arts at the University of Paris: the world remained Christian. Nevertheless, what had been epidemic in the thirteenth century became endemic in the fourteenth and fifteenth: one did not accept the infinite continuity of a "World without End," but accepted a quasi-infinite continuity; one did not believe in the uncreatedness of the world and its endlessness, bus one began to act as though it were endless; one presupposed continuities where continuity had been neither noticed nor visualized before; and one was ready to modify, revise, and repress, though nos to abandon, the traditional feelings about limitations in Time and about the transitoriness of human institutions and actions'a This, we may take it, marked the new approach to Life and to Time of the intellectual sector of society. One had not invented a new notion of Time, but accepted Times other aspect. Only in so far as anodler aspect of Time-its continuity and practical infiniteness-was emphasized, where previously the emphasis was laid en Time ' s transitoriness , was there a chango of man's sense of the nature of Time, "If you want to govern for thousands and

According to the teaching of Aquinas, every angel represented a species : the immateriality of the angels did not allow the individuation of the specics in master , in a pluiality of ulaterial individuals 't Larle wonder ihen that finally the personified collectives of the jurists , which vese juristically immortal specics, displayed all the feature .s otherwise attributed lo angels; for the legal "fictitious persons" rcere , in iact, puye acntalizations and thus appeared like the next of kin of ihc angelic fictions . ] n the cerner of the corporational doctrines of the jurists viere tlie collective abstractions , or immortal and inmutable species, in comparison with which the mortal , and ever replaceable , individual componente appeared of lesser importance and in many respects negligible. The de-individualized fictitious persons of the lawyers, therefore , necessarily resembled the angels, and the jurists themselves recognized that there ivas come similarity between their abstractions and the angelic beings.11 In this respect , then, it may Tempier's }¡si of errors, No.6 (Denifle, Chartularium, 544). Whether the angelic aeoum was always linear continuity or whether {t was also simultaneity (changes without a successio)a of moments ; see Beemelmans , Zeit und Ewigkcit nach Thomas van Aquino , 449, is a dilerent master; it certainly had nothing to do with the cycles of 36 ,000 years which the Avcrruists defended. 17 It was against the angelic coincidente of specics with individual, as defended by Aquinas, that Duns Scotus polemicized; see Gilson, jean Duns Scot, 3ggff, and, in general , F. Ueberweg and M. Baumgarmer , Gnmdriss der Geschichte der Philosophié der patristischen und scholastisch en Zeit (mth ed., Berlin, 1915), 498 and 580. 18 An Accursian gloss shows the familiarity of the glossators with the scholastic distinctions ; see Glos.ord ., en D.S,z,33 (" ut in perpetuum idean parles aeternus esse['a perpetual easement for the upkeep of an eternal vial] o( a building), v. `aeternus': "id esi sempiternos . nam aeternum dicitur, quod semper fuit el ese. ut Deus. sempiternuni dicitur, quod incepit el non desinee ni anima et angelus et hace servitus ." Shordy thereafter Odofredus, on D.8,2,33 (Lyon, 1550), fol.263r, implied that "nihil in hoc reculo potest esse perpetruun uisi per surrogationem," and laten glossators en that law, Bartolus ( fol.222) or Baldus (fol.3 u), simply state that perpetuatio fil per sucressionem sive su hrogationem. More eloquent is Angelus de Ubaldis, on D.8,a,33,rubr . (Venice, 158o), fol.185v. He states: "Nota sub sole nihil possibile est [esse] aeternum , lit tantmn aeternitas per successionem seo subrogationem, et ira est casos hit" With the Glos.ord. of Accursius, he distinguishes between "eternal" and " sempiterna 1," bus feeling uneasy ahout the "equiparatwn " of servitus with anima and angelus and about some similarities with the Aristotelian doctrine of the Eternity of the World, he argues against Accursius : "Sed quod dicit glossa 'et haec servitus ; non dicit bene referendo ad extra predicta, quia impossibile est aliquid esse sub sole sine fine, el ideo mundos habebit finen secundum fidem, licet princeps philosophorum fuerit in opinione contraria motos rationibus naturalibus." The notions of ''eternal " and ''sempiternol " were nevertheless often enough con£used. Por example , Innocent IV's sentence against Frederick II at Lyon ( 1245) was published in the Liher Sextos (c _ VI 2,14; ed. Friedberg, n,loo8 ) under the correa

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heading: Ad memoriam sempiternaen. Durandus , however, estahlishing a general rule concerning the passing of sentences , refers lo it wrongly ( Speculum iuris, u, partiii,§6,n. 7, vol 11,790), when he says : " Sententia enim lector ad acternaen re¡ memoriam , ut legitur ... [ e. 2 VI a,t4] in superscriptione ." See below, Ch . vn,n.6. 19 G. de Lagarde, La naissance etc., 11: Marsile de Padoue ( Paris, 1948), 79 and 85tf, remarks correctly : " L'Averroisme est moros une doctrine qu'une attitude." See also Leclercq , Jean de Paris, 75.

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thousands oí years," tan a Sienese inscription referring lo the images oí classical and Christian heroes and virtues, "you vello are ruling look opon three."2t The change implied a revaluation oí Time rather than some total revolution, a dialectical shift from Times fragility to its ever-fiowing, vivifying dynamism.

drained subjects. As is well known, the fourth case, the necessitas regis et regni, eventually flung the gates open lo permanent, annual taxation dependent not upon an event, hut upon Time. Frederick II, for example, in the last phase oí his struggle against the Roman pontiffs, proclaimed almost regularly at the beginning oí every year in beautifully phrased and almost apologetic manifestoes tbe dira et dura necessitas oí the empire only to impose a

PERPETUA NECESSITAS

No matter whether the Aristotelian and Averroist doctrines oí a "World without End" were accepted, rejected, or modified, che debate itself left its unmistakable and easily traceable imprints on the thinking oí the generations lo come. Independently, however, the practica) needs of kingdoms and communities led to the fiction oí a quasi-infinite continuity oí public institutions-a continuity, to he sure, oí a far less philosophical pattern. The maxim oí the inalienability oí the royal demesne as well as the idea oí an impersonal fisc "which never dies"21 stand out as landmarks oí a new concept oí institucional continuity inspired chiefly, it seems, by the two Laws, Roman and Canon. The factor oí Time, however, started lo permeate also in other respects the daily technique oí public, financial, and legal administration-a phenomenon worth being rapidly outlined here by means oí a few illustrative examples. Public taxation, in the earlier Middle Ages, was alivays extraordinary and always ad hoc, for Laxes fell due not on the return oí a certain date, but en the return oí a certain event. The feudal aids were due for ransom oí the lord, knighting oí his eldest son, dowry oí his eldest daughter, and, haltingly since the twelfth century, for the defense of the realm in the case oí a public emergency, the casus necessitatis. Those four cases referred each to an event: the first three were linked lo the private and personal lile oí the lord, whereas che fourth case was, so to say, public and supra-personal, referring chiefly to regnum and patria.22 Ransom, knighting, and dowry were unrepeatable instantes; an "emergency oí the realm," however, could be proclaimed, technically, year alter year, at least until the Prince met with che resistance oí his

new collecta on his Sicilian subjects, the clergy included.92 So did Charles of Anjou, later; so did Philip che Fair oí France, and others. Indeed, the fiction oí an unrepeatable event, oí a singular emergency, and oí the extraordinary character oí che taxation still was maintained, and it would be maintained for some time to come; but che old fiction was to yield to a new fiction, and what remained was routine: an undisguised annual recurrente oí financial requests. 23See, for Sicily, Erg.Bd., 193, 243. Most revealing, though hardly evaluated, is a letter of Pope Martin IV, written lo Charles of .Anjou alter che Sicilian Vespers and dealing with the collecta as an ordinary tax; cf. Les registres du Pape Martin IV, ed. Olivier-Martin (Paris, 1,913), 225, No.488; see also Les registres du Pape Honorins IV, ed. M. Proa (Paris, '886), 75, No.g6,§F3-7. cuncerning the preAngevin history of the collecta Pope Martin IV asserted that "de modo subventionum el collectarmn, que in regno Sicilie tempore clare memorie Guillelmi regis Sicilie solvebantor, ... nichil aliad potuit inveniri, nisi quod antiquorum habet relatio, quod quondam Friclericus Romanorum imperamr tempore quo de ultramarinis partibus rediit, primo subventiones el collectas ordinarias in regno imposuit supradicto, et quod ante predictum tempus collecte et subventiones tantum fiebant, curo rex Sicilie pro defensioue ipsius regni defensionem faciel ar, se in coronatione regís ipsius, necnon el guando filias eius suscipiehar ciugulom militare, ac ipsius filfa nuptui tradebatur." This becanse the caminan opinion; for tire papal verdict, unfavorable tm Frederick II, was repeated very often, even in later times; see, eg., Paris de tuteo (d.1493), De Syndicatu, r,2,n.59 (Lyon, 1548), fol8: "nam Federicus fuit deposltus ab imperio, quia collectas in regno imposuit. ..." For the oppressiveness, see E. Sthamer, Bruchstdcke rnittelalterlicher Enqueten aus Unteritalien (Abh. preuss. Atad., 1933, No.a; Berlin, 1933), 1g, tire quotation from Saba Malaspina, u1,c.,6, in Muratori, Scriptores, v11,832f. The value of che papal statement should be sought in the fact that che Holy See noriced quite precisely that a taxation ad hoc liad been changed into "ordinary taxatian." The date of chis change, however, is certainly not corrcct, because it is hardly trae that Frederick II introduced annual taxation as carly as 1230, nor is it permissible to intimate that the fntroduction of annual collectae depended en ''Oriental'' influences. What exercised influence was Roman Law (see below, 1.34) which, we are told, prompted Barbarossa at Roncaglia, in s 8, lo try lo exact.from the Traban cides an annual imperial tribute. CE Rahewin, Gesta, sv,c7, ed. Hofineister, MGH,S.S.r, Germ. (3rd ed., 1912), 240: The emperor demanded "nec de terra tantum, verwn etiam de sois propriis capitihus censas annui redditionem." .Also Ligurinns, vn',v.574, ed. C. G. Dümge, Heidelberg, 1812: ''capitoliun' certo sub tempore censuro." Barbarossa's intentions, however, never materialized. See also P. W. Finsterwalder, "Die Gesetze des Reichs' tages ven Roncalia vom u. November 1158," ZfRG, genn.Aht., LI(lgss), 591f.

20 Theodor E. Mommsen, "Petrarch and the Decoration of the Sala Virorum Illustrium in Padua;' Art Bultetin, XXXIV (1952), 114. 21 Aboye, Chapter 1v, nos.267, 292. 22 See Post , "Two Laws." 42off. See also aboye, Chapter v, 1.127, for the connection with crusading Laxes; in general , A. Gottlob, Die pdpsllichen Kreuzzugssteuern des dreizehnten Jahrhunderts ( Heiligenstadt , 1892).

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eontemporaries, and a jurist of the early fourteenth century, Oldradus ele Ponte (d. 1335), provides us with all the clues we may desire. In one of his legal opinions, dealing with the taxability of certain noblemen with regard lo an amoral tallage, Oldradus distinguished between the ancient singular necessity and the new perpetual necessity. The question posed to the legal expert is described in the title,as foliows:

It is true, of course, that dte scholastic doctrines concerning taxation strictly denied the right of the state to any annual or even periodically recurrcnt taxation.`' Howcvei, by the casus necessitatis, which also the Churclr aeknow]edged, a new principie seas set.11 It was set for the perntancnt annual taxation such as finally became the recognized right of the soveieign state in order m mect the needs of the po]ity, 13y rhe fourteenth centu y, or even in the thirteenth, the pretense of an ad )loe taxation was occasionally dropped, and the fictitiously extraordinary became the overtly ordinary: public taxation, at least in many parts of dte Continent, became synonymous with annual taxation. In other words, taxation, formerly linked lo an unrepeatable event, now was linked to the calendar, to the eternaliy rolling wheel of Time. The state had become permanent, and permanent were its emergencies and needs, its necessitas. The notion of necessitas, thereby, acquired another, in fact, a completely new meaning. As a ground for taxation, the casus

Is a person, that is held lo contribute to taxes imposed for the sake of [public] utility or necessity, held also lo pay taxes imposed for the sake of an habitual necessity, though [this be] not an actual necessityJ2'

The distinction made here between an habitual , that is, perpetual need ( necessitas in habitu) and an actual emergency (necessitas in actu ) is telling enough all by itself. Oldradus, of course, was fully aware of the fact that formerly tire imposition of a direct tax for the sake of "public and common utility and necessity" was understood as an exception, an extraordinary taxation (indictio extraordinaria). He knows also that the reason (a case of necessity) for imposing a tallage as well as the king 's regalian right of imposing the emergency tribute agreed with old feudal custom, and he is honest enough to admit that "the imposition of an annual tallage is a new action: and in chis respect the Laxes are called ordinary ( indictio ordinaria )."21 However, ordinary and extraordinary taxes served the same idea : to meet a necessitas: Only, necessitas itself had in each case a different point of referente; and this leo has been clarified by Oldradus. The question laid before the jurist was whether certain noblemen could claim tax exemption if the King of France demanded annually a tallage "for the public and common utility and neces-

necessitatis originally referred lo emergencies arising chiefly from without: defense of the patria against a hostile inroad, a war against political or religious enemies, also against rebels, against heretics, even against the spiritual power. Around 1300, however, the notion of necessitas began lo he focused also upon the ordinary and (so to speak) budgetary needs of administration; and lo meet these administrative needs the governments arrived at the new fiction of a perpetua necessitas, iniplying (not unlike the modern tenets of "perpetual revolution") the perpetuation of something that, by definition indicated an exception, some singular condition or sume momentary deviation from the role. The perpetuation of necessitas, of course, was noticed also by

26 Oldradus de Ponte, Consilia , g8 (Venice, 2(321 ), fol.39: "Contribuere si unus tenetur ad munera, quae fiunt causa utilitatis vel necessitatis , tenetur praestare munera, quae fiunt causa necessitatis in habitu , licet non in acto." It is not certain, of course , whether this summary is by che author himself or by a later editor. However, che distinction between necessitas in actu and necessitas in habito covers precisely what Oldradus discusses in his Consiliurn. 2r lbid., n.4: ". . . quod, si contingat aliquam talliain indici quae fset gratia publicae et communis utilitatis et necessitatis et tetera , quasi de futrnis et extraordinarias indictionibus intellexerit . Sed huic respondetur . . Licet eruto talliam indicendi causa et regalia sin[ antiqui actos: Lamen indictionis omni anno est novus: et hoc respecto ordinariae praestationis indictiones appella[n]tur . Extraordinariae veto superindicta ... " See, for che distinction hetween ordinary and extraordinary taxations , also aboye , nos.23f.

2* For the scholastic and theological doctrines on taxation, lee Paul Ketrl, Die Steuer in der Lehre der Theologen des Alittelalters (Volkswirtschaftliche Studien, 17, Berlin, 1927 ), 74ff and passim. It is croe that in France, alter 1314, che estafes had the right to grant a special tallage; but the assumption began to develop later en that tire tallage had been granted perpetually. Ct. Holtzmann, Franzdsische Verfassungsgeschichle , 408. In England, of course, every general subvention lo the king had to be granted by 1'arliament. 25 Langlois , "Philippe III," in: Lavisse, Histoire de France (Parir, 1901), 111:2, 2501: "Le principe était posé" Seo, for France, che zzunterous studies of Carl Stephenson, aboye all "Les 'aidcs' des viles francaises au Xlle et XIII" sibie,'' Moyen dge, 2e ser., xxiv (,922), tia- 528, and "La taille dans les villes d'Allemagne," ¡bid., xxv (1925), 1-13; further, Joseph R. Snaver and C. H. Taylor, Stndies in Larly French Taxation (Camhridge, Nass., 1939).

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In addition to the change-clearly outlined by Oldradus-from an ad hoc obligation co a permanent and ordinary'taxation, it is evident chal che meaning of necessitas has shifted from an oucer emergency co an inner administrative need, that chis inner need has been perpetualized, and that che perpetual administration of justice required an annual emergency tribute just as a singular emergency concribution was required for che defense of patria. But even che defense of patria veas now perpetualized. Títere was, ín che fourteenth century, as yes no permanent professional army of an individual government, although che companies of mercenary fnights then roaming about Italy represented, so to speak, independent armies in permanente. There was, nevertheless, permanent taxation for military purposes. The cavalcata or chevauchée, originally che feudal obligation of performing military service, carne to mean che commutation of chis service into a fine or scutage paid annually. Oldradus de Ponte saw again che essential point.

sity." There was no doubt, declared Oldradus, that tire tallagC served public utility and necessity and that the King of France was enticled co impose a tallage, for "he has imperial rights and he owns, by his imperial privilege, all that pertains to imperial service."'a The jurist then turned to the evidente proving that in other respects the noblemen actually paid annual Laxes which indeed served co meet some "habitual need." And in that connection he discussed two ancient feudal obligations-alberga and cavalcata-which despite their original ad hoc character liad likewise been converted into annual Laxes and which che noblemen would not hesitare to pay "when the king, or his procurator, announced [hese contribucions annually."29 He discussed, in che first place, che alberga or droit de gite, meaning che obligation of quartering the feudal lord or king when he visited a district or province to hold tour[ and hear che complaints of che people against their lords?" In former days, explained Oldradus, Chis obligation was due only when the suzerain visited the district in his proper person.

Even though che army mighc nos be summoned in every year, it is nevertheless advisable co look ahead that there be money in che treasury to pay che soldiers if [or when] an army be raised.... For, che purpose of an army is che public good.'a

Today Chis [obligation] is paid annually in money.... For no one itinerates chrough che province to administer justice to the inferior grades against their lords: for there are judges in every single place, who do that very thing [ administer justice], and they receive de publico a salary from the king.... Therefore, since such display of justice is in itself a public utility and necessity, it seems chal also che noblemen ... should be held to contribute, because [chis taxation] is truly for che utility and the need of che province."r

Oldradus, while conveying to us some foretaste of che approaching mentality of mercancilism, again demonstraces that a necessitas in actu has been commuted into a perpetual necessitas in habitu in order to mee[ potencial needs in che fucure."a Annual taxation, at any rafe, was rationalized by perpetuation of public needs, by a perpetua necessitas belonging eicher co che present as in the case of

zs Ibid ., nrbr.e: ''Quaeritur modo, si talliae , quas indicet rex seu cius curia, reputentur fieri gratia publicae utilitatis el nccessitalis - El est sciendum quod rex habet in dicha communitatibus et provincia hura imperialia et quae pertinent ad imperiale servitium ex privilegio imperiali " This ''privilege ;' oí cocarse , does not refer co an empcror's charter, but co the kingk imperial gris ilege as imperator ¡ti regno s uo. Oldradus does not say expressis veibis that he is talking about che King oí France ; but since he lived in Avignon and styled che ruler domimu rex noster, he could not easily Nave referred co another king. Also, the fact that noblemen viere supposed co contrihute co che tallage , seems te hint that the consitium referred co Southern France; see Holczmann , Franzósische Verfassungsgcschichte, 263f. 25Ibid.: "ítem rex, seu eius procurator , bis in anno annuacim indicet in dicto castro duo munera: unum quod vocatur alberga, aliad cavalcata." so Ibid.: ''Alberga praestatur ista ratione : quia solebant conrmunes provinciae ¡re ad castra el audiebant querelas hominum de dominis suis: tuno homines solvehant expensas el illud vocatur alberga." s' Ibid., n.': 'Quae [alberga] hodie sotvitur in pecunia aoouatim ... hice[ hodie nullus circo ncac provinciam inferiori sus de dominis sois iustitiam ministrando: quia [amen sunt iudices in singulis locis , qui hoc ipsum faciunt et de publico salarium a rege recipiunt . . . . linde cum exhibitio talis iustitiae habeas in se

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publicum utilitatem et necessi tatem.... videmr gtiod huiusmodi expensas núbil es, de qu ibts oi uaeritur, contrihuere ten eaoti,r : quia vemm est propter provinciae u tili talen' et necessicatem .'' See, for che annual payment oí the droit de gite already in che 'gth centl,ny, Holtzmau n, Franzdsische Verfassu,igsgrsclsichte, 2g7. 32 Ibid., n.': "cavalcata est pro exe'cro ' regir quae quansvis non fiar, sotvitur in pecunia annuatim ." Ibid., 1) 3: Et ídem videtnr ele secunda [i.e. cavatcatal dicendum: hice[ enim non semper fiat exercitus , expedic uti provisione, ut cura locos fuerit, in aerario sic peomia, ex qua militibus satisfiac. . . . Finis aucem exercitus est ad bonum publicum...." See aboye, Ch.v,n.sss. as Oldradus ( ibid., nos.3 -1) points out ihac t hose military general Laxes had been customary in che Reinan Empine and chat Christ himself recommended che payment of che tribute: ''Ch'istus tributa Caesari monet rc,ldi. quia per belfa necessario militi stipeodia praebentur [c¢, Cxxw, q.,, ed. Friedhcrg, r89,g], et ab huiusmodi contributione nullus excipicur . Si enin' censuro filias Dei solvit, quis tu tantos es qui non pulas case solvendum [ce8. G.xi, qa, ed. Friedberg, 1,634]?'

a:

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legal administration or to the future as in the case of military preparation. The distinction between extraordinary and ordinary needs applies also to diplomatic (ommunication. Mediaeval embassies always served momentary needs, they )Mere despatched ad hoc for a special purpose-to present a mcssage or a gift, offer friendship or termínate it, or any other purposc-and the envoyss would always return to their lords when their ncgotiations liad come to an end. Those embassies were ahvays "cxtraordinary" delegations entrusted with a special order and serving a special purpose. The usage of keeping ambassadors at other courts for longer periods, not to mention permanently, was unknown in the Middle Ages, and the credit is usually given to fifteenth-century Venice for having inaugurated modern diplomacy. That, however, is not quite correct. Kings began lo keep so-called procuratores, legally trained envoys, almost permanently at the papal court-from the time of Gregory IX (1227-41) onward-to cake care of legal business in Rome where law-suits pended often for many years. Again, a principie was set. For around 1300, as the Acta Aragonensia have clearly revealed, kings began lo appoint permanent representatives also to important secular courts where not legal but political business had to be observed. Moreover, the credentials of those ambassadors , formerly describing perhaps the special nature of the diplomatic business , now were not rarely drawn up for a specific time rather tiran for a specified singular purpose. Once more we notice a tendency to link an institution-the ambassadorial ofñce-to Time.'* We may think also of the custom lo record all administrative 34R. von Heckel , "Das Aufkommen der sttndigen Prokuratoren no der plpst-e lichen Kurie," Miscellanea Fr. Ehrle (Rome, 1924 ), 11,3,5ff; Hermana Grauert, "Magister Heinrich der Poeta" A bh.bayer.Akad., xxvn ( 1912 ), 23off; H. Finke, Acta Aragonensia (Berlin and Leipzig, 1go8), 1, pp.cxxiiiff; Gaines Post , " Plena potestas and Consent in Medieval Assemblies;" Traditio, 1 (1943), 364ff. Frederick II, at leasq had a nuntius consuelos accredited to England ; see the author 's ' Petrus de Vinea in England ;' 65, n.B,; for other appointments mentioning the continuity or time at large, see Calendar of Patenl Rolls 12321247, pp11, 32, 147 ( Simon de Steland); Finke, op.cit ., cxxxviiif and cxxxii; Luis Weckmann, " Les origines des missions diplomatiques permanentes ," Revue générale de Droit International Public (1952, Nos), pp.17ff. See also Garrea Mattingly, "The First Resident Embassies : Mediaeval Italian Origins of Modera Diplomacy," Speculum, XII (1937), 423-439, who (P427) mentions as the first instante of permanent representation an envoy of Ludovico Gonzaga of Mantua at use court of Milan (1375), but fails to consider the evidente of the Acta Aragonensia.

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acts in permanent registers which, by thcir tecbnical division into annual rolls or books, were linked indeed to the calendar arad to Time." Xor would it be too difficult to add nther examples illustrating a peculiar continuity of the administrative apparatus of the new monarchies and of óovernnrents at large. However, all that liad lo be said hese seas that practica) needs produced instinitiona1 changos presupposing, as it were, thc ficticia ol an cndlcss azntinuity of the bodies politic. And while it cannot be claimed tliat anv particular pllilosophy caused the new governnrental practice, it cannot easily be denied that existing teclmiques of govermnent found support, and were quickened in their development, by philosophic thought and legal theories which worked their way into administrative practice from many sides.

2. Ficho Figura Veritatis IMPERIUM SEMPER EST

The climax of the eschatological mission of che Ecclesia militaras was its disappearance on the Day of Judgment, the day when it merged with che Ecclesia triumphans. It was, therefore, a matter of dogma and faith to believe that the Church militant cuas to last until the end of Time. This belief in the continuity of the Church until the Last Day, however, not only had effects on spiritual matters, but also influenced quite profane issues of ecclesiastical administration and law. A canon (c. 70) of the Fourth Council of Toledo (633) became rather important in this respect; for the Council decreed that freedmen of the Church and their descendants could never be dismissed from the clientage of the Church because their patron, the Church, "never dies,"-nunquaen moritur." This sentence, after having passed through various canonical as On the registers and their introduction by the secular states, see R. von Heckel , " Das papstliche und sizilische Registerwesen ;" ArchUF, 1 (1908), 44511, and passim; H. Bresslau, Handbuch der Urkundenlehre ( znd ed., Leipzig , 1912 ), l, 1o3ff; also F. Kern , " Recht und Verfassung im Mittelalter ," HZ, IXx(1g19), 34ff, and ¡bid., cxv( 1g16), 496ff, translated by S. B. Chrimes in Kingship and Law in the Middle Ages (Oxford, 1948), 149ff. as See c.65 ,C.xn,q.z, ed. Friedberg , 1,708: "Liberti ecclesiae , quia numquam eorum moritur patrona, a patrocinio ecclesiae numquam discedant. " See Friedberg , loc.cit., n.734 , for the transmission of cqo, Toledo IV, in canonical collections . The Glossa ordinaria , v. moritur, refers simply lo the parallel from St. Augustine (see next note); but the passage is quoted frequently; see, e.g., Glos.ord. en a24,D .LlV (Friedberg, 1,214), v. fuerint : " quia eorum [libertorum ] domina, scilicet ecclesia , nunquam moritur , ut r2.q.2 .liberti" Cf. Gierke, Gen, R., 111,277,n.93.

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collections, found its way fmally into Gratian's Decretum where it was supported by a passage from Saint Augustine, inserted into a letter of Pope Pelagius, saying that "it cannot be that there be no Church"-ecelesia nulla esse non potest.11 Thus, the dogmatic sempiternity of the Church militant found its juristic equivalent in the maxim Ecclesia nunquam moritur, "the Church never dies."

thesis, popularized by Tolomeo of Lucca, the continuator of Aquinas' tractate on Princely Government, and saying that the fourth monarchy liad been followed by a fifth, the monarchy of Christ, "the true lord and monarch of the world," whose first vicar was, if unwittingly. the Emperor Augustus.90 This new version played occasionally a role in legal thought, too. "With che coming of Christ, the empire of tlie Romans began to be the empire of Christ," wrote Bartolus, and thcs'efore "it is true if we maintain shas everything belongs to the Roman Empire, which now is the Empire of Christ.'11 Though Bartolus merely wished to prove the universal jurisdiction of the emperor or rather tire fact that "the

Sempiternity was artributed also to che Roman Empire. The belief in the continuity of che empire in finem saeculi was as common in the Middle Ages and as much an established fact as was the late-antique belief in the "eternity" of the city of Rome; and the stiuggle against Antichrist, expected to take place just before the End, bestowed upon the Christian empire an eschatological function related to that of the militant Church 11 The belief in the

(In¡ tuve eral universalis imperator," and hnally- devclops the full doctrine of the tour (or fine) empires (see note 4r). Also Bnldus, Consilia, 1,328,n.8, fol.1o3: "... vi . hoc appare[ in mutatione quatnor pri ncipalium regnoru ni.'' 40 Aquinas, De reginrine principunr, nr,r2-r3, ed. Mathis, 5311: . sed nos

sempiternity of the Roman Empire, to be sure, was not a master of dogma. It rested, for one thing, en Jerome's identification of Daniel's vision of the Four World Monarchies the last of which,

quintan [monarch iant] possunurs addere (u2)." The principatus of Christ began unmediatcly en Che day af bis hirth (cr4), and the censos paid to Augus[us inivcrsally (Luke 2: 1) was "non sine nivsterio, quia ¡Pe natus erat, qui vetos eral mmndi Dominas et Monarcha, ruius vices gerebat Augustos, liret non io ielligens, sed nnlu Dei . . Cf. Woolf, ltartnlus, gi5ff; Ladncr, "Aspects," 419, n.55, 41 Bartohrs, en Ad reprirrren(la, n.8, v, tolins nrhis (abone, n.39): "Qnar[o fnit imperium Romnormn. Lihino advenien[c Christ° istud Romnanorum imperium incepit esse Christi imperium, et ideo apud Christi vicarium est uterque gladius, acilicet spiritualis et temporalis. . Die ergo quod ante Christum imperium Romanorum dependehat ab co [principe] solo es imperator recte dicebatur quod dominas mundi esset e[ (lucid otm,ia sua sunt. Post Christuan vero imperium es[ apud Christum et eius vicarium et transferrur per papam in principem saecularem [referente to the Decretal ['enero hilero: c.34 X 1,61. Unde sic dicimus omnia sutil

that of the Romans, was to continue till the end of the world; and the late-mediaeval jurists occasionally found it convenient to recall the popular argument.'° This argument was nos defeated by a si See c33, C.xxiv, q.1, ed. Friedherg, 1,978f. as Baidus, Consilia, 1,328.aS, fol103: "[imperium] quod debes durare usque in finem huíos saeali," The eternity of Rome seas denied lis Augustine insofar as the fall of Rome was supposed to signify the end of the world; bus the old belief survived; see Theodor E. Mommsen, 'St. Augustine and the Christian Idea of Progress," Journal oJ the History of Ideas, X11(1951), 351; also .1. Straub, "Christliche Geschichtsapologetik in der Krisis des rdmischen Reiches," Historia, i (r95o), g2ff, and, for the idea in general, esp. in the Middle Ages, F. Kampers, Die deutsche

imperii Reinan¡, quod nunc est Christi, verum ese, si referamus ad personam Christi...:' ti was custoniary te discuss the doctrine of the Two Swords in connee tion with the Decretal Verierabilero; sve Post, "Unpublished Glosses en [he translatio imperii and the Two Swords," AKKR, exvn (1937), 4o8,4iof, and, ahoye all, [he

Kaiseridee in Prophetie and Sage (Munich, 1886). The oasis of [he whole specula[ion was II Thess. 2: 1-8, quoted already by Tertullian, Apoi., xxxu,t, in connection svali the prayer for the eniperor and the Roman Empire; see Ladner, "Aspects;" 41g,n.55, di' [he la[er interpretation of the Pauline epistle. The belief in [he duration of the Empire, of course, was alive also in Byzantium; see, e.g., Endre von Ivanka, "Der Fall Konstantinopels und das byzantinische Geschichtsdenken," Jahrbuch der Osterreir hischen Byzantinischen Gesellschaft, ni(1954), 19ff

so For the doctrine of the four empires, see C. Trfeher, "Die Idee der vier Weltreiche," Hermes, xxvu (1892), 32v-342; F. Kampers, "Die Idee von der Ahlbsung der Weltreiche," Hiat.Jbb., xrx (.B98), 423ff; and, for the most recent literature, Mommsen, "St. Augustine," 3so,nos.5-6; also Sehramm, Kaiser, Rom und Renovatio, 1,240 Interesting is Otto of Freising, Chronica, v, proi., ed. Hofineister, 2s(if, who connects use idea of the tour empires with that of "progress" as represented hy Priscian, Inst.grarn., 1,1 (aboye, Chap[er v,n.187); see a[so Joseph Schmidlin, Die geschichtsphilosophische und kirchenpolitische Weltanschauung Oteas van Freising (Freiburg, 1g,>6), 2811- For the jurists, see, e.g., Bartolus, en Ad reprimenda (Edite of Emperor Henry VII, in MGH, Const., iv,965, No.929 ), n.8, v. totins orbis, in Bartolus, Consilia, quaestiones et tractatus (Venice, 1567), fol.urv, also in Corp.Iur.Civ., tv,,24, where the Edic[ is among the Extravagantes of mediaeval emperors appended lo the Libri feudorum. Bartolus, referring te Daniel 2: 39-40, talks about "Nabuchodonosor rex

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unwieldy mass of exrellent studies hy A. M. Stickler on the r wo Swords, enumerated in his article "Sacerdozio e Regno nene nuove ricerche;' in ,Sacerdozio e Regno da Gregorio VII a Bonifacio VII! (Miscellanea Historiae Pontificias, xvnr; Rome, 1954), 3.n.3; the posthutnously edited studv of Wilhelm Levison, "Die mittelalter1iche Lehre von den beiden .Schwertem;' DA, ix Qgsr), 14-42, does out consider (he Bartolus passage, whereas Joseph Lecler, "L'Argu ment des deux glaives," Reclreu-hes de 'tiente rellgieuse, xxu (1932), 171, quutes (he passage, out loes nos rumment m1 it. R was cusmmary also, in mnnection cvith che Twn Swords, to point out sha[ historically the empire preceded the papacy: "Ante enim fui[ imperator quam papa, ante imperium qumn papatus" (sic, e.g., Stickler, "Der Schwerterhegriff be¡ Huguccio," Lphernerides Juris Canonici, ni [1947], 2t i, n.3; the argument is repeated, over and over again; J. Friedrich Kempf, Papsttum und Kaisertum bei Omorenz III. [Miscellanea Historiae I'on tificiae, xix; Rome, 1954], 212f, nos.48ff),

1

tha[ thcrefore originally all power was in the hands of the emperor, hut tha[ alter the advera[ of Christ the imperial and pontifical powers w-ere separated, because only Christ himself liad bnth powers. Bartolus, of course, followed tha[ doctrine, bus he preferred to connect it with that of Tolomeo of Lucca.

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whole world's regularity rests in the emperor,'1 there followed nevertheless the obvious conclusion that the terrestrial Roman Empire of Christ would last until the End.11 Tcnets such as [hese, however, supportcd and mere supportcd by dte Justinian Law itself which asscrted that the empire seas founded by God directly;9f that the empire was ' foa-ever' and that, therefore, as Andreas of Isernia put it. `the Church (loes not die and is forever, like the Empire.""a This transcendentally-founded continuity of che Roman Empire was buttressed by an argument in favor of an immanent continuity. The lex regia, it will be recalled, established- at least

defending the identity and continuity of a lave court even though individualjudges may Nave been replaced by others. For just as tire [present] people of Bologna is the sane that was a hundred years ago, oven though all be dead now who then were quick, so must also the tribunal be the same if three or two judges hace died and been replaced by substitu tes. Likewise, [with rcgard to a legion], eaen though all soldiers may be dead and replaced by others, it is still the same legion. Also, with regard to a ship, oven if the ship has been partly rebuilt, and even if every single plank may have been replaced, it is nonetheless always the same ship!-

It was, in fact, the continuity and invariability of "forms'i which the glossator defended.°° Baldus, glossing that gloss, was quite explicit on that point: "Notice, that where the forro of a thing does not change, the thing itself is said not to change." And in an additional example Baldus explained that an interdict of the Church, imposed en a community, even though all the individuals who had caused the interdict may have died, could nevertheless remain valid for a hundred years or more "because the people does not die"-quia populus non moritur.°

according to the defenders of popular sovereignty-the imprescriptible right of the Roman people to confer the imperium and all power on the Prince. If, however, Rome and the empire mere "forever," it followed a fortiori that the Roznan populus likewise was "forever," no matter who may have been substituted for the original populus Romanus or played its para at a given moment: there always would be men, women, and children living in Rome and in the empire and representing the Roman people. The interpreters of Roman Law specifically recognized the principie of "identity despite changes" or "within changes."" Already the Accursian Glossa ordinaria acknowledged chis principie when

18 Glos.ord., on D.5,0,76, v. proponebatur: "Primum est, quia sicut idem dicitur populus Bononiensis qui erat ante-C-annos retro, licet omnes mortui sint qui tunc erant , ita deber etiam esse [ídem iudicium] tribus vel duobus iudicibus mortuis, et aliis subrogatis. Secundum est, quod ]ices omnes milites moriantur et alü sin[ subrogati, eadem est legio. Tertium est in navi, quia )icet particularatim fuit refecta, licet omnis tabula nova fuerit, nihilominus est eadem navis." The glossator, Vivianus Toscos of Bologna, a contemporary of Accursius (cf. Savigny, v,3391, adds laconi. cally: "quia . non idem esset homo hodie qui fui[ ante annum." (See helow, n.5o.) For repetitions of those images, cf. Gierke, Cen.R., ni,365,n42, te -hose collection there might be added Bracton, fo1.374b, ed. Woodbine, tv,,75: "In collegüs et capitulis semper idem corpus manet, quamvis successive omnes moriantur et alü loco ipsorutu substituan tur, sicut Bici poterit de gregibus oviu m, ubi semper idem grex, quamvis omnes oyes sive capita successive decedanC' The source of all those examples (populus, legio, navia, grea) is D.4,,3,3o,rubr., and they descended, through the agency of the Roman jurist Pomponius writing under Severos Alexander, ultimately from Greek philosophy; see, en this Law, the study of Alexander Philipsborn, "Der Begriff der juristischen Person ira rümischen Rechi," ZfRG, rom.Abt., LXXI (1954) 41-70.

42 Bartolus , loc.cit., continues : "... verum est si referamus ad personan Christi. Si vero referamus ad personam imperatorio saecularis , non proprie dicitur, quod omnia sunt sua vel sub sua iurisdietione .. . In hac ergo constitutione [ se. impera toda Henrici VII ], si se retulit ad imperium vel si se retulit ad personam suam: locutus est cante. Non enim dicit [Imperator ] quod totius orbis iurisdictio sit sua, sed quod totius orbis regularitas in co requiesciC' Bartolus borrowed the word regularitas from Henry ' s constitution itself: " . Romanum imperium , in cuius tranquillitate totius orbis regularitas requiescit" (MGH, Const., iv,965,25). The idea is similar to that of Dan te, Monardiia, 0,04,7: "... humanum genus secundum sua communia , que munibus competun t, ah eo [imperatore] regatur et communi regula gubernetur ad pacenr: quam quilma regulara sive legem particulares principes ab co recipere debent....' la Bartolus , loc.cit.: "... cuius [Christi] regnum non dissipabitur , de quo prophetavit Daniel in dicto c.9 [ in fact, c.7], ubi hace omnia imperia describuntur expresse." 44 Nov.73, pr.r: "Quia igitur imperium propterea deus de coelo constituit... . In Gratian 's Decrelum , c.i i,DXCV1, ed. Friedberg, 1,340, a similar idea is ex. pressed, and tire decretists (v. divinitus) referred sometimcs to Nov.73; see Kempf, Innocenz III., 212,11.49. 45 Nov.6, epil .: " ( Licentiam damus ) nobis et ad imperium quod semper est... . 1e Andreas de Isernia , en Feud. 1,13 ( De alienatione feudi ), n.3, fol.49v: "nam eeclesia non moritur er semper est , sient imperium." 41 For the principie , see Gierke , Gen.R., n0, 277, n.92; cf. 36 1, nos.40-43, and 430, 0.46; also, for tire Romans, 57d.

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1s The "form" itself remains identical and, though existing as form only com. positely with matter, it is yet independent of the variability of the component matter. See, e.g., Aquinas, Summa theoL, t,q.g,a.t,ad 3: "Ad tertium dicendum, quod formae dicuntur invariabiles, quia non possunt esse subiectum variationis; subiiciuntur [amen variatiuni, in quantum subiectum secundum cas variatur." te Baldus, en D.5,t,76,n.4, [01.270: "Quarto, nota quod uhi non mutatur forma rey non dicitur mutari res." He then quotes the example of tire interdict which may las[ a hundred years or more, "quia populus sien moritur, licct sint mortui ¡ti¡ qui praestiterunt causam interdicto." The principie has heen formulated by Paulus de Castro (d.t441), who opined, Likewise en D.5,t,76: "quod stante identitate

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Por the cake of that immanent continuity of a populus qui non moritur the transcendental legitimation of continuity had not necessarily lo be discarded. One combined the two "continuities"-that from aboye and that from below-with che result chau che conferring of che imperium on a Prince became jointly a work of che eternal God and che sempiterna ) people. The briefest formula for that cooperation of God and people teas perhaps the one introduced by John of Paris and repeated by him several times: populo Paciente et Deo inspirante, "ihe people acts and God inspires." John of Paris, wllo wrote his tractate around 13.03, bolstered his statement by a reference lo Averroes' commentary en che Nicomachean Ethics where it is said that the king's government "accords with nature" if he, or the dynasty, is constituted by the free will of che people.f1 In other words, through the people electing him che king governed "by nature," whereas che election itself of che specific individual, or che royal house, was effecced by God as a causa remota and inspired "by grace."52 The cooperation of God and people, however, had been established long before formae, licet in substantia contingat nmtatio, intelligitur eadem res ," which would he trae also with regard te che metabolism oí tire human body (ahoye, 148); quoted by Gierke, Gen.R., 111,430,n.46. 51 John oí Paris, De potestate regia et papali , c.sg, ed . Leclercq, 235: ' populo sea exercitu [ see, en exercitus , the literature quoted by Leclercq, g5, n-0, also Mochi Onory, Fonti canonistiche, 68, 87 (1.1), 238, 253 ; Kempf, Irsocenz III., 214,1.55] faciente et Deo inspirante quia a Deo est ^imperatnr ].'' Here (235,13) is also che reference to Averroes' paraphrase oí the Nicomachean Ethics, saving " quod rex est a populi voluntate , sed cum est rex, ut dominetur , est natural, ." See en chau passage, also F . v. Bezold, Aus Mittelalter und Renaissance ( Munich and Berlin. 1918), 22; Scholz, Publizistik, 33¿f. John oí Paris expressed che same idea aleo in e.1o, Leclercq, 189, 23: "Potestas regia ^ non) ... est a papa sed a Deo et a populo regem eligente in persona vel ira domo ,'' an important passage bccause here che dynastic element comes roto che picture . Morcover , not only che royal power derives from God directly without tire mediatorship oí the pope , but che same is true with regard to the prelates (199, 35): " Sed potestas prelatorum non est a Deo mediante papa, sed immediate , et a populo eligente vel consentiente." See also 22 , ,: " naos populus facit regem et exercims imperatorem "; or 226, 15: "[potestas regia] cum sic a Deo et a populo consentiente et eligente " Leelercq, 73-76, is probably correct when descrihing che "Averroism" oí John oí Paris as an averroisme théocratique , for chau doctrine had many shades.

s2 John oí Paris, oí course , was in no way exceptional )see helow, nos.53f) but rather an exponent oí che trends oí his time. ti is quite revealing , however, co find that fourteenth- ceoturv, jurists frequently referred to John of Par is, sometimes together with "¡)antes de Florencia ... [qui] pulchre tractat . . de neeessitate monarchiae .'' CE Nardi, "Nota alta ' Monarchia ; " .Studi Danteschi, xxvl (1942), 101107; olso, (or tire reviva ) oí John's doctrine in che Songe da Vergier ; cf. Lemaire, Lois fondarnentales, 46ff; Sciaranun , Kónig van Frankreich , 1,244, 11,120.

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John of Paris. Accursius, glossing Ihe words "God has established che empire fronl heaven," added lapidarily: "or rather che Roman people from earth-immo populus Romanus de terra." And he added che further explanation: "God has constituted the empire by his permission, and che people [have constituted it] by che dispensation of God; or else you might say: God constituted the empire by his authority; che people, by ministry."12 Accursius thus recognized tire transcendental foundation of che empire and preserved it by making che people ministers of the divine will. Another solution, distinguishing-as che canonists did-the emperor from che empire, was proffered by Cynus of Pistoia, who ruled: "Nor is ir absurd that che empire shotild be derived from God and che people: che emperor is from the people, but the empire is called divise from God."r' In that case, che supra-personal body politic of che empire was from God, whereas the personal Prince as individual was nominated by the people which itself was sempiternal. But whatever che interpretations may have heen like, che co-agency of an eternal God and a sempiternal people made the cooperation of che Church as superfluous as it had been in che fourth and fifth centuries: che Church was practically frozen es Glos.ord . en Nov.73, pr.i, v. De caelo: " Immo populus Rons. de terca , ni Inst. de ¡Tire natumli ,§.sed et quod principi [butI,2,6: lex regia], que esa contra . Sed Deus constitu i r permitiendo , et populus, De¡ dispositi"ne - Vel (tic, Deas constituit auctoritate, populus ministerio ." The teaching oí the canonists moved along similar lines, since they too had co combine v. divinitus in c.u, D XCVI (aboye, n.44), with che lec regia See, eg., Post, "Unpuhlished Glosses," 414, for Silvester Hispanus (7), who claimed che imperium a Deo, but distinguished ( as manv nthers did) between iu risdictio and ics executio , between imperlunu and imperator: who likewise referred to che les regia , and who then declared: ''Sed dic, quod aliad est ipsa iurisdictio per se inspeeta , que a deo processit, el aliud quod ipsius imisdictionis exeeutionem amsequatur aliquis per populum . ; naco populus per electionem facit i mperatorem, sed non imperium , sient cardinales per electionem preferunt aliquem sibi ad iurisdiccionem, que a deo data est, exercendam ." The distinction between iurisdictio and gubernaculum, so strongly emphasized by Mcllwain , Constitutionausni, 75ff (aboye, Chapier 1v, n. 177), belongs to chis general compound oí problems. For relatad places, see Kempf, Iunocenz III., 213f, nos. 52ff, 244f, nos . 32ff; cf. 210,0.42. See aiso below, Ch.vu,n.25. sf "Nec ca absurdum quod sit a Deo et a populo. Imperator est a populo, sed imperium dicitur divinunr a Deo." CE Theseidcr, L'Idea imperiale, 262. See also Ullmann, Lucas de Penna, 175, 11 1, for a similar statement oí Cynus on another occasien. Further , Andreas oí sscrnia, en Feud- 11,52 (De prohib- feudi atien .), rubr., £01.231v: °bnperium quidem a Deo ese ideo dicitur divina gratia" Otto oí Freising. Chronica , iv, prol., ed. Hofmcister, 182,15, asks quo iure the rulers exercise power, and answers : "ex ordinatione Dei el electione populi." For come opinions oí canonists , see aboye, 1.53, and balote, Ch.vu,o.a5; and, for other related utterances, Gierke, Gen.R., ut,570,n.14o.

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out, as the continuity was achieved para-ecclesiastically by the powers of God and thc people or "sature."" The lex regia, manifesting the inalienable rights of the people and thus proclaiming the perpetuity of the maiestas populi Romani, was not restricted to Rome alone, although the Romans served as the prototype of che perpetuity of a people. That fundamental law, of course, was universally applicable to the conditions of any regnum and every people, and it actually did appear in che legal writings of ala European countries. The transfer, however, of the idea of che people's perpetual majesty from the Romans to the nations and communities of Europe in general-we may recall Marsiglio of Padua's Defensor pacis-was defined quite explicitly by Baldus, who said: The commonweal [i.e. any commonweal] has its majesty alter che example of the Roman people, provided that the commonweal be free [i.e. having no superior] and have the right to create a king.ó6

By implication, therefore, any regnum and every people was legally granted che continuity of the Roman people and the perpetuity of its maiesfas. We recognize that well known "cascading" from the empire to the regna and civitates, epitomized precisely and powerfully by the slogans Rex imperator in regno sao and Civitas sibi princeps. Nevertheless, che perpetuity of kingdoms and communities °having no superior" rested en more than che transfer and secularization of the empire idea. The doctrine of the perpetual ¡dentity of forros despite changes, which had been used by the earlier glossators without the support of Aristotelian notions, was not rarely strengthened in the writings of the post-glossators by Aristotelian maxims. Baldus, for example, when discussing the emperor of former days as the lord of "provinces" which by now had become independent kingdoms, remarked: 05 That the empire, l ike every kingdom, had been placed "auf cine vom Papst an sich unabhiingige Grundlage," has been recognized also by Kempf, Innocenz III., 226f. On che other hand, Pope Innocent IV's fanaous formulations 'papa haber imperium a Deo, imperatur a populo'' (Gierke, Gen,R., 20,570, n.142), rendered the emperor a completely profane poseer severed from God-unless consecrated by che Church. Howeyer, che devaluation of the imperial and roya] mnsecrations, resulting from very many and often quite heicrogeneous developments and trends of thought (see below, Chapter van), is elosely, connected also with che prominence of che people. See Innocent IV, Apparatus, en e, X 1,7,0.2 (Lyon, 1578), fol.5¡r. se Baldus, Consilia, 111,l59,n.6, fol.i6: . nana ipso respublica maiescatem habet ad instar populi Romani, cum libera sic eL ius habeas creandi regem."

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Now, however, che dispositions o[ che world liase changed, as saos Aristotle in De raelo el mundo, nos in che sense that che world wi 11 generare and corro pi, but its disposi ti o n.s: and 1hcre is nothing imperishable under tire sun. The cause of corruption namely is, all by itself, Time ... ; and although the empire is forever . . , it nevertheless does not remain in che same status because it dwclls in continuous molion.... °i

Baldus, lo say che least, assumed a relatively permanent duration of the world which lasted "forever" although its dispositions changed and were subject to corruption and generation. In this case, Baldus applied che doctrine of permanent duration to the imperium quod semper est; but he used che same argument also with regard to commonwealth and ftsc in general when he said that "they cannot die," that both were "something eternal and perpetual with regard to their essence, even though the dispositions change frequently."'a His formulations were even slightly bolder when talking about che perpetuity of kingdoms and peoples. A realm contains not only the material territory, but also che peoples of che realm because those peoples collectively are che reaten... . And che totality or commonweal of che realm does not die, because a commonweal continues to exist even after che kings have been driven away. For the commonweal cannot die [non enim potest respublica morfi]; and for that reason it is said [D.2,3,4] that che "commonweal has no heir" because in itself it lives for ever, as says Aristotle: "The world does nos die, but che dispositions of che world die and change and are altered and do not persevere in che same quality."'a 57 Baldus, Consilia, 1,528,0.8, fol.rog: "Nunc autem disposiciones mundi mntatae sun[, ni ait Aristoteles in coeli et mundi, non utique mundus generabitur el corrumpetur, sed dispositiones ipsius: el nihil perpetuam sub sole, Corruptionis enim causa per se est tempus, w.Physicorum. Licet imperium semper sic, in Aulh. quomodo oportet episc.§.fi. [Nov. 6,epil.: supra, 0.45], Lamen non in eodem statu permanet, quia in continuo motu et perplexa tribulatione insistir, et hoc apparet in mutatione quatuor principalium regnorum....- The reference to Aristotle is De sacio el mundo, i,28oa, 19.23 : ovx ¿le b s6agoe yíyvomo sal m9€tpo ro, dXT ' al ó,af/ce c aóre&. For che Latin text (quoted verbatim by Baldus) and Aquirias' interpretation, see Thomas Aquinas, In Aristotelis libros de Caelo et hlundo, i, lect,23, ed. Spiazzi (Turin and Rome, 1952), uo and 12. See further, Aristotle, Physies, Ivg2,22,1,,': 000p6s yáp ah,os sao' adrdv güxñov ó xpóvos; also 221a,3off: xai '55páoxo, ,rópS' oró 75€ xpópaU.

58Baldus, Consilia, 1,271311.5, fol.8lr (see ahoye, Chapter Iv, n.2g2): "respubl ica et fiscos sin[ quid eternum el perpemum quantum ad essentiam, licet dispositiones saepe mutentur.'' ss Baldus, Consilia, nr,15g,nos.g,5, fol.g5v: "Nam regnum continet in se non

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We are confronted with a new version of the problem of a "double truth." There is no reason to doubt chat Baldus, in perfect honesty, would not Nave hesitated in the confessional to admit che createdness, and deny the eternity, of the world. juristically, however, he needed the heuristic hypothesis of some infinite perpetuity, and it is easy lo see how useful Aristotelian notions were lo him and how useful co che lawyers in general who, on grounds totally different from those of the philosophers, defended che perpetuity of bodies politic and immortality of fictitious persons. For che same reasons the doctrine of the immortality and continuity of the genera and species was alinost indispensable, lince it was most convenient for che jurists to identify the immortal bodies corporate and other collectives with species. A law in the Digest recognized clearly the danger of making a municipiunt the usufructor of property because any collective usufructor had che tendency to usufruct "perpetually." When glossing that law, Odofredus remarked that "a municipium cannot easily perish except en the day of Last judgment," because "genera cannot perish"-genera perire non possunt.°° Odofredus, who died in 1265, hardly meant lo refer to Aristotle. Baldus, however, in his gioss on che instrument of che Peace of Gonstance of 118,x, used a philosophically more refined language when he wrote "thac something which is universal cannot perish by death, just as man in bis species does not die."9L In short, by the fourteenth century the Aristotelian

tenets concerning perpetuity were deeply ingrained in legal thought. Littie wonder then that Padua and tire jurists at largemoscly, it seems, by popular misconception- were notorious and i11-famed for cheir "Averroism."B2 To summarize, che continuity of the people and the state derived from many somces, and in general it inay be said that theory followed exiscing practice. Without depending on any broader philosoghical outlooks che administrative technique of the state developed its own patterns of continuity. Theory, however, was effective in oiller respects. The lex regia asserced the perpetuity of the Roman people,°° and by transferring ella[ claim from the Romans lo ochers as well, tse perpetuiry of atty and every people was, so lo speak, legally confirmed. Finally, che Aristotelian and Averroist doctrines brought about a consciousness of "natural " perpetuity el futuram <,t sine praefi ni tiene tempnris, quia Imperator facie hanc pacem nomine sedis, non nomine proprio tan tiros: et imperium non moritur ( for nomine proprio, on elle basis of c.r4 X t, 2g, see belosv, Chapter vn, nos.262ft ). Then, towards che end of Use same long gloss ( ,62D ), Baldus states : " ltem quia quod universale ese non potest morte perire , .sient homo in genere non moritur." 62 Grabman n , Mittelnlterlic}res Geistesleben ( Munich, t9;6), n239ff, and 26rff, in fact discovered two Averroist teachers at Bologna in the early fourteenth century, Taddeo da Parma anal Angelo d'Arezzo, both piofessors oí philosophy in the faculty oí asts at Bologna , and concluded ( 2706 that che first cell oí academic Averroism in ltaly must be seught al the ancient stronghold oí jisristic studies, at Bologna itsclf , before it spread t e I'adua (also P.240f ). For che problem and the lates[ publica tinos en che suhject, set Charles J. Ermatinger, "Averroism in Early Feueteen th Ceotury Bologna Medioeval Sindies, xvr (r951), 95--6. Petrarch, roo, io bis fight against the Averroism ( cf. Grabmann , 24a, u4; Eppelsheimer, Petrarca, r94,n . 6; P. O. Kristeller , '' Petrarch 's Averroists;' Bibl. d'Ifunranism el Renaissance, xrv ['952], 59-65 ), lashes al rhe jurists at Padua. llowever , Petrarch ' s extreme irritability against scholastic philosophers, theoingians , jurists, physicians , and nonhumanists in general is oven known, and his readiness to call anyone disagreeing with hilo an " AverroisC has as equivalen [ in modero habits . Petrarch'o testimony, riserefore , is of doubtful value. Without denying che possibilicv that Averroism had adherents also among che lawyers lan
solero terri torium materiale, se d erial ipsas gentes regni , quia ipsi populi collective regni u, sute t . . El etiam [non moritur] un iversi tas seo resp uhli ca ipsius regni, quse etiam exactis regibus persevera[ Non enim potes [ respublica nrori, el Imc racione dicitur , quod respublica non haber heredero, quia semper vivit in semetipsa . , sitoc dicit Aristoteles: mundos non moritur, sed disposiciones muodi moriuntur, el mutantur , el alternantur , el non perseverant in eadem qualitate." See aboye , 0.57, and also Aristotle, Meteorologica, 1,14,3'2b, wirh Aquinas' commentary, ed . Spiazzi, 49f; also for che Latin text. 60 See D.7,,,56 and, for Odofredus, Gierke, Gen.R., n1.365,11.41. Roman Law, by restricting the usufruct oí a city te roo years in order te avoid perpetuation (" Periculum enim esse videbatur ne [usufructos] perpetuus fietet"), an ticipared , as it were, the anxieties of Henry VIII; for Wat king made the unpleasant discovery that trusts of lands in favor of corporatio,,s -guilds, fraternities , cono'nonities, and others-fortncd a great danger and a threac oí perpetua) alienation , hecause from . che same like lnsses and inconvenientes .. . them "there growccb te the King as in case where Lands he alienated noto no,t,m,in.- Cf. uaitlan
300

Bartolus, on D,48,rq,r6,ro J below, nos.64,Nq}; Gierke. Geu.IL, ar,865f). Hence, we should be carefnl ,ith generaliza t" >"s roncera inq "the ,Averroist jurists." Not every person u,ing the termo " submnsciousness " oe "coniplex " is philosophically a Freudian or Jungi;ut.

es See aboye , nos. 5gf.

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in a philosophic serse, ivhereby the tenet concerning the eternity of the genera and species proved particularly useful to the lawyers who for purely juristic reasons defended clic continuit y of collective bodies and che immortality of juristic universals and species. I NIVERSITAS NON MORITI]R

Though probable rcwarding, it would be nevertheless complicated and tiresome to try lo build up a concordante of scholastic and juristic thought, or to hazard a decision as to whether the philosophic notions which the jurists used rather indiscriminately for defining their legal abstractions (forms, species, genera, universals, and their ]ike), reflected any clearly determinable school concepts, nominalistic or other, as has occasionally been suggested.14 There is no douht, however, but chal the jurists borrowed abundantly from che vocabulary of scholastic philosophy, that they moved freely in the borderlands of theology, philosophy, and jurisprudence, and applied, more or less eclectically, the scholastic matrix to express their own ideas. According co language and content, for example, the jurists' "fictitious" or 'intellectual" persons are hardly distinguishable from the Universals which the nominalists liked lo call fictiones intellectuales.as Moreover, the doctrine of the perpetual "identity despite change" of a communityBologna, for instante-might be taken co refer to the eidos of Bologna, which was distinct from the material city at any given moment and detached from both the citizens living at present within Bologna's walls and the bricks forming at present those very walls. We might also consider the great case with which the philosophers following Duns Scotus formed abstract notions such as Socratitas lo designate che principie of individuation by which the generic "mar" became the individual Socrates. Though hardly depending upon che Scotists, the jurists nevertheless created something comparable. For between the generic communitas or e41t is probably correcc ir Gierke, Gen.R., 111.81,36;5fp2rf, and passim, indicares che affinity with nominalistic tenets; hut as Gierke himself points out (365f), che juristic notions do nor exactly coincide with che scholastic notions, and Bartolus (en D.,48,1g,16,10, 113, fol.ss8v), when referring to the p hilosophi et cmlonisfae, males it perfeedv olear that a juristic ' fiction" is flor identical wi th a philosophic "notion." es Uberweg-Baumgartner, 5gg, 601: also 322.

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universitas un che one hand, and tire individual and material community of Bologna composed of mutable citizens and perishable buildings on the other hand, there arose a third entity diflcrent from both, an entity which was immaterial and invariable, though nor devoid of individuation, which existed (as it viere) in some perpetual aevum, and which appropriately might hace been called Bononitas or "Bolognity,'' liad che lawveis nor preferred lo talk about che corporate universitas-that is, che juristic person or personified community-of Bologna. Nevertheless, chal corporate, if incorporeal, Bononitas represented, like che angels, species and individuation at che same time.06 It might be mentioned parenthetically that the personifications of communities, cities, and kingdoms created by juristic speculation were not simply a revival of those toponymic personifications of classical Antiquity which had lingered en in the miniatures of Carolingian, Ottonian, and even lacer manuscripts.°' In fact, che juristic personifications of cities and countries viere not at all identical with their august predecessors of classical cults. The classical city goddesses, adorned with mural crown or halo, still belonged, in a broad sense, co the stracum of ancient anthropomorphism: they were the genius of a city and they could claim immortality and perpetuality simply because they were goddesses. The personifications of che jurists, however, were philosophical fictions belonging co che realm of speculation. The cities, instead of receiving, like Antique city goddesses at their epiphanies, a ee For che Socratitas, see Harris , Duns Scotus , 11,2o,n.3: "Et sicut Socratitas quae formaliter constituir Socratem , nusquam est extra Socratem, sic illa hominis essentia quae Socratitatem sustinet in Socrate, nunquam est nisi in Socrate , vel quae est in aliqui alío individuorum ." What Scotus seems to mean ( see Harris , loc.dL) is che ..collectlon ' af che concrete material object and oí che universal in cite "imagé' or "intelligihle species." See, e . g., Baldus, en c.3 X 1,31,o t4 (lo Decretalia, fol.t s6), and bis defini tion oí universitas: '' Omnis universitas dicitur corpus, quia composi tum et aggregatum , ubi corpora sunc tanquam materia; dicitur autem forma , id es[, formalis status [see aboye , 1.49]. . .. Est igitur collegium imago quacdam quae magis intellectu quam sensu percipitur [D.41,3,30; 4,2 ,9,1; e53 X 5,391." Or see, for che intermediate stracum between che genus and the concrete individual, Baldus, en c.3 X 2,12,n.15 (In Decretalia, fol.178): " Est autem universale quod non distinguitur in species dialectico modo assumptas , sed in res . Generale autem est id, quod haber species sub se...." In other words, che universale and universitas is, in legal philosophy, itself a species ranging ahoye the things in which it individualizes, but ranging below che generale which itself is divisible finto species. Ir must be left , however, to che specialist to analyze che juristic terminology and to compare ir to that oí scholastic philosophy. e+See aboye , Chapter m, n RS.

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visible body, were actually deprived of their visible body and were granted by legal thought only an invisible one. This invisible body, to be sure, was ¡inmortal and perpetual; yet it was immortal, not because it was the body of a goddess, but precisely because it

by Reinan Law itself, which, in the frequently quoted lex mortuo (D.46,1,22), called amunicipality, law court, or guild-under certain conditions even an inheritance-"a person."14 The underlying general idea was hardly different when Andreas of Isernia compared the patria to an ecclesiastical collegium.'' For even before the civilians made their deductions and personified the universitas, the canonists liad applied the legal notion of universitas to che various ecclesiastical collegia-chapters, congregations, and others-as well as to the whole Church. Being the universitas fidelium according to oldest definitions, the universal Church was also legally universitas without restriction; -and through the fusion with the organological concept of corpus mysticum en the one hand, and the anthropomorphic designations of the Church as moler or sponsa on the other, the temptation to personify the ecclesiastical collective also juristically may have been present at an early date. 71 In any event, the general tendency to treat the various ecclesiastical collegia as thougll they were real persons who could be punished and excommunicated must have been far advanced when Innocent IV found it necessary to define unambiguously the character of those collective "persons." At the Council of Lyon, in 1245, he forbade the excommunication of an universitas or collegium, and later interpreted his action and justified it on the grounds that universitates such as a chapter, a people, a tribe, were "narres of Law" only and not of persons, and that narres cannot be subject to excommunication. He pointed

was invisible-the body of an immaterial being. Hence the lawyers were far from reviving classical "antlaropomorphic" personifications; they created instead, in fuel agreement with the mediaeval scheme of thinking, what may be called "angelomorphic" personifications. In other words, legal corporations compared structurally with Christian angels rather than with pagan goddesses. In his gloss on the Peace of Constante, Baldus called a city "something universal that cannot perish by death," and he compared that " universal " with the genus or species of man which does not die either.°a It is possible that the terne "something universal" (quoddam universale) evoked associations with the likewise ¡inmortal Universals of philosophic speech; but what the terco universale really meant in legal language was quite unanibiguous: it was synonymous with the technical terco universitas deriving from Romau Law, the corporational collective at large which the early glossators defined as "a conjunct or collection in one body of a plurality of persons.""° On that basis, Bartolus could maintain that "the whole world is some kind of universitas," not to mention kingdoms and cities.S° Baldus could define a populus as "a collection of men in one mystical body,"'r or cal] a regnum "something total which both in persons and things contains its parts integrally,"12 or talk brieRy about "some universal person."'°

populorum et terri rorii." +a Baldus, on C.6,26,2, o.2, fol. Sov: "Est vi quaedam persona univcrsalis ... ni populus [lex mortuo: D.46, 1,22; cf. next note], et haec persona similiter loco unius hahetur, et individuum corpus reputatur."

74 D.46,t,ys : .. quia hereditas personae vice fungitur, sicuti municipium et decuria el societas." 75 Andreas of Isernia , en Feud. n „s (De p)ohib- feudi alíen . Loth.), n.,, fol.s3s: "Prineeps est pacer patriae, dicit Seneca primo de rlementia [ 1,14,2]. ergo iltornm, qui sunt in patria, idest subditoro m . sicut arguir ipse [Seneca ] secundo de ira [2,31,7]: 'netas est nocere patriae, ergo chi guoque.' non enim est patria, nisi homfnes agentes in ea: sicut Ecclesta possidet el collegium, ideal cierici et flli qui sunt in collegio.. ." Although Andreas of [sernin admita that patria is nothing but che human heings acting in it, he nevertheless defends the corporate characrer of patria and its citizens, and hghts against [he atomimtion of [his body; see his remarks en Feud. 11,27 (De pace tenenda), 11.9, fol.tdar'-v, where he argues against Seneca's opinion (De ira, loe.cit .) '' quod unos horno de patria est pare patriae;' and declares : " Hoc iuristae non recipiunt , uisi quando universitas redigitur ad unum [D . 3,4,7,2; see below , n.96] . Dividere ergo patriam in tot partes quot hmnines babel, concilio est, non livisio." Andreas reproduces probahly the doctrine of his fellow countryman Rofired of Benevento, who declared that "universitas est quoddam individuum, unde partes non haber;' si nce according to Aristotte an individual is indivisible ; see Gierke, GenR., 111,204; also below, n.89. rs Gierke , Gen]., 111,248 ,253,278, arid passim.

304

305

For to Ynterpret a collective bluntly as a "person" was suggested 08Baldus , De pace Const., p,1621) (ahoye, n.61). e9 Gierke , Gen.72., m,191f. 70 Bartolus , en D.6,1,t,3, fob2o4: "[The emperor is lord of thc world] Nec obstat quod alii sunt dora ni particularirer, quia mundus est universitas goaedato; unde potes[ quis hahere dictara universitatem , licet singulae res non sint suac " CE Woolf, Bartolus, 22 , 11.3; cf. 123f , for the [bree kinds of unioersifales. 71 Baldus, en C.7 v3,5,n.u, fol. 737: "[populus] deber intelligi de hominihus collective assumptis . . . . Unde populus pioprie non dicimr homines, sed hominnm collectio in unum corpus mysticurn , et ahstractive assumpttun , cuius significatio est inventa per intellectum ." CE Gierke, Gen .R., 111,432. 72 Baldus, Consilia , 1,333,11.1 , fol.to5: "regnum quoddam torum seas partes mtegraliter continens taco in personis quam in rebus , sicut omne nomen collectivuna

ON COA'TINUITI AM) CUItPOIt A'PIOIVS

FICTIO FIGURA r'E7(I'1.1T(s

out that ara urltuersitas loas a person tcithout a body, a pare nomen

\Vitat matters itere, however, is mercly the problcm of continu-

intellechtale and thing iucorporeal rebich, as ¡,ir el canonists vecrc

ity. It is significan[ that it was preciseh Chis problcm which

quick lo point 0111, eould uot bc coudenutcd Letattse i t teas laek-

prometed Innocent 1V to decide most emphaticalh' tirar the universitas was an intellectual person rebich cannot die, and not a real

ing a soul, nor be decapitated because ir seas la(kin, a bodv.'7 The personified universitas, tltercfoic, leas ouly ara imaginare 'iepre-

person. Hence, an excomenunication whicli teas extended to a

sented person'' (persona rc¡nacecu(ataj o1 1 "fictitious person

wholc body corporate, instead of being reserved for guilty indi-

(persona ficta).

viduals. would finally affect also innocent meo joining the universitas as substitute mentbers (subrogati) at a later date"

Althougll Innocent's epochal statementr• about tire universitas as a fictitious person seas actually made in a negative scnse, the definition itself created or articulated something very positive: the possibility of treating every universitas (that is, every plurality of raen collected in one body) as a juristic person, of distinguishing that juristic person clearly from every natural person endowed with body and soul, and yet of treating a plurality of individuals juristically as one person. That this corporate person was lictitious detracted nothing from jis value, especially its het?ristic value; besides, the word fiction itself was not necessarilf derogatory. In a descriptive sense, it will be recalled. the nominalists° styled the Universals fictiones intellectuales.ta Aquinas, actually following Augustine, couid define "fiction" in a signally positive sense as figura veritatis.BO And Baldus, elaborating glosses of Accursius and Bartolus, finally declared, with a slight twist of an Aristotelian tenet: "Fiction imitates nature. Therefore, fiction has a place only where truth can have a place."ar

ergo imitatur naturam. Ergo fictio habet locun,, uhf potes[ habere locura ventas." The late of adoption, to which he reten, says: "Adoptio enim in bis personis locura haber in quibus etiam natura'potest hahere." In bis own gloss o" 81,7,16, f01.38v. Baldas (note quoting, in fact, Aristotle, Physics, n,2, 194a2]) surtes: "Ars naturam imitatur Inquantmn potes(;" to which he makes no additio: "Nota quod fictio naturae rationem atque stylum imitaran." See also Bartolus, ora D.17,2,3, fol.139, as well as Glos.ord. 0n tirar late, v. norninibus. Rather interesting is Oldradus de Ponte, Concilia, rxxrv,n.l (Lyon, 1560), fol.27ra, who proves (bat alchemy is permissible: "Curo ergo ars imitetur naturam (D.1,7,16), non videntur isti alchimisrac peccare... See also Concilia, xeiv, n.8, fol.33r: "sic in natura videos quod ars imitatur (I12st.i,11,4)." Also Cynus, o0 C.7,37,3,n.5, fo1.446ra, demands that "civiles actas naturam habeant imitan." Obviously, che juristic formula Ficho iritatur naturain has to be considerad in connection with the whole cluster of notions such as ars simia naturae, ars simia ver¡, and (he Aristotelian ars naturam imitatur, catchwords so meaningful in Renaissance art and culture at larga; see, for the problem, Ernst Robert Curtius, Europdische Literatur und lateinisches Mittelatler (Bern, 1948), 524 H. W. Janson, Apes and Ape Lore in the Middle Ages and tire Renaissance (Studies of the Warburg Instirnte, xx, London, 1952), 287ff. "Aping" was nor only used in a derogatory cense as in Dante, Inf., xxix,i39 (the forger Capocchio confesses: fui di natura buena scirnia); Dante himself calls art (Inf., xi,io5) "as it were, the Brand-child of Goda" because according to Aristotle "art mimics nature;" atad John of ]andan styles himself "tire ape of Aristotle and Averroes" (Grabmann, Mittelallerlidtes Geistesleben, 11,239). Concerning "fiction" ave might recall Petrarch's definition of the ofreiunr poetae: to disclose sud glorify the truth of things woven into a decorous croad of fiction (''veritatem rerum decora velo[ figmcntorum nube contextarn"); see Attilio Ilortis, Scrítti inediii di Franaesco Petrarca (Trieste, 1874), 33,n.1; Burdach, Rienzo, 5o0; and, for the dependency of Macrohius (Salurnalia, 5,17,5; see also the sdtollon o0 Horace, Ad Pisones, ti9). E. H. 4Vilkins, "The Coronation of Petrarch;" Speculum, xvlli (1943), 175. The jurists nos 001v fell in with the literary and artistic theories, but may have had cien the function of pathfinders, since they embarked o0 that lheory-derived from the Roano laws of adoptionmuch earlier tiran others. At any rafe, the hitherto apparently unnoticed strand should nor be neglected.

77 Ibid., 28off . See Innocent , Apparatus, on c.57 X 2,20 (later equalling ca VI n.5, fol.176v ("cura collegium in cansa unlversímtis fingatur tina persona"); c,53[52] X 5,39,nose-3, fol.s6t; and (same fide) ent,n.3 (lnnocen['s own decretal Romana Ecelesia, later equalling c.5 VI t5,21), fo1367r, The relevan[ passoges of Inno(ent's next to inaccessible Apparatus have most gratifyingly been made accessible by 1. Th Eschmann , O.P., "Smdies en the Notion of Society in St. Thonias Aquinas, i. St. Thomas and the Decretal of Innocent IV Rornana Ecclesia: Cercaran;' Medioeval Studies, V1109,16), 1_42, esp.8ff,2gff. 78That Innocent's definition had ct,rtain anrecedents has been noticed by Gierke himself; see , e-g., Gen.R., 111,204.

4e See aboye, n.65. 85Summa theol ., ut,q.55,a.4,ad 1, quoting Augustine, De quaestionihus Fvarige. listarum, n,e .51, PL, xxx1,1362t "non ora ne gtod fingimos, mendacium est; , cura autem fictio nostra refertur in aliquam significationem, non est mandada ni, sed aliqua figura verillatís. Alioquin oran la qu ae a sa pientibus et sana is ciri s, l etiam ab ipso Domino, figurare dicta su nt, mendacia deputabuntur.'' 81Baldus, ora D_i 7,2,3,11.4, fol.i2ov: "Nao ex lioc dictó glossae [se. filos, ord] nota quod ubi demum haber lorum fimo, ubi est possib ile qu od babear loaun ven ras." Baldus Iban refers to a passage in the late of adoption (I) .1 „t6; scc also Inst.t.11,4) "ubi textos dictt quod fictio imitetur naturam," and, in sunimarizitcg, sacs: ' Ficho

300

82 In bis decretal, published at the Council of Lyon (c.5 VI 5,1 i, ed. Friedberg, u,1og5), Innocent IV declared it bis intention to make the endangering of souls ¡in possible "gnod exinde sequi posset, quum nonnumquam contingeret innoxios humus. modi sen tentia irretiri" The commentator of the decretal was in (hac case Innocent IV himself whnse opinion has heen discussed by Gierke, Gen R., m,28off. The Glosa ordinaria o0 the Libar Sextos, composed by Johannes Andrea, iodeed emphasises (ora c.j l7 5,i i, rubr.) chat in the case of the excotmnunication of a cotlegium '¡Ir¡ eni emnt postra subrogati, debent se tenere pro excommunicatis." The proh. Icm ot dte su brogati, however, seems to have been ao afterthorigrit: for the decretal

1

307

FICTIO FIGURA VERITATIS

ON CONTINUITY AND CORPORATIONS

formulation made it very clear that the corpus mysticum was composed not only of those living simultancously in the ecclesiastical oihumene and within a universal Space, but that it encompassed also all members past and future, actual and potential, who follocved each other successively in a universal Time. That is to say, not only the plurality of mes living together in a community formed a "mystical body," but the corporate plurality was achieved also in view of the successiveness of its members. The principie expressed in Aquinas' dehnition of the corpus mysticum of the universal Church was applicable, with slight variations, to any corpus mysticum, to any universitas large or small, ecclesiastical or secular. The canonists stressed time and time again that the church of this or that place or country remained the same church even if al] its members were dead and replaced by others; or, that tire collegium or cliapter of a cathedral was "today the sane as it was a hundred years ago although the persons were not the same."8e With this chorus Bracton fell in: "Though abbot or prior, monks or canons successively die, the house will remain in eternity."a' The Glossa ordinaria, we retal], made the same statement about the identity of Bologna a hundred years ago with the present Bologna and, implicitly, with any future Bologna.Be Bartolus argued that the same was true with regard to the universitas scholarium, the University.a° Other civilians held that every popu-

It was a simple application to the future of the customary doctrine of "identity despite changes," which more often referred to the past; and the later jurists argued according]y: The universitas is the .same today which it will be a hundred years frente.... If, therefore, we would say that an universitas can fall delinquen[, the children, infants, women, and dheir likes would be included, which would be absurd; and for [hese reasons Innocent concluded that an universitas cannot be excommunicated.ea

The implications are obvious: the universitas thrives en succession; it is defined by the successiveness of its members; and owing to its successive self-regeneration the universitas does not die and is perpetual-as Bartolus said: "Nothing in this world can be perpetual ... except by way of substitution."aa On a far broader scale, and in a completely different connection, Thomas Aquinas carne to define the problem of successiveness within the corpus mysticum. He started by distinguishing between the mystical body of Clirist and man's natural body. In the human body, says Aquinas, the members are present "a1l at once" whereas to the mystical body che limbs accrue gradually in permanent succession "from the beginning of the world [Adam, of course, belonged to tire ecclesiastical corpus mysticum] till the end of the world." Tlierefore that mystical body embraces not only those actually in the fold but also those who potentially might join the fold now or in the future-that is, it extends to both the as yet unbotn future generations of Christians and the as yet unbaptized pagans, jews, or Mohammedans, since the mystical body of Christ, that is, the Church, grows not only by nature but also by grace a' What Aquinas said was certainly not new; but his neat

reundi usque ad 6nem ipsius, neque etiam quantum ad case gratine.... Sic igitur bra atrporis mystici acci piuntur non solunr seco idum quod su nt in acto, sed memtas chaecnndum quod in potencia...." .rius dehnition eas often repeated; see, eg., lames of viterbo, De regimine Chrisfiano, c.8, ed. 11.-X. Acquilliére, Le plus ancienf traité de 1'Eglise (Paris, 1926), no. ss See, e.g., Gierke, Gen.R., ut,277,n.92. sr Bracton, fol.3741), ed. AVoodbine, iv,, ¡5: "El ideo si abbas vel prior, monachi vel canonici successive obierint, domus in aeternum permanebiC" ss.See aboye, n48.

itself thinks only of [he members composing the collegium at that time among whom therc might be innocent roen. See n.84. se See, e.g., Petrus de Ancharano (e 13301416), en c.,33 X 5,39,n.8 (In quinque Decrctolium libros facundissima Cornmentaria, Bologna, )(331), p.23c "Item, eadem est universitas hodie, quae erit usque ad centum antros, ni 1.proponebattir.ff.de ¡ud. [D.5,i,96]. Si ergo diceremus universitatem posse delinquere, includerentur isti [pueri, infantes, mulleres, et similesl, quod esset absurdum. et ex his ratios ihus concludit In[nocentius] quod universitas non possit excommunicari." These arguments, of course, were repeated over and over again. A+See aboye, na8, for Bartolus, en D.8,2,33,n.l, fol.222, s6 Sumrna thcol., ni.q.8,a.3, tonel.: "... hace esr differentia inler corpus hominis naturale et corpus Ecclesiae mysticum, quod membra corporis naturalis sunt omnia simul, membra autem corporis mystici non sunt omnia simul, neque quantum ad esse naturae, quia corpus Ecelesiae constituitur ex hominibus qui fuerunt a principio

308

so Bartolus, en D.48,t9,i6,to Y. nonnunquaen, folasSr, makes it the main argument against che nominalists claiming "quod totum non differt realiter a sois partibus," and that arcordingly ''nil aliud esr universitas scholarium quam sebolares." He argues matead (like Andreas of Bernia before hita; see aboye, n.75) that "universitas representa[ unam personam, quae esr aliud a scholaribus seu ab hominibus universitaria [referente to lex olor?no D..16,1.221, quod apparet: quia recedentibus omnibus istis sdholaribus et aliis red en oil bus, eadem tatuen universitas est. Item mormis omnibus de populo et aliis suhrogatis, idem est populus." The corporational aspect of the tofunr would Nave been admitted by che philosophi et canmrisfac selacio Barmins mntradirü, though he admiltcd thcir ''philosophical truth"; hut Bartolus makes che element of succession and identity che axis of his argument-that is, he miles rime the essence o( che ''juristic nuth;' of che ficho iuris which he defends.

2

309

ON CONTINUITI' ANI7 CORPORATIONS

lus or universitas ''seas clic lame as it liad been a thousaud vears ago because che successors rcp-esent the sano lnlit'crsitas." It is true, of course, that 1 itlor communities (otrid non claim-like che corpus mysticum of clic universal Church-tlieir identity ever sine the creation of che vorld; out thcv coulcl daim their identity witbin Time caer since their omi creation or fomtdation, and thence omvard to dle end of ti e «orló or any other ptaelicall unlimited time. Baldus, for example. stvled che Roncan empine "that great universitas wiiicli encompasses in itself all the faitbfu1 of the empire botli of the present age and of succcssive posterny," and of course he included implicitly also che past.°r The empine, perhaps, could claim like the Church a universality also regarding Space: "... that every soul be subjected to che Roman Prince," as Emperor Henry VII proclaimed.02 But the universality of che minor corporate bodies uvas restricted to tire universality of Time, as far back as it went in each individual case.

In other words, the essential feature of all corporate bodies .vas not that they were ''a plurality of persons collected in one body" at the present moment, but that ihey were that "plurality" in successien, braced by Time and through che mediunr of Time. It tvould be wrong, therefore, to consider che corporational universitas merely as the simul cohabitantes, those living together at che same moment;92 for they would resemble, in Aquinas' language, only the physical body of man whose members w'ere present "all at once," but they would not form che genuine corpus mysticum such as Aquinas liad defined it. The plurality in succession, therefore, or che plurality in Time was the essential factor knicting the universitas into continuity and making it immortal. 90 Gierke, Gen.R., n1,365,n.41, quoting Albcricus de Rosate (+ 1354): "populus, id est universitas cuiusque civitatis et loci, ... ideen (lo¡ fuit retro orille annis, quia successores representant eandem univeuitatem.61 Baldus, De Pace Const., p.161A, v. universitas, speaks "de ista magna universitate (see aboye, n.70), quae onmes fideles imperii in se complectitur tam praesentis aetatis quam successivae posteritatis...." See aboye, n.84. 92 Henry VII, in the edict Ad reprimenda (ahoye, nqt), also MGII, donst., iv,965,No.929: . divina praccepta quibus iubetur quod omuis anima Romano principi sit subiecta." Cf. che bull Unarn .Sanctmn: "Subesse Roniatio pontifici omni

humanae creaturae declaramus . . . menino esse de necessitale salulis." islieht,> Quellen, 211, No37a. 93 This was the opi ti ion of che carry glossators [cho tr i cd to define tte co llcgi um by distinguishing betaeen simed cohubttantcs and non coba hitan tca; that is, loes' tried m find che esseoce ot die rollegiuro witbin Space, and non seith regard ro Time, and thereby missed che essential point. Seo Gierke, Gcrt R., m,193.

310

FICTIO FIGURA I'CRITATIS

We now recognize clic fiaca in the purely organological concept of state which regarded "head and limos" mainly as they viere represented at a given moment, but without projecting beyond che Now into Pasc and Puture. The purely organological state became "corporate' 1 only ad lnoc, it uvas "quasi-corporate for sume purposes of jurisdiction, taxation and administration,"1'4 or in a moment of national emcrgency and cflervescin, patriotism, out it was not corporate in che sense of that perpental continuity characteristic of che universitas. That is to say, ti,e organological concept all by itself-john of Salisbury's analogy of the state with a human body-liad not yet consciously integrated the factor of unlimited Time, which was absorbed only when the state organism became a "body" in che juristic sense: an universitas which "never dies." Ir is not surprising, therefore, that che organological analogy, important as it was as an initial step during che age of transition, gradually became philosophically dispensable because it was superseded by the corporational concept of universitas which embraces "head and limbs" also in succession. It shall not be denied, however, that notions such as patria or corpus morare et politicum contained by implication also the element of continuity in Time; but this conclusion was not drawn before che fourteenth century nor was it rationalized that a mystical body, such as that of the French patria, encompassed not only all the Frenchmen living at present, but also all those having lived in che past and going to Iive in the future. It naturally took some time before che findings of the jurists-the identity in succession and the legal immortality of the corporation-began to sink in and to be combined with the idea of the state as an ever-living organism or with the emotional concept of patria. And expressions of national flavor such as La France éternelle, "immortal France," and others belonged definitely to a later period. To say it once more, the most significant feature of the personified collectives and corporate bodies was that they projected into past and future, that they preserved their identity despite changes, and that therefore they were legally immortaly° The detachment 04 Post, 'Quod omnes tangit,' 223, whose remarks about England are valid also for the Continent in that period. as Ke Chin Wang, "The Corporate Entity Concept (or Fiction Theory) in the Year Book Pcriod," LQR , LVIII (1942), 5oo,0.13, and 504,n 37, stresses in his stimulating study the point that "continuity is not an essential test of the Fiction Theory."

311

ON CONTINUITY AND CORPORATIONS

of the corporate universitas from its individual components resulted in the relative insignificante of these mortal components who at any given moment constituted the collective; they were unimportant as compared to the immortal body politic itself which survived its constituents, and could survive even its own physical destruction.96 But granted that the universitas and the ever-changing limbs of the body corporate constituted an immortal entity, what about the "he--d" of the body politic which, alter all, was a mortal individual man? If the factors Time, Perpetuity, or Identity despite Change formed a decisive feature of the bodies corporate, and if further the present constituents of a body corporate were of relative unimportance as compared to the immortal universitas as such, then it might not appear too difficult to isolate, as it were, those decisive features and to arrive at a new construction: the corporation existing exclusively in Time and by succession. Normally the "plurality of persons" needed to form a collective body was constituted both ways: as it were, 'horizontally" by those living simultaneously, and "vertically" by those living successively. Once, however, the principie was found that "plurality" or "totality" (totum quoddam) was-contrary, or even diametrically opposed, to the purely organological concept-not restricted lo Space, but could unfold successively in Time, one could discard conceptually the plurality in Space altogether. That is to say, one constructed a corporate person, a kind of persona mystica, which was a collective only and exclusively with regard to Time, since the plurality of its members was made up only and exclusively by succession; and thus one arrived at a one-man corporation and fictitious person of which the long file of predecessors and the long file of future or potential successors represented, together with the present incumbent, that "plurality of persons" which normally would he made up by a multitude of individuals living simultaneously. That is, one constructed a hody corporate whose members were echeloned longitudinally so that its cross-section at

FICTIO FIGURA VERITATIS

any given moment revealed one instead of many members-a mystical person by perpetual devolution whose mortal and temporary incumbent was of relatively minor importante as compared to the immortal body corporate by succession which he represented.01 This curious concept solved, as it were, the difficult problem of the perpetuity of the "head" of the body politic. It is en that basis and with that corporational plurality by succession in mirad that we have lo approach the problem of the King "who never dies." av This is not identical with the one-man corporation achieved "by devolution," that is, when al¡ members but one have passed away ; see aboye , n.75, and Gierke, as quoted in [he preceding note. Ser also Baldas, ora 1 ,3 6 X 1,6,n.8 (In Decretales, fol.79), speaking of a collegiurn or universitas which has been reduced to one person: "... verum ese quod in uno non resides [ universitas] primitive . sed devolutive sic, quia pro pluribus habetur qui in plurium ius succedit, vel plures representat."

While admitting that there may he fiction [heories not involved with 'con tinuity," 1 should say nevertheless that [he universitas as a fictitious person is essentially a body having continuity. De A very popular and much discussed argument , often based on D.3,4,7,a (aboye, o.75); see Gierke, Gen.R., ur,s36f ,35o (11os.337ff), 411E (nos.24off), 497f.

31$

313

THE XING NEVER DIES

CH A P T E R V 1I

THE KING NF.VER DIES By INTERPRETING the People as an univeisitas "wlucli never dies" the jurisprudents liad arrivecl at the concept of a perpetuity of both the whole body politic (head and members together) and the constituent members alone. The perpenfity, however, of thc "head" alone was of equally great importance, since the head would usually appear as the responsible part and its absence might tender the body corporate incomplete or incapable of action. The perpetuation of the head, therefore, created a new set of problems and led to new fictions.

In the case of the ecclesiastical collegia tire solution was as old as it was-at least, theoretically-simple: on the death of a prelate or other dignitary the property of the individual church as well as the dignity of prelate or abbot were said to lapse either to the hierarchical superior or to the Church universal or to che head of the Church, that is, to Christ or the vicar of Christ.r In the last analysis, therefore, Christ would have functioned during the interval, so to speak, as interrex. This vas how Innocent IV saw the problem: "Possession and property jof a church ... remain] with Christ who lives in eternity, or with the Church-universal or individual-which never dies and is never non-existen[."2 In other words, Church property lapsed to sorne perpetual entityeither to the eternal head of the Church or to the irnmortal and "never non-existen[" Church itself. Within the realm of practica] Law and legal procedure, however, things were more difficult than in theory: it was not feasihle that the divine incumbent of a vacant dignity (or his vicar on earth) should be summoned, or be held responsible, or be penalized. I-tence practical difficulties arose concerning the continuity of the head of a corporate body. Not only did the legists and canon-

unit,s but also the Common Law jurists found the problem of the continuity of the head difficult to solve and often perplexing. The English Fea? Books, especially in the fifteenth century, refiect very clearly the predicaments of the royal judges who were quite willing to accept the corporational doctrine and terminology with regard to the incorporated members, but were far less willing to conceive also of a corporational character of the "head alone." Chief Justice Brian, for example, in a case of the City of Norwich heard in 1482, produced the argument: "If the mayor dies, the corporation becomes incomplete; and until the community appoints another mayor the corporation is incapacitated."' The death of the mayor thus created an interregnum, which rendered the body politic of Norwich incomplete and unfit for legal action qua corporation_ On the other hand, a great jurist such as Littleton, as well as some of his colleagues on the bench,, felt very strongly that there was a fundamental structural difference between the body corporate and its head. When, on one occasion, a plaintiff talked about a chapter or commonalty "and its successors," justice Choke, supported by Littleton, declared quite correctly: The chapter can have no predecessor or successor, because the chapter is perpetual, and every one is in being, and cannot die, any more than a convent or commonalty; thus the chapter which was, and the chapter which is existing at present, are the same chapter, and not different: thus the same chapter cannot be a predecessor of itself, for a thing cannot be predecessor or successor to itself.5 Contrariwise, the judges very naturally all agreed that a dean or mayor, being a mere individual, could and did have predecessors and successors. That is, they were very far from admitting the identity of predecessor and successor, or from applying to those officers, for example, the aeternitas which Roman Law attributed to the princeps and which Bartolus appropriately corrected by interpreting it as "the sempiternity of the emperor which, with regard to his office, ought not have an end."a In other words, while

ists run finto trouble resulting in solutions such as the concept of the corpora separata whereby the head, the memhers, and head and members together each formed a separate body and corporate

sIbid., 267f; aboye, Ch.v, n.231.

2 Ibid., 351, 1.340. Cf. Innocent. dpparnh,s, on e 1 X 2,12 114, fol. 115v. The olcnership of Christ, or of saints, had a legal hasis in 0.1,2,2,.

4Wang, "Corporate Entity," LQR, LIX(1943), 73, n.8 (21 Edw.IV). s Wang, 76, 1.16 (39 Hen.VI). sBartolus , on 0.11,9,2,1.1 (Lyon, 1555) , fol.37 v: "Opinio quod Princeps non sir aeternus, quia omne elementum est corruptibile: ni l.eum debere.ff.de ser.urh. predi. [= D.8,2,33; cf. aboye, Ch.vr, 1.181. Solutio: improprie dicitur aeternus: Lamen imperator respecto officii, quod non debet habere finem, potest die¡ sempiternus."

314

315

1 Gierke, Gen.R., ut2,o,n.18, aleo 293 and passim.

THE KING NEVER DIES

DYNASTIC CONTINUITY

one adopted very willingly and without hesitation the content and terminology of the romano-canonical doctrines concerning the universitas "which never dies,"' one felt very clearly that the head could and did die, but realized also that the continuity of the "complete" corporation depended en the continuity of the head as well, a continuity vested successively in single persons. It is obvious that a similar incompleteness with resulting incapacitation of the whole body politic of the regnum would have been almost intolerable. Interregna, whether long or short, had been a danger even in earlier times; they fitted badly into an age which liad developed a relatively complicated machinery of state administration, as was the case in the later Middle Ages. It is noteworthy that the remedies introduced to neutralize the dangers of interregna and to secure the continuity of the royal head began to take shape far earlier in practice than in theory. The theories concerning the king's dynastic continuity, for example, served rather to explain and articulate existing customs than to create new ones, although admittedly it would often be difficult to decide accurately at what stage a developing practice may have been influenced also by the doctrines of jurists. The perpetuity of the head of the realm and the concept of a rex qui nunquam moritur, a "king that never dies," depended mainly en the interplay of three factors: the perpetuity of the Dynasty, the corporate character of the Crown, and the immortality of the royal Dignity. Those three factors coincided vaguely with the uninterrupted lene of royal bodies natural, with the permanency of che body politic represented by the head together with the members, and with the immortality of the office, that

is, of the head alone. It has to be stressed, however, that those three components viere not atways clearly distinguished; they were often interchangeably referred to, and the lack of clarity and discrimination concerning the point of referente was particularly great in late mediaeval England where finally the jurists arrived at the strange solutions reflected by Plowden. r. Dynastic Continuity In his report en Calvin's Case, Sir Edward Coke, in 16og, discussed the manner in which the English crown descended to a new king. He pointed out that the king held the kingdom of England "by birth-right inherent" and that the title was by descent from the blood royal, "without any essential ceremony or act to be done ex post facto: for coronation is but a royal ornament and solemnization of the royal descent, but no parí of the title." Coke even launched a vehement attack against two "Seminary Priests" who laad dared to divulge the opinion that the king before his coronation "was no complete and absolute king" and that therefore ("observe their damnable and damned consequent ") one might commit any act of violente against an as yet uncrowned king without being charged for treason. "But it was clearly resolved by all the Judges of England that ... coronation was but a royal ornament and outward solemnization of the descent."a Not to mention the seminary priests' dubious concept of the nature of treason and of the rights at large of any bishop, pope, or king before the consecration ° their theory of interregnum covering the time between a king's accession and his coronation was at any rate considerably out of date in the England of james I.

r Bracton , it should he stressed , had a sounder perception of the essence of the corporation , its head and its memhers ; see fol.374b, Woodhine, rv,ty5: "Et unde tales abhas praedecessor [uit seisitus in dominico suo et tetera , non fiat narratio de abbate in ahbatem vel priore in priorem , nec de abbatibus vel prioribus mediis fiat mentio , quia in collegiis et capitulis semper idem corpus manet quamvis omnes successive moriantur et alii loco ipsorum substituantur , sieut dice poterit de gregihus ovium, uhi semper ideo grex quamvis omnes oyes sive capita successive discedant [Bracton evidently reproduces the metaphors of D4i3,30, and of the Glos.ord. en that laxe, v- singulae res; see aboye , eh.vi, n¢ 81 nec succedit aliquis eorum alteri jure successionis ita quod jus descendat hereditarie ah uno usque ad aliurn, quia semper jus pertinet ad ecclesiam et cura ecclesia remanet, secundum quod videri poterit in cartis religiosorum de feolfamento , uhi manifeste videri poterit quod donatio (acta est primo et principaliter deo et ecclesiae tale, et secundario mouachis vel canonices ibidem deo servientibus . Et ideo si abbas vel prior, monachi vel canonicj iuccessiye obierint, domos in aeternum permanebit"

316

Their argument must have appeared like some quaint remnant from a distant past, and the two seminarista appear to os like late descendants of the Englishmen of 1135 or 1272 who were said lo have indulged in robberies and other disturbances because allegedly en the king's death the king's peace ceased to exist-or of those people of Pavia who, on the death of Emperor Henry II, destroyed the imperial castle because they claimed that there was no longer s Goke, Reports, 7th Part, vol. rv, folrna, u. 6 The substance and limitation of powers esercised betwcen election az ulconsecration have been investigated by Robert L. Renson, 'Notes en a eanonistic Theory of the Episcopal, Papal and Imperial Officcs," a study as yet unpublislted.

l

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an emperor who ow'ned it. o Probably, however, the two priests had in mind little more than lo recall the former legal importante of the king's conseeration at 1he hands of t te clergy; lar indeed the legal or constitutional valoe of that ritual action had been decreasing for many centurias. That tire view held by che two scminarists was not che one generally accepted by the Fnglisit clergv at that time goas w'ithout saying. Coke easily assembled a string of precedents refuting the dangerous doctrine of those clerics. He might as well Nave alleged the words of Archbishop Cranmer, who, when addressing King Edward VI en his coronation in 1547, explained that kings be God's Anointed, not in respect of the oil which the bishop useth, but in consideration of their power which is ordained ... and of their persons, which are elected of God and indued with the gifts of his Spirit for the better ruling and guiding of chis people. The oil, if added, is but a ccremony : if it be wanting, that king is yet a perfect monarch notwithstanding, and God's Anointed as well as if he was inoiled.11

Archbishop Cranmer's words do not merely betray the spirit of the Reformation in England with its general aversion to all sorts of ritualistic "inoiling"; they sum up ideas which had been developing ever since tire twelfth and thirteenth centuries and which reflected both the legal devaluation of the ecclesiastical coronations and the victory of dynastic succession. The devaluation of the late mediaeval anointments of kingsnotwithstanding an actual increase of mysticism connected with che performance itself-descended chiefly from two sources: one hierocratic and the other juristic. ro For the well known events, see Stubbs, Seleci Charters, 115 and 439. Powicke, Henry III, 16588ff , explains the sature of che note of 1272 as "noisy demonstrations" of "tumultuous Londoners" in connection with a mayor's election, hut cines not seem lo accept the constitutional aspect; Polloek and Mairland, History, 1,521f, en the other hand, have stressed rather strongly the interregna in order te prove that the king "tan die." For the parallel case in Pavia, see Wipo, Gesta Chuonradi, cy, ed. Bresslau , 80. That "the period between accession and coronation was not one during which royal rights could be invaded with impunity," has been pointed out, for the time of the accession of Edward II, by H. G. Richardson, "The English coronation Oath,' Speculum, xxrv(1949), 63. 11.92. lr Schramm , English coronation, 199. For similar views, see also Figgis , Divina Right, 122f.

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What had originally been a sacrament comparable to the sacraments of baptism and ordination liad been reduced by the spiritual power itself to a considerably lower rank in arder to enhance all the more efticiently the sublimity and uniqueness of the ordination lo priestly offices.12 The long development was epitornized by the decretal of Innocent 111 "On lloly Unction" in which the pope carefully separated the formerly interrelated and interlocked ofhces of king and hishop as oudined, for example, by che Norman Anonymous'a Pope Innocent III granted to the bishops the anointment with chrism and en the head, but denied emphatically the same privilege to the Prince. His arguments are interesting not only on account of the lowering of liturgical ceremonial , but also because they reveal a complete reversal of the former idea of Christ-like and Christ-centered kingship. For the very essence of royal or imperial christomimesis was in jeopardy when Innocent argued that chrism and head anointment were withheld from the Prince because Christ, the Head of the Church, had received the head anointment from the Holy Spirit. That is to say, in order to stress the dissimilarity with the anointment of Christ the anointment of the Prince was removed from the head to arras and shoulders, and it was performed, not with holy chrism, but with lesser oil. On the head of the bishop, however, the sacramental pouring has been retained because in his [episcopal] office, he, the bishop, represents the person of the Head [i.e. of Christ]. There is a difference between the anointments of bishop and Prince: for the bishop's head 12 The original connection prevailing between coronation anointings and baptismal anointings has been stressed recently by jean de Pange , "Doutes sur la certitude de cette opinion que le sacre de Pépin est la premiére époque du sacre des rois de France ,' Mélanges d'histoire du ahoyen dge Louis Halphen (Paris, 1951), 554564; see also the same author's book Le roi tres chrétien (Paris, 1949) and the review by Schramm, ZJRG, kan,Abt. xxxv11(,961), 395f. De Pangés discovery, hoseever, is not as new as his reviewer believes; see, e.g., Thomas Michcls, "Die Akklamation in der Taufliturgie," Jahrbuch für Liturgiewiesenschaft , M1(1928), 76.85: Williams, Norman Anonymous, 79, 144, passim ; see also Erdinann , Ideenwelt, 7,f, who rightly warns against taking for a dehasement what in fact was often only a different rice. Philipp Hofineister, Die heiligen dle in der margen- und abendldndischen Kirche (Das üstliche Christentum , N.F., v1-vi; [Würzburg, 1948]), yields little for che present purpose. See, however, Eichmann, Die Kaiserkrónung, 1,145ff (with n.26), and 206. 1 shall deal with the subject in a forthcoming study on " coronation and Epiphany"; see my brief remark in Laudes regiae, 142. 1s See aboye , Ch.nt, n.go, and passim.

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is consecrated with chrism , whereas the arm of the Prince is soothed with oil. Lee it be shown how great is the difference between the authority of the bishop and the power of the Prince.14

The liturgically inferior rank of the ruler's anointment is obvious: it was restricted to a slightly sublimated exorcism and to a sealing against evil spirits.15 According to the hierocratic doctrine the royal unction no longer conferred the Holy Spirit,,although the Coronation Orders still preserved that idea and canonists still pondered whether or not the emperor was a persona ecclesiastica . 10 Above all, however, the Prince was expressly refused a Christlike representation or the character of a christus Domini." As so often, the Roman 14 See c.un. X a,ig, ed. Friedberg, n,t3iff: "Sed ubi Iesus Nazarenus ... unctus est oleo pietatis prae consortihus sois, qui secundum Apostolum est capuz Ecclesiae, quae est corpus ipsius, principia unctio a capite ad brachium est translata : ut princeps extunc non ungatur in capite , sed in brachio.... In capite yero pontificis sacramentalis est delibutio conservata , quia personam capitis in pontificali officio repraesentat . Refert autem inter pontificis et principia unctionem ; quia caput pontificia chrismate consecratur , brachium vero principis oleo delinitur , ni ostendatur quanta sit differentia inter auctoritatem pontificis el principis potestatem." For so analysis of that passage , see Eichmann , Kaiserkránung , 1,147f. The section of the decretal dealing with the royal anointments has been rarely glossed, though it was not ineffective . Hosticnsis , e.g., follows the decretal when he explains (Summa aurea, en X 1,15,n. n, col. 214): " Effectus unctionis regalis esa , ni augeatur el gratia ad officium, quod ef committitur exercendum . et honorabilior habeatur." In another connection, he saya that tedtnically the word consecrare was not even applicable to the imperial coronation ; see K. G. Hugelmann , "Die Wirkungen der Kaiserweihe nach dein Sachsenspiegel," ZJRG, kan.Abt., ix(1919), 34, whose study assembles much of the later eanonistic material. 1s The difference of oils probahly did not imply an intentional debasement in early times (Erdmann, Ideenwelt , 71f); come rites may have followed more closely the baptismal procedure (blessed oil ), others that of confirmation (chrism). The nleaning of the oils can be conveniently gathered from the answers te Charlemagne's questionnaire en baptism ; see, e.g., the brief explanation of Leidrad, De sacram. bapt., c.vn, PL, xetx,863f: oil is used te exorcize the devil, water te clean from sin, chrism for the illumination by the grace of the Holy Spirit. See aleo the answer published by Wilmart, "Une catéchése baptismale du IXe siécle," Rev. béndd., Lvu(1947), ig9, §11, where the effects of che lesser oil are described ut undique muniatur. The same phrase is used by Alcuin, Ep., cxxxvn, MGH, Epp., rv,214f (ef. Ep. =XIV, sosf): "Pectus quoque eodem perungitur oleo, ut signo sanctae crucis diaboln claudatur ingressus ; signantur et scapulae ut undique muniatur.'' Contrariwise, the anointment with chrism is explained in the following fashion: "Tuno sacro chrismate capuz perungitur et mystico tegitur velamine. ni intelligat se diadema regni et sacerdotü dignitatem portaré' (according co 1 Peter 2: 9; Rom. te: 1 ). See also F. Wiegand, Erzhischof Odilbert con Maitand üher die Tau fe (Leipzig, 1894), 33f, 1§I3 and 17. le See Kempf, Innocenz 171., 227,0.52, who has collected interesting material en that point; also Mochi Onory, Fonti canonistiche , 90,0.1, 112,0.1, 117,0.1. 17 See abgvee 0.14, where Innocent III clearly implies the christomimesis 0n the parí of the bishop while denying it lo che emperor. Accordingly Tolomeo of Lucca, Determinado , c.25, ed. Krammer, 47,29, declares: " Hoc autem non invenitur de imperatore aliquo, quod sir vicarius Christi"

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pofitiff appears here as the chief prometer of precisely that "secularism" wh?ch in other respects the Holy See tended to fight. Somewh$t contemptuously Pope John XXII could allow King Edward II to repeat lis anointment if the king so desired, because anyhow "it left no imprint on the soul ," that is, it had no sacramental value.18 The decretal- in its section referring to the Prince -is important chiefly because it reflects the general change of mind of which Pope Innocent III was not the initiator but indeed the most prominent spokesman. Outside of Rome the papal decree exercised little, if any, influence . l° It affected in no way the coronation rites observed, for example, in England and France: Hostiensis had to admit that in those countries the chrismation of the king's head was continued according to tradition and custom , 20 and the mystico-liturgical elaborations of che French ceremonial reached their peak long alter the Innocentian era.21 The ritualistic lowering of the value of consecration would lave had little importante beyond the coronation liturgy of Rome had not, at approximately the same time, canonists and legists started to reduce the value of coronations in the legal-constitutional sphere as well. The Innocentian decree was an effluence of the extreme hieror0. J. W. Legg , English Coronation Records (Wesbninster , igoi ), No.X, p.72: . regalis [unctio] in anima quicquid non imprimir ...." See also Kern, Gottesgnadentum , 114; Bloch, Rois thaumaturges , 238ff; Schramm , Engfish Coronation, 13rf. 19 The Innocentian Cmonation Order-probahly first used in 12og, at the coronation of Emperor Otto IV-shows very distinctly the influence of the new cocarse; see Eichmann, Kaiserkránung , 1,253ff, esp. 266ff; also my, remarks in Laudes regiae, 144ff. 2° HO,tiensis, Sumsna acarea , en X 1,15,0.8 , col.z,3: "Sed el consuetudo antiqua cirea hoc ohservatur : nam supradictorum regum Franeiae et Angliae capita inunguntur." The same was orne apparently, in Naples, since Charles II of Anjou was granted the privilege of sn anointment "sicut inunguntur reges Francie "; see L. H. Labande, ''Le cérémonial romain de Jacqucs Cajétain," Biblioth . de Fdcole des charles, LIv ( 1893), 72. 21 See, in general , Kern, Gottesgnadentum , 1i4ff; Schramm, Frankreich , 1,148ff, 157, for France and the new exaltation of the royal anointments cine ro the "celestial halos" a(lded te the chrism ; further Schramm , Englisti coronation , 126ff, who helieves that in England the chrism was temporarily replaced by lesser oil , though the head anointing was not abolished ; there is, however, reason te believe that the liturgico- technical accuracy of sources lnentioning oleum sanctum instead of ehrisma is overrated , and Schramm himself (" Krünung in Dentschland ," 253) interprets Widukind 's mention of oleum sanctum in the secase of chrism. It stands to reason that Ihe belief in the sacramental power of the coronations continued ; Cynus of Pistoia, e.g., elaims that the consecration hestowed upon the Prince spiritualia dona, gratiam spiritus sancti ( Hugelmann , '' Kaiserweil,e ,- 30,11.2 ), and so did others.

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cratic views current at rhe papal curia ever since the days of rhe Reform Papacy. The canonists, hotceaer, who carne to think of coronations as a matter of lesser importance viere not the representatives of the hierocratic wing, that is, of [hose defending the theory that all power ultimately cD]minated in or derived from one man : the pontiff and his pontifical plenitude. On 1he contrary, the hierocratic canonists favored rhe imperial consecration because they held that only at his unction did sise emperor receivá the power of rhe material sword from the pontiff.22 The other group of canonists , however, the "dualists," who favored a balance of the two universal powers, held that the imperial power (wrongly identified with the "material sword" )23 derived from God alonethrough the act of election . The customary argument of [hese "dualistic" canonists of the twelfth and early thirteenth centuries was that emperors existed before there viere pontiffs and that Use emperors in former days had full power even without a consecration , because all power vas from God anyhow.24 They referred to che lex regia and pointed out that through the very election by che princes or the people, or by both princes and people, che emperor-elect obtained che full power of the sword and of administration because by that act princes and people had conferred all the rights en che new Prince.21 They therefore concluded quite 22The whole problem of the "Two Swords" (" Num imperator gladium fabear a papa?") has been re - investigated by A. M. Stickler in a great number of papera which were not ahvays easily accessible te me (I am indebted te Professor G. B. Ladner for allowing me lo use the olfprints which Itere at his disposal ); they are enumera[ed in bis artide " Sacerdozio e regno nelle nueve ricerche attorno al secoli XII e XIII nei decretisti e decretalisti fino alle (lecretali di Gregorio IX;" Mfscelianea Historiae Pontificiae , xvut (1954), 3,0.3; see also bis latest papen Imperator vicarius Papae," MICG, rx11(i9,54), i65 -v2. Fm' in excellent discussion of these papers, which urgently demand a synthesis on the part of the author , see Brian Tierney, 'Some Recen[ Works en rhe Political Theories o[ the Mediaeval canonists" Traditio, x(1854), 6ogff. The whole problem has been hrought ?rato focos by Kempf, Innocenz III., zo4ff ( fax rhe "hierocrats "), and 212ff ( for the "dualists"). 23 Stickler , " De ecclesiae potestate coactiva material? apud magistrum Oratianum;" Salesianum , 117(1942 ), 2-23, 97 -119, shows that Graban had in mirad the spiritual and physical coercion belonging to rhe Church, and not the spiritual and secular powers: see Tierney , op.cit., 6m : Kempf, op.cit., 187ff. 24 "Ante enim eran[ imperatores quam summi pontifices el tunc habebant potestatem, quia omnis potestas a Deo es:." This argument (or its equivalcnts) was repeated over and oven again; see Stickler , "Sacerdotium er Regnum nei decretisti e primi deaetalisti ;' Salesianum , xv(i953), 6o5 (Quaestiones Orielenses, s.xii ex.), 610 (Quaestiones of Bazianus , s,xn ex .), 611 (Ri(hard of Mores, s .xn es. ); see, for additional places (Simon of Bisignano , Huguccio, ami several Summae), Kempf, op.cit., 2,2ff, nos .48,5o, gr also Hugelmann , "Kaiserweihe,' 23.

2s Quaestiones Orielenses (Stickler, op.cil,, So-,): "Nos yero dicimus quod a neo hanc potestarem haber imperaron ... Nam ante potes: uti gladio quam ah apostolico inungatur . Ex electione enim populi ( Bazianus : 'principum' [Stickler, 610])

322

logically that rhe imperial power did not derive from rhe pope; that the Prince was Terna imperator even before he was confirmed-meaning here: consecrared-by tire pope, and that at his unction in Romo che Prince received only che papal confirmarion together with tire imperial title.'o It is true, of course, that very often clic opinions of "hierocrats" and "dualists" overlapped and that there viere numerous modifications of Use general scheme. Nloreover, che canonists made many subtle and often highly importan[ distinctions concerning che extent of actual power which che elect was entitled lo exercise before his consecration , and naturally they visualized as a pattern of che imperator electus the "bishop elect" whose powers before che consecration were restricted, whereas the "pope elect" exercised practically full power from che moment of his election, especially if he ascended as an ordained bishop.21 But while theories and analogies were to remain (luid for a long time co come, there crystallized nevertheless the doctrine that che Prince's exercise of imperial rights and adminstrative functions did not really depend upon his Roman coronation. And since Chis opinion finally was popularized also by Johannes Teutonicus' ordinary Gloss en che Decretum,28 che new theory could not fail to make che jurists at large conscious of the problem. hoc sibi licet , qui el et in coro omne ius transferí . Tamen confirmatur el ab apostolico tempore inunctionis." See also Huguccio (quoted by Kempf, 213 ,n.5o): "Ego autem credo quod imperator potestarem gladii el dignitatem imperialem haber non ab apostolico , sed a principibus et populo per electionem ...... Cf. Stickler, " Der Schwerterbegriff be¡ Huguccio;" Ephemerides iuris canonici , 111(1947), 201-242. 2e The jurists do nos Nave in mirad the papal confirmadlo following after rhe election and preceding the consecration of exempt hishops and other ecclesiastical dignitaries ; see Kempf, Innocenz III., to6ff. The words confirmare and inungere are almost interchangeable ; see, e.g., Oldradus de Ponte, Consilia, cexxx , n.1g, fol.75v: "quid es[ enim approbare, inungere , el consecrare nisi confirmare ?" See also Kempf, t23ff, 215 ( n.58), 245ff. For venus imperator, see note 28. 27 One of the more importan [ distinctions was that between administratio (owned by rhe emperor immediately atad directly from God) and auctoritas (conferred upon the emperor a[ bis consecration by rhe pope) introduced by Rufinus, en c.1, D.XXII, v. terreni simul , ed. H. Singer, Die .Summa Decretorum des Magister Rufi nos (Paderborn , 1902), 47; c£. Kempf, op.cit., 2o8ff . Benson (aboye, n.9) has investigated rhe pre-consecrational rights of bishop and pope in their relationship ro the precoronational rights of [he emperor. See below, nos . 32 and 40. 28 Glos.ord ., en c24, D.XCIII, Y. imperatorem: " ex sola enim electione principum dico eum verum imperatorem antequam a papa confirmetur . Arg[umentum] hic, licet non appelletur ." Johannes Teutonicus ( see, for his authorship, Hugelmann, "Kaiserweihe ," 18ff) repeats verbatim the Glossa palatina ( ca.1210 - 1215 ); cf. Stickler, 'Sacerdotium et regnum ," 89, and Kuttner, Repertorium, 81f, who first recognized [he interrelations betwecn the Glossa Palatina and Teutonicus' Glos.ord. (see ZJRG, kan.Abt., xxI[1932], '41a89)-

.1,

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Such consciousness is not yet found in a famous gloss of Accursius. In full agreement with the older tradition according Lo which a ruler's reign and regnal years began with the date of his consecration, Accursius held quod non valet privilegium principis ante coronationem, "that the Prince's privileges are not valid before his coronation."29 The idea embedded in this gloss died hard-not only on account of the authority of Accursius, but because it fitted the purposes of certain political groups. During the great Interregnum of the empire alter the death of Frederick II, w'hen Roman coronations were suspended for more than 6o years (1250-1312), cities and princes in the non-German paras of the empire-Burgundy and Italy-came forth with the theory that outside of Germany the emperor elect, the rex Romanorum, lacked executive and jurisdictional power before he was crowned emperor in Rome. This, of course, was but a flimsy excuse to elude the imperial overlordship in general; but since that theory played politically into the hands of Charles of Anjou, the most powerful man in Italy during che decisive years of the Interregnum, there was a strong group of powers inclined to back up the Accursian gloss to ahe letter and to forestall, at the same time, an imperial coronation altogether.30 At this juncture, the jurists at large began to occupy themselves with the very complex problem of the pre-coronational rights of the Prince. "Secular laws do not scorn imitation of the holy canons," remarked an early decretista'-and indeed not only can-

onists, but also legists and feudists followed the lead of Johannes Teutonicus' gloss on the Decretum. Chiefly for practical reasons Durandus opined that che Prince enjoyed full powers before his consecration because otherwise the donations to the Holy See made by Rudolf of Habsburg would be invalid,32 while Oldradus de Ponte discussed in great detail all argumenta for and against the pre-coronational powers of the emperor.'' Perhaps it was Oldradus' teacher, Jacobus de Arena (d. 1296 or before), who started among the civilians the more general discussion of the involved principie when, during the Interregnum, the issue reached a state of actualicy; and his opinion, favoring the Prince's pre-coronational posvers, was cited and supported by the Ghibelline Cynus of Pistoia, who drew the conclusion that "the one elected by the people through the lex regia" enjoyed the full sovereign rights and powers even without coronation.84 Eventually, however, the doctrine of the "dualistic" canonists had the effects of a rallying cry for those defending the maxim "the king is emperor in his realm" as well as for the anti-curialists. Andreas of Isernia, at the court of Naples, declared: "Certainly the emperors before being crowned in Rome are kings, and as kings they Nave maiestas and fiscus, and many were Kings of Germany or of the Romans, who were not crowned emperors at all."a° Clearly, the Neapolitan jurist aimed at demonstrating that "emperor and king were on equal terms" and that the emperor, in fact, was simply "king in his empire' and did not differ essentially from the King of Naples and other rulers whose rights derived from the lex regia

29 Glos.ord., en C.7,37,3, v, infulns. Another gloss of Accursius was, co say the least, misleading; en C.3,12,6,5, v. ve/ onus, he remarks: "idest coronatus." The dios imperii or ortus imperü, which the Emperors Valentinian, Theodosius, and Arcadius ordered celebrated, were their days of accession and election; an ecclesiastical coronation was as yet unknown. Accursius, however, reflected che mediaeval custom according te which tire regnal years were counted frons che day of che coronation, and not from che day el election or accession. In chis sense che Accursian gloss was understood, e.g., by Oldradus de Ponte, Concilia, ccxxx, n.7, fol.¡4v: "sed imperator in coronatione dicitur oriri el sic incipere esse [follows referente te the Accursius gloss]: ergo ante hoc non operatur, quae ad imperationem pertinent." Also Durandus, Speculum inris, u, partic.l, De rescripti praesentatione, §g,n.t8 (Venice, 1602), 424: "Et dies coronationis dicitur ortus Imperii ." Albericus de Rosate, en C.7g7,3,n.r2, foLlo7v (see also nos.3 and 13) repeats Oldrado's statements verbatim, but argues against hice, thus supporting Cynus (en che same law). so F. Kern, "Die Reichsgewalt des deutschen Künigs nach dem Interregnum;' HZ, evi(,gu), 39-95 Charles of Anjou had certainly different views with regard lo tire pre-coronational powers of the French king; see below, n.47. 31 "Seculi legos non dedignantur sacros carones imitar¡," a paraphrase of Nov. 83,1 (cf. Nov.131,1), found, e.g., in the Glossa palatina, en c.7 (ad(I.), C.11,q.3, v.

324

cura legos seculi, quoted by Stickler, "Sacerdotium et regnum," 89, and later often repeated; seo, e.g., llostiensis, Summa aurea, prooem., n.11, co1.7. 32 Durandus, loc.cit. (ahoye, n.29), who interestingly parallels emperor and pope: "Imperator enim ex sola Principnm electione ctiam ante confirmationem aliquam veras esa Imperator el consequitur ius administrandi .. . sicut et Papa ex sola electione consequitur plenam potestatem regendi el temporalia administrandi .. There follows an enumeration of actions which che pope can perform only "post. quam ordines et insignia recepit" ef. Hugelmann, "Kaiserweihe," 2g,n.1; also below, n.46, where che lame argument was applicd to Constantine and his donation, and n.41, for che imperial constitution Licet inris. as Oldrados de Ponte, Concilia, ccxxx, fol, jr.75v. 34 Cf. Hugelmann, "Kaiserweihe;" 29, n.2, for hoth Jacobus de Arena and Cynus of Pismia; see also Ullmann, Lacas de Peana, 177,n.i. 85 Andreas of Isernia, prooerniurn of his Gloss en Lib. aug., ed. Cervone, p.xxvi, §Sed corle: "Sed corte ancequam coroncntur Romae Imperamres sunt Reges, et habent majestatem, el hscum, el nudti fuerunt Reges .Alemanniae, et Romanorum, qui non fue'unt incoronati Imperatoces."

a

32,5

THE KING NE T FI? DIF.S

DYNASTIC CONTINUJ'r}'

and from their tide alones Lucas de Penna, likewise a Neapolitan, may have thought of Andreas of Iscrnia, on n'hom so often he relied, when mentioning ' some jnrispnldent5' sebo claimed tltat the ruler has "the plenitude of poseer by bis idvnastically or clectorally transmitted] rifle alune, from God alune, and in God's place on earth; and he can do anvtliiiig scitbout [ecclesiasticall examination, biessing, or coronation."a- On tlle other hand, the tendency seas anti-hierocratic sellen john of Paris binntly declarcd that kings were kings without anointment and that in many Christian countries anointrnents of kings viere not practiced at alias Definitely anti-curial were the Sicilian jurists of King Frederick III of Sicily who, in 1312, argued that the emperor had bis full powers by bis election alone;a° nor were the Italian jurists who gave counsel lo the emperors Henry VII and Louis of Bavaria less anti-curial when they argued albng similar Iines.'° Finally, that

theory triumphed at Rliense, in 1338, when the German princes elector decreed-and when, a little later, in the Constitution Licet iuris, Louis of Bavaria declarcd-that the emperor's power and dignity derived directly from God alone and that the one legally elected by che princes liad all the imperial powers, rights, and privileges by bis election alone arad without any papal approval or confirmation.9r This chorus seas joined by tlle plulosophersWilliam of Ockhaln, blarsiglio of Padua, and others-who held that the rights claimed and assumed by the Roman Pontiff nullified the importante of the electoral act and that solemnities such as coronations conferred no authority whatever, but only signified that such authority was owned and had been conferred already.11 The official legislation of the empire in 1338 settled the issue for all practical purposes-also among the lawyers. Bartolus, it is true, did not come out with a clear statement.93 Baidus, making some contradictory statements, operated skilfully with the old distinc, tions-introduced as early as the twelfth century by Rufinus-of "general administration"' and "plenitude of power" and declared that the emperor before his coronation enjoyed only the "general administration," a compound of powers which long before the German princes had occasionally called the imperatura.41 However, the gloss of Johannes Teutonicus exercised its influence also

38 Andreas of Isernia, loc.cft. (preceding paragraph): "quod Imperator vi Res parí passu sunt." See also Andreas, on Feud. 1,1,n.8, fol.gv': " . postquam en Res Romanorum , consecratnr per Papara ... Ex sola electione haber administrationem sine consecratione . . Infle Imperator dicitur Rex . . . Et lex regia fuit quae transtulit in principem omne ¡os . . . Ideen de Rege Siciliae et aliis, qui cum Imperio nihil habent facere: quorum quiliber est Monarcha in suo regno. . . . 37 Lucas de Penna, en C.10,74,n.i 2 (quoted by Ullmann, Lucac de Penna, 176, n.3), mentions some lawyers who heid that the mler "ex solo nomine a solo Deo et vice Dei in tenis pleni tudinem potestatis habere ac sine ulla examinatione, benedictione et coronatione omnia possc" Lucas de Penna himself did nor share Chis view. 88 John of Paris, De potestete, 918, ed. Leclenq, 229,11 f. In order to álemonstrate the superfluousness of ecclesiastical coronations, John refers te Spain: ut patet in regi bus Hispanorum. This is correa in so lar as Portugal never introduced a coró nation; Navarre introduced coronation ami unetion only alter 1257 (Schramm, "Dei Künig ven Navarra," ZJRG, germ.Abr, Lxvm[1gs1], 147f); Castile abandoned, in 1157, its coronation ritual, though resuming it in the thirteenth century (Schramm, "Das kastilische K6nigtum und Kaisertum wahrend der Reconquista," Festschrift fdr Gerhard Ritter [Tübingen, 195u], 115ff): and Aragon, having introduced the ceremony in 1204, observed a peculiar ritual-at lea_si alter the accession of Pedro II in 1276-in chal the king nor only invested himself with all the mayal insignia, but also erowned himself with his osen hand s, "ninguna penosa ni 1arcehispe, ni infant, ni ninguna persona otra de cualquiere condicion que sea" being allowed te touch the diadem (Schrznun, "Die Krbnung ¡in ka talanisch-aragonesischen Konigreich;' Homenatge a Antoni Rubio i Ltuch [Barcelona, 19361, ni,8f). asMGH, Const., 1v, No.1248, p.i311,g0: "Rumano principi sola electio cius omnem tribuit potestatem." CE Rudolf Mosi, 'Dei Reichsgedanke des Lupold von Beben' burg," DA, 10941), 467,0.2, for the later influence el the Memorandum. 4e See, for the Doctoro of Law Johannes Branchazol us and Ugolino da Celle, E. E. Stengel, Nova Atemanniae (Berlin, 1921), 5o, No. qo, 56; 73. No.123, §5; cf. Most, "Lupold;" 468, n.r; 470, n.3. Even stronger fs a later declaration (Stengel, 402), where the author claims that "iste corone sunt quedam sollempnita les adinvente per eccleslam, nomina non res impendentes" (at [he sane time a good example for the influence of Nominalism on juristic thought). See helow, nos-72.46 for che coronation as a mere solemnity; also aboye, n8.

326

41 For the passages, see Mirbt, Quellen, 223, Nos.383,384 (the wording of the Teutonicus gloss is clearly recognizable); in general, E. E. Stengel, Aesignon und Rhens (Weimar, 1930); also Most, "Lupold," 466ff; Heinrich Mitteis, Die deutsche Ktinigswahl: Ihre Rechtsgrundlagen bis zur Goldenen Bulle (2nd ed ., Brünn; Munich, and Vienna, 1944), 216ff. The power exercised by the emperor clec[ before the coronation was compared te that of the pope elect before his coronation, since che pope received "omnia jura pontificis ex electione"-at least, according te Cynus; see Hugelmann, "Kaiserweihe," 30 (note); IJllmann, Luces de Penna, 177f, also (n.3) for the effects of the imperial decree at the papal court. Cf. Durandus, ahoye, n.32. 42 For Marsiglio, see Defensor pacis, n, c.26, §§4 5, ed. R. Scholz (MGH, Fontes iuris germaniei antiqui, 1932), 490£: "Non enim conferunt huiusmodi solempnitates auctoritatem, sed habitam vel collatam significan[" For Ockham, see Most, "Lupold," 470, 11.5. 471, n.3; Schramm, Frankreich, 1,243, and 227, for John of Jandun. 4s Woolf, Bartolus, 31f. ** Baldus, en C.7,37,3, additio, fol,28v: "ante coronationem non haber plenitudinem potestatis, licet habeat generalem administrationem." See, for [hese and similar distinctions, aboye, o 27; also Ullmann, ofe.cit., 178. Cf. Mitteis, Ktinigswahl, 12011, for imperatura. Coinages of that kind trusa have been rather common; Cynus (quoted by Hugelmann, "Kaiserweihe," 30, note) mentions Irnperatoriam (iuris dictionem); Oldradus de Ponte (aboye, n.29) uses imperado, though nor in the cense of the German princes, but rather as Dante talks about tire imperiatus (De monarchia, 111,12). These coinages show that one wished to aveid the ambiguity of the word imperiurn.

1

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on these later jurists. Baldus, though referring occasionally also to the "Archidiaconus" (Guido de Baysio),40 depended in fact en the Teutonicus gloss, and expanded it, when he stressed the purely "órnamental" character of the Roman coronation: he opined that the Roman coronation added nothing but some "lustre and an increase of honor," whereas the true essence of imperial authority derived from the concord reached at the election alone.'" It was by drawing from one of those jurists that finally the English experts-Cranmer, Coke, and others-produced dle opinion that the coronation was "but a royal ornament and outward solemnization of the descent" and that the king had all the gifts of the Holy Spirit even without being "inoiled."

in 1272. When Henry III died, his son Edward 1, then absent in the Holy Land , began to rule with a king ' s full authority and power en the day of his accession , which was the day of his father's burial. Edward did not have to wait until his coronation, which vas consummated only in 1274 , to assume full power ; he, too, began co count his regnal years, contrary to the hitherto valid practice in England , from clic day of his accession.'2 Thus, for

It would be difficult to tell with some degree of accuracy whether or to what extent the lively discussion which was carried en during the Interregnum by canonists and legists about the emperor's pre-coronational rights, may have influenced the political decisions of che European kingdoms. We may assume, however, that the legal theories were at least subsidiarily effective when the two great Western monarchies, France and England, ventured lo pul into practice what later jurisprudents would have taken almost for granted: to sever the beginning of a king's reign and his exercise of full power from his ecclesiastical consecration. When Saint Louis died in Africa in 1270, Philip III, himself then present en the shores of Tunis and guided by Charles of Anjou, immediately assumed full power. Without waiting for his coronation , which had lo be postponed anyhow until alter his return to France, Philip III became king of France with all Iris rights and privileges. Accordingly he began lo date his regnal years, contrary lo all custom, from che day of his accession, and not from that of his consecration.'r Similar was the procedure in England fs Baldus, en prooem. (" Rex pacificus ") X i,n.5, In Decretales, fol.5: "Rex Romanorum statim, en. elecros est , haber imperium plene formatum authoritate potestatis , licet coronara expectet , ut not. Archidia. xciii. distin . capit. legimus (c.24,n.XCII1)." 46 Baldus, on c.33 X 2,24,n.6, In Decretales, fol,261v: "Coronario in imperatore non addit nisi coruscationem et honoris augmentum (aboye nos 40,42), sed veram essentiam ex sola electione concordi. Hoc patet in Constantino, qui coronavit papara, non autem fui [ coronatus a papa, lamen el donavit maxima et meliora, et ecclesia in parte utitur illa donatione , ergo valuit. Ex hoc sequitur quod adminis[ratio potest praecedere coronationem et sequi." See also aboye, n.32. 47 Schramm, Frankreich, i,226f; in general , Kern, Gottesgnadentum, 3o8f.

328

practical reasons, and by coincidente almost simultaneously, both Philip III and Edward 1 put die teaching of the jurists into practice, who held that the full government began with the day of a ruler's accession : et incipiunt anni irn.perü.'° Both France and England thus succeeded in abolishing the '7ittle interregnum " arising between the king's accession and his coronation , just as finally the decree of Rhense and the constitution Licet iuris did away with that interval in the empire. The coronation ceremonial , of course , was not abandoned ; but for all its late-mediaeval exuberance , the crowded symbolism and courtly-religious pomp of the pageantry , the live essence o£ liturgical kingship evaporated , and the prevalence of secular considerations-political and legal-deprived that ritual of most of its former constitucional values. The new king's government was legalized by God and the people alone, populo Paciente et Deo inspirante . The Church, as Marsiglio of Padua said , had merely to "signify." It had to testify that the new king was the right king and was orthodox . However, it still remained a task of the Church to solemnize the important coronation oath.5° Moreover, as an occasion for the display of courtly pomp and splendor , to which the newly founded dynastic Orders of Knighthood contributed their punctilio , the coronations gained some necv momentum.ó1 4s Pollock and Maitland, History , 1,52,f; Smbbs , Select Charters, 438ff; also Schramm, English Coronalion, r6Gf. +u Oldradus de Ponte, Consilia , ctxxx, n.6, folg4v , discussinp, the opinion of others according co whom the en,peror elect derived froni his election alune the rights of a veras irnpcator : " Et ni nomen [ rex Romanomm ] indirat, ex tunc videtur romanorunt praepositus rehus. Si sic , ex tunc est veras imperator, et incipiunt anni imperli." Cf. Theseider, L'Idea imperiale , 26.1 (when the senseless utitur [vf] should be replaced bv videtur). su The king swore his oatlr on one occasion only , that is- on his coronation; see Richardson , " Coronalion Oath ," 62f, n.g,; also Schramm, English Coronalion, 204ff, for the changes involved, and my study "Inalienahility ," Speculum, xxix ( 1954), 488-502, for the introduction of the non-alienation clause which increased the constitutional importante of the coronation oath. si See the concise account of Schramm , English Coronation, goff.

329

THF KING NEPER DIES

D}'NA.STIC GONTIN("IT}'

Finally, the crotvnings sen ed, as Sir Fdward Coke said, "the solem-

God can make an heir,"rr suggesting that the very birth of an heir resembled a ' judgmenl of God."'° I Ience, Arclibishop Crai nler could final]y maintain, when demonsn-a ring ruar "inoil ings" werc dispensable, toar in their persons God's . Anoinied "are elected ol God and indued with clac gifts of His Spirit."°t The HolySpirit, whiclr in former days osas manifcsted bv rhe voting of thc electors. svhile his gifts viere conferred by the anoiunuenr, now leas .seated in the royal blood itself, as it were, natura ct gratia. bv uature and by grace-indeed, "by nature" as well; for the rosal blood nosv appeared as a somewhat mysterious Huid.

nization of the tova] desccnt-" that is. as a niedium for tic quasireligious enbancenicnt of tic dvnastY and for the manifestarion of a dynasty-bous( divise right.

Not by any special act or decice, but de jacto, both Trance in 1270 and England in 1272 recognized that the succession to the thronc osas che 1 irtbrigbt of thc cldest son: on the dcath-or burialra-of the nding monarch the son or legitimate heir became king automatically. Nor could títere be an interruption in the succession : legally testator and heir viere considered ose person, and this view-supported by philosophical maxims-was transferred from Private lo Public Law,ro Hence, the continuity of the king "body natural" osas secured, when the two Western monarchies did away not only with the "little interregnum" between accession and coronation, but also eliminated, once and for all, the possibility of a "great incerregnum" which might occur between the death of a king and the election of his successor. "Time runneth not against the King"-it did noc run against the dynasty either. Henceforth, che king's true legitimation osas dynastical, independent of approval or consecration on the part of the Church and independent also of election by the people. "The royal power," wrote John of Paris, "is from God and from che people eleccing the king in his person or in his house, in persona vel in domo."sr Once the choice of che dynasty liad been made by the people, election was in abeyance: the roya] hirth itself manifesced the Prince's election to kingship, bis election by God and divine providence. That a person succeeded to the throne of his ancestors by hereditary right was something "which can be done by none except God." This was the opinion of an eleventh-cencury author; it was epitomized later by Bracton in che ofc-quoted maxim "Only 52 The baria ] took place on the fourth day alter King Henry III's death; after 1308, however , there was an interval of only one day, until the sixteenth century abolished this honorary las[day role of che dead monarch; see Schranun , op.cit., 166f. Baldus , en c.36 X i,6 , n.3, In Decretales , fol. 79, recommends an interval of at leas[ three days with regard to the coronation of the new king : ''Quod rege mortuo 51ius eius non deber de honéstate colon ari nisi post Iriduuni, quia post tres dies Christus resurrexi1 a mortuis."

ss See below , nos.6off, and 781f. 54John of Paris, De potestate. cío, ed, Leclercq, 119,23; sce above, Ch.vi, and, Kern, Gottesgnadentum, 47ff.

330

e

'He that cometh from heaven is above all' (John 3:31), ihat is, lie that descends from imperial stock is more noble [han all.ta

The eulogist rhus praising Frederick II merely echoed opinions current at the imperial tour[, and Frederick himself excolled che nobility of the imperial race and of che royal yaces ac large.se Moreover, in Frederick's surroundings one Uegan to combine the dynastic idea wich philosophical doctrines implying a belief in certain royal qualities and potencies dwelling in the blood of kings and creating, so to speak, a rosal species of roan. In a letter co Frederick's young son, King Conrad IV, for example, the writer said: So much more are Princes who lack knowledge stained and blemished than private persons, as the nobility of the [royal] blood is distinguished by the infusion of a subtle and noble soul which makes Princes before other men susceptible co teaching.eo 11See the tractate De unitate Ecciesiae ( c. A.D. logo), c.13, 211GHI- dL, 11,2554,32: ... qui pro patrihus sois successit in regnum jure hereditario , quod fien non posset nisi a Deo." Cf. Kern, Gottesgnadentum, 245, n.449, fue additioual places. Bracton, fol . 62b, ed. Woodhine , 11,184: "Nec potes [ aliquis sihi facere heredero, quia solos deus heredero facie " Cf. Figgis , Divine Right , 36; Kern, op .cit., 48,22.90, sn See Figgis, Divise Right, 36. br See ahoye, n. u.

cs Nicholas of Bari, ed . Kloos, in DA , x1(1954 ), 170,4: "qui de celo venia super omnes est , id est, qui de imperiali semine descendit , cunctis nobilior est." as See Erg. Bd. 221ff, esp . King Manfred 's manifesto to the Romans , of 1265: ASGH, Const., 11, No . 424, PP.559ff. 9U Huillard - Bréholles, 1 /ist. dipl., v , 274f: "Immo tanto se maiori nota notabiles faciunt principes inscii quam privad, quanto nobilitas sanguinis per infusionern subtilis et nobiiis anime fati[ ipsos esse pre ceteris susceptibiles discipline." Tlie whole letier is of great interesa and though it may he a school exercise only, it set reflects concepts of the blood roya] apparently common in a period so strongly influenced by tern as of Aristotelian -Stoic anthmpology . Dubois (below, n .64) uses similar phrases, and the doctrines el absolutism later on work with the same argm ment: "[Le sang Rosal] est d'estoffe et qualité trop plus noble et auguste, que celui

'

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It is not quite clear what doctrine the writer of these lines may have had in mind or from what sources he drew. It is not simply the Aristotelian antltropology, the doctrine of generation and hereditism according to which there is a power active in the mate seed deriving from the soul of the begetter and impressing itself on the son;°' nor is it the Stoic doctrine of the "seminal principies" of the genus humanum in general; 12 the idea of a specially refined soul, "subtle and noble," and infused in tlte blood of princes is reminiscent rather of the hermetic tenet concerning the creation of the souls of kings, but ft seems doubtful that this doctrine was

However that may be, a peculiar kind of scientific mysticismirrational and material at the same time-seized upon the budding idea of dynastic ]egitimism. Pierre Dubois assembled astrological and climatological arguments to prove the natural and physical preeminente of the French royal race not only aboye that of common people but also aboye that of other dynasts.B4 In the lame period, tire French theories justifying the dynastic principie produced truly exquisite structures of dynastic scholasticism: a dynasty that had returned lo the blood of Charlemagne, saintly kings siring new saintly kings, a race promoted by Christ from the very beginnings of che Christian faith, a most holy royal house to which God had granted a heavenly oil for the anointment of its kings, and certainly a roya¡ stock endowed with miraculous gifts tire ]ike of which not even che Church could elaim Be Although similarly exalted elaborations of mystic endowments of the royal house by grace and by nature were hardly found in England at that period, the hereditary right lo the crown on the part of tire eldest son hecame nevertheless deeply engrained as an "indefeasible right" and an incontestable, if unwritten, law of the realm.°a

known at that time.83 des autres hommes ." Cf. Church, Constitucional Thought, 317 ,H 56, quoting Charles Loyseau, Traité des ordres et simples dignitez, vn,n.92 , in his Oeuvres (Lyon, 1701), 47. al The passages relevant to Aristotle's gencrationism and spcrmatology, though particularly numerous in De generalione animalinm , are yet widely scattered; see Harold Cherniss, Aristotle 's Critici.sm of Plato and che Academy ( Baltimore, 1944), 470E The whole prohlem has recently been dealt with by Erna Lesky, Die Zcugnngsund Vererbungslehren der Antike und ihr Nachwirken (Akademie d. Wissenschaften und der Literatur : Abh. d. Geistes- und soziahviss . Kl., 19575, No.iq, Mainz, 1951); see 1s5ff ( 13491f), for Aristotle , and esp. 146ff ( 137otf), for A. 's doctrine oí hereditism, See also A. Mitterer, Die Zeugung der Organisnzen , insbesondere des Menschen, nach dem Welthild des hl. Thomas von Aquin und dem der Gegenwart ( Vienna, 1947) . Aquinas' doctrine holding that " virtus activa quae est in semine, est quaedon impressio derivata ah anima generantis " ( Summa theol ., r,q.n9,arr.i,resp . 2, siso r,q.l t8,art.i, ad 3; cf, Lesky , 135 and 137 , bar Aristotle 's view ), was inHuential also on juristic thoughn see, e.g., lean de Terre Rouge, De iure futuri successoris , Tractl, art.2, concl . l, p.35: ". . nana secundum Philosophum in semine hominis est quaedam vis impressiva , activa, derivara ab anima generantis et a suis remotis parentibus. Es sic est identitas particularis naturae patris et lilü...... For the tener of the identity of father and son, see below , nos.258ff. az See, for the Aristotelian Stoic doctrine oí che raciones seminales as transmined by Augustine and Macrobius , Hans Meyer , Geschichte der Lehre von den Keirnkrditen von dar Stoa bis zuna Ausgang der Patristik ( Bonn, 1914), esp.184ff; cf. Lesky, op.cit . 164ff ( 1388ff); also 172E ( 139(1), for Philo, Legatio ad Gaium, c.8,55, where the "seminal logoi'" are said to have predisposed Caligula for rulership; cf. Harry A. Wolfson, Philo (Cambridge , Mass., 1948), 1,342f. os Kore kasmou , frg.xxiv, ed . W. Scott, Hermetica (Oxford, 1924), 1,494ff; ed. A. D. Nock and A: J. Festugilre , Corpus Hermeticum (Paris, 1954 ), rv,52ff ; see also Delatte, Traités de la royauté , 1546, for che connections with the "Pythagorean" theories en kingship . Of the Corpus Hermeticum there was at least one tractate known in che school oí Chartres , the Asclepius; see Theodore Silverstein, "The Fabulous Cosmogony oí Bernardos Silvestris ," Modere Philology , xr.v1 (1948), iogff; Robert B. Woolsey, "Bernard Silvester and the Hermetic Asclepius," Tradilio, Literatur, 111 , 199 and 262 . Kore kosmou, Y10948) , 340-344; also Manitius , Lateinische however, or , for that niatter , Stohaeus ' Florilegium, can have been hardly accessible in the i3th century. Loyseau , loacit. (ahoye, n.6o ), refers co Plato and Aristotle in that connectiont " vea que Platon au 3. de sa Republ . a dit, que ceux , qui sont nays pour commander , sont composez d'autre memil, que les autres . Et Aristote a dit encor plus 3 propos, que les Roys sont d'un gene moycn entre Dieu et le peuple."

332

See Plato, 72ep ,, 1II,415Aff ; but it is nor clear to what passage oí Aristotle the author refers; see , however, Goodenough , Politics of Philo, g8, ton similar places. 64 Scholz, Publizistik , 411,n.137; Kdmpf, Pierre Dubois, 95 , 75.7; aleo 7o. It remained the standard practice oí ahsotutism to enhance che royal hlood " en l'excellence duquel en no doit imaginen aucune souilleure ni corruption , aros ara contraire ce sang Roya] purifie et ennoblit tout autre sang avec lequel il se mesle." Charles Loyseau, loc . cit. (aboye, n . 6o), a passage which should he compared with Leclercq, "Sermon," 169 , 15 (aboye, Ch . V, n.183 ). For England , see, e.g., Bacon , Post-nati, 667: , that bis [ che kings] hlood shall never be corrupted ..:' es Abreve, Ch . v,nos . r83-r8¡. For tire return co chc Carolingian race, see Karl Ferdinand Weiner, "Die Legitimit dar Kapetinger und die En t stehung des ' Reditus regni Francomm ad stirpcrn Karoli';' Die 1Velt als Geschichte , x11 (1952 ), 203-225, who shows that che slogan , though introduced already by Stephen of Marchiennes (ca.n96), hecame etfective only through Vincent oí Beauvais (alter 1244 ); cf. Kern, Ausdehnungspolílik , 23. The French claims were adopted by che Anjous oí Naples. See, e .g., Charles lI oí Anjou , in che announcement oí his coronation : " Inter regales autem prosapias , Christianitatis caractere insignitas , ab ipsis fidei Christiane primordfis ideo altissimi filias stirpem regiam inclite domus Francie altis provexit radicibus et provectam gobernare non desinit in gloria et honore" (Paris, Bibl.Nat., MS lat.8567, fol.sov). These and similar arguments are found over and oven again. See, e.g., Terne Rouge , De iure futuri successoris, Tractl, art .1, conel.15, p.31: "Nana legimus domum regiam Franciae sanctissimam Deum de oleo suo ... prae aliis regibus . . decorasse." 68 See Chrimes , Ideas, 22ff , e,ho shows , however, that che problem still was fluid in late mediacval England; aleo Figgis, Divine Rgght, 81ff; for the popular opinions and their legal background , ate che sketch hy Keeton, Shakespeare and his Legal Pro filenas, co9ff ("Tire Titie co the Crown in the Histories").

333

THE FINO NEVER DIES

1)YNAST!0 CON'FINUITY

What matters Itere is Use principie of continuity. In tlie canica Middle Ages, apparently following tse lead of tico Csurch, ncc continuity of a rcalm cbuing an interregnum liad been sometimos prescrved by a fictiun: Christ siepped antes tlie gap as interrc-c and secured. through bis own eternity, die continuity of kingship. 7 hc ancient formula of latín,,, documenns regnanle Christo, descending from the times of the persecu tions,a: oliera scrving as a mere formula of devotion," tiren applied bc Pope 1ladrian T to indica te his refusal of furtiser recognition tes Use iconoclast Byzantine eniperor,89 was occasionally used in times of an interregnum for the dating of documents when a king's regnal years viere not availahle. The sometimes very specific formulae speak for themselves:

In the first ycar alter clic death oí King Rudolf, while Clvisr rules hoping for a king.... While Christ roles expecling a king....

That is tu say, while no king roles, Christ Tules. Tlte trae governinent devolved upan the God, and die realm eseheated tes tito divine Lord paianlount cantil a new king iras invested. 'Lhis secmingly strange idea tes w'luich, for che lasa tinte, tse Florentina Republic resorted in 128, ' liad its dangers. For the escheat of tire realm to Christ became policically a threatening reality when risa pope began co claim for himself che righcs of the transcendental interrex and to assume as vicarios Christi a position of overlord over secular dominion in times of an interregnum. As usual it began with the empire. Already under

Burgundy lacking a king, while our Lord jesus Christ rules here and everywhere....

Gregory VII we find, alter the excommunication of Henry IV, documents which show the date: Domno nostro papa Gregorio

teArnold Ehrhardt, "Das corpus Christi und die Korporationen ¡in spiitrbmischen Recht;' ZJRG, rom.Abt., LXXI (1954), 3q 1.27 (seo aleo his The Apostolic Suecessfnn [London, 1953], 41t), stresses tito poli1 icnlly revolutionary character oí the datings in tlte Acts oí Martyrs and gives as au cx am pie ala r yriurn lo enaei Sr rmicnsis: "sub Dioeietiano imperatore, agente Probo praeside, regnante Domino postro jesu Christo." The antithesis "Diocietiaun imperarore-regnante Domino" is obvious; it is even stronger through the additional vera in the Acta Cypriani: "sub Valeriano et Gallieno imperatoribus, regnante yero Domino ..."; or by ao additional xarü aé $µd1 paeiXedovroe Dei cepíou i/pruv (Pionús,c.23). or e'v odpavois II pae,X eloeroc sra. (Dasius,es2), or pauaedoeros ele aimvae (Agape, Irene, sud others, c.7); ed. Rudolf Knopf, Ausgewühlte Mdrtyrer-Akten (and ed., Tübingen, 1929 ), 71, 86, 92, and passim. It is very plausible that the formula originated as Dr. Fhrhardt seems to suggest, in che Acts oí the Martyrs and in a spirit oí opposition against che imperial dating. Tisis kind oí dating was used also , relatively early, for politicai purposes (below, 1.69 ); seo, o.g., the inscription oí 641 from Hauran, in Arab-occupied Syria,

Romanum imperium tenente.72 Innocent III, then, somewltat casually clairned imperial rights in the empire during a vacancy; Innocent IV drew the hierocratic conclusion that risa empire returned tu its true lord ora earth, che vicar of Christ, and at tico same time he vaguely expanded that claim, regnis vacantibus, te other kingdoms as well; finally Hostiensis tied together the remaining loase ends and firmly established tlie theory of che pope's interregnal vicariate.'a In the fourceenth century, che theory was 70 The character oí au interregnal formula may hace heen ambiguous in dre case oí Hadrian l; but it was unequivocal in the case oí Pope John VIII who, during the vacancy oí the empire afcer the death oí Louis 11 and before the coronaron oí Charles the Bald in 875, used the formula : regnante irnperatore domno leso Christo; see Bresslau , Urkundenlehre, 1, 837; Menzer, op.cit., 63. See , in general , Kern, Gottes-

in which the meaningless imperial years oí Constantinople viere replaced by avplou 'IgaoO XpmroG pauixeíovros; Philippe Le Bas and W. H. Waddington, Voyage archéologique: Explication des inscriptions grecques et latines eecueillies en Gréce et en' Asie Mineure (Paris, ,8886), Partie 6, Syrie, p.g52, No.241311, quoted by Milton V. Anastos, "Political Theory in the Lives oí the Slavic Saints Constantine ami Methodius,' Harvard Slavic .Studies, 110054), 31f.

gnadenturn, 7,1.12, and 3gn.59. For the forros mencioned here ("Burguudia rege carente, Domino postro J.Ch. hit et ubique regnante .. ; Anno primo quod ohiit Radulfus rex, Christo regnante, regem sperante . ; Christo regnante regenr expectante ..."), see U. Chevalier, cartulaire de Sainl -André-le-Bas de Vienne (l.yon, 1869), 268ff; Ph. Lauer, Le régne de Lovis VII d'Outrc-roer (Paris, 1900),

68 The formula was anything hut 'are: it appears very frequenny in the invocado oí Anglo-Saxon documents; see, e.g., W. de Gray Birch, Cartulariuns Sasorsicum (London, 1885-93), 1,7\o.3; 45,Nos,,: l7,No.27: nL623,No.,3o3, and passim, for invocations such as "Reinante imperpetu um domino nosn'o ..." and similar phrasings, sometimes replaced or supplemented by a labaruns, which has che sanie meaning; see, for clic scribes, Richard Drügereit, "Gab es cine angelsiichsische Künigskanzleil" ArchUF, xut (1935)• 370 391 307-

The formula Regnante domino nostro etc . was used aleo during a vacancy oí the Holy See; cf . Gregory VII, Reg., t,1, ed. Gaspar, p.t,n.2; see aleo ahoye, n2. 71 Ceeil Roth, The Last Florentina Republic (London, 1925), 76f,82f, sumo cap the material, though withouc clearly distinguishing the various formulae. s2 Cartulaire de l'abbaye de Saint Bernard de Romans ( Romana, ,898 ), 1,2o3ff, Nos.168,188 ; cf. Laudes regiae, 140,1.93. The idea is found, though with referente tu che end oí the Roman Empire on the Last Day, in Tolomeo oí Lucea's Determinatio, c.25, ed. Krammer, 49: "Deinde redit [imperium] ad verum domimun, qui contulerat, scilicet Chriscum, cuius vices summus pontifex gene." sa For che whole prohlem, ser F. Baethgen, 'Dar Anspruch des Papsccums auf das Refchsvikaria c," ZfRC, kan.Abt., xpgao), i- 2 268: and, for Innocent IV and llosti.

e9For Hadrian I. ser Sehramm, Die Anerkennung Karls des Grossen ala Kaiser (Munich, 1952 ), uf (aleo HZ, CLXx11, 1952); cf. A. Menzer, "Die Jahresmerkmale in den Datierungen dar Papslm'kunden bis zuna Ausgang des u. Jah rhunderte," Rámische Quartalsclirift, XL (1932), 62f. Sdtramm is correct when he ealls tate lengthv formula (it incitados God the Fat)ier and are Ibis' Spirit) "liturgieal." The modal, however, should be sought in the datings oí che Acts oí Martyrs and in expedients such as che inscripi ion from Haurau; see aboye, 1.67.

334

ensis, espeeially ,781f, ,82f; aleo Carh9e, Political Tlseory, v,322,n.,; Ullmann, Lucas

a

335

THE CROWN AS FICTION

THE KING NE VER DIES

of the Roman emperor, was valid also for the hereditary dignity of a king. Baldus likewise distinguished two crowns in the monarchies in wlpich-according lo the Law of the Realm, and not according to Roman Law-the son succeeded the father by birthright.

applied for political expediency even to dominions which the Holy See only regarded as vacant, but which in fact had their ordinary rulers. Hence, the vicariate of the empire of Edward III, which Louis of Bavarfa had conferred upon the English king, was objected to by Pope Benedict XII because it encroached upon the rights of the papacy.74 These and similar papal claims naturally lost their very foundation in kingdoms in which, as a result of the continuity of dynastic succession, interregna ceased lo exist altogether. The king's reign began with the demise of the predecessor or, as in England alter 1308, en the day alter the predecessor's death71 Henceforth the hereditary succession suffered theoretically no interruption so that, for reasons of dynastic continuity, it might be claimed that the king body natural "never died": the dynasty, the "house," resembled a supra-individual entity comparable to an universitas "which never died." At any rate, the pious fiction of the Christcentered age concerning the divine interrex who safeguarded the continuity of government in times of an interregnum, had become superannuated owing to the continuity by dynastic succession. This, at least, was true with regard lo the natural body of the head of the body politic. The continuity, however, of the complete body politic-head and members together-was preserved by another fiction, that of the sempiternity of the Crown.

[With regard co che succession of the] son I do not consider an interval of time; for the Crown descends en him in continuity, albeit that the exterior crown demands an imposition of the hand and the solemnity of olhccs.'r

Wítat Baldus wishes co express is clear enough. There was a visible, materiald exterior gold circle or diadem with which the Prince was vested and adorned at his coronation; and there was an invisible and inmaterial Crown_encompassing all the royal rights and privileges indispensable for the government of the body politicwhich was perpetual and descended either from God directly or by the dynastic right of inheritance. And of chis invisible Crown it may well be said: Corona non moritur. To corroborate the sempiternity of the invisible Crown and the continuity without incision of dynastic succession Baldus applied, in agreement with the customary practice of jurists, an argument of Privare Law co the sphere of Public Law. He quoted from the bilis erac ipsa Imperialis infnla (C,,7,37,3,5).'' The passage is gmted verbatim by Matthaeus de Aftlictis, on Lib.aug., I,7,n,32,fol.52v, to corroborate the maxim "quod rex in regno dicitur lex animara." It would be diflcult to cell whether Baldus had some specific ancient author in mind (dicebatur), because his j uristic allegations do not really bear out the theory of the trvo crowns. Nicliolas of Bar¡, in his praise of Frederick II, refers to Exodus 25: 25, when he says: "In tabernaculo federis erant due corone auree, una quarum dicebatur aurea, altera aureola, sed aureola superposita auree preminebat, sic dignitas istius [imperatoris] omni preminet dignitati." The difference between the visible, material crown of the emperor and che 'invisible" diadem placed en his head by the hand of God was, of course, very much alive in Byzantine arq see, e.g., André Grabar, "Un médaillon en or provenant de Mersine en Cilicie," Dumbarton Oaks Papera, v10950,34ff, who discusses a medallion (sixth century, but of a design carrying os back to the post-Constantinian era) showing in addition to the diadem which che emperor acusally wears, the "invisible' crown which the dextera Dei extends from heaven, not to mention the insignia of the toryues which the personificó Son bestows opon him. We may tecali that the radiate crown, though displayed time and again on imperial coins, ivas not an insignia actually worn by che emperor. rr Baldus, en c.36 X z,6,n.g, In Decretases, fol.7g: "Quod rege mortuo filias cius non debe[ de honestare coronar¡ nisi post triduum .. ; ego in filio non facio temporis distinctionem, quia corona continuitive descendit in ipsum ... ]ices corona exterior requirat manos impositionem et oficiorum celebritatem." The doctrine "Filias succedit patri in refino ¡tire regn i, non jure Romano" is standard; see, e.g., Baldus on c.24 X i,6,n.2, fo1.78.

2. The Crown as Fiction CORONA VISIBILIS ET INVISIBILIS

In ancient times, writes Baldus, when the Roman Empire was in its prime, one used lo say that the emperor, whose "material and visible" crown consisted of a diadem, had his "invisible" Crown imposed by God.r° What was valid for the elective dignity de Peana, 172,n.g, for some objections against chal theory en the parí of Lucas de Penna, Also Ullmann, Medieval Papalism, t88,n.5, fue Cynus' repudiation oí the papal vicariate of the enipire. rs Baethgen, "Reichsvikariat," 262,n.2, for Edward III. The papacy, throughout the reign of Louis of Bavaria, considered the empire vacan[ and consequently assumed vicarial power. 75 Schramm, English Coronation, t66f; Kdnig ven Frankreich , 1.a26f. rs Baldus, Consilia, nt,,5g,n.2,folg5*: "Et tale Regnnm [se. the elective Regnum Romanonun] a Deo horninibus mittitur (C I,17,1; No-j,,6, in pr.; Nov.,73, in pr.t; Nov.,ii3,i; Nov.,1o5). El dicebatur antiquitus, dum Romanum Imperium erat in flore, quod corona Imperialis invisibilis imponebatur a Deo, materialis yero et visi-

336

IR-

337

FIJE CROTIN AS' PtCTIOA'

THE KING NE t'1,-R DÍES

drngstore.'e1 That celestial baleni, declared Richier, liad peen sent from high hcaven 15oi la corone defjendre; God himself liad sancti-

law of inheritance in justinian's lns(ihtlrt: ' and imrnediatcly on the death of the fatkier, owiiersliip, so to say, is con t ion cd '-a passage en which tac Accursian Gloss commented "Father and son are one according lo che fiction of I.arv. 'Fhe ''oneness" oi father and son, and thcrcivith che very complex idea of ideutity of predecessor. and successor, taus liad rotos also in che lait al inheritance: the dying king- and the neto king became one widl regard lo the invisible and pcrpetual Crowlr which representad the substance of che inheritance. This, to he sure, ivas a concept drawing very close to identifying che dynasty teclinically with a "corporation by succession" in which successor and predecessor appeared as the same person with regard to che personified office or dignity.'° On che other hand, however, it was an old conceptual property of juristic thought to personify the inheritance; that is, to treat che estate, as it passed from the testator lo the heir, as a person.80 Hence, there viere juristically several possibilities lo personify che immaterial and invisible Crown, especially if its perpetuity was linked to that of a hereditary monarchy, lo the dynastical continuity without break or incision and, as it were, without change of person-despite a change of the mortal ruling individuals. For all 'hese refinements of late-tnediaeval jurisprudence, che concept of the immaterial Crown originated in strata not at all, or only vaguely, related to legal thought. It may not always be quite easy for us to decide whether an author referred to che visible crown or to che invisible Crown. In bis long poem glorifying Reims and St. Rémi, its first bishop, a Frencli poet of che thirteenth century, Richier, naturally carne to discuss one of the cimelia of the cathedral treasure-the vial containing tlie holy balen by che infusion of which the kings of France prevailed over all other anointed who liad lo parchase their coronation ointments "in the

fied "king, crown, and realm"; finally, tire Frencli acere bound to love tic crolcn more iban tire most precious relic, because tliose killed in defense of the Crown would be saved in tire lile thereafter.N2

We obviouslst cannot be quite certain whether che poet was talking about the material crotvn of tire French kings, which actually contained a thorn from the Crown of Tliorns and therefore indeed was also a holy relic,80 or liad in mind the immaterial Crown of France, the political Crown in tire abstract. It seems, however, that in this case material and immaterial crowns viere merged finto one another; and the borderline between che visible object of worship and the invisible idea was as hazy Itere as ir was, for example, hita regard to the Crown of Inungary which was at once the visible holy relic of St. Stephen, Hungary's first Cliristian king, and the invisible symbol and lord paramount of the Hungarian monarchy." Since the French poet mentioned s1 Richier, La vio de Saint Remi, vv.8i.off, ed. w. N. Bolderston, London, 1812, 335: Et mol' ti doit bien sovenir Qu'en toutes autres regions Covicnt les rois•lor ontiuns Achaten en la merce,ie. . Cf. Bloch, Roo ihaumaturges, 229; Schratnm, Franhreicit, 150, 239. 82 See Richier, 1 r yff:

Saint Remi• cui Dieus envoia 1'oile•dont il saintefia le roi• la corone - le regne .. 73ff: C'est por la corone deffendre Dont Dieus fist 1'oncion dcscendre Den ciel . . ,

45ff: EL ce doit donner remenhrance As Fran4ois d'anmer la coronnc .. . Et qui por si juste occoison \forroit comme por ti garder, Au droit Dieu dice ct esgarcler Croi je qu'il devroit estro saus, S'il "'estoit en crearte fans. .. . Cf. Bolderston, 43,4ot; Bloch, Rois thaumatutges, 211, es Schramm, Franhreicit, 200.

Ti Inst.,3,i,3 : "Et statim 'norte parentis quasi continuatur dorninium." Sec Gtos.ord., Y. quasi : " Hoc ideo, quia in corporalihus dicitur proprie continuatio , sed dominium est incorporale .... Dic ergo improprie fieri continutionem: quia ínter diversa, non ínter cartera fieri debe[: sed pacer ci ptius unirrr2 fictione huna sunt." The otlier relevant place is D.28,2,r 1 , See, fot Chis theory, ahoye, n.61, and below, nos.2581f,265ff. 79 See aboye , Ch.vi, n.97.

s+For Hungary, see IIarmng, "Die Krone," 3511; sea also Josef Karpat, Die Lehre con dar hlg. Krone Ungarns ¡no Lichte des Schrifttums;' Jahrhuch für Geschichte Oste uropos, 51(1911), 1-54: also Joseph Holub, "Quod omnes tangit. . Revue historique de drnit frnn¡ais et d(rarrger, xxix(1931), 9¡102; and, lar the archeologiral material, P. f, Kclleher, The H(d) (:+olen of Hungary (Fapers and

quia hereditas persotrae vice fungitur, RO D-46,1,22 (che fantous lee mm'tuo): , sicuti municipium el deulria el socictas." CE Gferke, GenR., 111,362, and passim; aboye, Ch.vi, n.74

338

a

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THE KING NE VER DIES

"Crown" was used in a fiscal sense,B9 there cannot be the slightest doubt but that "Crown" indicated something more general than the gold rim adorning the king's ficad.

the "Crown " together with anointment , we might be inclined to identify it with the golden crown placed on the head of che anointed king; however , the "defense of the Crown " and the celestial reward for the "martyrs of the Crown " would put the insignia in the place of the French patria. But did it really make a very great difference whether a man exposed himself and suffered death for the tangible relic of the corpus mysticum of faith, Di for the intangible symbol of the corpus mysticum of the realm, since both were one? The indefiniteness itself of the symbol may have been its greatest value, and haziness the true strength of the symbolic abstraction.°2 It was by coincidente only that the Chapter of the cathedral of Reims, the coronation cathedral of the French kings, received in 1197 a letter from King Philip II asking the canons , who owed hini no service , to lend him military support tam pro capite nostro, tam pro corona regni defendenda, " for the defense of our head as well as of the Crown of the realm."ae The antithesis of caput nostrum and corona regni hardly warrants speculation as to whether referente was being made to che immaterial Crown or tu the material crown on the king' s head: in either case it would have been the Crown as a symbol of the whole realm. It is easier to make an unambiguous decision when we turn to the answer of the canons of Reims on a later occasion . For then they

The difficulties of definition should not be exaggerated. Suger as well as the canons of Reims obviously used the term "Crown" as something not quite identical with "realm," if closely related to it. On the other hand, "Crown" was not quite identical with "king" either : Philip II clearly distinguished between his physical head and the "Crown of the realm" adorning that head. In other words, "Crown" cuas distinct from both rex and regnum. It was something different from king and realm although not separated from either; and it was something that king and realm had in common although it was not quite identical with either. The argument of rhetorical redundancy should not be made: in both cases ("head and Crown" and "realm and Crown") something was to be expressed that apparently would not have been covered by either king alone or kingdom alone. The solution, however, may lie close by. In the phrase "head and Crown" the word Crown served to add something to the purely physical body of the king and to emphasize that more than the king's "body natural" was mean[; and in the phrase "realm and Crown" the word Crown served Lo eliminate the purely geographic-territorial aspect of regnum°° and to emphasize unambiguously the political character of regnum which included also the emotional value of patria-

admitted that they owed military service to the king "for che defense of Crown and realm."at The canons , in that case , simply availed themselves of a standard phrase which can be traced back at leas[ to Suger of St.-Denis who, in 1150 , assured King Louis VII of tire loyalty which the magnates owed " Lo realm and

William Durand, justified the king's extraordinary measures "for the defense of patria and Crown."91 Briefly, as opposed to the pure

Crown. S-Iere, as well as in a great number of charters where

physis of the king and to the puye physis of the territory, the word

"the Crown of the kingdom is the common patria" was the opinion of jurists quoted by Jacques de Révigny. whole contemporary,

"Crown," when added, indicated the political meta physis in which both rex and regnum shared, or the body politic (to which both

Monographs of the American Academy in Rome, xn1; Rome, 1g51). The Hungarian material deserves more consideration than given here; ser belmv, n.144. A collection of papers hy various autllors en the Crown, chiefly in Eastern Europe, is abont to be published: Corona Regni-Die Krone als Symbol, ed. Manfred Hellmann (Darmstadt, Wissenschaftliehe Buchgesellschaft).

sa Hartung , zo,n.4. °o Cf. H . G. Richardson, "The English coronation Oath,- Speculuos, xxrv(1949), §o: "The fact that regnum , like our word ' kingdom' can mean not only the sovereignty of a king hut also a country under the role of a king , mates it a word Lo he avoided. There is not the same ambiguity about corona ." While agrecing with Mr. Richardson concerning bis distinction hetween the "comnry" and lis "sovereignty;' 1 would not say that the words rcgrmra and corona are "virtually synonymous;" although sume of the conten1 of regnum indeed is covered by corona ; but corona has also meanings which do not coincide with regir erro. el See ahoye , Ch, v, nos.168 and iSo.

s, see William H. Datnham, Ir.. "The Crown Imperial," Parliamentary Atjairs, vr(1953 ), 201 f: ". . . tire vagueness of its meaning enabled che term [Crown] te perform a fruitful function ." 1 am much obliged co Professor Dunham, at Yale l; niversi ty, for valuable information. es Strayer , " Defense of the Realm," 292 ,0.4, quoting H. F. Delaborde , Recueil des arfe_a de Philippe Angoste (Paris, 1916 19.13) 11, 47

se Strayer, op.cit., rzga, n.5. 88 Hartung, "Die Krone," 2n,n.3; Bouquet, Recueil des historiens, XV,522.

340

11

341

TI/E CROITN AS EICTION

711E KING ,NFI'ER D/Es

belonged) in its sovcreign rights. It nlay be helpful also to recall the perhaps decisive factor: the val sic of perpetuity inhcrent in the Crown. For die Croen, by it.s perpetuity. leas superior to the physical rex as it was superior to die geographical regnum sNhile, at sise same time, it n-a.s on a par with sita continuity' of the dynasty and the sempiternity of the body politle. TEJE FISCAL CROWN

If really it was in the times of Abbot Suget', around 1 t50 or a little earlier, that the idea of the 'invisible'' Crown was intioduced into the political terminology of France, the French and English developments had a fairly even start. Our evidence in England sends us back lo the time of Henry I. From the onset, however, it should be mentioned that "Crown" in England liad hardly that "patriotic" touch-not, at least, in official documéhtswhich was so characteristic of all that Suger of St: Denis did or said. "Crown," in England, belonged in the first place lo the' sphere of administration and law. In Henry I's Charter for tire City of London, of 1lgo or 1133, the word occurs in the phrase placita coronae , `pleas of the Crown,"°' It appears there as something quite common and was not restricted, as the Pipe Roll shows, to the London Charter alone although for some time sise expression placita regis, "pleas of the king," may be found as an alternativa.°' Henry's Pipe Rol] mentions even a custodian of the pleas of the Crown;°* and although we customarily let tire office of the "Coroner" (cultos placitorum coronae, coronator) take its official start in 1194 with the so-called Iter (more explicitly the Forma procedersdi in placitis Coronae Regis),°' there is no doubt but that the office itself goas back to an earlier date.°° 92 By lar the most interesting and the fullest sm,IN on sise notion of Crotvu is Hartung, "Die Krone," where the problem i- loa red on the hasis of compnrntise constitutional history; see pp.6-,g for a m h, though purposely nos exhaustiva, collection of English material , See, los sise ]atar penad, Dunhmn, "Crown Imperial" (aboye, n.85). The probleas, of coorae, has been rccognizcd befere; see 1'ollock and Maitland, Histos, 1,5nft; Mellsaain, Politica! Tlmught, 3791. For sise charter of Henry I, see Stubbs, Setecl Charters, 129; Llebennann, Cesetze, 1.525, also 11,56o, s.v. "Kronprozess ," Lb, kinehelme.

91Leges Henrici 573,581-

(whatever their date may be), 7,952;6o,y; Licbermano, 1.553,

94 Charles Gross , Selecs Cases froni sise Cornners' Rol/

t5el(len Societc. ix Lon-

don, i8g6 ), xvff, esp. xvii. os Stubbs, Seleet Cha recia, a52ft. °-Gross, Coronen ' Po(ts, ksff; Pollock and VIaitland, Hf

342

1.534,

Simultaneously we find ',Crown" used in a more fiscal sense and referring to the royal demesne. In 1155, the year after his accession, Henry Ti revoked towns, castles, and manors gime ad coronam pertinebant,°' and at Northampton, in 1176, he advised his itinerant justices lo look alter all sise rights and things "pertaining to the Lord King and his Crown" (spect(intes ad dominara regem et coronoto eius) n3 It would not he justified lo take that phrase simply as a pleonasnl. To be sure, to Ilenry 11 hilnself it may have made little, if any, practical difference whether things belonged lo him by right of che king or by right of the Crown. Sometimes the first, sometimes sise latter may have been more advantageous lo him. However, by building up a royal demesne as an administrative entity which was set apart from lands falling in with the feudal dependencies, Henry II certainly laid the foundation to the fiscus which, clearly by the thirteenth century, "has been separated, as something for the common utility, from the person of the king."°0 Moreover, by categorizing the royal demesne as an entity pertaining lo the Crown, Henry II, no matter whether intentionally or not, prompted the officials lo distinguish en their part more carefully than before between rights of the Crown and rights of the king 100 In the Dialogue of the Exchequer, a semi-official treatise written in 1177, we find the distinction between tenants-in-chief who hold "what pertains to the Crown" and those "who hold from the king a knight's fee not by right of the royal Crown but by that of some barony."1°1 The distinction between what pertains ad coronara and what may be held de rege was not new all by itself. Substantially the difference between terra regni and terra regir goas back to Anglo-Saxon times when occasionally the king could even charter, or "book," land to himself, though being probably quite unaware of the highly complicated constitutional and legal premises which a °7 Stnhhs, Const.Hist., 1,188r. i; Hartung, "Die Krone," 6,n.2. os Stubhs , Setecl Charters, 'Sa, §7.

°° Post, "1'ublic Lasa' 49f, and "Two Laws;' 423. For the fisc in general, see aboye, Chapter rv. The word itself is found in the twelfth century; see Stubbs, Setecl Charters , 1 52,232, passim ; Dialogas de Seaceario , u,eto, ed. Charles Johnson (London and New York, 1950), 97. lo° Hoyt, Demesne, 124, stresses the simultaneous growth of "roya] demesne" and "impersonal crown;" a distinction which one would look for in vain in and alter che age of the Congnest ibid., 5of, lor Dialogas de Scaccario, Irc.,o, ed. Johnson, g6, ef.,4; Ststhho 231f; Hartung , "Die Krone," ,

343

Selecs Charters,

THE KING NEVER DIES

transaction of that kind implied.1°2 Nevertheless, terra regni has now become something pertaining ad coronara, and therewith the notion Crown has been set over against the king. Tocvards the end of the twelfth century distinctions between Crown and king began to be rationalized under the influence of legal thought. Pleas in whicli the king was plaintiff, had been listed in the earlier sets of law.101 Glanvill, however, opened his tractate On the Lazos and Customs of the Realzo of England with the words: Ad coronara domini regis pertinent ista, and thenthough rather deficient in his section en Criminal Law which Bracton later treated extensively'°'-referred Lo the leges, the laves of Justinian, in order Lo discuss che crime of lacia maiestas.105 He referred also Lo purprestures, fines for encroachment ora royal lands, as something pertaining ad coronara because things public-utilities such as public roads, public waters, or public squares-were involved, just as pledges pertained ad coronara if public peace was affected.100 "Crown" in Glanvill' s treatise was not simply synonymous with king: Crown referred Lo the public sphere and Lo common utility. How carefully words were chosen, notwithstandin,, innumerable inconsistencies then and later, may be gathered from the writs Lo the courts spiritual which Glanvill quotes: invariably they are treated as pleas pertaining, not to the Crown alone, but to the Crown and the royal Dignity, ad coronara et dignitatem meara pertinent 30' This is not a haphazard formulation; for although the formula will be used more and more frequently and generally in the thirteenth century, we find that also Bracton, whenever dealings with ecclesiastical courts were at stake, invariably referred Lo both the Crown and the royal Dignity. It was apparently a "must" Lo quote both Crown and royal Dignity in cases entangled with ecclesiastical matters, whereas it was a "may" on other occasions 108 N othing, however, would be more wrong than 102 Maitland , Dornesday Book and Beyond (Canrbridge, 1897), 254,n.q F. re. Stenton, Anglo-Saxm1 England (oxfor(1, 1943), 304. 102 Liehermann, Gesetze, 956 (Leges Henrici, §§ 1o a1). 104 Bracton, (olo.,5h. 1551), cd. Woodbine, 11,327lf. 101 Glanvill, De legibus et consuetudinibus regni Angliae , 1,1.2, ed. Woodbine (New llavera, 1,932), 42.

loe Glanvill, 1x, u, and x,5, Woodbine, 132,136, 107 Glanvill, 1v,13 (advowson), x,i (debts of laymen), x,1,2, (lay Pees), Woodbine 82 f, 133,156. loe Aboye, Ch.1v,n.3 oo. It is trae , of course, that corona el dignitas , sonletimes

344

THE CROWN AS FICTION

Lo claim rhetorical tautology en the parí of the chancery which issued the writs. For while there could be no doubt that all pleas concerning the competency of either courts Christian or courts secular were a prior¡ pleas of the Crown, since they affected the public sphere, tire chancery apparently held that those cases affected also the king's office or dignity as king, Iris sovereignty or "royalty." It was perhaps as tbough the papal chancery distinguished between sancta sedes and papatus. In other respects the orbits of Crocvn and king were certainly not always marked out as clearly and consistently as we might desire, and in documents of a "mixed character"-as, for example, the Iter-we find feudal rights interspersed with regalian rights, whereas en other occasions things pertaining "casually" Lo the king are treated alongside those pertaining "permanently" Lo the Crown.100 Bracton, whose mirad was already far more polity-centered and who was quite familiar with corporate concepts,llo has clarified admirably the difficult problem of what served the king and what belonged for the sake of public utility and the whole polity inalienably Lo the Crown.1'1 The revocation of alienated property and rights of the Crown had heen started, we recall, by Henry II immediately after his accession. Henry, after the confused and damaging reign of King Stephen, would have been the last Lo be ignorant of what "alienation" meant. Yet, the legal terminology was limping behind the administrative practice, and notions such as "prescription" or "inalienability," still in a formative stage during his reign, were not yet applied as readily as in a later period. That the principle of non-alienation was clearly formulated in England, and was claimed as a fundamental lave of government, belonged Lo the time around 1200. Shortly after the toro of tire century, an anonymous Londoner composed a legal treatise, known as the Leges Anglorum, parrs of which were inserted or interpolated in the third version of the so-called Laves of Edward the Confessor.112 The work reflects some knowledge of Law, but it corona, dignitas , et regnunr, occur quite frequently also in other connections; but writs eoncerning the courts spiritual seem to add the word dignitas throughout. 109 Hoyt, Demesne , 188, concerning casual and permanent deniesnial rights. 110 Bracton, fol.374b, Woodbine, lv,175; see aboye, n.7. 111 Aboye, Ch.,v, 000.252,298.

112 Licbermann, Gesetze, 1,635; for the whole problein of the treatise and the 345

7 1111 A1 .Y(.

A' 1 1 1N

THL GRO 11N AC f1CTJON

1) 166

reflects ahoye all ilie glamorotis ideals of che Arthtuiau legend in

INAI.ILNAislLi71 1'

connection with which Geoffrcy of \Ionmourh so ofien conjured

Therewith clic idea of aro impersonal Crown, iepresenting che fundamental rights asid claims uf the country, began to affect and shape constitucional matters wliose importance eelipsed that of mytli, law, or fisc. An oatli-and that would be a coronation oad)containing, as suggested by che author of che Leges Anglorurn, sume special clause in which the king promised not lo alienare rights and possessions of che Crown and lo rec:over seliat liad meen los¡, was unknown in the English coronation rite around 1200. But whether such an oach was something altogether unknown in that period, is a very different marter. 1n fact, there is reason to believe that che customary tripartite oath which, with slight variations, liad survived from Anglo-Saxon times and which Bracton still quoted as valid, may indeed Nave been augmented by a fourth clause concerning non-alienation and ruar chis fourth clause was added in 1216 at che coronation of Henry III, even though such an additional clause has not been codified 117 Pope Gregory IX, at any rafe, referred tcvice to an oath which, he said, Henry III had taken, ut monis est, at his coronation and in which che king had sworn to maintain che rights of lis realm and lo revoke what had been alienated.118 That such an additional oath existed be-

tlie idea of tire ' monarchy of thc abole Islan(l' which tras obtained by right liereditarv and r
rex-impegatoi theory.111 The trae importance of chis author, however, has lo be sought in the passage in which he imputes that Edward tlie Confessor had sworn an oath lo restore all che rights, dignities,

and lands which his piedecessors "have alienated froin the Crown of the realm," and to recognize il as bis duty "to observe and defend all che dignities, rights, and liherties of che Crown of chis realm in their wholeness."118 interpolations, see his Ober die Leges Anglorurn (Halle, 18qi) and Uber die Leges Edwardi Confessoris (Halle, tSgG). See, further, li. G. Richardson, "The English Coronation Oath," Speadum, xx,v (1949), 44 75, esp 61ff, also his "Studies in Bracton," Traditio, vi(1948), 75ff; Schramm, Lnglish Coronation, [1611. u8 Geoffrey, Historia, is full of that tenuinology; see, e.g., ¡x,, ("iure hereditario" and "totius fnsulae monarchia"); ix,7 (cmtquest uf Non"ay; diadem [abro v,i7p; X14-5 (empine overseas), ed. Hammeq 152,159,to3,190, pasim. See Litbermann, Gesetze, t,65g, also Ober die Leges Anglorurn, 5, and, for Arthur, 22, F,S: Aetltelstan mling oven an England "usque ad metas Arthu ri quas corone iegni Brimnnie constituir el imposuit." -1- he extent m which Edward 1 las anden che spell of che Arthurian legend has liceo pointed out lo Roger S. Loomis, "Edward f, Artburian Enthusiast;' Speculunl, X XVIII (1953), 114-127. 114 Liebermann, Gesetze, 1,635: "Universa velo ¡erra el rota, et insule olnnes 0 usque Norwegiam el usque Daciaw pertinent ad anonam regni eius et sutil de appendiciis el dignitate regis." W. 66o: To Arthur "confirmara fuit [aapapa el a curia Romana] Nore,egia imperpetumn corone Britannie." Cf. Liebennann, Lege.y Anglorurn, 6: "De iure potius appellarl deber excellentia corone [B cita ti niel fntperium quam regnum." 11sFor che influence of che Arrhurian Legend oro practical politice, eg., che English claims co Scotland, set Loomis, op.cic, 122, che letter lo Boniface VIII 01 130,; in general also Laura Kecler, GeoJfrey of Alorunoulh asid che Late Latin Chronielers (Univ. of California Publicalions in Histon xvu,' [Berkelev and Los Angeles, 1946]). no For che oadt, see Liebermann, Gesetze, ,,63 ¡ (, 1,1.4,2); also ,,640 (13,iA), J ¡1j

where it is said that the Confesor, himself "servavit sacramentum in quan hun potuie, noluit sacramenti sui fieri transgressor." For che influence of che legend of Edward che Confessor on Edward II, see Richardson, in: Rulletin of che Instilute of Historical Research, xvI (1958), 7 and lo; and in: Transactions of che Royal Historical Society, 4th Ser., xxIII(,g41), 14gp his findings defeat the chasis of Schramm, English Coronation, 206 (also Areh UF, xv[1938], 350), aecording tu which clic res Edwardus in che Oath of Edward II referred co Edward 1. 117 Mellwain, Palitical Thotsgh t, 379: "It is a curious fact calling for further investigation, that in no surviving contemporary form ... is there to be found any provision touching che inalienability of regalian rights." Numerous efforts have lince been ¡nade to solee che question of che "fourth clause." Richardson, "Coronation Oath," Speculum, xxiv (aboye, 11.112), has come clones[ to a solution (for reasons of simplicity I shall refer exclusively lo his study in che following pagel). See further B. Wilkinson, "The Cloronation Oath of Edward II and che Statute of York;" Speculum, x'x(,944), 445-469, who is incline] (4481) lo disregard altogether che n unierous referentes to an additional oach; Schramm, English Coronation, 203, does not believe chal a change was made (that is, a clause ad(led) in 1271, at che coronation of Edward I, and loes not take any earlier addition finto considerationThe useful study of Peter N. Riesenherg, Inalienability of .Sovereignty in Medieval Political Thoughf (Columbia Studies in the Social Seiences g9,; New York, 'g5(3), was published roo late m he used llene. ros For che lecters of Gregory IX, see W. Shirley, Roya[ and other Historien! Letters of the Reign of Hene 111 (London, 1862, Rolls Series), Rvmer. Foedera, I:t, 220, and for che correct date (Julo ,), Poslhast, goi2; Richardson, "Coronation Oal¡'" 51,110o 13,11; also belosv, nos.,.11,,.15.

3¢7

THE KING NEVER DIES

THE CRO14-N A5 FICTION

comes certainty under Edward 1; the king himself mentioned at leas[ eight times that by the oath taken at his coronation he was "astricted" lo conserve che rights of the Crown-but again that additional clause did not go en record.119 Whereas English sources yield no more [han indirect evidente of an additional promise concerning inalienability, Canon Law practice offers us a clue or, at leas[, some better underscanding of what papal and royal letters referred lo. Without going into full detail, it will be sufficient to summarize here a technical and circumstantial discussion printed elsewhere"°

was rather an administrative oach of office and fealty in which the word "faith" no longer liad a place"" The oldest known form of the new oath goas back co 1073. It is the oach which, at llis consecration, Archhishop Wibert of Ravenna swore co Pope Alexander II, since the three North- Italian archbishops (Ravenna, Nlilan, Aquileia) were consecrated by the pope himself.325 The oach contained seven clauses of which che las[ chree referred exclusively co certain episcopal duties: reception of papal legaces, appearance at synods , and annual visits co the limina Apostolorum.126 The first Tour, however, were moulded after the feudal oach of fealty, expounded as early as 1020 by Fulbert of Chartres in a letter which later was included in both the Decretum of Gratian and the Libri feudorum; the earliest extant form of the feudal oath seems co be that of Robert Guiscard swearing fealty to Pope Nicholas II, in 1059.111 The bishop, according co the new oach, swore fealty to St. Peter, the Church, and the pope, including the successor popes; he foreswore acts of treason, promised secrecy in counsel, and swore co defend the papatus Romanas and the regalia sancti Petri. Although the new episcopal oach implied neither vassalage nor tenure-with regard co the spiritualia Chis would Nave been simony110-the general influence of feudal thought is quite evident. In one respect, however, the oaths imposed by the Holy See showed a remarkable deviation froin feudal norms: the defense of the personal lord, the pope, has been supplemented by a defense of the impersonal papatus Romanas, a coinage hardly older khan that of regalia Petri.129

Under the influence of Feudal Law, which began co spread in the States of the Church during che eleventh century,121 and under the impact of the well-known imperializing cendencies which transformed the Church administration into a centralized papal monarchy, the ancient oach of office taken by bishops as prescribed by the Liber Diurnos was replaced by a new form 122 It has been observed that after the Church Reform of the eleventh cennuy the old professio fidei changed into a iuramentum fidelitatis, and that Chis change affected also the secular sphere: the king's coronation promissio was gradually transformed inco a coronation iuramentum.122 Whereas the old formularies of the Liber Diurnus demanded from the bishop assurances mainly in matters of faith and of devotion co the papal head of the Church, the new oath lo Richardson , 49f, nos.31-39. 120 Kantorowicz, " Inalienability," Speculum, XXIX (1954), 488-502. 121 Karl Jordan , " Das Eindringen des Lehenswesens in das Rechtslehen der rómischen Kurie," ArchUF. xn (1931), 13-110, esp. 44ff. 122The history of die episcopal oaths has been efhciently studied by Th. Gocclob, Der kirchliche Amtseid der Bischdfe ( Kanonistisehe Studien und Texte, ix, Bonn, 1936), a book which may be consulted throughout even when not mentioned in the foocnotes . For the early oaths, see forras 73.74 , 75,76 of the Liber Diurnos, ed. Th. vooSickel (Vienna, 1889), 69ff; PL, ev,67ff; Gotnob, Append., 17off, reprints the forms; cf. uff, for an analcsis. 123 This connection has tren brought to light by Marcel David , Le serment du sacre du IX, au XVC siécle ( Strasbourg , 1951 ); first published in Revue du moyenáge latir,, vi ( 1950) ( after which the study is quoted here); see esp. 168ff , for the general changes and the faet chal until the twelfth century, ooly coronation promissiones , and not iuramenta , were knowo. In most countries the change took place during che tweltth century . In England , however, a swearing at least to the coronation charters was practicad ever since che accesslon of Henry, 1 , and a swearing to the coronation promissio , since u89 . For the change of the Roman coronation oaths, see Edward Eichmann , " Die rómischen Eide der deutschen Kónige," 7lRG, kan.Abc, v1 ( 1918), 154-196, whose study strikingly illustrates the paralle l developments of imperial and episcopal formo of oaths.

348

The oath of Wibert of Ravenna became the "standard form" which, with appropriate changes, was to serve many other pur124CE Kantorowicz, "Inalienability ," 491,0.22. 125 Gotnob, 2off,44f. 120 For the fono of Wibert's oath, see Deusdedit, Coliectio canonum , v,423, ed. Wolf von Glanvell ( Paderboro, 1905 ), 1,599; Liber censuum, No148, ed. FabreDuchesne , 1,417; Gottlob, Append., 176f; also Gregory VII, Re,, ' 3, ed. Caspar , 6,n.3. See also ''Inalienability ;' 492,0.25. 127See Fulbert , Epistolae, 58 , PL, ctx1,229cu ; for Gratian , see c.i8, C.XXII, q„ edu Friedberg, 1,887 (with 0.157); Libri feudorurn, n,6; and for Guiscard ' s oath, Deusdedit , Coll. can-, m,c .285, ed . Glanvell, 393f; Liher censuum, No.i63, ed. Fabre-Duchesne, 1,422; and, for che repetition of the oath in mSo, Gregory VII, Reg., viii5a, ed. Caspar , 514. See also my notes in "Inalienability," 492f. 120 See " Inalienability ," 493, 0.29. 129 See aboye, Chav,n.293 ; also "Inalicnabilicy," 492,0,26.

349

'I111 RING VE ('Ele DIE)

TI/('. CR olfN 1e 1ICTION

poses as we11.130 It seas inclnded, svith a feto insignificant changes. in the Liber Extra of Pope Gregory IX, in 12,3.[, and therewith

reinfendate, or otlierwise alienate, ''without having consulted die Roman pontift," tse property pertaining ad mensam arehie.Oiscopat7es, that is, pertaining to che 'table possessions of the arch-

became the of cial l,atr o[ tire Church."' Ir still tontained no more than seven clauses. What sta-plises as. then, is ro fiad, around 1200,

bishopric,'' whiclt served for tire suppoit o[ tire archbishop and for a few otlier puiposes.'1' To what exteut tire non-alienation clause teas felt to be "additional'' beconies strikingly citar tvhen tse turn to another forro, referring to tlte Archbishop of Auclt, Amanieu of Armagnac, sino seas ordained in Rome in 126't, Like die codex in which it has been transmitted, the forro of che oath is somewhat archaic, reflecting usages of the twelfth cenniry, that is, of the time of the decretal of Celestine III. Here ese find the customary seven clauses of the standard oath, concluded (as prescribed in [he Liber Extra) by tire words "So help me God" (Sic me deus adiuvet), and then, following after that final corroboration and in no organic connection with fue oath proper, there comes the non-alienation promise, which in chis case referred not only to che mensal property of the see, hut to all properties, possessions, and church valuables que iuris sunt N. ecclesiae. Moreover, the archbishop promised che revocation of all the rights and properties which had been alienated from his archbishopric.19'

scattered evidente for an additional clause. Por exampie, in a decretal of Pope Cclestine II[ 01igirtally a Ietter addressed lo the Ardtbisllop AVilliam of K:ncnna, tlic archbishop teas reminded of his ''oath of fcaln" bv which "he teas heló ti alienate nothing ft-oni the Floly See.'' Similarly, Pope Innocenr III, Celestine's successor, reminded the Archbishop of Milan in a letter which likewise became a decretal, that the archbishop esas "held 'astricted' by his oath not to reinfeudate anees tvithout previous consultation with the pope.","` The parallel with England is striking: in England, an oflicial oath of only three clauses, and nonetheless the inention of a nonalienation clause; in Rome, an official oath of seven clauses, yet likewise the mention of some additional non-alienation clause. We are, however, more fortunate wirh regard to Rome ¡han ese are with regard to England, since foros containing che ' cigisth clause' actually are known. They begin to inake their appearance by the time of Pope Gregory IX, and tlre earliest form so far known refers by chance to Archbishop Edmund Abingdon of

in 'Possessiones yero ad mensam ni archiepiscopatus pertinentes non vendam neque donabo neque inpingnorabo neque de novo infeudabo vel aliquo modo alienabo inconsulto Romano pontífice. Sic me Deus adiuvet el hec sancta evangelia." The phrase inconsulto Romano pontífice is the one already used by Innocent III; aboye, no.,33. For che mensa episcopalis, see A. Póschl, Bischofsgut und mensa episcopalis ( Bonn , 1go8-1gii); also his "Bischfifiiche Tafelgater oder Urbare," Zeitschrift des histor. Vereins für Steiermark, xxvt(ig31), 141-153. 5341 quote the oath (Professio quam tacit archiepiscopus domino pape) beginning omitir che 7th clause:

Canterbury, consecrated in 1234.19' In that eighth clause, which was simply tacked on to che seventh clause of the standard oath, the archbishop swore that he would not sell, give away, pawn, 130 It was, with minor varia tic ni , the oath taken by al] sorts oí papal dependents: by che papal vice-chancellor and che papal notaries (M. Tangl, Die pdpstlichen Kanzleiordnungen von Iaoo-15oo [Innsbru(k, i8pq'. 33ff, Nos.i and 3), by Ihe Roman Senator, by the consto un e ty of Tibu r, by papal feu dato!i es (Liber censnun, Nos

Apostolorum Iimfua singulis annis aut per eme aut per neo en ni, nium visitabo, nisi eorum absolvar licencia. Sic me Deus adiuvet et hec sancta evangelia. Predia, possessiones, ornamenta eceiesiastica, que iuris sunt N. ecclesie, nunquam alienabo, nec vendam, nec in pignora ponam, neque alicui sine cominuni consensu capituli vel potioris papis et sanioris consilii in beneficio vel feudo cabo. Que distracta sunt, vez in pignore posita, ni ad ius el propriecatem eiusdem N. revocentur ecelesie, fideliter laborabo.

59,144,67, ed. Fabre-Duchesne, 313,415,54 r see F. Baethgen, "Die Promissio Alhrechts 1. fúr Bonifaz VIII.," Aus Poldik ,,id Gesch ie/i (e: Gerlüoh tnissdrrif1 (br Ceorg vm1 Below [Berlin , 19281 , Silf). Basfcalls che sanee fnrm is reftected bv che oath oí Ihr Arehimandrite Onofrius of San Satvatore te bis nletmpolitan, che Archbishop of Messina (ca.n58-1165); see Hugo Bucheml, ' A Schnol of Miniature I'ainting iu Norman Sicily ," Late Classiral and Medioeval Studies in Honor of Albert Mato iac Friend, Jr. (Princeton , 1955), 338. The forre was used alzo (al least clauses 1-,4) for che feudal oath of King John; see below, n.14z.

The form, as yet unknown lo Gottlob, was published by Michel Andrieu, Le pontifical romain au moyen-dge (Studi e teste, 86 [Vadean, 1940]), 1,2gof, alzo 51 (for

sal Cf. c.4 X 2,24, ed. Friedberg, 11,360. 132 Cf. e.8 X 3,13, ed. Friedberg, 11,514 (Jaffé-LÜtvenfeld, 17049): ". . . curo ex sacramento fidelitatls tenearis Apostolicae Sed¡ nihil alienare.'' 1saCf, c.2 X 3,zq ed. Friedberg, 11,525 (Potthasr, 3525): "... juramento tenearis astrictus non infeudar, de unto, Romano pontífice inconsulto." 534Liber censuu,a , No. i98, Fahre-nuchesoe, p..49 (cf. ¡bid., Nos.'gSa-c), and Gottlob, 56f.

350

the date and other circumstanees). The MS (Vaelat. 711f), though isth cenniry, reflects customs of che preceding century so that M. Andrieu could use it for reconstructing che "Roman Pontifical of che Twelfth Century." Also che Coronation Order Ad ordinandum imperatorem secundum Occidentales as well as che laudes in that Order are antiquated; see Erdmann. Ideenwelt, 72ff; Kantorowicz Laudes regiae, 237f, and, for more details, "Inalienabilfty," 495, 1.43.

4,

351

THE KING NEFER DIES

It appears that Canon Law provided for a standard episcopal oath of seven clauses, but that in some instantes an eighth clause was appended, forswearing alienation and promising revocation of properties belonging to che see as such. At that point the glosses are of interest because they shed light en the procedure. Bernard of Parma, who composed the Glossa ordinaria on the Liber Extra around 1245,111 remarked on the decretal of Celestine III: "Every bishop who is immediately under the pope, swears to him that he will not alienate property of the Church, nor give it anew in tenure.'•1a9

A century later, Baldus, glossing the standard oath of seven clauses of che Decretals, added, at che very end o£ his interpretation, a brief remark: The Liber Extra notes that the exempti have to swear also (etiam) that they will not alienate Church property without having consulted the pope [referente lo the decretal of Innocent III].1ao

That is to say, the glossators indicate that certain bishops have to take an additional oath concerning non-alienation, although such an oath was not en record in the body of Canon Law. The group of hishops bound by that eighth clause were designated as exempti or immediate sub papa. Now, [hose who were nullo medio directly under the pope were, in the first place, the papal suffragans of the pope's own ecclesiastical province; second, the archbishops of Ravenna, Milan, and Aquileia heading the three NorthItalian ecclesiastical provinces-within the pomeriuvn of the papal power, as it were; third, certain exempt bishoprics such as Bamberg, Puy, the Corsican sees, and many others which, for one reason or the other, depended nullo medio on the Holy See. To rav Cf. A. van Hove, Prolegomena (2nd ed., Mechlin and Rome, 1945), 473f, but the date is conjectural. 118 Cf. c.8 X 3,13, Y. sacramento: "Nam quilibet episcopus qui immediate domino pape subest, jurar ej fidelitatem quod non alienabit hona ecclesie, nec in feudum dabit de novo, et idem iuramentum presten[ al¡¡ episccpi sois metropolitanis." Gottlob, 65,n.m8, holds that the glossator was inaccurate when taiking about bona emtesiae in general, and nor specifically about the possessiones mensac; however, Gottlob was nor familiar with the form cited aboye, n.136. For the oaths of suffragans to their metropolitana, which may be disregarded here, see Gottlob, 138169; also p.183, for the late forros of that oath. tse Baldas, on e4 X 2,24,0.14, In Decretares, fot249: "Extra no. quod exempti debent jurare quod non alienaban[ proprietates ecclesiae Romano Pontifce inconsulto, de fcu.c.2.de reb.ecc, non ali.ut super [c.2 X 3,201:' See, for Baldus' quotation, ahoye, 0.133-

35°2

THE CROWN AS FICTION

[hese there were added, at the lacest during the thirteenth century, mosc of the metropolitans and other recipients of the pallium who were likewise nullo medio under the pope, although not all of them had to swear to che eighth clause.140 In other words, those who were, so to say, "tenants-in-chief" of the pope had co forswear alienation of che properties of their episcopatus. The canonical procedure observed in Rome around 1200 perhaps clarifies the practice alluded to so frequently in England. To the tradicional standard oath of three clauses, there was apparently added a non-alienation clause which was not legally codified. Its absence no longer needs to startle us, for the corresponding clause was absent also from the standard oath of the Decretals. Furthermore, the addition of the non-alienation clause to the English coronation procedure finds a plausible explanation: Cardinal Guala Bicchieri, who in 1216 administered as papal legate the oath to Henry III,141 simply followed the practice known to him because observed, by that time, in Rome: exempti, who were nullo medio under the pope, swore not only the standard oa1h, but promised also, and additionally, not to alienate properties of t1feir episcopatus. The impersonal episcopatus, of course, cuas sensibly replaced by the impersonal corona; but otherwise the English king and "tenant-in-chief' of the Holy See was treatedat leas[, with regard to the additional non-alienation oath-like che episcopal "tenants-in-chief," the exempti. Side issues, importan[ though they may be otherwise, will nor be considered here. It would certainly be legitimare to raise the question whether the additional clause was appended to the 140 At the Roman Synod of 1078, Pope Gregory VII decreed concerning his suffragans: "Ut nulli episcopi predia ecdesie in hene(icium tribuant sine consenso pape, si de sua sunt consecratione.'' Cf. Reg., vi5h,§3o, ed. Gaspar, 402,16; cf. Gottlob, 57. That, however, was a general decree, which as yet had nothing to do wjth the oath; consequently, che oath of Aquileia el the eleventh century stfll lacks the non-alienation clause; cf. Gregory VII, Reg., v1,17a4, ed. Caspar, 428f; Gottlob, 44. For the exempt bishoprics, see Liber cens,eum, 1 :43.§xtx, including the notes 24711; also Gottlob, 6411. For the forro of Bishop Ekbert of Bamberg, see Raynald, Annales ecctesiastici, ad x.1206, §13. Gottlob, 57, assumes that the non-alienation clause was introduced for archbishops in general by che time of Gregory IX, but that it had been used previously for those lees which, for one reason or another, were in a particularly dose relationship with the Holy See. Not all metropolitans took the non-aljenation oath; it js lacking, e.g., in that of the primate of Bulgaria (Innocent Itl, Reg., vu.11, PL, ccxv,2g5A), and whcther it was included in chal of the Latin patrjarchs in the East (Gottlob, g5 t), is doubtful. los Cf. Richardson, ''Cor0nation Oath," 55 and 74.

353

THF CRO MN As FICTION

coronation oath proper oc ran ier to che oarh of fealty sworn ir) the pope; or lo aslc whether King John, in I21,3, took ruar nonalienation oath.112 Rut dtose questions are not really relevant here. ir could not nave Leen before 1216 at any event that che canonistic oath promising to refrain from alienation of Crown property was connected with a coronation ceremonial. Relevant, however, is another point relaten lo what perhaps mar be termed "constitutional semantics," aun most rer°ealing tcith regard to constitutional development in general. A feudal oath liad been adopted by the Church. It liad Leen transformen roto an episcopal oath at a time when che papal monarchy was in its formative stage. Owing to that appropriation by the Church, however, the feudal vassalitic oath liad become an oath of office binding the bishop, not as a vassal , but as an "offcer," and binding him not only to the pope but also lo the abstraer institution, die papatus, and lo the bishop's own office, the episcopatus. Finally, that ecclesiastified, and now pseudo-feudal oath returned in a new guise lo the secular state as an oath of office urging che king as well as his officers lo protect an impersonal institution which "never dies," che Crown.

This letter, loo, passed roto the Liber Extra, so that ice basic ideas became binding L,aw of the Church. Ir is possible ruar King Andrew II of Hungary (1205-3 51 actually liad iaken a non- aliena tion oath at bis coronation; in his "Golden Bu11' Of 1222, issued after many years of struggle with magnates and hishops, he malle indeed a non -alienation promise of a specific kind, and the Holy See, in che following years, referred several tintes to Andrew's coronation oath.14 But whether tire Hungarian king liad done so or not appears of minor importante as compared to the fact that apparently che Holy See then proceeded en the assumption that a non -alienation oath of some kind was customarily taken by a king at his coronation just as it ivas taken by a group of highranking princes of the Church at their consecration . In other words, in Rome che existente of certain roya) obligations towards the impersonal Crown-analogous lo the obligations of a bishop towards his See-was taken for granted at a time when that idea had as yet hardly penetrated secular political thought. "As is the custom," itt moris est, wrote Gregory IX, in 1235, lo Henry 111141the custom, according to the assumption of tire Holy See, probably

The canonistic influence en che concept of Crown was to continue in England. Tour years alter tire coronation of Henry III, Pope Honorius III wrote , in 1220, to tire Archbishop of Kalocsa. metropolitan of Southern Hungary, about certain alienations authorized by King Andrew II of Hungary. The king, wrote Honorius, had acted in prejudice of his realm and againsi his honor, and should be asked lo revoke the alienations, since "at his coronation he [the King of Hungary] had sworn lo maintain unimpaired the riglits of his realm and die honor of his Crown."149

illibata servare , illicitum profecto fuit ..:' See Richardson , " Coronation Oath;' 48, who has clearly recognized the influence of that decretal en a tener of Ldward I (below, n.147). The letter of Honorius 111 was included in Canon Law as early as 1226; it is found in the Compilado Quinta ( Comp. v,t5,3), ed. Friedberg , Quinque compilationes antiquae (Leipzig, 1882), 165. 144 Professor Josef Deér, in Bern, kindly inforins me that it is quite likely that Andrew 11, in 1205 , swore an oath similar to che talle which che first Anjou king of Hungary , Charles I, took at his coronation in 1310. The backgrounds of the decretal of Honorius III are complicated , but there is some hope that Professor Deér himself may wish lo discuss the matter of inalienability in Hungary. For tlle Hungarian " Golden Bulla" see Werner N2f, Herrschaftsveitrdge des Spñtrnittelalters (Quellen zur Neueren Geschichte herausgegeben vom Historisclien Seminar der Universitát Bern, xvu; Bern , 1951 ), g, §16: "Integros comitatus vel dignitates quascunque in praedia seo possessiones non conferemus perpetuo" ( a place to which Professor Deér kindly called my attention). The content of the Honorian' decretal of 1220 was substantially repeated by che lame pope, in 1225 , and by Pope Gregory IX, in 1233; cf . Potthast , 7443 (July 15 ) and gofio (Jan. 31 ). See also next note. 14S Gregory IX's letter of July 1, 1235 (see Rymer , Foedera, 11 , 229), repeats sections of che Honorian decretal ( e.g., "in praeiudicium regni es contra honoren) tuum" or "illicitum profecto extitit"), which might explain why che pope thought a non- alienation oath was che general custom : " Cum igitur ¡ir coronatione tira furaveris , ul moris est , iura, libertates et dignitates conservare regales ." Strangely enough, che salve phrase ( as Richardson , " Coronation Oath;' 51 and 5q, indicares) is used in the declaration of Louis of France in 1215, in which che Froneh prince asserts that King John "in coronatione sua solempn iter , prout moris esl, iurassei se iura el consuetudiues ecelesie et regni Anglie comervatlaum ." Prince Louis knew, of course , perfectly well that such oatli was not che mos of France at that time; see next note.

142 For the feudal oath of King John, see Stuhhs, Select C6arters , 28of (where, however, catholiee should be replaced by canonice ; cf. "Inalienability " 404,0-34). The oath has the first tour chusca in common with che standard episcopal oath, notwithstanding the inscrtion of a clause in which che king promises not to plot against the pope and to inform him of actions planned to che popes damage: "Eonum [that is, pope and successor popesl dammlm, si seivero, impediam et removere faciam si potero : alioquin quam citius putero , intimabo vel tali personae dicam quam eis credani pro cerco dicruiam:' The sentence is taken frota the ancient Indiculum episcopi nf the Liber diurnos, Form 7,5 (PL, ev,72f), of which Innocent III availed himself tan other occasi,,ns as well, e.g-, for che onth of the Bulgarian primate (ahoye, a14o). See also "Inalienabflitv ," 41)8,0.52, and below, 143 Cf. c.33 X 2,24, ed. Friedberg . ir 17s (l'ottlrast, 6318 )

. stodeat revocare,

quia quam teneatur et in sua coronatione iln'as'cril re gni n,i et honoren, mone

,q"5

j,

355

THE RING NEVER DIES

THE CROIVN AS FICTION

not only with regard to England and Hungary, but at large. Even if that assumption can easily be proved to have been substantially wrong-for example, with regard to France141-there is no reason to doubt that in England che papal legare Guala would have seen to it that che facts corresponded to che papal assumption as well as to curial practice in general. Thus, as a result of King John s surtender te che Holy See and of an objectively incorrect assumption en che parí of che Holy See, the canonistic doctrine of "inalienability" had been formulated and had actually become che norm, much earlier in England than in most other countries. If che influence of Canon Law may have been less prominent with regard co Henry III, there is no ambiguity whatever with regard to Edward I. By his time, the decretal of Honorius III, mentioning in so many words che inalienable rights of the Crown, began to be effective roo. When Edward, ten months after his coronation, referred for che firsc time to his coronation oach, his clerk alleged verbatim che Honorian decretal saying that che king was obliged "co maintain unimpaired che rights of che realm."147 To be sure, Edward 1 found it most convenient co refer to che non-alienation clause of bis coronation oach in order both to refute papal claims in general and to seek papal support against che baronage, and therefore he asserted time and again that he was "astricted" by his oach co maintain che rights of che Crown, co protect che Crown against diminution, and co preserve che status coronae.348 As late as 1307, che year of his death, Edward 1 mentioned his coronation oach and his duty to preserve che rights of che Crown.111 A year later, and indeed sonlewhat unexpectedly,

ove find the decretal of Honorius III cited once more, chis time in direct connection with che coronation oach of Edward II. For in che LibefRegalis, a liturgical book which may even have been used at che coronation of 1308, an additional note says: "Be it known that che king at his coronation has lo swear co maintain unimpaired che rights of che Crown." We easily recognize che wording of che Honorian decretal; in fact, che scholarly annotator quoted explicitly and in a juristically correct form che Liber Extra.- Whether or not Edward II still took che same non-alienation oach, ove cannot tell; che fourth clause, then actually added to his coronation oach, had a different intent, and his non-alienation promise has to be extracted from che referente to che Laws of che Confessor contained in che reshuflied firsc clause.''' However, Edward II himself seems to have referred, on one occasion, to an "oach by which he liad sworn co maintain che laws of che land and che estafe of che Crown," 152 and che note in che Liber regalis shows at any rafe how deeply che idea of che king's nonalienation promise was engrained in che minds of che clergy-as deeply as certainly it was in che minds of fourteenth-century jurists. "Take note," wrote Baldus, "that all kings in che world have to swear at their coronation to conserve the rights of their realm and che honor of che Crown"-an assertion which undoubtedly was true in che laccer hall of the fourteenth century when Baldus wroce.15a But che jurists noticed also che parallelism of royal and episcopal oaths. Already che Glossa ordinaria en che Honorian decretal indicares that che bishops roo, and not only 150 Richardson , in Bulletin of the Institute of Historical Research , xsv('938), u, was aovare of the importante of the ammtation : " Sciendum quod rex in coronacione son jurare debet jura regni sui illibata serrare , Extra de iureiurando , intellecto etc. [c33 X 2,241:' The place has been misundersmnd by Wilkinson, " Coronation Oath," Speculum, xIx(1944), 450,0.', although Schramm, in ArchUF, xvi(1g39), 284, had already clearly recognized the allegation co che Liber Extra. 151 Lodge and Thornton, Docoments, ,of,n.3. Richardson, "Coronation Oath," 6off, has very ingeniously demonstrated that the non - alienation promise was actually embedded in the first clause of che oath of Edward 11; that is , in the referente to che Laws of Edward the Confesor , including che interpolation frota che Leges Anglorum; see aboye, n.n6. 152 Johannes de Trokelow, Anuales, ed. H. T. Riley ( Rolls Series ; London, 1866), rog: . . , iuramentum quod de legibus terrae et statu coronae manutenendis fecerat ..." Professor Robert S. Hoyt kindiv called this place to my attencion. 153 Baldas , en c.33 X 2,24, n.3, In Decretales, fol.2610: ''Nota quod omnes reges mundi in sua coronatione dehent jurare ¡ tira rcgni sua conservare et honorem coronae."

148 In France , che non-alienation clause was added as late as r36,; see Schramm, Franhreich , 1,237E (with nos. 1 and 7). 147 Parliamentary YVrits, 1 .381f: et iureiurando in coronacione nostra prestito sumos astricti quod jura rcgni nostri servabimus illibata." See , for the wording, the decretal of Honorius 111, aboye , n.143; Richardson , " coronation Oach," 49I find lt dificult to follow Wilkinson , " coronation Oath," Speculum , xtx(5944), 44811, because it seems to me most unlikely that Edward 1, only ten months after his coronation and at a time when every one concerned would have known what che king actually promised , should have tried co fabricate a story about a coronation promjse which in fact he had not urde. 148 See aboye , na33, for juramento astrictos in Innocenc's decretal; Chis , however, may have been or hecome a quite cominon technical term, the presence of wlrich preves nothing . For Edward 's other references co bis oath, see Richardson , op.cit., 49f. 145 Foedera , 1,2,1on; Richardsen , 5o,n.39.

356

3

357

TI]!: Ii ITO F El C:IR D]LS

TUL CROWN AS F!CTION

the kings, have to promise not ro alienate., ' Lucas de Penna, writing in the fifties of thc fourteenth century, holds that bishops and kings are ''equiparate'' Ividi regard in their oaths concerning alienation .'°' And his contemporary Petrus (le Ancharano says quite straightforwardly: "The king, at the tinte of bis coronation, swears not to alienate the tliings of bis kingdom; similarby, the bishops sesear [not to alienatel the rights of their liishopric.'' By that time-that is, in thc late fourteenth century or earlq fifteendr-the non-alienation clause finally went en record in England, if in a spurious form: it emerged in a formulary based opon the coronation oath of Edward II to which there vas added the non-alienation promise denianded by the Leges Angloruna. Since this curious oath appeared in print in a fifteenth-century Book of Statutes , it eventually achieved official recognition"r However thaf may be, the influence of Canon Law-in England as well as elsewhere-on the development and articulation of the idea of inalienability, and thereby of tlie notion of "Crown" as something distinct from dre person of the king, appears as an established and hardly disputable fact?ea CROWN AND UNIVERSITAS

The canonistic influence was not confined to ehe oath of the king; it affected also the oath lo the king. In the course of his negotiations with King John, Pope Innocent III gave the assurance that Archbishop Langton with bis diocesans would promise the king, by oath and in writing, not to permit anyone to plot or 154Cf. e-33 X 2,24, v. Regni sui: "Sic et episcopi iurant in sua corona tione, quod iura sui episcopatus non alienabunt ... 1,1 See aboye , Ch.v, n.71 156Petrus de Ancharano , on c.33 X 2,24 , 11 1, In quinque Decretalium libros conrmentaria (Bologna, 1581 ), fol.s9,: "Rex jura r tempore suae coronationis non alienare res regni sui. Similiter episcopi iurant sin episcopatus iura." ter Schramm , " Ordines-S t udien III," ArchUF, Xv (1938), 363f; English Coronation, lg6ff; Liebermann , Gesetze, ',365, n.c.

les The references to the Honorian decretal Intellecto are innumerable ; see, e.g., Oldradus de Ponte , Cmtsilia, xcv,n . 1, lo137v: " .. , cura per tales donationcs et alienationes di minuantur jura regir¡ quod esset contra iuramentum quod praestitit in principio sui regiminis , argumentum Extra de iurei tirando intellecto." Also Andreas of Isernia, en Feud. rl,n.t ojol. w: "... dunmodo infeudationes suae non diminuant honorem et Regís ct Coronae , extra de iureiurando intellecto , nisi done[ Ecclesiae, ut fecit Consmntinus ..." That is to soy , arcund 1300 the asstimption prevailed also among (he juris s that kings in general took a non-alienilion oath in agreement with the Dec r etal nf Honorius 111 .

358

attempt "against his [the, kings] person or against the Crown."1U0 The phrase "king and Crown," it is true, liad been used repeatedly in carlier times. But the papal version contra per.eollnm set coronara, distinguishing hetween person and institution. is much more specific: ft shows lroiv the pope understood and interprcted ''king and Crown'' and it blois out es el;, possibility of taking tlic tico words as meaning tautologically rhe sanie diing. Cimlistakably the pope has discriminated betiveen person and Crown. We may assume that, when in the course of ehe thirteenth century, English bishops continued lo take an oath "lo king and Crown,"100 the difference between the personal king and the impersonal institution was felt no less clearly than by Pope Innocent III. At any yate, we recognize that the notion of Crown, introduced in England during the twelfth century mainly in fiscal and legal matters, began to gain new momentum under the impact of Canon Law concepts and to assume constitutional connotations which it did not nave before. 152PL, cOtvt,7741); Rymer, Foedera, cl ,wg); Potthast, 4392. The passage (Sir. Robert L. Benson kindly called my atacntion to it) is interesting . The pope informed King John that tire bishops " praestabunt ... iuratoriatn et littcratoria n, cautionem quod ipsi ne per se nec per alios contra personara vel ccn' onm Itiara aliquid attentabunt, te Mis praedictam securitatem et pareo illibatant servante." Cautio iuratoria is a technical (crin: it is the strengthening of an already existing nbligation by an oath . In Chis case , the cautio was litteratoria as ivell, that is, the obligation was sworn to and given in writing . This was the custom with episcopal oaths; see, e.g., the Cautio episcopi of the Liber diurnus , Forra 74 (PL, cv,68.72; Gottlob, 8f, nos.3if, also 2i f). For the procedure of taking that oath , see Andricu, Pontifical rornain , ,,44f, and, for bishops consecrated in Rone, 111 , 392,11.33. In that sense, apparentty , already young King Henry 's oath, in 1170, was a cautio ; cf. Rymer, Foedera, tat ,2 6; Richardson , " coronation Oath," 49,n 17. The episcopal cautio as a promise to refrain from plotting against king and Crown , referred co bv Innocent III, has its equivalent in the promise of King John to the Holy See (aboye, 0.142 ), which depended en the Liber diurnus, Foro 75 (PL. ev,72f), wherc the bishop promises "qtmdlibet agi cognovero , minime canseotire , sed in quant un virtus suffragaverit , obviare et . modis quihus potuero, nuntiaho etc." Now, in that old Diurnos form , which goes back to the 7th, prohably however to the 5 th century ( Gotnob, 22 , with o.44), the promise is mate vith regard to resPublica and princeps; these distinctions were later cancelled and eventually replaced by papa and papatus, until finally the original version was , so to speak , reinstated by transference and by the apptication to persona regís and corona (whereby corona may still have a more " personal" touch than respublica). leo In the case of William of Valence v. Bishop Godfrey of ti'orcester , which vas heard in 1294 before the King's Council, the plaintiff claimed that the bishop ha(¡ acted contra sacramentum sauna regí et corone sue prestiturn ; cf. Cases before Me King's Councü, 1243'r482 , ed. I. S. Leadao and J. F. Baldwin ( Selden Societ}, xxxv; Cambridge, 1g18 ), 6. However, the oath forro puhlished in .Statutes of the Reales, 1,249, does not refer lo tire Crown.

L,.

359

THE KING NE VER DIES

At the demand of Pope Innocent, only the bishops swore to protect the Crown. However, the other members representing the governing part of the body politic soon followed; that is, the king's officers and the feudal lords. Matthew Paris, who in his writings often alludes to the Crown, tells us that in 1240 the king's clerk in custody of the seal, Master Simon the Norman, himself a papal chaplain and frequent envoy to Rome, refused to seal a charter because he found that its content was contrary te the interest of che Crown ( contra coronara ), and it has been suggested that perhaps he had sworn not only to give good counsel, but also lo refrain from any act reducing the Crown?e1 A formulary of an oath of office to that eflect Iras been preserved, if of a later period: in the councillors' oath of 1307 the members of the king's council were held to swear that they would " keep and maintain, safeguard and restore the rights of the king and the Crown"; further, that they would "support the Crown to the best of their ability and in loyal fashion"; and also that they would not take parí in court or council en le Roy se decreste de chose qe a la Corone appent.182 As in the case of Simon the Norman the assumption obviously did exist that the king could deprive che Crown and that che, councillors were obliged to protect the Crown even against the king. King and Crown no longer were the same thing. Moreover, letters of King Edward I and the magnates to the Holy See betray that the magnates also took an oath "in defense of the royal dignity and the Crown"; and if we can trust those letters in respect of the wording of the oath, the magnates may even have availed themselves of canonistic models when they declared that "by the bonds of their oath they were astricted to preserve and defend the rights of the Crown."169 Admittedly, it may have had little practical significante that, in 1258, the revolutionary "Commonalty of England" swore at Oxford mutual support lo each other, though "saving faith to the king and the Crown."184 Yet, en closer inspection of the few documenta referred to here, we recognize that even without that Oxford oath , or rather despite it, it 151 Matthew Paris, Historia Anglorum, ed . Madden ( Rolls Series), 11,440; for Simon's career and the whole affair, see Powicke, King Henry III and Gse Lord Edward (Oxford, 1947) , n1.772ff, esp. 78,f. 1c2 Lodge and Thornton, Documents, 58, No. ,. See below , n.t 74. 1sa See Richardson , " Coronation Oath," 5of, who adds quite a number of places concerning the oath of the lords. 164 Stubbs, Sclect charters , 975 "salve la fe¡ le re¡ e de la corone."

360

THE CROIVN AS FICTION

normally was the "community of the realm" that swore to the Crown, since king, councillors, officials, and lords spiritual and secular took consonantly the same oath to maintain the rights of the Crown; and they together and with the king as their head, after all, represented and were the °community of the realm,' the universitas. Equally, and using similar terms, they all were constrained lo protect the Crown as something superior lo all of them and as something they all had in common. In the Crown, therefore, and by the oath to the Crown, the "Commonalty of England" united-at least, che responsible portion of the realm. This, then, may provide us with the background needed to appreciate that most instructive letter which Edward I, in 1275, virote to Pope Gregory X on matters of England's feudal tribute to Rome. Indeed, the letter is quite remarkable. lis strict observation of the cursus is not che only thing suggesting the dictation of une of the learned Italians who then served with King Edward as advisers or clerks-Francis Accursius, for example, or Stephen of San Giorgio. 165 It is also the legalistic touch of the document which reveals the trained jurist and his language. The decretal of Honorius III was alleged verbatim to support the rights of the Crown; the Crown itself is solemnly called the "Diadem"; and the king's oath, normally iuramentum or sacramentum, is called no less solemnly iusiurandum, apparently in allusion lo the legal time De iureiurando under which the Honoran decretal had forzad its place in the Liber Extra. As so often in later years, the king asserted that by his oath he was "astricted " to maintain "unimpaired" the rights of the Crown. After that, however, there follows an interesting twist of the romano-canonical maxim Quod omnes tangit upon which, as we know, the idea of community representation hinged.166 For the king declared that by his oath 165 See G. L. Haskins and E. H. Kantorowicz, "A Diplnmatic Mission of Francis Accursius;" RHR, xvu, (,945), 42¢f and 124,n4, for Stephen of San Giorgio. See for tris South-Italian clerk, also Robert Wciss, "Cisque leaere medite del Card. Benedeuo Caerani (Bonifacio VIII);' Recistn di storia delta Chiesa in Italia, 11109jc). 157"64. esp. ,62f; further A. J. Taylor, "The Deatit of Llywelyn ap Gruffydd," Tire Bolletin o f the Board of celtie Studies, xv(,95q), 207-209. The rich material on Stephen of San Giorgio and en the intellectual relations of Edward I with the South has as yet not hecn sifted, See, for tire time being, my paper "The Prologue to Fleta and ¿he School oí 1'etrus de Vinea," .Speculurn , xxxi1 (1957), n.29.

166For the principie (cf. see Gaines Post, "Quod omnes tangit;' Traditio, rvp97.252. Antonio Marongiu, L'Istituto parlamentare in Italia dalle origini al 1500 (Rome, 1949 ), 6578, has devoted a chapter to that maxim, but

361

211E RING NE IER DIES

he was bound also "ro do uothing rhat touches the Diadem of this realrn svithout ha^ing resorred lo thc counsel of prelates and magnates. If the diocesans oftcu promised not to alienare without rhe common counsel of their chapter, we IlOSV find King Edward asserting that he could non alienate tribute money lo Rome without having consulten with bis prelates and magnates. Thar is lo say, matters concerning the e^Iiscopahls or the corona incolved rhe wliole bode corporate oi politic; they could non be

THE CROII'N AS EICTION

The coniposite character and corporate aspect of rhe Crown could not loare been expressed more poignantly [han by 1inking ii lo rhe old image of hcad and limbs clescrihing rhe cor/nic »olilinml or mysticum of the realrn. A centurv laten, in 14 16, rhe Bishop of Bath and Wells repeated in a parliamentary sernion a similar idea in a more allegorical guise. To hirn rhe Crown was rhe svmbol of both polity and sovercignty:

as head and the lords spiritual and temporal as limbs, liad to

In rhe figure of the Crown, rhe rulo and polity of rhe realrn are presented; for in rhe gold, the rule of the Community is noted, and in rhe [lowers of rhe Crown, raised and adorned widr jewels, rhe Honor and Office of che King or Prince is designated.1°9

approve actions of importance ro all. Hence, "what touches the

In [hose years, a poet gave a more detailed description of rhe

decided high-handedly by the hishop alone or the king alone. The whole body, as represented by hishop and chapter, or by rhe king

Diadem, shall be considered and approved by all concerned," by rhe body politic in its highest representatives. Clearly and authoritatively, it has been stated here by Edward 1 tliat the Crown was not the king-or, at least, not rhe king alone. It svas soniething that touched all and, therefore, was "public," and no less public [han waters, highways, or fiscus. It served rhe common utility and thus was superior to both the king and the lords spiritual and secular including-a little later-che commons as well.

Hence, the preservation of rhe status coronae amounted to preserving rhe status regni. The Crown, therefore, was not something apart from che body politic and its individually changing constituents. This was pointed out explicitly two generations later, in 1337, when rhe Bishop of Exeter, John of Grandisson, déclared that "rhe substance of the nature of the Crown is forrad chiefly in the person of rhe king as head and of rhe peers as members."'n" has lince withdrawn bis suggestion aceording to which rhe formulary of summons of Edward I might hace been inspired bv Rudolph of Habsburgo summons for che Diet of Nürnberg, in 1274 (AfGIl, Cotos[., u1.5o, No. 56); see Marongiu, "Note federiciane ," Studi Medieval¡, xv1I1 (1952), go6ff, where he calla attention to Frederick lis summons for a Diet in he held in Verona, in 1244; cf. MGH,Const., 11,333, No. 244: "Porro cura imperii príncipes nobilia membra sin[ corporis nostri, in quibus imperialis sedis iungitur potesms , presenciara omnium tenemur instantitis evocare, ut quod tangit omnes ab omnibus approbetur." For the princes as membra corporis imperatoris, lee C.g,8,5, and ahoye, Ch.v,n.42; also helow, 11.342. 167 . nec aligoid quod diadema tanga[ regni ciusdem absque ipsorum [prelatorum et procerum] requisito consilio faciemus." Parliamentary n'rits, 1,38,f; Richardson , op.cit., 99.

components of rhe Crown: What doth a kynges crowne signifye, Whan stones and floures on sercle is bent% Lordis, comouns, and clergye To be al] at en assent ... The leste lyge-man, with body and rent, He is a parcel of che crowne.110

There can be no doubt that in the later Middle Ages the idea was current that in the Crown the whole body politic was presentfrom king to lords and commons and down to the least liege-man. This did not preclude different interpretations en other occasions: the universitas might be represented by Parliament or even by the king as King.ar' Whar matters here, however, is the possibility of attributing a corporate character to rhe Crown. In Chis respect indeed che Crown and rhe "mystical body of the realm" were comparable entibes. Neither one nor the other existed all by itself "in rhe abstract" and separare from che constituents, che difference being chiefly that °Crown" emphasized more che prerogative and sovereign rights resting in those responsible for the whole community, whereas corpus mysticum seemed to stress more the corporate nature and rhe continuity of rhe whole people. But che two interrelated norions should probably not be separated at all, and English lawyers, as we recall, liad a strong aversion to recog-

res "La substance (le la nature ele la corone est principaument en la persone le roí, come teste, et en les piers ele la serre, come memhres, qi tenent de luí par certeyn homage ." Register of John de Grandisson, ed. F. C. Hingeston-Randolph (London, 1894-99), u,Sjo, quoted by Richarlson, "The English Coronation Oath." Transactions of the Roya? Hisiorical Suelten, 4t1i Ser„ XXIII (1141), 148 11 2-

16e Chrimes , Const.Ideas, 14,11.,, quoting Rot.Parl., ro,415; cf. Dunham, "Crown Imperial," 201. aro Política? and Other Poerns, ed. J. Rail (Early English Text Socictv, Old tienes, cxxly; London, 1904), 51, quoted by Chrimes, loc.cit.; cf Dunham, loc.cit.

362

363

271 Dunham, op.cit., 2o3f.

THE KING NEVER DIES THE CROINN AS FICTION

nizing a corporation when it was incomplete and therefore juristically incapacitated. What justice Fineux said in 1522, namely that "a corporation was an aggregate of head and body: not a head by itself,,nor a body by itself," was essentially valid in earlier times as well, even with regard to the Diadem "that muches all.""2 For the Crown would have been incomplete without both the king as the head and the magnates as the limbs, since only both together, supplemented by the parliamentary knights and burgesses, formed the body corporate of the Crown which, in modern language, meant Sovereignty. And in that sense, indeed, the king could be said to be "the head, the beginning and end of Parliament."rra Edward 1, in 1275, had not defined the notion of Crown; but from the description he gave of the nature and functions of the Crown there leads a direct line to the exclusively Englisli concept of Sovereignty, the King in Council in Parliament.

by thc oath sworn lo the Crown, are justly bound lo lead the king back to reason and repair the estate of die Crown, or else their oath would be violated... .

Proceeding from this premiso, the magnates tiren drew the conciusion that "when the king caces not m remedy an error and remove that which is harmful for the Crown and obnoxious for the people," the error must he removed by coercion.r" Apparently the barons were prepared to face a desperate alternative: to choose between Crown and king. That, however, was a false alternative from the outset, hecause the Crown without the king was incomplete and incapacitated. "For," said Sir Francis Bacon later when referring to that Declaration, "it is one thing lo make things distinct, another thing to make them separable, aliud est distinctio, aliud sejlaratio"; and he added with great emphasis diat the kiug's person and the Crown viere "inseparable, though distinct."lca The barons seem to have had in mind some-

TELE KING AND THE CROWN

thing which perhaps would llave heen feasible liad the Crown

No theory, it seems, liad any chance to prevail in England, which attempted to isolate the Crown as something set apart from its componente . Thar. attempt was made nevertheless; and the temptation to set up the Crown as something disconnected from the king must have heen great at a time when it had become customary to point out that king and Crown were not simply the same thing. But not being the same thing did not yet imply a breaking-apart por the playing-off of one against the other. That, however, was the danger wltich arose when the magnates, in their effort to remove Edward lis favorite and to restrict the king, carne forth with their well-known Declaration of i3o8, in which they proclaimed: Homage and oath of allegiance are more by reason of the Crown than by reason of the king's person, and are more bound to the Crown ttian to the person. And that appears from the fact that, before the estate of the Crown has passed by descent, no allegiance is due lo the person. Wherefore, if it happen that the king is not guided by reason in regard lo the estate of the Crown, his lieges, 172 Seo btai tland , Sel.Ess., 7q, for Justice Fineux. 173 Modus Tenendi Parliamentum: "Rea esi capuz, principium, el finis parliamenti, et ira non haber parem in suo gradu, el ira ex rege solos est primos grados ..." Cf. Stubb,, Select Charters, goa, § "De Gradibus Parium."

364

been simply identical with the king, and liad it not been-even by that time-a corporate entity composed, as the barons implied, of both the king and the magnates. The barons may have wished to express a distinction between die king as King and the king as a private person; but what they actually did was to set the king as King-and not only iris private person-over against the corporate Crown, and tiros, for the sake of the Crown, they viere va ^Honlagiuni e[ sacaamenh,m ligiatitiae potius snnt el vchementius ligant ratione coronae quam personae regia, quod indo liquet quia, antequam status coronae descendatur, pulla ligiancia respicit personan! nec dchetur; unde, si rex aliquo caso erga statutn coronae rationabili ter non se gerit, ligii su¡ per sacramentum factum coronae regem reducere el coronae statum emendare juste obligantur, alioquin sacramentum praestitum violatur. . Quocirca propter sacramentum observandum, quando rex crrorem mrrigere vel amovere non curar, quod coronae dampnosum el populo nocivuni est, iudicanmr est quod error per asperitatem amoveatur, co quod per sacramentum praestitum se obligavit regere populum, el ligii sui populum protegere secundum legem cnm regia auxilio sunt astricti." Gesta Edwardi de Comarcan (Rolls Series, London, 1883), 33f; Lodge and Thornton, Doeuments, i i, No..t; J. C. Davies, The Baroniat Opposition lo Edward H (Cambridge, 1918), 241f; Richardson, "Coronation Oath," 66f, who douhts [he authenticity, bu[ admite the wide ciiculation, of that proclamation. For the oath referred to in the proclamation, see aboye, n.162. 171 For tire rejectinn of the theory, see Lodge and Thornton, Documents, i8f, No.7. Bacon, Post-nati, 669f, makes more tiran one good remark on "tire poison of the opinion and asscrtion el Spenser,'' though te probahly oyerestimated [he magnates when he said tirar "their blood did risc to hear [liar opinion, that subjection is owing to the Crown rather [han ti) the person of the king."

365

T1/1: hl.Ac; .V6Í L1? DIE,

THE CROU'N AS FIeTION

ready to throw overboard even che king as King. Por that rcason, their otherwise verv interesting political philosophy liad no future and fell incleed, as has been said, "oca peenliaily barren ground." For all practical purposes this theory was soon forgotten, especially alter the barons themseivcs repudiated it; but ir was remembered in the Courts of Law, bv Coke and Bacon abuse all, as sometlting perilous and poisonous v7hich cricd out for vchement teje(lion.'°' And yet, che distinction berreen the king as King and tuca king as a privare individual veas not at all unknown by thac time. Ir would be easy enough to refer to canonical practice once more in order to show the distinction made between office and incumbent.r " Since, however, Hugh Despenser the Younger, who was held responsible for the political theory of the magnates, embarked upon a new "philosophy," it is fair lo turra to philosophical evidente. Unfortunately, sve llave no information whatever about the sources from which che younger Despenser may have drawn his inspiration. Christopher Marlowe spoke, presumably, in general ternrs wksen he made his Edward II address the elder Despenser:

commentary (though the whole commenrary passed under thc narre of Thomas Aquinas), discusscd in grear detail a section of che Third Book of che Politics in ivbicll Aristotlc stated risat a Prince liad in ¡lis officers and friends many eyes and ears and hands and leer, but Chal t tose men hall really the fimction of co-rulers.11r The cormnentator's rernarks on tilar passage-are insportant enougls lo justifv their renderin'g ¡ti full. He wrotc Princes make thosc [111( 1 1] co-rulers tdto ¡tic lucir friends as well as those of the principate. For if they [the co-rulers] were not friends of both, but only of one, as for instante che principate, they would not tare about the good of che Prince, but only abocar che principate. Contrariwise, if they would not love the principate, but only the Prince, they would not cace for che good of the principate. Therefore che co-rulers have to take tare of che good of both the Prince and the principate... .

The commentator then elaborates the point. He avoids a split between che principate and the Prince by demonstrating that the men who were received as co-rulers en behalf of the Prince were in fact received at the same time on bebalf of tire principate, because the good of che Prince was directed toward che good of the principate. That statement, however, the commentator did not consider valid without qualification. For, writes he,

Make triall now of that philosophie, That in our famous nurseries of artes Thou suckedst from Plato, and from Aristotle.178

only he that loves che prince as Prince, loves che principate. For he that rules may be considered in two ways: either according to his being Prince, or according to his being an individual man. JE you leve hico according to his being Prince, you love the principate, and by obtaining che good of one, you obtain che good of che other. If, however, you leve che Prince because he is this or that man, you do not necessarily ]ove the principate: and then you obtain the good of this or that individual without obtaining che good of che principate.181

However, it would not be altogether impossible that by some channel, directly or indirectly, Aristotle's Politics, including its thomistic commentary, exercised some influence-and was misunderstood "s Peter of Auvergne, the continuator of Aquinas' 178Baeon 's doctrine of the inseparahility of king and Crown confonned with that of Coke who, in Cabin a Case (Cake, Repares, Pare vi', vol . iv,i 1i], unqualifie
366

S. Harrison Thmnson, 'Walter Ru rley's Commentarv on che Politics of Aristotle;' Mdlanges Auguste Pelzer (Louvain , 1947),558f, and , for the passage in question, 571f. aso Politics ,ut,i6,1S,,287b , makes che distinction between © iX01 cdcelvoe [7o0 µovdpxse] cal rqs dpgi/ s, lo which W. L. Newman. The Politics ( Oxford, 1887), n43otf, adduces a number of interesting parallels from antiquity.

181 See Aquinas , In Polit.Arist., §b 20, ed. Spiazzi , 182: "Faciunt autem comprincipes illos, qui sunt amici sil¡ el principatus ; quia si non essent mnici utriusque, sed alterius , sicut principatus , non curarent de bono principis , sed principatus. Iterum, si non diligerent prineipatum , sed principem , non curarent de bono priuci. patos. Oponer autem comprincipantes curare de bono principis el principatus .. . Et est intelligend um circa id quod dictum ese , quod assumit princeps sihi eomprincipantes amitos sui es principatus , quod ratio principis sumitur a racione

1,11

367

THE CROtYN AS FICTION

THE KING NEVER DIES

It is easy to recognize the difference between the baronial theory and the theory of the commentator en Aristotle's Politics. The commentator arrived at a distinction of the two capacities of the ruler, tare Prince as Prince and the Prince as a private individual, whereby the princely capacity and the principate remained concentric. The barons. however, operated only with an antithesis of principate and Prince, which made those two entities, as it were, eccentric. It was the shortcoming of their doctrine that they divorced the Prince as Prince from the principate, or the King from the Grown, instead of separating only che individual man from his office, the status regis. What they were about lo do was to divorce, not the person from the status regis, but tare status regis from the status cororeae.182 And in that, they failed, as they played off alternately the "person of the king" and the "King 1 ' against the "Crown." Their main dehciency was perhaps lack of clarity, and their distinctions, useful though they may have been othervise, were hardly applicable lo their oath of fealty: their tenet minimizing the importante of personal allegiance amounted to an encroachment upon the authority of the king as King. This the barons themselves later bsanded as treasonable, and it made the chronicler cry out: "What a strange thing! See how the members divorce themselves from the head."183 Edward II found a willing Parliament when, in 1322, he revoked the ordinances of the mal nates, whereby he correctly upheld the distinction between status regni and status coronae-though bringing both entities as well as the "royal power" back en one denominator-and treated them as something which was the contera of the whole universitas, the famous "commonalty of the realm."usa

1

The distinction between king and Crown, to be sure, never ceased lo exist, and kings could easily be accused of having "blemished the Crown." The affair of Richard II and the charges against him abound in "crines against the Crown." Richard himself, in 1398, the year before his fall, proclainted in his extension of the Law oE Treason thai every attempt against the king's physical person was a crime of "high treason against the Crown."185 Vice versa. when a year later the sanee king was charged with having jeopardized "the freedom of the Clown of England," of itaving squandered the property of the Crown, and of having disinherited the Crown, he tras also accused of having acted on those occasions merely ad su¡ nominis ostentationem et pom.pam et vanam gloriam, "for reason of personal ostentation and pomp and vainglory"-certainly an effort on the parí of his aecusers to single out the king's private person as distinct from Iris office and his ofíicial capacity.14s But tete lords appellant of 1388 were very careful to avoid the mistake of tire lords ordainer of 1308, for when banding together they made an express reservation concerning their "allegiance to our lord tate king and the prerogative of bis Crown."17 Hence, a distinction tras nade, time and again, between the estate of the king and the estafe of the Crown. But the attempt to exclude adherence to the personal king for the salce of adherente to the impersonal Crown was not repeated. Instead, the doctrine of capacities gained ground steadily, albeit slowly. An early effort ine that direction was abortive when a royal counsellor claimed that Edwaed I as a king tras "of another estate than he was when he mad% a gran[ [as a prince]"; for the grantee, an earl, immediately retorted: "He is one and the same person that he was when

principatus; et ideo bonu ln principis est in ordine ad principatus bonum: et ideo qui diligit principem secundum quod princeps est, diligit principatus. Sed ille qui principatur, duohus modis potest considerar¡: vel secundum quod princeps, vel secundum quod homo taus; et ideo potest aliquis diligere ipsum, vel secundum quod princeps, vel secundum quod taus homo. Si diligat ipsum secundum quod princeps, diligit princpatum; et procurando bona unius, procurat bona alterius. Si diligat ipsum secundum quod taus vel taus, non oportet quod diligat principatum: et tune procurat secundum quod taus vel taus, non procurando de bono principatus." ra2 The terms status regis, status coronae, oí course, are equivalent to banus status regis, bonus status coronae, or, in Aristotelian language, to bonum regia, bonum coronae. The meaning coincides largely with both welfare and utility oí the puhlic sphere; see Post, "Public Law," 47f, and, more explicitly, "Two Laws," esp. 425ff. les Above, Ch.v,n.115. lea Lodge and Thornton, Documents, 128f,No.4.

368

iss t.odge and Thornton, Docu,nents, 26,No.18. 1sa lbid.. 2- No.16, for the king's demand te safeguard "les Liberrees de sa dite Corone." Fer the freedom propcr oí the Crown, see, however, the Statute oí Praemunirc, Oí 1393 312,No.)3): "et ensy la corone Dcngleterre qad este si frank de teso1 temms ... serroit submuys a Pape" In 1399, tioweveq [he king himself was charged (in almost the same words as had beca used in Praemunire) with having submitted the Crown n the pope 'quamvis Corona regni Angliae et iura eiusdem Coronae ... fuerint ah onmi tempore retroacto aleo libera quo Dominus Summus Pontifex ... [non] se intromittere deheat de eisdem"; Rot.Parl., 11r,41g,§27; for other cbarges conrerning the Crown, see ¡bid., 417,§18; 419,§32; 420,§41. In general, see Hartung, "Die Krone," 16ff. 187 Rol Peri., u1,244 X13: "Sauvant tome foitz vostre ligeance envers nostre Seigneur le Roy et la Prerogative de sa Corone'; cf. Hartung, "Die Krone," 17,n.2.

369

THE t(1.Vt; N111 El?

DIES

T//E C11011 - AS FICTIOA

he made the gift."' The capa( ¡tic s sccre mune- clearly c]evcloped

in "Jeadepting" mire royal poner, if only for six montas, King

in the case of the Din-Py oí Lancaster trhich 1 lenry IV rePises1 Si

Edward l'\' was considered a usurper and was mnsistently referred to in court and elsetchere as the nvper de facto rex ARgliae, "tire late de facto King oí England." V'ice versa, alter Edward's

tmergwith epro'ty1hcCi-orenasidkepasloprivae possession. That action, rchich bec.une a rnu,ce ccli'bre and prompted mire judges in loe dags olí Plowden to make their most suht]e distinctions concerning tiro kin_ s fvcn hodirs, led tire 'oval judges as ear]y as i lo, lo formulare cicarly tire dillcrencc bcureen things que appe/(nilre al f.01T1)le and Ihose bclonging tn mire king come auter person,111 the latter a good anticipation oí vshat was to be called in Tudor tintes the king's "body natural.'' Under Henry V, Parliament decided that mire king could ]cave his property by will but could not bequeath his kingdomroo-an old maxim, to be sure, and in fact only a reformulation oí tlmc old non-alienation clause. The problcm itself, in dre tuirteenttr and fourteenth centuries, liad been widely discussed by mire jurists in connection with mire Donation oí Constantine and mire admissibility of granting away half of the empire Lo the papacy; and it liad been discussed also by Englisla lawyers in connection with King John's subjection of rhe kingdom to che Holy See and the admissibility of that action.'`n In rhe law courts, cases turned cap in which rhe king's personal actions, or actions by his prerogative, carne into conflict with the interests oí rhe Crown and tlierefore with those of the community of the realnm."-' And Under Henry VII rhe jurists recognized that the king might be seized of land in right of the Crown.r°a A move of exceptional interest in [he direction of distinguish ing between che capacities of Pie king was the De facto Act of 1495, under Henry VII. When, in tire cocarse of mire dynastic struggles between York and Lancaster, King Henry VI succeeded

return, dre Lancastrian 1lenry VI appeared as Pie usurper and de facto king in contradistinction to the (le jure ruling Yorkist."" Ti is significant also that tito courts in that period ta]ked about "tire king's clemisc'' not in the secase of tire king s death, but of Lis departure froni poner, thereby indicating, exactly as Plowden lamer reported, "a Separation of mire neo Bodies [in] Chal mire Body politic is conveyed over from the Body natural, now dead or removed from the Dignity royal, to another Body natural."I°e It was rhe purpose of the De facto Act to wipe out all the potentially unpleasant consequences from rhe aftermath of rhe civil wars. Tire Act recognized that no subject "should ]oose or forfcit any thing for doyng their true dude and service of allegiance" by going either with one or tire other anti-king. That is to say, true and faithful adherence to rhe "body politic" or "king as King" could not lead to attainder even if "the King and Sovereign Lord of this land for Pie time being" lo whom a subject liad adhered and with whom tic liad served, was later defeated or otherwise disabled of rhe Crown.39e The Act thus acknowledged in 194 Icor Books of Edward IV: ro Edward IV and qq Henry VI, A.D. 1470, ed.

N. Neilson ( Selden So(iety , x,.115, London, ig3t ), 195,117,uS,1a6 , and passim, for the title, sometimes (p.t6s) reduced to nuper rex ; see aleo Introduction , xiif,xiv,xxix, For another distinction (le Roy que fuit and Le RON, que ore est), see a Year Book case of 1465 ( tlte outlawry of John Pastan ), in Lodge and Thornton, Documente, 37.No.29. 1°s Year Books of Edward IV (aboye, no . 194), 1,4: en ternp.e tau, re roy a la se su it was started , but fui, 'nys sauna iour par dererys le roy, said Littleton; see aleo 115, 119,135f,146,168; see aleo Lodge and Thornton , Documents , 37, and aboye, Ch.i,n.13. That the king ' s "death" was replaced by the king 's demise seems to belong ro thc fifteench century . The early fourteenth-cenmry king apparently still died; see, e.g., Year Books, r asid 2 Edward II, Y.S. Ser. i ( Selden Society , xvu, l.ondon , 1903), 5ao,17,98: te Roy morust . In 1388, however , a plea reas said to have gone without dar par demys le Roy (se. Edward III); cL Year Books of Richard II, 12 Rich.Il, A.D. 1388-1389 (Ames Foundation , Cambridge, Mass., 1914), 15,98, t°s Statutes of mire Realm , 11,,,68, where it is called unreasonable , " that Ihe seid subgettis going with their sovereign lord in Werres attending opon hico in his persone or being in other places by his commandement ," should he attainted. The Act had its antecedente berause immediately en the accession of Henry Tudor, sebo himself was an attainted person, a court decided that en facto iba[ Henry "prist sur luy le Roial dignite eo re roy, tour ce fui, void" and that it alorded no spccial Art to reeerse his tutainder; see Chrimes, Ideas, r, and 378f; aboye, Ch[,o 9, for rhe idea that 1Le "Sol, politic" hipes (>ni any deficiencies of the king. Cf. Pick.

188Pollock and Maitland , History, 1,514; Davics , 73aronial oppositiort, a3,n4. 18e Chrimes , Ideas, 35,n .2, and 3§2, No.,,. 19011. Pickthorn , Early Tudor Governnient: Llenes VII (Cambri(1ge, 1934), IPI Laehr , Konstantinische Schenkung, gSff,128ff, and passim, whose material, however, could be considerable broaciened; see, e .g., Nardi.''La Donatio constantini e Dante;' Studi Danteschi , xxv1(1942), 47-95; 1:11mann, Mediaeval Papatisni. to7f1-, t63ff; Schramm , English Coronation, 197ff; see, fm' wirlif and England, aleo Laehr, "Die Konstantinische Srhenkung in der abendlündisch en Lituratur des a',sgchcnden Mittelalters ," QF, sx111(t931-32), 14011,146IaaPlueknett , "Lancastrian Connimtion;' 7511, fue thc rase of rhe lbbot ot Waltham; Pickthorn , Lienry Vil, u,,c); Chis n—,,-,i 1°s pickthorn , Henry FI7, ^57f.

3'70

1

371

THE KING NEVER DIES

TIIE CROIVN AS FICTION

retrospect the foriner coexistence of two anti-kings or, as cae may say, two "Bodies natural," but tire existence of only one Crown, one "Body politic," adherente to which in any forro could not be made punishable even though the subject may have chosen the "wrong incarnation," the king who was defeated. It was certainly a wiser principie than the more usual slaughter of adherents of the defeated party, a principie for which precedents might have been found in the history of the papacy a century earlier when two or even three anti-popes mutually excommunicated each other and each other's hencllmen 307

Crown by alienating tse Isle of Oléron; Edward 1 himself applied it whene'eer it suited bis purposes; and dnring the styuggles about the Crown under Edward II, the magnates reproached their king more than once for having acted in "disherison of the Crown.^199 The ntetaphor itself, meaning hardly more iban "deprivation," deserves our attention. Ir derived obviously from the Law of Inheritance, where it meant t hat a person vas deprived, for one reason or another, from his legal rights as heir to a possession.210 We may recall also that the Law of Inheritance was closely connected With the perpetuality and continuous descent of the Crown just as the dominiztm passed on from the father to the son without the interruption of any intervening period of time,

THE CROWN A MINOR

The Crown, it is true, could hardly be severed from the king as King. Despite that inseparability, however, it was not quite identical with che King either. It remained possible, for example, to personify the Crown which, representing something that touched all, stood in many respects for the whole body politic; and consequently it became possible, too, to ascribe to the king as King a definite function and a moderately well-defined role with regard to the Crown. Among the many charges repeatedly brought against Richard II was also the one that he had acted "in prejudice of the people and in disherison of the Crown of England."199 Disherison, of course, vas a notion applicable only to a person, natural or corporate. The chaige was not a new coinage. Already Henry III had applied it when he blamed his son Edward for having disinherited the thorn, Henry VII, IV,50n.

,5,ff; Iloldsworth , History

o f Englist Law ,

so did the Crown descend without any inierval to the new king.2o1 To he sure, the Crown, being something that concerned all, was not a private but a public inheritance: "Kings are heirs, not of kings, but of the kingdom," as a Tudor author phrased it, and Erench constitutionalists such as Terre Rouge were at pains of pointing out that the heir to the Crown was, properly speaking, not at all the heir of bis predecessor, for he was only heir with regard to the administration of things which were not his, since they were public.202 The crime, therefore, of disinheriting the tosFor Oléron , sce Rymer, Foedera , 1,1,37.1: ", , , posset . . . exhereditationis pcriculum immluere," Cf. Harumg, "Die Krone," 1o. For Edward I, see, e.g., his letter to Pope Nicholas IV (Ryinmt, 1.2 ,740), in whlch thc king declared he would avoid "exbcredatimrern nasf raro que statum corone nostr 'c contingit." For Edward 11, scc the Dedararion of 1308 (Lo,lge and fllornton, 11) ahere Ihe magnates complain chal Cavesten coronan! exheredar-i1; in the Ordinanccs of 1311 (§ 23) 1rey clalnr tliat Lady de Vescy liad exercised inocente "a damage et deshonour du roi et apert desheritcson de la corone" (viso Z20, with referente lo Gaveston; Statutes of the Recito, cr62), after the harons, in lucir Anides oF ,3,a, had accused the king of "desheritaunce cl deshonour de vous et de vostrc coial poer, et desheritanuce et vostre corone"; Anuales Londinienses ( Chronirles of the Reigns of Edwaa'd 1 and Edward 11, vo1.1), ,68, CL Hartung, "Die Krouc," 12lf, who quoted practically al) [he places hero mencione(¡. 200 Bracmn , of course , discussed the legal aspects of ex tiereditatio ; see, e.g., fols. 8of. Woodbine , 1233f. For cenain peculiarities el the English Law of Inheritance

11r468,n.5, and

197 According te Johannes Andreae, Glos . ord., on c.un ., Clement ., q9, v, reges, Pope Innocent III (in connection with the dispute about the empire in 1198) supposedly decided "quod inconcussa consuetudo imperii . . . hoc haber, quod duobus electis in discordia , uterque administrar nr rex et omnem imperii iurisdictionem exerceC guod , declarar ibi Papa, locura habere donec per Papam alterius electio fuerit approbata ; ant reprobara ." Cf. Hugelinann , " Kaiserweihe ," 27; Kempf, Innocenz III., 125,(0.49 . The co-existente of two de facto kings is openly acknowledged in chis case, while the finding of the de jure king is left to Ihe pope. 198 Parliament , in 1386, complained of royal grano " en desheritison de la Corone" (Rot,Parl., 111,216); and again in 1388 (111,23o,Ariv); the Statute of Praemunire, in 1393, complains that the papal demanda were "en ovene desheritance de la dite corone et destruccion de regalie nostre (lit seigneur le Ron" ( Lodge and Thornton, Documents , 312); in 1399, the king was charged with having acted "in magnum prei udicium Populi el exheredacionem Corone Regni " ( Roi.Parl., 111 ,420,541); Hartung, "Die Krone," 16ff,

372

as conrpared with Ronran and Canon tacas, see Gti rerbock, I5racton, 125ff; Ho1dsworth, Ifistory of Engiis/i Law, 111 71f. That, however, is not the question here. 291 Ahovc, nos. 53ff.

coa Mclhvoin, Poli tico! Thought, 382,n.4, quoting Adam lllackwood. The same idea (i.c-, loe poblic, and not private, nauure of inherited kingship) was expressed by Forrescuc; cf. Chrimes Idrav, off. For trance, rvhere tire problem was often discussed ¡ti connection with the Salic taca, see Church , Constihrtional Thought. 2Sf; also Lemaire , Lois ( ondarneutnlea 551E j. Ni . Poner, °The Development and Significante of the Salic Law of thc French," EHR, 1,11(1937), 235.253.

1

373

T[lE fE[NG N¢1'GR DIE,S

Crown was not si mply a mattcr of ordinary deprivation: it mcant.' in legal language, lime dcprivat ion of a minor, A law of the Enlpcrors Diot9ctian aura Aiuximianus dcd:ucd that time respublica was nsed tu apply tu itself time iight of nlinois and therefore could implore time rcinedv of 'ii'in61at2ment lulo time former legal position'' fr-ertittt/io irr itttt^ruml. and time oInssators explained tliat in this reslxrt an nnton'real and C-.hurch rcere on tde same level. Ilotceycr, tic Rnur,ur jtiHst Labro, lvriliu, in time times of Augustos, declared a cerlain cruel to be pei tincnt to "maduren, children, ami -'11 Tlic tertiurn comparntionis of this seemingly weird scramble vas tiat ala tliree viere uuable to manage their own affairs except tbrough a curator who liad to be a sane, adult, and natural person. When, in time course of tbe thirteenth century, the corporational doctrines viere developed, the notion of "city," civilas, was logically transfcrred to any uni¡versitas or any body corporate, and it became a stock-in-trade expression to say that time universitas was ever an infant and under age because it ncecled a curator. In that sense, time canonists developed a detailed doctrine according to wlsich time bishop figured as tutor or guardian of bis churdl, whercbv the Churchbeing "equiparated" with time respnblica-figured also as a minor.206 Therewith the body corporate, ivhicll was ever under age, carne to enjoy ala time privileges of a tumor person: no prescription tan against a minor; property and fortune of the ward could not be alienated or diminished by the guardian or, for that matter, by any other person; and the guardian uvas responsible for the unimpaired prescrvation of his pupil's property, which, being "inalienable,'' ivas specially protected against dolose and 202 Ca,54,4: '' Res publica minor'um jure ni¡ soleo ideoquc anxilium restiR11ionis implorare potest." See Gtos.ord. on Ibis la,, v. s,IeC ''Sicui enim nrinores sunt sutr curatoribus , sic et respubltca sub admiuistrutnribus sic et in ecdesia uni reipublicae parifiectur .'' :l rarrdingtv, llosticnsis, Sununn n .ere., son N rli,n1 col. 414 ( quoting Guilelmns Nnso. in crris dcrr(ialisl, writtng ca. 1254}. "ecdesia fungitur iure minorjs , naco comparatur reipublicae" ...his, of course, 'vas also time souroe of the parliamentarv sermon of johu Russel, Bishop of Lincoln, in 1183, who repeatedly emphasized tlrat res publica fa
204 D.4,6 ,22,2: ^Quod edictum etiam ad furiosos co infantes et civltates pertjnere Labeo aje" Cf. Gierke, Gcn.R., m,9q,nsa3. also r,^,nuro2,

205 Gierke, Cesa R., ru,332 ,n.274, and aboye , 11,203. X37

TIIR CR O 11'N AS FICTION

fraudulent actions by time in integrum restitutio, time restitution of a thing to its former condition or thc rcvocation of all lost property to its original status. Certain difficulties arising from that doctrine, when, for examplc, jurists amusingly argued tirar time Church seas a sponsa and dterefore could nor be under age, viere of no importancc.20G It was admitted also that time relation of a bishop lo his chnrcll cliffered in some aspects irom that of a tutor lo Iris pupil because, for examplc, the bishop-or his episcopal dignity-was a perpetual tutor and enjoyed rime usufruct of his pupil's property perpetually, whereas time ordinary tutoi's office was limited in time (until che coming of age of time minor) and excluded usufruct"' All that, however, could not prevent the general acceptance of the rule that a juristic person or corporation seas privileged and treated like a person under age. Those teneos were common knowledge in England as they viere elsewhere. Bracton dealt with that question very expertly: Since time Church is in time place of a minor, it acquires and retains [property] through its rector like a minor througlt his tutor. And although the rector may die, time church does not forfeit its claim ... any more so than a minor if Iris guardian dies.'2os

"Here we have," says Maitland, "a juristic person, che cburch, with a natural person as its guardian, and with a patron and ordinary to check that guardian in his administrative acts, for some things time rector cannot do without the consent of patron and ordinary."10s Noteworthy is a case of 1294-coming up before the tour[ at a considerably later date, in the first year of Edward II-because here the connection with disinheritance becomes quite obvious. The court argued that a church, being always within age, takes the place of a minor; and it is not consonant with the law that persons within age should suffer 206 Gierke, ibid., n.272; also Hostiensis , .Snosoua aurea, col. 414 (aboye, n.203). 207 Gieike, ¡bid., 256,n.4o, refers in time first place to Gtos.ord., en c3,C.5,4.3, v. quia episcopus: " Nulla eso enim comparatio inter tutores et praelatos , quia tutor est teniporalis, praelatos est perpetuos; tutor non utitur bonis pupilli, sicut praelatos bonis ecclesiae ; tutela est onus, sed praelatura eso honor etc." 208 Bractom fol.226b, Woodbine, 111,177: "Et cura ecdesia fungamr vine minorjs, acquiritur per rectorem et retinet per cundem , sicut minar per tutorem. Et quamvis morjatur rector, non l amen cadit ecdesia a sejsina sua de aliquo, de quo rector seisitus onorimr , lmmjne ecclesiae suao, non magjs quam minor si cultos saos moriatur et pervenerit in alierius custodiara : et per hoc non mutatur status minorjs." 2111 Pollock and Maitland, Vistos', 1,504; cf.5o3,n2.

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disherison by the negligence of their guardians, or should be prevented from action if they wished to speak up concerning those chings which through their guardians have been perpetrated in disherison of themselves who are within age 210

In the same year, Justice Scrope of Common Pleas argued, in King v. Prior of Worksop, that the [irle co a church derived from King John, the ruling king's great-grandfather, and we llave said how he was seised of chis advowson as of the right

In other words, the negligence of a guardian may not lead to disherison of che pupil, and the negligence of the rector of a church may not lead to disherison of his church. On the concrary, the minor (that is, the church) is to have its day in the king's court in order co get che disherison revoked. By that time, however, che doctrine concerning the eternal minority of Churclr and respublica was transferred co the Crown: ir was fused wich the complex idea of inalienability of Crown righrs or Crown property and with the maxim Nullum tempus currit contra regem. In the las[ decade of the thirteenth century cases carne up in court in which the "disherison of the Crown" was discussed;211 and a little later we find the vocabulary for che minority of corporations, customary in romano-canonical procedure, applied co king and Crown. This was true especially in cases of Quare impedit in which the Crown claimed advowson over a church. In the case King v. Latimer (to Edward II), the oficial Record of the Case expounds:

of his Crown, and no right can outweigh the right of bis Crown against our lord Ihe king, for it is always within age and cannot lose in court.... 213

Justice Scrope, horvever, ivas not always consisten[ in Iris arguments, for in the Latimer case, where the oficial Record clearly talks about the nonage of che Crorun, Scrope said: And the king has spoken of che right of Iris Crown also, whereas en such a righi no time runs against che king because he [the king] is always within age, wherefore we ask judgment for our lord the

Here, as well as on other occasions, the difference between Crown and king is blurred: the judges, perhaps misled by the fiscal maxini "No time runs against the king," wrongly actributed minority to the king where obviously they meant che Crown. That lack of precision was noticed by che juscices themselves; for when, in the case of che Prior of fVorksop, Justice Scrope slipped and talked about che nonage of the king, Serjeant Toudeby interfered svith a noteworthy epigrammatic remarle: "Tire king is only guuardian of the Crown."211 That perfectly correcc insight inco the matter, however, did not preven[ Toudeby, at a later hearing of the same case, froni falling into the same trap and likewise talking about the king "who is alivays within age and against whom there-

[The king] presented co the aforementioned church bis aforementioned clerk Robert as of the right of his Crown which is always, so lo say, in the age of a minor and against which in Chis case no time runs.... 212 110 Placitorum ahbreviatio, 304 (Norfolk), i Edward II: "Set quia ecelesia que semper est infra etatem, fungitur vice minoris, nec est inri consonum quod infra etatem existentes per negligentiam custodum suorum exhereditacionem paciantur, sen al) accione repellantur, si luqui voluerint de hlis que per custodes suos ad ipsorum itüra etatem exhereditacionem minus rice facta fueron, quin patios ad ipsam revocandatn audiantur in curia Regis el ad hoc admitía ntur ex concilio curiae, dictum est predirto Adam etc," cf. Year Books, 22 Edward 1 (London, )873, Rolla Series), 33: "le Eglise est deinz age'; see Pollock and \4aitland, History, t,5o3,112. o Edward 11, 1316-17, Y.B. Ser., xxt (Sellen Society, cnv, Sce also Year Boolis,

fore time does noc run." Whereupon Chief Justice Bereford of Comnion Pleas interjected: "If dre king were always within age, 113 Ibid., 71: el asomos dit comen[ y fut seis¡ de cel avouson cuco du dreit de sa Coroune. ou nu1 clrcit sur clreit de sa Coroune tic post a nostre seignur le Roi qe touz jura est deinz age el tic put perdre en curC' 214 ¡bid., 45: "... el le Rey ad parlé du dreit el de sa Coroune. ou nul temps de ten drcit encurt au Roi por ceo q'il est tez jurs deynz age." See also Justice Scrope (ibid., 45): ".. . et le Rov est touz jours deinz age iesiut qe encountre ly nul temps ne amrt quaunt a maintcner Testa[ de sa Coroune . 211¡bid., 74: "le Rey n'est qe gardein de la Coroune." It ovas almost proverbial with the jurista ro sas: "Rex deber esse tutor regni, non depopulator nec dilapicalor." See, e.g., Baldus, on che decretal of Honorius III (c33 X 2,24), Decretales, fol.26t. In other respeirs, the king was the "1'atron paramounP' (Sorzerein Patroun) of all churches in his country; Year Books, 17 Edward 171 (Rolls Series, igot). PP.I-lii, and 538,1,o.396.

1937), 197: [Serjeant Toudeby] "... kar ele [seint Eglise) dnit de resotin entre deinz age Ionz jurs en mayo ele gardeyne." The guardian of the Church universal was, of morse, the pope. See, c.g., Baldus, en D.44.3g,u.1' .101 _34v: ' Ecclcsia sine papa nihil agit. ideo oportet [q uod] per aliurn regara, sicut el regitur noinor."

2,15elect Cases in the King's cotn eil, pp.lixf. 2,2 Year Books, 1o Edward 11, 1916-r7, 16 (Record of the case): "J(ohannes) Rex ad predictam ecdesiam presenfavir predicmm Rohertum dericuni suena ut de jure corone sue que semper es( quasi minoris etatis el coi in casu nullmn tempus currit etc." This is the case found also in Placitorum abbreviatio, 339 (15 Edward II), which Pollock and Maitland, History, m,525,m2, refer lo. Por the writ Quare impedit, see Holdsworth, History of English Late, m,66i,No.ii.

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THE h1,A'G M t 1CR DIE

confusion of the king's as yct undivided capacities with a corpo-

no deed which he makes, would bind hico according to what you say; of which the contrary is true...."a" The quibbling of the jurists sheds light on manv details. We learn that the Crorcn, like a church, reas treatecl as a eorporation and that in this respect corona was coordinated with ecclesia; for perpetual nonage expresses uuarnbiguously, corporative character.217 Aforeover, ove find thar bv implication the judges attributed, if inadvertently, to the king 1ikewise a corporative character when they declared that he, the king, was always under age. At that, Justice Bereford correctly took offense: tbe acts of a minor had only limited validity, if any validity at ah. In fact, the grants made by a king during his minority needed confirmation when the king carne of age. This was true under Henry III, and it was still true under Henry VI, although in the meantime, during the minority of Edward III, some ''peers and saltes of the realm" asserted that the king's nonage would not defeat the Kin 's gfts a1e That opinion, of course, ovas a srep in the direction of the more concise and rationalized legal tenets of the Tudor jurists who held that the king as King and as body politic vas never under age

racional Crown. The arguments of the judges around 1 goo appcar .srrangely illogical when, furthermore, ove ti ink of use argumen1 of Scrjeant Toudeby ocho, in full agreement with the tcaching of canonists and legists, stated that " dfe king was only dic guardian of the Crown.-110 Por lo the perpetual minor, the Crown, there helonged a perpetual adult as guardian, a kin, ocho, like thc Crown, never died, ocas never under age. never sick and never senile. In that respect, finally, Justice Bereford ovas perfectly sound in his judgrnent when he stated that if the king oyere a perpetua] minor, he, the king, could not be held responsible for what he was doing, which certainly was contrary lo the facts. Aboye all, however, the minority theory was defeated by che king's duties as "guardian of the Crown," since a guardian by definition liad lo be of age.

It is quite obvious that the judges around 1300 found it extremely diffrcult lo coordinate with the king's office and person the relatively new theory concerning a corporation's perpetual minority, which insouciantly they transferred from the respublica and Church lo the Crown. While most likely they would never Nave ventured to maintain that a bishop was "ahcays under age," since it was easy te distinguish between the bishop and the bishopric, the undefined and hazy notion of "Crown," which in so many respects coincided with the king's power and dignity, led them astray. The judges under Edward II thus arrived at a confusion similar lo that of the magnates of 13o8, who, as it oyere, severed the infant Crown from its adult guardian, whereas they really intended lo sever an individual from his guardianship. The judges were certainly mistaken when they applied the corporational nonage theory te the Crown which itself was a composite body encompassing the king as head and the lords spiritual and secular as limbs. By confusing the king with the Crown, however, and by attributing now lo the king, if by mistake only, the corporational character of a perpetual minor, those jurists oyere about to create a genuine corporation sole: the nonage king. Had they continued in that illogical vein, they should Nave arrived at creating some other king to be the guardian of the fictitious non-

nor sick nor senile. Hence, from che sarne corporational premises there could originare two diametrically opposed opinions: a king ever under age versus a king never under age. In either case, of course, the intention was lo emphasize the exceptional position of the king and his rights, that is, the perpetuity which he shared with the Crown. But whereas the Tudor lawyers arrived more or less at a fusion of the King body politic with the perfections of che Crown-Bacon talks about "the body politic of the Crown," though he continues: "That the king in law shall never be said to be within age"11s-their mediaeval predecessors arrived at a 216 Ibid., 1g5, for Bereford: "Si le Roi fut tut tenps deinz age, nul fet q'il fet ti hereje a vostre dit. cuius contrarium est verum etc." See alto Year Books, 5 Edward 11, zgzr, YB. Ser. x (Sel(Ien Society, txnt, 1944), 167, where Toudeby likewise saos that "the king is alwavs within age etc., and in different places he can change his title to the sarne propertyP Bereford occasionally opined that "le roy est sur la ley," and in that he was sided by Toudeby (''et pur ceo est il [the king] sanz piere et passe Lote la ley"); cf. Year Books, 8 Edward 11, rgrq-r T, Y.B. Ser. xvu (Selden Society, XLI, 1924), 71.75. How difficult it was for English lawyers to distinguish between the king's capaciries has been stressed br G. O. Sayles, 5'elect cases in the Court of King's Bench under Edward 1 (Selden Society, t.vm, 1935), ul,xliilf. 217 Maitland, Sel.Ess., so6.

220See ahoye, n.216; also, for the king as admi nistra tor of dre fisc, aboye, Ch.n,

216 Holdsworth, Hitton o( English Las, 111,464. ale Bacon, Postmati, 66S; aboye, Ch.l,n.9.

d78

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THE CROWN AS FICTION

age king, and so forth in eternal regress. Reason, however, prevailed: tire court pointed out that tire king was "only tire guardian

For no man can show me in al¡ corporations of England, of what nature soever , whether they consist of one person, or of many, or whether they be temporal or ecclesiastical-not any one Cakes lo him or his heirs, but all lo Itim and his successors.... For tire king takes to him and his heirs in tire manner of a natural body, and tire word "successor" is but superfluous: and where it is used, it is ever duly placed after tire word "heirs": the king, his heirs and successors.225

of tire Crown" and tire whole argument concerning tire minority of tire Crown soon disappeared from legal discussions. Nevertheless, we notice hoce easily one might arrive at tire conclusion that tire king was a corporation all by himself. Verily, "the corporation of the Crown utterly differeth from all other corporations within tire realm."211

It was indeed tire amalgamation of tire dynastic continuity of the natural body with che perpetuality of tire Crown as a political body in tire person of tire ruling king which accounts for many ambiguities and inconsistencias in late-mediaeval English political theory.

At chis juncture we should probably recall tire idea of dynastic continuity implying tire hereditary descent of tire Crown and thereby also che dynasty's hereditary guardianship of ehe Crown. That dynástic point of view was mentioned incidentally by Edward II when, shortly after his accession and before his coronation,

To summarize, we find ourselves involved in a tangle of inter-

he wrote to a cardinal:

secting, overlapping, and contradictory strands of political thought

Since we are ruling in the hereditary kingdom of England, one thing should be weighcd aboye all with foresight and careful considcration, how ... tire rights ... of our Crown and royal dignity may be preserved without diniinution 222

all of which somehow converge in the notion of Crown. The Crown cuas tire owner of inalienable fiscal property; tire Cronsn defended inalienable rights "which touched all"; and legal disputes arising therefrom as well as criminal cases and actions in which tire courts Christian were involved, viere treated invariably as picas of tire Crown. The Crown, as tire embodiment of all

In odter words, in its individual ruling exponent the dynasty as such was tire perpetual guardian of a perpetual Crown, or, more correctly, the perpetual head of a body of guardians whose limbs viere then tire peers. It did not pass unnoticed that by its continuity tire dynasty differed from tire customary heads of corporations whose office was not hereditary. None but tire king was entitled to talk about his royal power and roya) estate "and his heirs thereto."'29 In tire case of a normal corporate hody, however, one began to grow conscious of tire word "heirs," and by che fourteenth century tire jurists would correctly replace tire word "heirs" by "successors,"1 24 a distinction which later on gave Bacon a good opportunity lo deny altogether tire applicability o£ ecclesi-

sovereign rights-within tire realm and without-of the whole body politic, was superior to all its individual members, including tire king, though not separated from titem. In many respects che Crown would coincide with tire king as tire head of tire body politic, and it certainly coincided with him dynastically, since tire Crown descended on the king by right hereditary. At tire same time , however, tire Crown appeared also as a composite body, an aggregate of tire king and those responsible for maintaining tire inalienable rights of tire Crown and the kingdom. As a perpetual minor, tire Crown itself fiad corporational character-with

astico-corporational parallels to the Crown.

che king as its guardian, though again not with the king alone,

221Bacon, Post-nati, 667. 222 Rylner , Fondera, 11,2,21f; Richardson , ' coronation Oath;' 62,n.9,. 223 See, e . g., che Statute of York; Lodge and Thornton, Documents, 129, No.4. Vire versa che king's prcdccessors were called his "ancestors "; see, e . g., Sayles, Select Cases (Solden Society, rvu, ,9§8), n,p.lxi, n.e "The act of the king or his ancestors ought not lo be judged without consulting him." See also Year Boolcs , 17 Edward III (ed. Pike; Rol1s Series, , 902), Introd ., pp.l-li, roncerning advmcson of churdtes founded 'by the king's ancestors." es' Those observa tions havc been snade hy L. O. Pike, in che lo trod u ction te his cdition of Pcar Bonks, r6 Edward III (Ralls Series , 1896), t,xlivE, also Ixxxivt; cf.

but with that composite body of king and magnates who together were said to be, or to represent, the Crown. There were indeed innumerable aspects of that notion of Crown, which people then applied so thoughtlessly and easily to all sorts of capacities and competentes, and it would hardly be justified to blame judges or magnates or tire kings themselves for their failure lo define clearly 221 Bacon, Post nati, 668.

Holdsworth, H1,03.

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DJG:VIZ'AS NON MORITOR

VE {'FR Di] a

and unambiguously what the Crown was. Crown, alter all, was then a live conception, and owing to its lifelike complexity it resisted all efforts io grasp its essence in unambiguous tercos: what appeared as corred froni one angle, was [elt to be wrong from another. What can be said is, as Sir Francis Bacon put it, that king and Crown viere "inseparable, though distinct.", also another thing seems to emerge quite clearly: that the Crown reas rarely pcrsonified" but very often ' bodified." Comparable to the corpus mysticum, the Crown was and reinained a coinplex body, a body politic which was not separated from either its royal constituent as the head nor from those co-responsible for che status coronae as limbs. Who dtose limbs viere depended upon the occasion: they were sometimes che councillors, sometimes the magnates, and sometimes the Lords together with che Commons in Parliament. Tire surprisingly long survival in England of the mediaeval organological concept of government was sanctioned by the existence of the representative body of Parliament in which the corpus morale et politicum of the kingdom really lived and became visible. To be sure, tire Crown was individually ever present in the king; but tlte Crown could become also quasi-corporate ad hoc, for some purpose of taxation or jurisdiction or administration,111 and corporately it became visible when actually the king wore the insignia (as Henry VIII said) "in the time of Parliament, wherein we as head and you as members are conjoined and knit together in one body politic."

to a large extent. 'I'hose features of a highly abstraer sature originated, in tlreir cntirety, in Canon Law and Romas I,aw where they served to characterize the only one-mas coipoiation which the nvo Laws liad constructed and which they described as Dignitas. The English lawyers adopted the essence of that notion and, while making little use of the notion as such in thc cense of a fictitious person, they ingeniousiv adopted al] its charactciistics to exisiing English conditions and transferred all its in,redients to the most prominent office, that of the king, and to this office's symbol, the Crown. 3. Dignitas non moritur

t

A continuity of the king's natural body-or of individual kings acting in hereditary succession as "guardiana of the Crown"-was vouched for by the dynastic idea. The perpetuity of the sovereign rights of the whole body politic, of which the king was the head, was understood to be resting in the Crown, hazy though this notion may Nave been. Both principles-that of continuous succession of individuals and that of corporate perpetuity of the collective-seem to have coincided in a third notion without which the speculations about a king's "two bodies" would remain almost incomprehensible: the Dignitas. It will be recalled that ever since the twelfth century the custom arose to emphasize in some groups of writs (especially those concerned with the courts Christian, but others as well) that certain legal cases pertained ad coronam et dignitatem regis.111 Moreover, kings not rarely were charged-we may think of

At any rate, the Crown in late mediaeval England was not the fictitious person which the continental "State" became during and

Edward II or Richard II-with having "blemished and prejudiced

after the sixteenth century, a personification in its own right

the Crown and the royal Dignity and the heirs Kings of Eng-

which seas not only aboye its members, but also divorced from

land.""s It would be a mistake, though, to understand the word

them. Tisis step, apparently, was not taken in mediaeval England.

Dignity only in its moral or ethical qualifications, that is, as

For all that, however, fiction or traits of fictitiousness carne into

something contrary to an "undignified" conduct-although chis

the picture also in England when tlte Tudor lawyers began to distinguish between tire king's body natural and the king's bodye

connotation was by no means absent. Likewise, it would be a

politic, and began to identify the latter, which bore all tire fea-

terminous and exchangeable, or simply redundant, even though,

mistake to assume that the terms Crown and Dignity viere co-

tures and attributes of an "angel'' or other supernatural being,

228 Aboye, nos.,o7f. 229 See, e.g ., Ro/ Par!., n,,36o, the cancellation (in 5397) of che judgment against che Despensers which was said to have been 'emblemissement et prejudice de sa corone et sa dignitee royale et de sea hcires roya d'Engleterre." See Hartung,

with the "body politic of the Crown"-not wholly perhaps, but 258Ibid., 670. zar Cf. Post , 'Quod orenes tangit," 223,nos. t 255.

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383

TIIE KING NE VER DIES

more often than not, they were lacking precision and were applied thoughclessly and confusingly. The Crown, as we have tried lo explain, vas something that referred chiefly to the sovereignty of che whole collective body of che realm, so that che preservation of the integrity of the Crown became a matter "that touches all." The Dignity, hovever, differed from the Crown. It referred chiefly to the singularity of tire royal office, to the sovereignty vested in the king by the people, and resting individually in the king alone. This, to be sure, did noc imply that the royal Dignity was sometliing thac touched the king alone and did not touch all. Since the king's Dignity, together with his prerogacive rights, had to be maintained and respected for the sake of the whole realm, che Dignity too was of a public, and not merely privare, nature. It was as little a private matter as the ofjicium regis, with which it largely coincided. Officium and Dignitas, however, were not precisely the same thing either, and the distinction between the two notions sometimes caused trouble. The jmists-Bartolus, for example, or Baldus-pointed out most correctly that a person might have the Dignity of Senator or Proconsul, or have the Dignity of a superillustris, illi stris, spectabilis, or clarissimus, and yet be without Office. Bartolus, therefore, held that, strictly speaking, we would have co say "thac che Office itself was not a Dignity, but had a Dignity attached (habet dignitatem annexam)."230 For all the correctness of [hese distinctions, the jurists at large liad yet to succumb to the cerminology which che Church and Canon Law liad been developing at least since the thirteenth century. For according to canonical usage it was, so far as the notions were distinguished at all,2"t the Dignitas rather than the Officium lao Bartolus, en C.12,1,mbc.n.38, fol.53v: "proprie enim loquendo aliud est ofBcium, aliud dignitas;' and ibid., n.q}: "vete enim ofhcium ipsum non est dignitas, sed haber dignitatem anne .xam:' Baldus, on c.8 X i ,2,n.9, In Decretares, fol.lg: "Dignitas est in habendo ofticium et in illud exequendo. El nota quod de iure eivili sunt quawor dignitates tuntum proprie loquendo, scilicet superillustris, illustris," etc.

2211 he canonisca seemed to be quite ready to identify officiu u and dignitas; see, e.g., Johannes Andreae, on c.28 X 3,5,n13, Novella, [01.35: ''Sciendum est quod dignitas el personatus el olficium videntur synoniena ." His reterence is Innocent IV, Apparalus, on the same decretal, nos.6-7 (L.yon, 1578), f0l.237, who makes a certain restriction with regard to personatus, "quia persone ecdesiarum dicuntur in Anglia, quae praesunt ecclesiis " (chal is, parsons). see, for the connection of ''parson- person' with the Corporation sole, dtaitland, Set.Essays, 87.

384

DIGNITA.S NON 4MORITDR

which became the subject of those legal speculations from which the Dignitas finally emerged as a corporate entity. PHOENIX

As usual, it was on the basis of an individual and very concrete case that the canonistic dteory reached its full growth. Under the pontilicate of Pope Alexander III, the abbots of Leicester and Winchester served as delegare judges. When Winchester died, Leicester waited for che election of a new abbot and then resumed his work together with che successor, the newly-elected Abbot of Winchester. The pope approved of that substitution because, he explained, the power of delegare judge liad originally been conferred en The Abbot of Winchester, mentioning only the place narre, but without mentioning an individual name; the commission, therefore, carried over automatically co che new abbot, Winchester's successor.['° Though che practice itself may have been observed long before, it was nevercheless Pope Alexander 111-himself an outscanding jurist-who rationalized the existing practice and formulated a legal principie, che implications of which clic jurisprudents were quick to grasp and expand upon. The audtor of an Ordo iudiciarius, a hook on canonical procedure, of the beginning of the thirteenth century stressed the dilference between a delegation made cvith the mencion of a proper name and one omitting che proper name; that is, in technical language, the difference between a delegation facta persone and one facta dignitati.2 35 At the same time, a canonist, Damasus (ca. 1215), in a gloss on Pope Alexander's decretal, produced the decisive phrase: Dignitas nunquam perit, "The Dignity never perishes, although individuals die every day."=24 When included in the Liber Extra of Gregory IX, the decretal-known as Quoniam abbas-received the succinci heading: "A delegation made co the Dignity without expressing a proper name, passes 222 Sce e. 1.l X ,,2q, ed. Friedhcrg, 11.162: ". . . quia sub expressis nominibus locornm el non personarum commissio literarum a nobis emanavit" 233[Damasus], De ordinc judiciario, C,42, ed. Agathon Wunderlich, Aneedota qúae procesara civilem .spectant

(Giittingen, ,8.1,), Si: "ítem de persona ad personara, putaq si scrihatur ahhati Sancti Proculi, nomine proprio non expresso, extenditbr ad chis successorem'' (see also c.43). Gierke, GenR., 111,271,n.73; also Kuttner, Repertoriunt , 428,11 .3, who (with H. Kanmrowiez) doubts that Damasus was the author of the Orde iudiciarius, although it was written ea. 1215.

224 Damasus , on c.,q X 1.29 (quoted by Gicrke, lnc.cit.): ". . , quia dignitas nunquam perit, individua cero quotidie pereunt."

385

THE RING NFI'F:R DIF.5

UIGNITA,S NON ;IIORITf R

en to che successor."2'" Finally, che Glosan orrlinoria, composed

Once che principie was established that a Dignity never dios, che jurists could noc fail co notice that certain similaricie.s prevailed bectveen che Dignitas gnac non neoritur and a corporation, an universitas quae non nioritun. By maincaining clic fictitious oneness of che predecessors avith potencial successors, all of whom were present and incorporated in clic actual incumben[ of che Dignity, che jurists constructed a fictitious person, a "corporation by succession" conposed of all [hose N ested successively with thac particular Dignity-a ficcion which makes us think of che witches in Shakespeare 's Macbeth (IV,i, 1 12ff), who conjure up cha[ uncanny ghostly procession of Macbeth's predecessor kings ivhose las[ one bears che "glass" showing che long file of successors. By this ficcion , at any rato , che plurality of persons necessary to make up a corporation was achieved-a plurality, chac is, which did noc expand wichin a given Space, but teas decermined exclusively by Time.290 This was doubcless che prevailing theory until early modern times291 Perhaps no less profound an aspect of che nature of that corporation by succession was produced by a philosophic afcerthought. When commenting en che decretal Quoniam abbas, Bernard of Parma, che composer of che ordinary Gloss, very ingeniously

around 1295 by Bernard of Parnta, trhile paraplirasing thal licading, gave also the dear reason for Ihc cyistiia practico `... because predecessor and successor are undersuttxt as one person, since che Dignity does not dic."t30 The fictinn of che identity of che persons of predecessor and .successor liad bcen formulatecl in those very years also by Pope lnnocent IV ni his Ap/mratos on the Decretals, and it remained the stock phrase of the glossators and post-glossators for generalions to come.237

Dignitas non moritur, `che Dignity does not die"-chis, of course, was a principle which referred noc only to che appointee but also to che dignitary making che appointment. For che delegating sovereign, che Pope, could make che delegacion Iikewise in two ways: he could let it originare either from his person, in which case che delegacion would terminare on 11we pope's death; or from che Dignity of che Holy See, in which case che delegacion of power would be binding to che succeeding pope as well, quia Sedes ipsa non moritur, "because clic [Holy] See icself does noc die." Through Pope Boniface VIII Chis maxiin-dlough quite current before-became authoricative because he inserced it into a decretal of his Liber Sextos, saying that a bcnefice given to a prelate en che pare of che Holy See, unless revoked, "will last perpetually because the Holy See does not die."2aa In Chis case, it is che perpetuity of che Dignity of che Holy See which makes the renewal of grants unnecessary because, says che glossator of the Liber Sextos, "che incumhenc of che papacy or Dignity may die, but che papatas, dignitas, or imperium is forever."200

sumably) Petrus de Vinea writes (MOR, Const., u,zg7 23ff): "non in contemptu papalis officii vel apostolice dignitatis . set persone prevaricationem arguimus." See Brian Tierney, Foundations of Conciliar Theory ( Camhridge, 1955), 87,n4, who in general stresses che compecence of Petrus de Vinea with regard to Canon Law. eso See ahoye, pp. 312f, and below , n.241. For che corporation by succession, seo Gierke, Gen . R., ltr,271 f, Dr. R. Walzer , in Oxford , kindly called any attention te a passage in Al Farabi's Model State in which somewhat similar ideas are expressed: "The kings of che excellent state, who succeed each other at different times, one alter che other, are all like one son¡ (1) as if they were one king , who remains the same all the time." See Al-Farábi , Idées des habitante de la cité vertueuse , trans. by R. P. Jaussen , Youssef Karam , and J . Chlala ( Publicacions de 1'Instituc fran4ais d'archéologie orientale : Textes el traduccions d'auteurs oriencaux , cx [Cairo, 19491), 87. The idea of the Arabian auchor may be styled a qualitative monopsychism: if al] kings are equally excellent, an individuation makes no cense because they are all like one king ; and Chis would be true ( as the auchor poinis out in che same chapter) noc only with regard co Time- that is, to successive kings living ac different times-but aleo with regard co Space, co all excellent kings living in various places at che same time. In che case of Dignitas , however, che unifying qualitative element is in che Dignitas icself racher than in the individual incumhents , who are "digni Caries" regardless of their personal merits . On che other hand, it would be difficult to identify without qualification che Dignitas with che Soul . At any rato, che parallel is interescing enough te he recorded here.

235 Friedberg , 11,162: "Delegatio facta digni m ti non expresso nomine proprio transic ad successorem." 236 Glos.ord ., en C. 14 X 1,29, v. substitu tu m: ". - . quia Iprnedecessor et successor] pro una persona intelliguntur : quia dignitas non tnoriuu." 287 lnnocent, Apparatus, en c.28 X 1,6, 11.5, fo1.39, refers es Quoniam abbas when he sayst "finguntur enim eaedem personae curo praedecessoribus (not substicuted canons chough , because they do not succeed to a Dignity)" Cf. Gierke, Gen.R., 111,272,11.77; see aboye , Ch.vt,n.97. 236 See c.5 VI 1,3, Friedberg, 11,939: "Tunc eni ul, quia sudes ipsa non moritur, durabit [ beneplacimm ] perpetuo, uisi a successore fueric revocara [ se. gratia]." Zas Johannes Andreae, Noveila, en c5 VI (gnoted hy Gierke, Gen.R., 111,271,n.73): "teneres papatum vel dignitatem est corruptibilis, papaui5 lamen, dignitas vel imperium semper est ." See aleo G(osord. (Jnhaunes Andreae), en tbat decretal, vv. Apostoifce sedis and non moritur. The tris ole doctrine, of course, deepened the split between office and o(Ilce-holder, and che imperial chancero was not slow at recognizing che adcan urges for ami-papal propaganda offered he die decretal Quonian abbas. ti is deaily witll reference to chis decretal chat (pre-

386

241 Gierke, Gen.R., iv,3o, where che definition is found (n.32): "universitas .. . racione plurium de futuro salteo."

1

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THE KING NE VER DIES

DIGNITAS NON MORITUR

introduced, or merely borrowed, a metaphor botli curious and striking. He said that a Dignity-as, for example: Abbot of Winchester-was not Che proper name of a person, but only singled a person out; it designated "a singular, like che Phoenix, and [was] likewise an appellative."242 This parallel betsveen Dignity and the fabulous bird of Classical and Ghristian myths may strike us as rather abstruse; later glossators, however, such as Johannes Andreae and Baldas, not only accepted that simile but drew from it some rather enlightening conclusions.

of the resurrection of Christ, and of Christians in general. 140 To the resurrection motif Johannes Andreae actually alluded in his lengthy Phoenix gloss.2s, This, however, was only a side issue; for juristically Che singleness and uniqueness of Che bird appeared co be of greater importance. Baldus, at any rate, when epitomizing Che arguments about Che decretal Quoniam abbas, availed himself of that aspect of Che symbol, which allowed hico to draw Che accurate philosophic conclusion: "The Phoenix is a unique and most singular bird in which Che whole kind (genus) is conserved in Che individual."248 Evidencly, Baldus liad a clear analogy in mind. To him Che Phoenix represented one of Che-rare cases in which Che individual was at once Che whole existing species so that indeed species and individual coincided. The species, of course, was immortal; the individual, mortal. The imaginary bird"° therefore disclosed a duality: it was at once Phoenix and

We have to remember that Che mythical bird was indeed an extraordinary creature: there was always only one Phoenix alive at a time, who, alter having lived his cycle of many years-roo or more-set his nest ablaze, fanned the fire with his wings, and perished in the flames, while from Che glowing cinders the new Phoenix arose 242 The lore of that bird, contradictory in many respects, is of minor importance here. In pagan as well as in Christian art Che Phoenix usually signified the idea of immortality, of perpetuitas and aevum ( aii x ).211 The "self-begott'n bird," however, exemplified aiso virginity2fe and it served further as a symbol e*2 See Glos. ord., en e 14 X 1,29, Y. substitutum : "[hoc nomen: abbas talis loci] non est proprium nomen, sed singulare , ut phoenix , et appellativum similiter." It is possible , of course, that Bernard of Parma borrowed Che metaphor from another anchor ; but it seas he, after all, who incorporated it ¡tito Che ordinary Gloss and therefore made it widely known. 2+s The modero literacure on Che Phoenix , insufficien ly rendered by H. Leclercq, "Phénix," DA CL , xiv:1 ( 1939), 682-691, is considerable . See Che thesis of Mary Cletus Fitzpatrick , Lactantii De Ave Phoenice ( University of Pennsylvania thesis, Philadelphia, 1g33 ), with a good hibliography ; also E. Rapisarda , L'Ave Fenice di L. Cecilio Firmiano Lattanzio ( Raccolta di studi di let cera cura cristiana antica, 4, 1946), ion.'. The mnst important study is by jean Hubaux and Maxime Leruy , Le mythe cm Phénix ( Bibl. de la faculté de philosophie et letcres de 1'université de Liége, t.xxxii [Liége and Paris , 1939]), who reprint a grear number of relevant texts; for some important remarks on Ihat study , see A.J. Festugiére , " Le symhole du Phénix et le mysticism hermétique ,- Monuments Piot, xxxvui ( 1941 ), 147-15,; furthcr Paul Perdrizet , " La tunique liturgique historiée de Saggara ," Mon. Piot, xxxiv ( 1934), i off, for Che representation of a Phoenix on a litutgical garnrenq and jean Lassus, "La mosaique du Phénix provenant des fouilles d'Antioche ;" Mon. Piot, xxxvi ( 1936), 81-122; see further Carl- Marrin Edsman , Ignis divinos ( Lund, 1949), 178.203, and Henri Stern , Le calendrier de 354 ( Institut fraogais d'archéologie de Beyrouth, LV [ Paris, 1953 ]), 146f. For Che later Middle Ages, see Burdach , Rienzo, 83ff , and passim. 244Hubaux - Leroy, 38f; Scern, i45f ; Festugiére, 149f. Zas Below, nos . 25i If. The virginal bird suitingty becanle an emblem of Che virgin queen, Elizabeth; see Yates, "Queen Elizabeth as Astraea," 37.55f,62,74g9, with pls. 179,181. Virginity , of course , was not all that che Phoenix sigoified in Elizabechan state symbolism ; for Che bird was also a paragon of royalty on account of its uniqucness or singularity , and hy Che sixceenth century it served for more than une reason as a royal emblem ; sec. e.g., Henry Green, Sha /ecspeare and the En,blem Writers, 38o1f.

388

245This, of course, seas Che standard interpreta tion en Che parí of Christian authors; see Fitzpatrick , 24ff,n.67; Lassus, io8ff, and ochers . Of great influence was, as might be expected, Physiologus, cix: "Est aliad volatile quod dicitur phoenix; h%ius figuram gerit dominas noster lesos Christus, qui dicit in evangelio sao: Potesmtem babeo ponenrli animara mean] et iterum sumendi caro (John co: 18)." See Phv.Gologus latinos, ed . F. J. Carmody ( Paris, 1939), 2of; also Hubaux -Leroy, pp.xxxflff, esp. xxxv: $olv11 - . , rily raú Kvpise rpsrisepov rapi) v sal dvaoraecv u soypámwv. See also next note. 2s7 Johannes Andreae, mi c .i4 X 1, 29,nos.3of, Novella,fols. 2u6v.2o7: "[et ibi, Phenix] ferrar esse avis ex qua merma nascimr alia, et non invenitur nisi una .. He then reproduces Che narration of St. Anlbrose, Hexaemeron, V,23, PL,xiv,253, and says : "et ex hoc invehit ibi Amhrosius contra illos, qui non credunt resurrectionem ." There follows Che story nf St. Cecilia who " ad exemplum phenicis convertir bcacom Maximuna et co postmoclun, decollam pro fide, in eius Cumulo fecit scnlpi pheniecm, cuios exemplo animatus Christianus fieri et Christi martyr esse prumer(1it" CE Vito el nrnrhrino, S. Caeciline , c.2,, ed. L. Sucios, Historiae sea vitae Sanctonlm (Turin, ,87q), x1 (Nov.22), 651; also Paolo Aringhi, Roma sublerranen novisnina (Ron,e, 1651), n451. He then refers co Isidore of Seville, Elusy niol., x(1,),22, and conducles his long gloss with tire story about Che appearance of a Phoenix in tire time of Su Peor under (he emperor Claudius, a story which ultimately may go back to Taciu,s, Ann., v1,28. 111 chis catalogue of authorities, Baldus th en adds Seneca , Epist., xc.n,1, and Albertus Magnos, De proprietatibus rerum, x1,15.

248 Baldus , en e 14 X 1,29,,o 3, In Decretales , fol. 107, quores Che Gloss ( ahoye, n.242 ), and adds: "FSt autan phoenix avis unica singularissima , in qua totum genus set'vatnr in individuo." 24s wrhether Baldus believed in the bird or not, is irreleva nt , since he and Che ocher jutisis used ir merely as a metaphor. Frederick II actually refused co believe che Phoenix story as uarraced by Pliny (cf, bis De arte venandi, n ,,.2, traes. e. A. Wood and F. M. F,[e, The Art of Falconry [ Stanfor(1 Oniversity, California, 19431, loq), nevera heless, he was one of Che first mediaeval princes co he colnpared te that unique bird: see Nicholas of Bari, ecl, Kloos, in DA, x1,17o,§ 5: "Magnos est dignitate honoris . . . Ipse esc sol ¡Ti Grmmnleuto nnmdi . . . Ipse ese coi flectitur 'omne genu . . . Lnus est ct seamduln non haber, fenix pulcherrima pennis aureis decorara. "

389

TIZE, FING NEFER DIES

DIGNITAS NON MORITt U

Phoenix-kind, mortal as an individual , though immortal ton, because it was ihe rvhole kind. It was at once individual and collective, because tlie whole species reproduced no more than a single specimen at a time. This queer ornithological dualism had not passed unnoticed by pagan and Christian tnytho.maphers. Quite the contrary, they never failed to indicare il. '1 7 ]rey interpreted rhe Phoenix, lince he engendered lrimself, as dppe, df1)Xus. a creatnrc having two sexes, a hermaphrodite . a" Lactantius aposuophed him "female or male or neither or both," for tire Phoenix entered into no compacts with Venus : he sired himself by his death.

other hand, Tertullian retnarked that rhe Phoenix's dying day was also his birthday, "another, yet the same.''2°' Tire coincidente of dying day and birthday, linally, was stressed also by 7,eno el Verona, who however added that tire Phoenix leas "his own genus, his own end, his own beginning.' 2,,1 But alreadv Ovid liad said that whereas "otlter hirds originate from others of (heir genus," there is one huid, the Phoenix, which renews itselE and reseeds itself,2a]

The ancient mythographers and apologetics thus clearly recognized that some kind of duality was an essential feature of the Phoenix; but when expanding on that duality, they thought chiefly of rhe bird's androgynous character, and this concept, in its turn, had the backing of Orphic and Hermetic doctrinesrelations interesting by themselves, though hardly relevant here.117 It is relevant, however, to understand how the mediaeval jurists resuscitated, as it were, the tenets of ancient mysticism by (heir speculative fiction theory and how they made the lore of many hues of the fabulous Phoenix useful and applicable to legal thought.

He is son to himself, is bis own father, and his own heir. He is his own nurse, and is ever a foster -child te himself. He is himself, yet nos himself , who is the same, 'set not the same.2s1 Claudian described che bird in similar tercos : rhe risa of the newborn Phoenix from the ashes was caused by neither conception nor semen; he is his own father and bis own son with none to create him : " He who was father, leaps forth now the same as son, and succeeds as a new one...." Claudian stresses the "uvinlife" (gemina vira ) of the Phoenix, separated only by the pyre,

If, according to Lactantius, Claudian, and Ambrose, the Phoenix was "heir to himself," it will be appropriate to recall the importance which rhe law of inheritance had for the corporational doctrines in general. We have to recall, in rhe first place, the gloss on the Institutes: "Father and son are one according to the fiction of law."esa But there were other passages as well suggesting the

but claims that the borderline betiveen those two lives is hardly discernible-O felix heresque tau, 'Oh happy one and heir lo thyself."252 That rhe bird was always the same and " heir to its own body" was emphasized , a third time , by Ambrose . 255 On the eso Festugiére , in Mon. Piot, xxxvm,i18f; Hubaux -Leroy, g , i2f. See also aboye, Ch. t,n.8. 251 Lactantius , Carmen de ave Phoenice , sG3ff: Femina seu nias sir seu neurrum seu sir utrumque, Felix quae Veneris foedera Hulla colir .. . Ipsa sihi proles , suus est pacer et suus heres, Nutrix ipsa sui, semper alumna sihi. Est eadem sed non cadera , quae est ipsa nec ipsa est... .

2s4 Tertullian, De resurrectione carvis, 13, P1,11,857B: "semetipsum lubenter funerans renovar, natal¡ fine decedens atque succedens; iterum phoenix, lit iam neino; iterum ipse, qui non iam, alias ideo." i

255 Zeno of Verona, Trace,, t,16,q, PL, xr,38iAB: "... ipsa [avis] est sihi uterque sexos, . . ipsa genus, ¡Esa finis, ¡lisa priucipium, ... mors natalicios dios, . non alía, sed quamvis melior alia, tatuen prior ipsa." We should remecoher that the natalicio ni of saints and ,iartyrs was rhe (]ay of (heir deatt,
The test is that revised bv Itubaux. Leroy, p.xv, which deviates in sorne instantes from Ose edition of Samuel lirandt, in CSEL, xxvn (1893), ifl. 2`52 Claudian, Phoenix, 23f,G91L1 o,, ed. Hubaux-Lerov, xxiif

llaec tatuen ex alüs generis primordia ducunC Una est, quae reparet seque ipsa reseminet, ales .. .

Fije ueque concepto fetu nec semine surgir, Sed pater est prolesque sui nulloque creante .. . Qui fueras genitor, natos nunc prosilit ideo Succedirque novas: geminae confinia vitae Exiguo medias discrimine separat ignis .. . O feliz heresque tui.. . .

257 See Festugiére, op.cit., 110, for aáróryoves, eirovdrrvp, and other epithets; alas for tire aevum as representad by the Phoenix. 258 Glos.ord., en Inst.3,i,3, Y. quasi; see ahoye, n.78. Cf. Giovanni Bortolucci, ''La Hereditas come Universitas: 11 dogma della successiune nena personalirfi giuridica del defuntq' Atti des Congreso internazionale di Diritio Romano, Section Rome, 1 (Pavia, 1934), 431-448, who summarizes rhe legal material and demonstrates strik' ingly that rhe theory descended, in rhe last analysis, from Plato and Greek philosophy in general.

2ss Ambrose, Expositio in Ps. CX VIII, c.13, ed. Petscheoig (CSEL, Lxi i) 428,19: .. et sui heres corporis el cineris sni factus.''

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THE KING NEVER DIES

DIGNITAS NON MORITUR

oneness of father and son. When Frederick 11, in a charter for his son Conrad, said that "by the benefice of an innate grace [the son] is held to be one person [with the father],"299 he-or the responsible clerk-may Nave liad Justinian's Code in mind where it is said that "father and son are understood to be by nature almost the same person."280 Moreover, a similar remark was found in the Decretum ' 261 In these cases , the fiction of law was actually supported by che philosophers-Aristotle and, in his wake, Aquinas-according lo whose biogenetic doctrines the "form" (ETSoS ) of the begetter and che begotten were the same owing lo the seed's active power, which derived from che soul of the father and impressed itself upon the son.202 Legal and philosophical doctrines then were combined with other arguments which were supposed lo. prove that a king's first-born son was even more than other sons the equal of his ruling father because he was, while the father still was living, one with the father in the royal Dignity. Again the jurists could refer to the Decretum where the king's son was called rex iuvenisboa and where che prerogatives of the first-born were enumerated, for instante, the privilege of sitting at the right hand of the fatlrer.164 An ardent

defender of primogeniture such as jean de Terre Rouge then could defnonstrate that between a first-born son (primogenitus) and aS only-begotten son (unigenitus) there sometimes was hardly a difference and that che one sitting at the right hand of the father ovas "one and the same in species and nature ."105 In other words, he could build up almost a theology of primogeniture by using arguments of Aristotle and Aquinas, the Code, the Institutes, and thc Decreturn, and referring also to Alexander III's decretal Quoniam abbas, which liad become a cornerstone of the doctrine of che oneness of predecessor and successor with regard lo che Dignity.106 With al¡ that, the lore of the Phoenix tied in smoothly, since it stressed almost without exception che personal identity of che dead Phoenix with bis living successor ; and other popular legal maxims strengthened that comparison. Mortuus aperit oculos viventis, "The dead opens the eyes of the living," said a proverb quoted by Baldus in order lo show that one born unfree could become a freedman on che death of bis master '217 and the proverb was quoted-with referente lo Baldus-later by a French jurist, [cf. Dcu1ronomy 21171) est dignitas talis: quia pri mogeniti prae alias in festis sacrifitia offerebant , et quod sedebanr ad dexteram patrio et quia cibos duplicatos recipiebanC"

255BÜhmer, Acta imperii selecta , 1,265, No.30r (a.1233): . . [ puye dilectionis obtentu] qua pacer tdium , ' icut inflare beneficio grabe tina persona censemr ..." For a fuller daseussion nf che iheory and its application untler Frederick 11, especially in connection with che Kaiser saga , ser iny paper " Zu den Rechtsgrundlagen der Kaisersage," DA, XIII (1957) 115-150. 265 C.6,26,, : '' Natura pacer et filius eadem esse persona pene intelliguniur." The .. plus diligit jurists referred also to Glnsord ., en D.50,16,220 , V. Quarn filü: fillum pater , quam filius patrem. Sed quare hoc est? . . . nam cum quaelibet res conservationem sui desideret , el videat pacer suam naturam in filio conservara . Further to D . 28,2,n: "[heredes] etiam vivo parre quodammodo domini existimantur" (referred to, e.g-, by Petrus de Ancharan, Consilia, 1xxxn ,n.2, £01411). 261 See c.8 ,C.1,q.4, ed. Friedberg, 1,4ig: "... unos eral cura illo;" an idea of en repeated by later cannists ; see, e . g., Glos.ord., on Extravag . loannis XXII, ni ('Execrahilis ), v. suhlimitatem eoruns: ".. , cano eadem persona fingatur esse [pacer et filius]:' 282 Cf. Lesky, Zeugungs- and Verrrhungslehren (ahoye, n.61), 139, cf1341f, ,43ff, also 148ff; A. Mitterer, "Mann and Weih nach dem biologischen Weltbild des h1. Thomas und dem der Gegemsmr," ZfKT, uva (11)33), 491-556, esp, py ("omne agens agit simile sihi' ). See also aboye, 11.258. 265See c.42,Gxxiv,g1, etl. Fricdberg, 1,03; also Andreas of Isernia, Usus feud., praelud ., n.33, fol . 4v: ''Filias talium regum dicitur rex etiam vivo patre" (with referente lo the Decretum ). Also Alhericus de Rosate , en D.28,2,11 ,n,2, fol.,oty, refers to the Decretum C propter ... spern succedendi filias Regis dicitur Rex, el sic de aliis djgnitatibus '), but he stresses also the fact that, though the sons are "domini rérum patris, , .. non tatuen possunt alienare nec de eis aligoad lacere invito parre." 264Glos.ord ., on cS,CA'lI,q. 1, v. primatus : " ¡os ergo primogenituras ( ut dicunt

392

265Terre Rouge, Tractrart,2,conrl.lo, P.4o, points out that Christ was called by Luke (2: 7) che práneogcuit us ''et Lamen nullus luir ande genitns ," whereas Solomon (Prov. 4: 3) styled lainsself unigenitus although he was preceded by a brother who died ( 11 Kings 22 : 1524). See further , ¡bid., condes , p.3.5: . quod pacer et filius, licet distinguantur , supposito Lamen unum ideen sunt specie el natura nedum communi ( quia uterque homo esr ), sed etiam in natura particulari patris . . Cf. concl.2: "Filiatio enim nihil aliad est, quam illa identitas particularis naturae piaesens penetrans in tilium [referente lo D.50,,6,120 , Y. Quani filü; see ahoye, n.2Go ] . El pro hac consuetudine facit clictum Apostoli : ' Si filius, ergo heres' [Roen. 8 : 17; Cal. 4: 71." Cf. concl.p: "... quod filius vivente parre est secundum naturam dominus cum parre reruul patris. I'robatur conclusio : nam ex quo . , . est e,usden, naturae culn parre, et ideen cum patre vivente : ergo dominus cum parre ... Pro hac conclusione facit etiam quod scribitur ¡ti Evangelio : ' Omnia quaeamquc haber Parar , toca sunt' [Joh . 'G: 15] . . . El Luci5 [: 31]: 'Fili tu semper 'nccum es: scilicet per ideal itatem paternae naenrne. El omnia noca tila sunt ... " Cf. p .gp (cond . 4): "... sedere aurem a dextris patris, nihil aliad est, secundum Augustinum, quam conregnare patri: sicut ille qua considet regi ad dexreram, a.ssidet el in regnando el indicando ..." The Augustine place referred lo must he an interpretation of Psalm 109 , though it is nt found in the Enarratio n Ps. CIX. 266 For Terre Rouge's referente to Qunnia,n abbas, see concl.2, p36; for his referentes lo Aristotle and Aquinas , see concl.l, ami aboye , n G,; che legal passages, of course , were quoted over and over again. 352 Baldus, en C.7,15,3,n 2, fol. 12.

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THE l:LA'G NEIER DIE,S

DIGNITAS NON MORITOR

André Tiraqueau, in orden lo elucidate the famous maxiin (di French lave of inheritame, Le rnoit 500.11/ le vif, "The dead seilcs [tcith regard lo tire inh erir nee thc living" No[ unfiltin^lc.

reproduction cotild attrjbute similar feanu-es also lo vise Phocnix: Rabbinic tradition, for exatnple, ascribed to the bird immort al ity because it refused to sisare in Eve's sin by tasting of the frn-biddcn fruit, and tltereivith preserved its paradisean state of innocenceindeed, "sex perishes for perpetual bodies. '171 On the orbes hand, a frame of mind trained by scholastic philosophy might argue that it was the prjvilege or under-privilege, at any rate the peculiarity, of angels to he at once species and individual, since those sempiternal beings (lacking matter, though not individuation) did not reproduce their kind, but remained each, as a species, a single individual, though not in succession.214 Tisis may account for certain features which apparently Angels, Phoenices, and Bodies corporate had in common.

therefore, iras the successoi to the French throne occasiona liv called Le petit P/trni.l..ra

At any rate, the Phoenix metaphor fitted nov badly lo illustrale the nature of the Di,Rrnitn.e ejttac non nlorillu-: the Dintiin.v of abbot, bishop, pope, or king appeared as a Phocnix-likc c%ecir+ which coincided with the individual because it reproduced no more than one individuation at a time. tbe incumbent. Moreov el, the Phoenix was, so to speak, a "natural" one-individual corporation, and thus there arose from the aslies of the Phoenix metaphor the prototype of that spectre called the "Corporation solo" which was at once immortal species and mortal individuation, collective corpus politicum and individual corpus naturale. What Maitland has said about the origins of that fiction of English Law-its connection with the parson, the patron, and tite Eigenhirche-remains valid throughout.'r0 We notice, however, that other factors-factors more philosophical than practica]-descree consideration as well. The Phoenix metaphor of the Italian jurists allows us perhaps to comprehend more fully, because in a different scheme of referente, the nature of that strange "Body corporate" which never dies, is never under age, never senile, never sick, and is without sex,a,t and therein resembles "the holy sprites and angels."r'2 A frame of mind working with notions such as androgyny and self-

The concept of a Dignitas in which species and individual coincided, naturally brought into focus neo different aspects of the dignitary hinrself-his "dual personality." Pope or bishop were not corporate per se: they became corporate as die sole representatives of their species only insofar as something supraindividual and perpetua] was attached to them, namely the Dignitas quae non moritur. How ttiat attachment was explained by the jurists remains to be seen. Here it may just be mentioned that the jurists actually did arrive at a distinction of two personalities in the dignitary. It sounds very simple and straightforward soben Cynus of Pistoia writes: "A bishop has two personalities, one so far as he is a bishop, and another so far as he is [the individual] Peter or Martin."176 Wliat Cynus puts forth is, in fact, conven-

288 André Tiraqueau (Tiraquclla), Le morí saisit le vif, declar.'s (in Tiragtiella, Traclatus oarii, Frankfurt, '374). w,- c. Tiraqueau mentions also the oneness of father and son; see, e.g., De jure primogenitorum, 44o,n,31, vol.IP.4753: "patrem el filium censen unan el eandem personara cte." He denles, however, that ¡he maxim Le morí saisit le vif (below, n.gig) applies lo successio nomine dignilat¡o; ¡bid-. declar. v,73.

273 See Fitzpatrick, Lactan 50 De ave Phoe'nice, 16,n e. Tire verse 'Sexos perpetuis corporibus peri1' (sea for similar statements aboye, Ch.nl,n.9,3) is fou nd ¡ti Obitus Boebiani, v.6o, ed. W. Brandes, "Studien sur christlich-latcinischen I'oesie," ¡Viene,' Studien, xn(18go), 283. Tisis Ith-century poem has nothing directly ro do with tire Phoenix, since ir tells the story of Baehianus' resurre,tion from che dead and visir lo heaven; but it was inspired also by Lactantius' Phoenix; see Brandt's edition of Lactantius and his notes en fines 2 and 164 (CSFL, xxvir, 135 and 146), as well as Rapisarda, Fenice, 4o and 86.

269 Cf. A. Valladicr. Perennes rorntes (Paris, 160), tb, referring to Henry IA"s son Louis XIII, a Place kindly mentioned lo inc by Dr. Ralph E. Giesev,

270 See Maitland , Se/ Essavs, 73e, for the parson as a prototvpe of the rorporatino sole; see alzo below, n. 608. Actually, Johannes Andreae mentions as an English peeuliarity the faet that parochial priests viere called ''persono"; cf. Novella, en c28 X 3,5,11 13, u1.33 (d, aboye, n, 231), wherc he discnsses the svnonvntiiv of dignitas and personatus: "fere ideo dictum est, quia in Anglia rectores parochialium dicuntur personaé ' (with a referente to c.6 X 37, ed. Friedberg, si 48,l. Tisis is not a puo (''parson-person"), since "parson" ictual1v derives from persona; sce, for Innocent IV, aboye, 0.231. zer See aboye, Ch.m.n.1,;, for quemo bearing the tille "king.'' \Phere the suecession of females lo the t ironr was barred. as i , Franco, nr Inter the so-called Salir Late dominated, the king's "Bode corporate" could probable not chito sexlessuass272See aboye, Ghi,n3.

394

274 Ahoye, Ch.vi,nos.17-18. 275 Gierke, Gen.R., n1,363,n,34, quotes severa) passages from Cvnus, who distinguished alzo in che judge a duplex persona, one puhlic and the other prieate. Tire distinction is importan[, and its importante leas reurgnised alreadv hv the 1eth-cennlry jurists in connection with [he problem of consciente in courq that (s, the question whether a judge was to ley a case exclusively en the grotind of the evidence produced in cono or alzo en the ground of privare knordedge he may llave happened lo obtain: ''aliud facit aliquis in co quod mudez est, aliad in eo quod homo est,'' sayo the ordinary Gloso en the Des-refuto (e.4.C.111,qu.7 v. Audit),

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TRE KING NEVER DIES

tional : it is merely another application-so lo speak, the reverse side-of the canonistic distinction between a delegation facta personae and one facta dignitati, which had been expounded over and over again in connection with the decretal Quoniam abbas. His remark is nevertheless valuable because it shows that emphasis could easily be shifted from the dual aspect of the delegation of power onto the dual personality of the delegating as well as the delegated dignitary, and finally onto every office-holder both spiritual and secular. Hence, froin the canonistic theory new political theories began to spread out, as the secular Dignities likewise were interpreted as corporate and immortal entities. The immortality of the Holy See as a Dignitas quae non moritur was based on a rational juristic fiction. That, however, did not prevent the canon lawyers from lapsing into irrational thought and interpreting the perpetuity of the Sancta Sedes also transcendentally along tradicional fines. Johannes Andreae, for example, when glossing the phrase Sedes ipsa non moritur of Pope Boniface's decretal, declared: "For it cannot be that there be no That is to say, the sempiSee, since .the Lord has prayed for it."278 ternity of the Holy See here appears as an effluence of the divine power and of the sempiternity of the Church whose domination "because Christ knows no vacancy quia Christus non moritur, does not die.-2-,1 Contrariwise, the empire, we recall, was understood to be sempiternal for similar metapltysical reasons: it was the fourth world monarchy which was to last until the end; it liad been constituted from high heaven by God himself; and che Justinian Law attributed to it sempiternity (imperium sernper and a maxim attributed co Christ reads: "non nisi per allegata iudex iudice[P See, for che problem, Max Radio, "The Consciente of che Court," Law Quarterly ReGlossators , 21; Ullmann, Lucas view, XLVIII ( 1932 ), 506-20; Hermann Kantorowicz , also izo, where Lucas blames Pilare for having judged only en de Peona, 126ff , che basis of evidente , and not in accordance with his knowledge and his consciente.

non enim potest esse hulla [sedes] ... 27e See Glos .ord., en c ., VI 1,g, V. moritur : " quia dominas pro ea oravit." Cf. c.33.C.XXIV,q.i; aboye, Ch.v1,nos.36.37. 277 ''Lieet moriatur paelatus el omnes clerici in ecelesia , dommium illorum non vacar, quia Christus non moritur, nec potest ecelesia deficere." Johannes Andreae, Novena, on c.4 X 2,12,11.5, quoted by Pierre Gillet, La personnalité juridique en droit eccldsiastique (Malines, 1927), 178. Andreae depended opon Innocent IV, en c.4 X 2,12,n.4 (Lyon, i3y8), fnl.i45v: "... quantiuncunque moriatur praelatus et omnes derici , ecclesiae tatuen propriems et possessio remanet penes Christum, qui , quae nunquam vivit in aeternum , vel penes universalem , vel singularein ecclesiam

DIGNITAS NON AIORITUR

est).2r8 It is noteworthy, however, that those arguments now were supplemented, or cven superseded, by the new legal theory concernin2 the immortality of the Dignity. Thus Godfrey of Trani, when glossing (ca. 1241-43) the decretal Quoniam abbas, could reverse the argument, and say: "Since the Dignity does not perish on the death of the incumbent, therefore

the imperium is perpetual."219 And later authors declared straightforwardly that che phrase imperium semper est referred to the Dignitas.280 This is a secularization of old ideas: che perpetuity of che empire no longer derived from God and the divine dispensation , but from the fictitious , if immortal, personage called Dignitas, from a Dignity created by the policy of tiran and conferred upon the Prince or present ofce-holder by a likewise immortal polity, by an universitas quae nunquam moritur»' It is manifest that the value of perpetuity no longer centered primarily in the Deity, flor in the immortal idea of Justice, nor in che Law, but rather in che universitas and che Dignitas each of which was immortal. Naturally che civilians referred in che first place co the imperium when expounding their theories, jusc as papacy and episcopate wotild have been che first thought of canonists who explained the nature of Dignitas, By that time, however, almosc everything that was valid with regard to che empire was valid also with regard to che kingdoms. Baldus, for example, when discussing-along the lines of Quoniam abbas and of Boniface's decreta1282_-che binding power of contracis and obligations, firsc chose the tradi275 Aboye, Ch.v1, nos. 18ff,1 if, 275 Godfrey of Trani, .Snnmta super decretalibu.s, en c.i,t X 1,29, n.29, quoted by Gicrke, Gen.R., 111,271,n -,3: "Quia dignitas non perit decedente persona, unde imperium in perpetuam est." ese For che interpretation of imperiuin in the acuse of dignitas in che 16th and 17ch centuries , see Gierke, Gen.R ., lvag0,n.l2t . The idea of perpetuation is rather strongly formulated by Albericus de Rosate , on D.3,1,76,n. i (Venice, 1584), fol.gogv: "Sedes aposmlica non moritur, sed semper durar in persona successoris ..., et dignitas imperialis sernper durat ... et ideo, in qualibet dignitate , quia perpetuatur in persona successorum ... [allegation of Quoniam abbas], riscos criara per. petuo durat locuplex " Angelus de Ubaldis, on D,5,1,76,n.2 (Venice, 1§So), fol. 136, considera che insignia of a societas , sudi as baculus or vexilluos , substantial with regard to che perpetuity: "quod licet ,nutentur caporales magnae societatis, et uni desur baculus et alteri vexillum , ni cst lnoris , tatuen adhuc durat eadem societas." 281 See hclow, 110s.28g lt, 2 73.

252 Those Iwo decretals, aboye all Quoniam abbas, are quoted over and over again by Baldas; see eg., Concilia, 111.121,n.6,fol .3.l; n1,159, u..I,fol,45v; 111,21y,n.3, foL63v, etc.

moritur:'

396

397

7111: K 1S'c

A 'E I! 1{ PIES

tional examples o[ empcror aud pontiff: "The empcror ¡ti his person may die, but rhe Dignity itself. or rhe intperiuln. is ¡]irmortal, just as rhe supreme pontilf dies, whercas the supreme pontificare does not clic." But while poititing out that ti ings proceeding from rlte person there personal matters whereas 1hose proceeding from the Dignity mere 'pcrcnnial and eternal.'' Baldus switched as a master of course from rhe isuperium to the afinan[. and from tire eutpcror to the empcror-like king. ' icho ¡ir Iris realin holds the supieure principate, because he does nos recognize a superior :' — Contracts of kings, loo, saben nade sub nomine Dignitatis, bind the successor: And in the contracts of kings it is expressed en whose part [person or Dignity] thcy are [nade]; and they pass en lo rhe successor in the kingdom if they are quoted in rhe narre of rhe Dignity . . . . Nor is chis surprising, because in the kingdom there has to be considered [not only] the Dignity which does not die, but also rhe universitas or respublica of the kingdom, which continues steadfastly even when kings have been expelled : for the respublica cannot die ; and tlierefore one says thar rhe respublica has no heir , because she alwavs lives in herself.=s'

It is a minor point only when ice notice that rhe whole canonistic doctrine of Dignitas has been transferred to kings-to be sure, not for the first time. It is, bowever, a point of major interest lo find that in Baldus' reflections nvo distinct factors determine the responsibilities of kings: rhe immortality of Dignitas as well as rhe immortality of universitas; and that accordingly.the Prince

DIGXITAS NON 'tiORITUR

ovas said to act by yirtue of botir tire Dignity and rhe resplblica,"° that is, of tico entibes credited lo he senrpiternal. We can hardly avoid recalling the political concepts of earlier jurisis, epitonlized. for example, by John of Paris, ficho held that rhe king depended on God and rhe people, popo lo jaciente et Drn irtspircatte."^' lu Baldus' political seis eme, bowever, tite norion of poplthts tras changed into rhe lcgalistic vniver:citos quac non potra mor¡: at Iltesamelime.Deiacteas fittingly replaced by tselikewisc legalislic Dignitas quae non potest mori. I-Iow closely inierrelated God and Dignity actually viere may he gathered froin Baldus' gloss on the coronation oath of kings and emperm-s by which they promised nos to alienate the possessions of che Croivn: "Hence, the emperor ... is under no obligation to man, though he is obligated lo God and his Dignity which is perpetual."aa° We should probably recall the juxtaposi,tion of Deus and Fiscus lo understand that Dignitas, owing to its perpetuity, became, just as Fiscus, comparable to God or was "equiparated" with God. And it is also apposite lo think of Bracton's famous words saying that "che king must be, not under man, but under God and rhe Law,":ea in order to be aovare of the shift from Law-centered lo Polity- and Corporation-centered kingship, The placing side by side of God and Dignity will require further attentionRBB What matters here is the incessant repetition of the catchword saying that the royal Dignity does not die, or, as Baldus occasionally pul it, ". . - the Dignity is something regal .. , and the regal quality does not die even if rhe individual [king] dies." 290 Pursuantly , Matthaeus de Afflictis, while

253Baldus , Concilia, n1,159,11.3, fol.gv, " Imperator in persona mori potest: séd ipsa dignitas , seu Imperium , intntorcalir est, sicut el summus Pontifex moritur, sed summus Pontifiratus non morirla , el ideo quae procedunt a persona , el non a sed,, personaba sunt, si a successiva volante. te dependen [ ... Quaedam vero procedunt a sede: el isla sunt perennia el acierna , donec superveniat casos ex tincthvs seo terminas vitae ipsins concessiouis . Huiusmodi sunt contractos Regum, qui contrahunt nomine sino el Regni , seu geutis suae." Ibid., 11 . 4: ''Rex, qui in Regoo sao tenet principal issi m u ni principal um : quia non cognoscit su periorem , est tonnn continens, el potest rontrahere nomine sno, et lobos tcrrae, el populoruni suorum. Haber enim plenissimam potes ca ten .. Unde is qui constasit sub nomine dignitaus, obligar successores." "The whole pa ragraplt is extretnely interesting. See next note. 284 1bid., nos.4-5: "Es in contra ctihus regunt est expressum, quod partium sunt, el transeunt ad successores in Refino. si celebrati sunt nomine digoitatis . . . Nec mirum, quia in Regoo consideran debet dignitas, quae non morirla; el ctiam universitas , seu respublica ipsius Regni, quae etiant exactis Regihus perseverar. Non enim potest respublica mori. Et hac racione dicitur, quod respublica non laahet haeredem: quia seto per vivit in reme tipsa.'' Cf, ahoye, Chst,n-59.

255 See aboye , Ch.vt,nos.5t-54; Ch.vn,nos.a5lf. 217 "Unde imperator rei suae potest dare legem quam vult el non obligatur homini, sed Deo el dignitati suae, quae perpetua cst" Baldus , on c.33 X 2,24,11.5 ( the decretal of Honorius III; aboye, nos .t43f,t.t7,15o), In Deecelates , fol. e6ty. zas Bracton , fOd 5b, ed. Woodbine, 11,33: "Ipse au ten res non deber esse sub homine, sed sub Deo el sub lege, quia ]ex facit regem .'' See also aboye , Ch v,a:g8. zss See below , 0.423. aatBaldus, on fol.Sov: 'Nel ibi non est novum feudum, quia dignitas est quid regale , cum feudum regni sil concessum omnihus regibus, el qualitas regia non moritur , licet individuum nioriatur ." On the other hand, a diminution of actual power did nos affect the immortality of the Dignims itsel f. See, e.g., Albericus of Rosate , on D.conatOmnem (-prima const. or prooernium), rubr.,n .8 (Venice, 158-7), fol.3v. While disapproving of che Donation of Constantine (he actually quoces approvingly Dante, Inc., xix.u51f), he (loes nos accept all che reasons pul forth against its validity : '' Non obstat quod dignitas imperialis sil

398

399

zss Below, 11.295.

TFIE KING .NE VER DIES

DIGNITAS NON MORITUR

referring lo Baldus, declared in a gloss en the Sicilian Constitutions: "The royal Dignity never dies."291 There were, oí course, slight variations oí the theme. Baldus himself said occasionally: Regia maiestas non moritur, "The royal Majesty does not die.' 12,`2 and he, too, arrived at distinguishing tivo persons in the king: a persona personalis, "which is the soul in che substance oí man," that is che individual king; and a persona idealis, "which is the Dignity."299 Here, then, Dignity-the persona idealis-is clearly personified. Dignilas is, like lustitia, an "ideal" person having an independent existence even in the case oí a vacancy, diough otherwise she is inseparably attached to the ruler, so long as he lives or rules; she is attached lo him as his permanent companion-not unlike an ancient deity, god or goddess, which appears on coins as comes Augusti 294 The duality resting in the king was the theme oí Baldus en yet another occasion. When discussing the king's obligation to observe contracts made in the names oí Dignitas and respublica, he explained that, "intellectually speaking," the predecessor king, who contracted the obligation, was not dead because neither his Dignitas nor the respublica, in whose names he acted, were dead.

In otlier words, the King survives the king, and in that sense Baldus then conld declare that, while there is no will in a corpse, the dead Prince "seems to will even alter his death"-as Dignitas, oí course.109 However that may be, it is easy lo recognize now lo what extent che simple canonistic doctrine concerning the "Abbot oí Winchester" and his Dignity influenced legal thought in general, especially alter that theory liad been transferred, in the course oí tire fourteenth century, to che secular sphere, lo emperors and kings. In the much admired arguments of Baldus,297 whose scholastic accent is unmistakable, we believe ive hear already the Tudor jurists putting forth their arguments about the king's "two Bodies." CORPORATIONAL SYMPTOMS IN ENGLAND

There is hardly a phrase or metaphor iii che picturesque speeches transmitted by Plowden which could not be traced back lo some antecedents in the legal writings oí die thirteenth and fourteenth centuries, even though it would often be cumbersome to demonstrate how exactly one or the other detail found its way lo che English legal language. It is perfectly true that in most cases in which the word Dignitas was used together with the word Corona, a corporational character of Dignity was not intended; nor can any intention oí that kind be read into the texts. For all that, however, the doctrines oí che Italian canonists left some traces in England, even at an early date. William oí Drogheda, writing around 1239 on the procedure in ecclesiastical courts, was fully aware oí the difference whether an abbot signed with his own seal or with tliat oí his convent .198 In che Year Books under

For it is true to say that the respublica does nothing by itself, whereas he who rules che respublica, acts in virtue oí the respublica and of the Dignity conferred on him by that very respublica. Moreover, two things concur in che king: the person and the signification [i.e. che Dignity]. And that signification, which is something appealing to che intellect, miraculously perseveres forever, though not corporeally: for let che king be deficient with regard to his flesh, he nevertheless functions holding the place oí two persons?95 perpetua el non moriatur: quia per talem donationem non est mortua neo eius potestas in aliis Iocis non donatis ecclesiae." 291 Mattheus de Afflictis, en Lib.nug., u,3b,n 23, vol.n,folgq: "Quae dignitas regia nunquam moritur." 202 Baldus, en c.y X 1,2,n,78, In Decretales, fol.18: "... quia ihi iurmnentum fuit praestitum a dignitate dignitati. Nam regia maiestas non morimr.'' 203 Baldus. Consilia, 111,217,n 3, fol.63v: '1persona] personalis, quae est anima in substancia hora lnis, et non persona idealis, quae est dignitas." 204Sce A. D. Nock, "The Emperor's Divine Comes," Journal of Rornan Sludies, xxxvn(1947), 1o2ff. The comes idea was nor alíen m Frederick It, not only with regard to lustitia, bol also to tale Fortuna Augusti: cf. Franz Kampers, "Die Fortuna Caesarea Kaiser Friedrichs It," Hist. Jahrb., XLVIII (4928), 208ff. 20s Baldus, Cont., foLgbv: 'Unde curo intellectu loqueado, non est mortua hic persona concedens ... Nam verum est dicere, quod respublica nihil per se agit, tanmm qui regir rem publicara, agit in virtute reipublicae et dignitatis sibi collatae ab ipsa republica. Porro duo concurrunt in rege: persona et signifi-

400

vatio. Et ipsa significatio, quae est quoddam intellectuale, semper col perseveraras en ignm tice: ❑ cet non toreo ial i ter: nam licet Rex delicia t, quid ad r'umbum, nenlpe loco duarum personarum Rex fungilur, ut If. de his, qui. ut arad. 1. tutomm [D.34 9,22: 'Discreta sunt enim iura, quatnvis plura a in eandeln personam devenerint, aliad tutoras, aliud legataria']."

20s Baldus, ora C. 10,,,rubr.,n.i6, fo1232v: et velle videtur [imperator] etiam post mortero, quia etiani post mortero suam verba contulisse videtur . . See below, 1.349. 297 The Repertorium ira Consitia, p.8a (foiming vol. vi of Baldus, Coas.), s.v. refers to Cons., u1,169, and says: 'Hic vide multa pulchra de dignitate regali." Also Gierke, Gen.R., Iv,239, admires, with referente to that Consilium, Baldus' unübertreffliche Schürfe. zse Post, "Quod omnes tangit," 21gff.

a

401

1

DIG.1'ITAS UON 310X17 ('R

THE RING NLt'ER l)IES

less a perfectly olear knoacledge of the canouistie signihcauce of

ihe secular sphele as tvell, as, for example, ¡ti a lawsuit nnder Ldward IV' When ihe judges pointed out that a mayor contraer es an obligation, not as mayor, lnt pam' sml prople nosn,e.°"

Dignitas. In the case against ihe Prior of hirkharn, which was heard in 1313. Justice ante ieierred, time and time again, lo

reached in England a state of full consciousness, and dley were

Edward II, in which we find muela talle aboui the king's Diguiiv without ever suggesting corporational aspects, we lind neverilrc-

Cnder Ldwaid IV, of cocase, corporational modes of diinkiu'g displaved most euriously by ihe king himself in the case of rho

Dignitas in the serse of the canonisis:

Duchy of Lancaster.° 'I'lie Duchy, as is commonly known, liad

Abbot and Prior are narres ofD,gnirs atol in ciitue of tito Dignity ihe right that mas in the predecessor acial so wh olh' 1'cst itscl1 ¡ti tire person of tire successor alter his creation that pone odler talan he can defend the rights of iris Churdl.

Leen tale private possession of the House of Lancaster, and ihe Lancastrian kings held it by llereditary right. On lis accession in 1399, Henry IV ordained with the consent of Parliament that ala tire ]ands of ihe Duchy of Lancaster viere to be governed and

Justice Inge, tacitly referring to Quoniam abhas, played up ihe

treated by ihe king "as though we would rever lave achieved

fact that "ihe present Prior [of Kirkham] comes Lo lile court as

tire height of royal Dignity," since those lands liad come to him,

Prior," and that he liad bcen summoned "by his name of Dignity."

Henry of Lancaster, personally by right hereditary "before God

Emphatically Inge finally exclaimed: 'And so let men learn to

called os to ihe Estate and Dignity roya].`303 A private property,

[be wary how lo] brin, a writ against a Prior by his nalne of

disconnected from the Crown-so ihe Duchy was and remained

Dignity."219

nnder Henry V and Henry VI; it was held, as Plowden later re-

These quotations show that Englisli jurists around 1300 were very familiar with ihe idea of Dignity in ihe legalistic sense, as well as with ihe idea of the virtual identity of predecessor and successor-at least with regard to ecclesiastical persons. Justice Inge indeed pointed out that ihe personality of an abhot "or other man of Dignity" was not "as it is with secular persons"101-an indication , it seems, that the idea of ihe continuous personality was as yet not cominonly transferred Lo secular office, but was more or less restricted to spiritual dignitaries. It may well have taken some time before the secular dignitaries, roo, were drawn into tire magic circle of corporational doctrines. Nevertheless, by the fifteenth century che maro distinctions were carried over lo

poned, by the Lancastrians in their Body natura 1.314 When, in 1461, tire Yorkist Edward IV seized power, the status of tire Duchy changed. S1lortly after his accession, Edward IV liad his Lancastrian predecessor convicted and attainted of high treason, a verdict resulting in che forfeiture of al] the former sovereign's possessions and titles, including the private possession of tire Duchy of Lancaster. Edward IV himself liad no title lo tire Duchy except in right of the Crown, since it liad been confiscated for treason committed against tire Crown30° Yet Edward apparently did not intend to abandon al] the advantages which a Hausmacht brought lo the king's power and purse. To overcome those diFrculties, the king or his legal advisers contrived a startling device: they "incorporated" the confiscated Duchy. By Act of Parliament

esa year Books, 6y Edward 11 (1313), V.B. Ser., xv ]Solden Society, xxxcl), 175, 177,178,182 ; ef. Holdswm'th, 011,472,11.4. whereas in this case the corporational substratum is evident, ihe mentions of the royal Dignity are lacking any corporational connotations ; see, e.g., Year Boolu, 5 Edward 11 (1311), V.B. Ser., x (Selden Society, exnr, 1944), 122£. Bracton 's usage o£ Dignitas does not suggest corporational nteaning either. It seems that the notion status regís or status regalis, either alone or in connection with dignitas, took over the functions which in canonistic doctrines and in those of the Iralian jurists were vested in the ahstract Dignitas. This, al leas[, would be suggested by jean Gerson (above, Ch y,n.,6), When he talks aboui (he king's "second lile," the "vita civiles et política, que status regalis dicitur aut digaitas." All those notions should hc studied far more thorough1y iban has hitb erro been the case, though a good start has leen made by Post see, e.g., "Tren Lacas

202Robert Somerville , History of the Duchy of Lancaster (London, 1953), 231ff, barely renders ihe content of ihe Act of Incorporaban. On the whole, the strange action taken hy Edward IV seems not to have attracted in modero times the attention it undoubtedly deserves. ara william Hardy, The Charters of ihe Duche of Lancaster (London, 1845). gg£,io2. s°+See Plowden, Reports, oopb, and passim; also Chrimes, Const. Ideas, 3,2f (App. 0.11), for the opinions of the judges nnder Henry IV.

4328). aso year Books , 6.7 Edward 11, t8,.

s°sThe fullest disnlssion of the case is still fmmd in Plnwden's 223; for Edward IV, see 21ga.

402

it was decreed, on March 4, 1461, that [he manors, castles, lordsm Maitland, Sel.Essays, 226,n.1.

1

403

Orfosis. 2,2b-

THE KING NEVER DIES

DIGNITAS NON MORITUR

ships, towns, and other possessions, with their appurtenances in the Duchy, henceforth

rations; this would be true, aboye al], in the United States where archhishops and hisllops are-or were-recognized as "Corporations sole" and where, for example, che Benedictines are registered as The Order of St. Benedict, Inc., while the Jesuit Provinces are incorporated statewise, e.g., as The Society of Jesus of New England, ete.308 Here, tllen, secular corporational law had its retroactive effects on the status of the Church: in fact, the canonistic doctrine has run the full circle.

make, and from the seid fourth day of Marche be, tire seid Duchie of Lancastre corporat, and be called THE DucHIE OF LANCASIRE. Moreover, Parliament granted Edward IV the right to keep those lands by the same name of Duchie, from al] other his enheritauncez separate ... to him and to his heires Kyngs of Englond perpetually 30B The Duchy, now corporate, was to become, as a corporation, parcel of the Crown without being merged with other Crown property. That is to say, in order to preserve the former extent of the Duchy, with all its rights and appurtenances unimpaired, and also to keep it en bloc apart from ocher Crown property and place it under special administration, it was converted by Acc of Parliament into a juristic person. THE DUCHY OF LANCASTER (one is

1

inclined to add: LTD. Or INC.) was to have a status exempt from central government and belong as a corporation to the Crown, whereby the king as King, and not the king privately, was to be hereditarily the head-or, as it were, "Director"-of chat legal corporation, to whom the proceedings from that corporation accrued as though he were the private owner-to be sure, only by right of the Crown'°' Thus entered corporational thought into constitutional practice en the highest level. To conceive of a realm, a shire, a duchy, or even a fee, metaphorically in tercos of a corporation (universitas), or a juristic person, was anything but unusual in the speech of the jurists; but the actual incorporation of a whole duchy by mean of an Act of Parliament was something unique in mediaeval practice. We may consider that step perhaps a forerunner of the later incorporation of whole ecclesiastical dioceses, or of provinces of the spiritual orders, in those countries in which, owing to the separation of State and Clulrch, the Churches form private corpo-

ana Gases in which the United Siates recogn ized the Roman Catholic bishops and archbishops as "Corporations sole" are enumerated in Corpus Juris (New York, '919), XIv,71,110s 73 and 78 (=14 C.J. Corporations $ 38). In che new edition (Corpus Juris Secundurn, x1,350 [Bishop]) it is said that the " Bishop has been regarded a corporation solo; hut as the conception . seems to be passing out of tire American Law, a Bishop is here no longer regarded as a corporation sole." A liturgical review, however , called Orate Frntres, is edited "by the Monks of St. John's Ahbey, Collegeville , Minnesota (The O,der of St. Benedict, Inc.);' and the American Jesuirs are statewise incorporated; see, e.g., Calatogus Prooinciae Novae Angliae Sncietatis jesu (ineunte anno 1955), p 143. soa Somerville , Lancaster, 232. OlaRichard Crompton , L'Asodio sitie el Jurisdiaion (Lon(ion, 1594), fols.,34f; Joseph Kitchin, Le Court Leete et Court Basan (London, irg8), 1v; John Cowell, The Interpreter (Cambridge, z6o7), s.vv. "King ( Rex)" and "Prerogative ." See, for Dr. Cowell, whose absolutist views were uncomfartable even co james I (cf. Godfrey Davies, The Early Stuarts [Oxfor(1, 195a), 12), also the arride by Chrimes, "Dr. John Cowell" EHR, cxtv( 1g4g ), 4721f. See, for Coke, Bacon , and Blackstone , aboye, Cha.

sos For the Charter, see W. Hardy, op. cit., 282 ( English text), 323f ( Latin text). The words spelt out in capitals in the quotation are in capitals in the Latin text: diaus ducatus Iancastriae corporaws, et DUCATUS LANCASTRIAE nominentur fsc. castra, maneria , ct cet.l." a°r In Plowden , asoh, d,e distinaions are put forth neatly: "Tire tltree [i.e. the Lancastrian kingsl heló it in their Body natural separate from the Crown , and the fourth fi.e. Edward IV1 in his 13ody politic in right of tire Crown, and separated in the Order and Govennnent of the Crown, and not otherwise."

404

However that may be, by the latter hall of the fifteenth century corporational ideologies had gained a firm footing in England, and apparently it was not unknown to the jurists what profits might be derived also in secular matters from corporational cheories. The incorporation of Lancaster, in ocher respects perhaps without tangible effect,° °' left its indelible mark on legal thought insofar as it was in connection with the Case of the puchy of Lancaster, argued in court in 5561, that the Tudor judges produced their most striking formulations eoncerning the king's "two Bodies." Since those formulations eventually passed into juristic cextbooks and dictionaries such as those of Crompton, Kitchin , Cowell, and perhaps also of other authors around 16oo; and since they were quoted by authorities such as Coke , Bacon, and later on by countlees others, for instante Blackstone, they naturally penetrated quickly into political and popular parlante and were repeated over and over again.110 Plowden, in his Reports, clearly demonstrates how lively and general was che interest in the ,principies involved in the Lancaster case, and how vivid were the discussions in the course of which distinctioni between the "two

1

405

711E A1NO NE VER DI kS

Bodies" viere advanced. '1 he coinages of Use Lti glisli judges were not lacking originality when they pointed out that rhe King's Body politic ''contains Iris royal Estate anct Dignity" or was "adorned and invested widr rhe F.state and Dignity royal," even though the Italian jnrists liad fathered those ideas. The originality of the Tudor lawyers should be sought cliieHy in Use fact that they replaced the cotmnonly used notion of Dip u tas by die notion of "Body politic," and thereby Itere led io certain eLtborations and conclusions wlrich rhe civilians and canonists liad not deemed it necessary to indulge in. Fortunately, we are not deficient in early examples illustrating the replacement of Dignitas by Corpus. Maitland mentioned a case heard under Henry VII, in 1487, in rhe course of which Justice Vavasor argued that "every abbot is a Body politic, because he cannot take anything except for the use of rhe house."111 The argument itself is weak, but it discloses a parlante which must have been fairly common by drat time. In fact, we find a similar utterance in an earlier case, heard under Edward IV, in 1482. Again an abbot was involved; Justice Fairfax, arguing in his favor, dropped a remarle concerning "that mystical body of the abbot which never dies," since rhe office and rhe Mouse continued in the successors of the abbot.111 The judge's remark is interesting: the abbot is not mentioned as a member of the general corpus mysticum of either rhe Church or die realm, but as a mystical body per se, because he "never dies" and has "continuity." It is clear that che corporational notion of Dignitas was confused with the likewise corporational notion of corpus mysticum, or that the "mystical body" was fused with what otherwise was called "Dignity"-a fusion or confusion wlrich was certainly not customary in Italian legal language. However, when cve consider the influence which rhe "abbot" as a model exercised en legal and political thought in general, it will not he really surprising to find that in English secular practice the two notions were used almost synonymously also with regard to the king. an Maitland, Sel.Essays, 83,0.2 (quoting 113., g Henry I'll): "... chescun abbe est corps politike, car ir ne poet rico prender forsque al use del meason." 312 3'ear Books, Sr Edvard IV (printed by Tottell, Lon(1on, 1556-1572), fol,3Sh: .. pur ceo que cest misticall corps d'1 abhe re unque morust et le office et le meason continua a les successours en fee ..:' The case has Leen quoted by Cok, Rep., vu,,oa, cabina Case (nos quite correctlv: f.3gh fea 386), and 1 am nu,ch obliged to Mr. H. G. Richardson ter helping arre so verifv clic quomtion.

406

DIGNITAS NON MORITCR

How rhe transition from the royal "Dignity" lo tire roya] —Body politic" worked in ]cual arguments can he easily grasped from che case Hill v. Grange, wlrich Icas heard in rhe Court of Common Pleas in 5556 and 1557, that is, about five ycars before the Lancaster case."' Hill v. Grange, a case of trespass, is itself of no interest here; but the trespassed land liappened to Lave belonged originally lo one of Use monasteries dissolved by Henry VIII, and tlierewith Use king carne into rhe pictuie. The hearing, in (ertain sections, amounted co a rehearsal of clac whole con pound matter of Quoniam abbas and of the glosses en that decretal. The judges tried to find out wdfether King Henry VIII had acted as a person or as Dignitas, because in the latter case bis actions would Lave bound his successors. Chief Justice Brook argued that statutes have commonly been "expounded to extend to a king's heirs and successors, to give them benefit or to bind them" even when the king's individual name was cited or referred to; he adduced Magna Carta, c. 17: "Common Pleas shall not follow our court,"94 to preve that the word ' our" did not refer to King John individually, but to rhe king as King; and finally, when summarizing, he said: And the reason is because tire King is a Body politic, and when an act says "the king," or says "we," it is always spoken in the person of hijo as King, and in his Dignity royal, and therefore it includes all those who enjoy his function.a'e

Thereafter other justices-Staunford, Saunders, and Brown-took up the matter, likewise arguing that, although King Henry VIII was referred to by name, the referente was to him as King: And King is a name of continuance, which shall always endure as the head and che governor of the people, as the Law presumes .... and in chis the King never dies.

For that reason, opined the judges, the king's death is in law not called death, but demise, because thereby he demises die kingdom co another, and lees anotliei enjoy the functions, so that the Dignity always continues.... And 818 Plowden, Reports, a6,Ift. 514Chief Justice Brook (Plowden, Reports, 115b) quotes 'c.at" of Magna Carta; in face, however, che referente is tu 111C., cal (Ring John), or (.,X fre-issue of 1X16). sm l'loarden, Repeus, 1756- ,76.

,'07

THE RING NE VER DIES DIGNITAS NON MORITUR

then when ... the relation is lo him as King, he as King never dies, although his natural Body dies; but the King in which name it has relation lo him, does ever continue, and therefore ... the word King shall extend [from Henry VIII] to King Edward VI [that is, lo the successor].... From whence we may see that where a thing is referred to a particular king by the name of King, in that case it may extend lo his heirs and successors.... 316

No commentary is needed to demonstrate lo what extent the passages rendered here in italics for purposes of emphasis, were derived from arguments which the glossators and post-glossators had advanced long before: we recognize the catchword Dignitas non moritur, that is, the continuity of the Dignilas despite the death of the incumbent; the unity of predecessor and successor; the binding power of obligations made in the name of the Dignity; the importante of mentioning or omitting the "name"; and all the other implications which had been exploited for three centuries and more in connection with the decretal Quoniam abbas, or un similar occasions. Only in one respect did the English legal jargon deviate noticeably from the language of the glossators: the notion of Dignity, though mentioned by the English judges several times in its proper legal setting, was usually replaced by that of "Body politic." Here, at any rate, there is a striking parallel with the abhot's "mystical body which never dies." Coke, when pleading in Calvin's Case, aptly remarked: "It is true that the King in genere dieth not, but, no question, in individuo he dieth."317 We know those distinctions from the argumento of the Italian jurists, who, on the whole, were careful lo point out that they were talking about the Prince in genere, about che regia Dignitas or regia 1íaiestas, when they said that a dignitary "never dies," and they refrained, very logically, from saying that "the King never dies." Perhaps Baldus went a little farther than others when he personified the Dignitas and said that the persona idealis never dies; but then that was, alter all, only an "ideal person." The English lawyers, too, made it perfectly olear that not the king pure and simple was immortal, but that only as King-as "Dignity" or "Body politic"-he never died. Nevertheless, it was in the pleadings of che English lawyers that the phrase 315 lbid., 177. See aboye, n.s95. 311 Coke, Calvin's Case, fol.iob.

"The King never dies" seems to have made its first appearance; and probably one could afford being a little careless, since the distinctions between the King's immortal Body politic and his mortal Body natural were so well established that misunderstandings were practically impossible. However that may be, where so much talk had been going on about immortal royal Dignities and Nlajesties, and where-as especially in France-the tendency was ao strong lo read finto the individual living king features of a living persona idealis,311 ir was almost lo be expected that one day, sooner or later, also the phrase Le roi ne meurt jamais would make its appearance. LE ROY EST MORT . . .

Very little attention, if any, has been paid lo the indisputable fact that the famous device Le roi ne meurt jamais, current in France since the sixteenth century,319 descended in direct succession from the legal maxim Dignitas non moritur, and therefore ultimately from Pope Alexander's decretal Quoniam abbas. In other words, it represented merely another twist of the well-worn corporational doctrines of mediaeval canonists and civilians. That this quite unambiguous genealogy has so rarely been noticed may ara Church, Constitutional Thought, 91,1.41, 197,247ff . and passim.

315 n would be difficult to tell when exactly the slogan first appears in France. Cf. Jean Bodin , Les six tivres de la rdpubtique , 1,c$ (Paris, 1583 ; first edition 1576), ido: ''Car iI est certain que le Rey ne meurt jamais, comete I'on dit, aloa si tose que l un esa decedé , le plus proche masle de son cabe est saisi de, Royaume el en possession d'iceluy su paravant qu'il sois couronné ." This shows that by the time Bodin wrote (ca.1576 ) the maxim was well known (conune ¡'en dit). It is also interesnng that Bodin raises tire device te mort saisit le vif (aboye , n.268) from the sphere of privare legal inheritance lo tire public sphere by replacing le mort by le Royaume: the kingdom itself seizes the heir m the throne , The same cminection nf te Roy ne meurt jamais with le mort ,saisit le vit is found in Charles Loyseau, Cinq liares du droit des ofices, Sc.1o,n.58 (Lyon, 1701; first published in r61o), 66, quoted by Church, Const. Thought, 319,1.14. By tlrat tinte, of course, le Roy ne 'neurt jamais had become a religious dogma of the French, nation, which, e.g., Bossuet, « hile still relying on the juristic doctrines , Ilamboyantly interprets in a new fashion : the image of God, visible in the king , cannot be but immortal; cf. Bossuet , Oeuvres oratoires , ed. J. Lebarq ( Lille and Paris, 1892 ), rv,256ff (''Sur les devoirs des rois," a Palas Sunday Sennon (lelivered before the king, en April 2, 1662), who renders (p.262) an exposition of l'salm Si: 6, Ego dixi: dü estis (see my paper ''Deus per namram :' 274,n.72 ): " Vous étes des dices . Mais 6 dieux de chair el de sang, 6 dieux de [erre e l de poussiére, ' vous mourrez commes des hommes.' N'importe, vous étes des dieux , encere que vous mouriez , el votre aumrité ne metal pas : cet esprit de royanté passe tour entier i vos successeurs . . L'homme meurt, 11 est vrai, mais le rol, disons - vous, ne meurt janmis: l'image de Dieu est immortelle."

408 409

I lII

11 I N(, NFf FI? PIES

have been caused-at least, lo some exienr-bv the fact íliat tire legal maxim has lar roo often been conlbined, for deceihingüv' obvious reasons, wirh tire crics hcaid at rhe burials of French kings in the Abhcy of St.-Denis: Le coi e.ct oim7! Vive le ?o¡,'12' Unduly, however, nave those neo slogan,s of legalisric and dynastic continuity been coupled together and finally confounded-for each has its own peculiar history. Le roi ne meurl jamais is dynastic only accidentally; le pape, l'e'vcque, Ial;hesse re rneurt jamais would ¿ave been valid maxims even dtough in these cases dynastic dignity was not involved. Nor does the far-famed Prench device, which after all was daily bread in tire jargon of English jurists of that time, appear in the burial ceremonial of French kings, since the funerary críes at St.-Denis originated in a totally different setting.31 By the Treaty o£ Troyes, in 1420, tire sick King Charles VI of France and Queen Isabeau recognized King Henry V of England as the legitimare successor presumptive to the French throne; tire English claims were acknowledged in northern France, including tire city of Paris. Two years later, on August 31, 1422, Henry V died at Vincennes, leaving bis French clainis to his son Henry VI. While the dead king's body was being conveyed first to St.-Denis, thence via Rouen to London, King Charles VI of France died also, en October 21, 1422. The Duke of Bedford, in his capacity of Regent of France for the infant Henry VI of England, returned to Paris, on November 5th, where rhe Conseil seems to have awaited his arrival lo make the arrangements for the funeral and to conduct the funerary rites322 Other events, however, imperiled tire English succession lo tire French throne. South of Paris, at Méhun-sur-Yévre, the Dauphin 120See, e.g ., Robert Holtzmann, Franzdsisdte Verfasstengsgeschichte (Munich and Berlin, 'gro), 311; Sdrramm, English Coronalion, i, and Konig von Frankreich, 1,260. Bloch, Rois thaumaturges, 2i8f, stresses mainly che dynastic aspect of tire St.-Denis cries , which is important but not decisive. The two notions have been confused already by che French authors around ,6oo. sal Much, and sometimes most, of the following paragraphs are drawn from tire forthcoming book of Ralph E. Giesey, The Boyal Funeral ceremony in Renaissance France, a thorough and comprehensive studv (hased opon his University of California Ph.D . dissertation , Berkeley, Cal., lggq), which 1 quote according to ehap[er and footnote numbers. I am greatly indebted to Dr. Giesev flor unir for allosving me co use his manuscript freely, but also for con tribu ring ad(Iitional relevan[ passages and for placing liherally at mv disposal bis own cyre,prs fruni hithcrtu unpublished material collected by bien al)road. 822 Giesey , Boyal Funeral, Ch.vr,nos.871t. 411)

DIGNI7'AS NON MORITOR

Charles VII vas acclaimed by his officers with tire cry Vive le roi. while the banner of France was hoisted.111 The Duke of Bedford, therefore, was pressed to act quickly and efficiently co protect and proclaim rhe rights of his sovereign lord, King Henry VI of England. When Charles VI was entombed at St.-Denis, on November llth-just four days alter Henry V liad been buried at Westmin.ster Abbey-rhe ceremony was concluded by tire custoniary short prayer for tire deceased king: "Priez pour l'ame de tresexcellent prince Charles VI, rey de France." Then, after a short pause, a king-of-arms proclaimed rhe rights of tire child Henry VI, and cried with loud voice: "Vive Henry par la grace de Dieu roy de France et d'Angleterre!" Whereupon the other heralds responded with the cry: Vive le roy Henry.[ lo which the English added NoW-"as if ehe Lord were descending from heaven," according to rhe French chronicler314 Here, for tire obvious purpose of forestalling che claims of rhe rival Dauphin and his party, the prayer for rhe dead king was conpled with the acciamation of che new king in tire form in which normally it would be heard at royal coronations and on other occasions. Henceforth that procedure remained the custom in France: the prayer for the dead king was said and then, after a short silente " long enough lo say a Pater noster,"32$ the acclamation of rhe new king followed. However, rhe prayer for the dead king as well as the proclamation of the new king were gradually reduced in length, until finally the brief impersonal cries, interrupted only by short ceremonial, were heard: Le roi est mort! .. . Vive le roi! This brief and depersonaiized version seems lo have made its first appearance at the interment of Louis XII, in 1515, whereas an intermediary formula-the short successive críes with the mention of the individual names of both the dead king and 823 This ceremony is described in detail by Monstrelet , Chroniques, ed. Dou€t d'Arcq ( Soc. de l'hist . de France , Paris, 18,57 -62), 1v,310: "Sy fu lors levée une baniére de France dedans la chapelle, e l done lesditz of ciers commencérent a ayer hanlt et der par plusieurs fois Vive le Royl" For che date (Oct. 3oth instead of Oct. 24111 ), see Giesey , op.cit., Ch.vnt,nsof. s2e The críes for Charles VI and Henry VI reported here are from che ''original' version of che Cerémonial de l'inhumation de Charles VI, che oldest ms of which (Paris, BN.,fr . 18674,fols . ngt) is reproduced by Giesey, Roya[ Funeral , Appendix II. The cry "Noel" is reported, e.g., in Chronique du Religieux de Saint -Denis, ed. Ni. L. Bellaguet (Col[ des documenta inédits, Paris , 1852 ), vt,49,6. 325 Mathicu d'Escnnchv, Chroniques, ed. G. dn Fresne de Beaucourt (Soc, de l'hist. de France, Paris, ,863-61), 1, 11,1f, rclating the funeral of Charles Vil in i i6i.

411

THE KING NE VER DI ES

DIGNITAS NON MORITUR

the new king-apparently was used before 1515.928 This is all the more likely, since in 1509, on the death of Henry VII of England, the English funerary ceremonial observed that intermediary style. The stewards broke their staves, the vault was closed,

utterance of the idea of immortal kingship within the framework of royal funerals. Coins, or coin-like productions, of the sixteenth and seventeenth centuries displaying a Phoenix are not raye. The mythological

and incontinent all lhe herauds did [cake] of theire cotearmours and did hange them uppon the Rayles of the herse: cryinge lamentably in French "The Noble kynge Henry the Seaventh is deade." And as soone as they had so done, everie heraud putt on his cotearmour againe and cryed with a loude voyce: "Vive Le noble Roy Henry le VIIIme," which is lo say in englyshe tonge "God send the noble Kynge Henry the eight longe life."821

bird was, for example, an emblem of Queen Elizabeth signifying her virginity as well as her singularity: SOLA PHOENIX is the inscription on some of her coins, and as ÚNICA PHOENIX she is celebrated in a medallion issued in che year of her dernise, 1603 (fig. 22).52' A different idea was expressed by a Phoenix medallion struck by English royalists in 1649, alter the execution of Charles I. The obverse sliows che profile head with the legend

The English procedure which, in all likelihood, followed the example of the French ceremonial, suggests that the short succession of che two brief cries, though as yet with the invocations of the kings' names, actually was the French custom before 1509, a consideration which sends us back to che funeral of Charles VIII, in 1498.1"" The later omission of the individual narres certainly brought into prominente the perpetuity of the Dignitas as such, severed from its impersonators; but it is impossible to tell whether chis was intended or not. What matters here is that the cries "The king is dead! Long live the king!" which-with or without mention of proper names-powerfully demonstrated che perpetuity of kingship, were introduced in England at a time when in the Inns of Court the maxim saying that "the king as King never dies" vas just about to be formulated. A broad political idea has been given expression through the funerary ceremonial in lapidary terms and in a dramatic display. Nevertheless, the famous cries were neither the first nor the only

CAROLVS•1•D:G:MAG:BR:FR:ET•HI:REX. The reverse has the legend CAROLVS•II•D:G:MIAG:BRIT:FRAN:ET•IIIBER:REX; but costead of a por-

trait, it shows che Phoenix rising from his burning nest, and the inscription: EX-CINERIBVS (fig. 23). About che meaning of this memorial medal diere can be no doubt; it was struck with the clear intention to assert against che Lord Protector and che Commonwealth che perpetuity of hereditary kingship and of the royal Dignity in general: the king's son rising as a Phoenix ex cineribus, from the ashes of his father-or, though less likely, from the shambles of che monarchy."° Even more telling is the design of a , jetcon for che French king, devised a few years earlier, in 1643, to announce the death of Louis XIII and che accession of Louis XIV. It shows che Phoenix in his mouncain nesc, illumined by the rays of che Sun. The inscription, borrowed from Vergil's Fourth Eclogue, reads: Caelo demittitur alto, "He is sent from high Heaven"-as dynasts were supposed to be ever since the thirteeneh century.931 The gist of die design, however, is given in an additional explanatory note, saying:

s2° It is commonly assumed that those cries were heard, in their shortest form, for che first time at the funeral of Francis 1 , in '547; see , e.g., Bloch, Rois thaumaturges, 218f; Schramm, Frankreich , 11,125(=1,26o,n.4). The depersonalized cries, however, are actually found already in a contemporary report of che funeral of reprinted in Louis XII in 1515: L'obséque et enterrement du Roy (Paris, L. Cimber and F. Anjou, Archives curicuses sur Phistoire de France ( Paris, 183.5), ler ser,, ,,,69f . Cf. Giesey, Roya¡ Funeral, Ch.vnt,nos.5of, for further detall. 327 The relakion is preserved in Brit.Mus ., Harley MS 3504, fol _5gr-v ( ancient 271), a copy of which Dr. Giesey kindly placed at my disposal. 228 French, being the language of heraldry, cannol, of course, be taken as evidente of che French origin of lhe ceremony. The cries, however, are not found in che ceremonial of che interment of Edward IV, in 1483 (cf. BritMus., Egerton MS 2612, fols.186v-188v ), while they are almost verbatim che cries used in 1498 at che funeral of Charles VIII of France; cf. Jean de Saint-Gelais, Chronique, in Th. Godefroy, Histoire de Louys XII (Paris, 1622 ), w8; cf. Giesey, op.cif., Clr.vul,n.45.

412

a2° Hawkins , Medallic Illustrations, PI- v1,7,8,q; cf. en1,17, and, for che medallion, J. D. Kdhler, Munz Belusfigung (Nürnberg, 172911), xxt,2e¢t. Cf. above, 11245. eao Hawkins, op.cit., PI.xxx,lg. My repoducrion (fig. 23) is of che copy in che Hunterian NIuseuln at Glasgow, a cut of which ,as kindly provided by Mr. G. K. Jenkins, of che British Muscum. The rosal I'hoenices ,ere raid to make England another Arabia, at Icast according m Ben Jonson, "A Speach presented unto King James en che Birth of che Prince," in The Poensa, ed. B. H. Newdigate (Oxford, 1836), 281: Another Phoenix, though che first is dead, A second's Ilmvne froto his immortal beci, To make Chis our Arabia to he The nesc of au eternal progeny. 331 See above, n.58.

1

413

7Il1, A 1 N G NFlLI? 1) 1lis

DIGNITAS NON MORITUR

claims: Fliucsuprema lex. "From here diere emanases the supreme law."aaa The kingdom coulcl nos he left for ever so short a time

The Phoenix is Loen ami soars from the cindeis of Lis fathcr by the influx sent to him from hcaven and the san. In the sabe wav, the king is givcn to us miraculously from on high: and laonl bis father's lit fi/uébre lse soars to his own lit de justice.RFF2

without the continuity of Law and Justice which the king personified, and therefoie the new Phoenix had co soar instantly and

The metaphor was nos badly chosen, for we Lave to recall that the French king made his frrst solemn appearance in the Court of Parlement as legislatm- ami .supreme judge-that is, held his first lit de Justice-almost imnaediatcly after his accession, and sometimes even hefore his predecessor king was buricd.111 The richly decorated throne couch with its baldachin was said to be the place where "one sees Lex el Rex reposing under the canopy . , sees them together en that bed of Justice,"aaa and accordingly a medallion displaying the lit de justice (fig. 25) pro-

directly, without loss of time, "from Iris father's deathbed to Lis own bed of Justice." Once more, the notion of Justice was destined to have sorne bearings as a symbol of sempiternity.

At che king's funeral, the privilege of carrying the four corners of the mortuary pall fell co che four 'presidents of Parlement," shas is, the four highest judges of the kingdom's supreme tour[. This custom can be traced back co the fourteenth century,aae and the reason for Chis distinction is given unanimously by later authors, who explained

212 Paris , Riht. Mazarine MS 1795, fol.av (1 owe the photograph {fig. 241 te Dr. Giesey), contains a series of designs proponed for the royal jetton for New Year's day, 1644. The note en the Phoenix design reads: Le Phoenix naist et s 'eleve des Cendres de son pere par l'Influcnce qui luy est envoyée du Ciel et du Soleil. Ainsy le Roy nons a esté ninaculeusement Ponné d'en-hauC El du lict funébre de son pele fl s'eleve á son lid de jusaiceo The Phoenix symbol was nos infrequently used in the French tour[ ceremonial of the l6th century. For example, the Order of the Holy Ghost, founded by Henry III in 1579, was originally to be called Orrler of the Phoenix, because, argued the courtiers, that bird was "the only creature of h¡s kind, and without any paragon," and therein resembled the French king who 'i,as the Phoenix of al, kings in the world." See André Favin, The Theater of Honour and Kaighthood (first published in 16to; English version, London, 1623), 416. Moreover, ¡n 1620, at the entrde of Maria de' Medici moro Avignon-she carne as a bride co marry llenri I I—a triumphal arch was erected shmving in a spandrel the Phoenix w¡th the inscription addressing Maria: O felix haeresque tui (quotalion from Claudian; see aboye, n.252 ), making allusion to the hoye of an heir lo the throne from the marriage , eventually Le petit phénix (aboye, ns69); cf. André Valladier, Labvrinthe de l'Hercule Gaulois (Avignon, 16o1), 187 (cf. 2oo); cf. Giesey, Royal Funeral, Ch.x. san Both Louis XIV and Louis XV, infanis at the time of their accession, r,ere carried lo a lit de justice before their predecessors were buried; cf. Holannann, Franzdsische Verfassungsgeschichte, 3ije On the lit de justice, see Church, Constitutional Thought, 15off; F. Funek-Brentano , L'ancienne France: Le roi (Paris, 1913), i58ff; see next note. 254Bernard de la Roche Flavin, Treize liures des Parlemens de France, iv,c.l (Geneva, 1621), 353ff, gives the fullest description of the lit de justice; cf. §g, P355: . en vo¡d que Rex el Les se reposen[ soubs ore couvert {_ ciel ou daix; cf. §8, P-3531 de teste sale . , en les void ensemblement en ce lict de Iustice . . Needless lo say, Justice is considered by the author te he almost a French monopoly; el- §15, P356 (talking about che mojo de Justice, which is claimed te be an exclusively French estribase), "pouice que la Justice est nee avec la France, el a son droit hereditaire en la [erre de Franco, tonante il y a des pays qui son[ doüés de choses rayes , et qui ne peuvent venir ailleurs." India has odoriferous trees; Persia has pearls ; only the North has amber. "Aussi il n'y a qu'une France, ou s'exercent les vraves functions de la Justice."

14

shas they [ the presidents ] represen [ his [the king's] pcrson or the doing of Justice [in Parlement ], which is the principal member of his Crown and by which he reigns and has sovereignty. . . aar that they, who represent in Parlement the person of the king and govern the sovereign Justice of the realm, should be closest to the body of the king.. , aas The four presidents, however, were nos only metaphorically un vray pourtraict de Sa Majesté, but also their regalia passed as 135 Claude- Franlois Menesrrier, Histoire de Louis le Grand (Paris, 1(381 ), pl.28.

The design is patterned alter the paleo-Christian and pagan Etimasia, the empty throne of gods and rulers , later of Chrisq it here is adapted for the legislating king: canopicd , displaying un the seat tire scepter and main de justice, showing en the back the emblem of the san , and fianked by justice and Faith. For another pattern of representation , the lit de justice at Vendóme , in 1458, see Le Comte Paul Durrieu, Le Boccace de Munich (Munich, 1909 ), 51ff, and pl. r . An idea closely related co the medallion of Louis XIV is expressed by the device of james 1: A Den rex, a rege lex; cf. Schliermann , '' Sakralrecht des protestantischen Herrschers," 344. aae See next note, referring lo 1364. Giesey , Royal Funeral, Ch.v,nos.3R, is inclined lo believe shas the privilege goes hack lo 1350 ( buriel of Ph ¡lip VI), or possiblv to 2328 (Charles IV). sor "EC portérent le corps dudit Roy les gens de son Parlement . . pulir ce que ilz representen[ sa personne en faft de justice, qui esa le principal membre de sa coronne, el par lequel il regne el a seigneurie ." Chroniques des régnes de jean II el de Charles V, ed. R. Delachenal (Société de l'histoire de France , 1910), 1,343, ras.. , , ¡le qui en parlement representen [ la personne du roy e l qui gouvernent la justice souveraine du royaume , soient au plus prés du corps du rey." Cf. Cerémonial de Pinhumation de Charles VI, ed. Giesev , Royal Funeral , Appendix u; ¡n the sane passage the four presidents are descrihed: " vestus de leurs manteaulx vermeils fourrez de mena vaic"

1

4 15

TIIE KING NE VER DIES

le vray habit dont estoient vestues Leurs Majestez.339 The costume of che justices consisted of a bright red robe trimmed with miniver and probably reflecting che royal purple, just as the cardinal's red tunic reflected an authority affiliaced to the cappa rubea of the pope; it can likewise be traced back lo the fourteenth century."° Dloreover, as a special mark of distinction, the justices were entided lo wear three pendants of gold ribbon or silk actached to their shoulder, called sometimes le bouton d'or; there is reason lo believe that this decoration derived from che three pendants of che royal (originally imperial) shoulder-clasp, che fíbula, iftén mentioned by che mediaeval jurists as one of che four insignia of imperial majesty, che others being che purple, che scepter, and che diadem.341 There can be little doubt that the red 220 Funck- Brentano , Le roi, iri f , has collected a number of interesting remarks concerning che identity of che robes of che king and of che presidents, drawn chiefly from La Roche Flavin, Parlemens , x. ee24-25, pp.792ff. 340 See Giesey , Royal Funeral, Ch .v,nos.g,15, for a miniature of che funeral procession of Queen Jeanne de Bourhon (4.1378). au For che bouton d'or , see La Roche Flavin , Parlemens , x,c25, §12, p. 796; also Funck-Brentano , Le roi, 152 ,0.5. For che Roman imperial fibuln, see, e.g., Richard Delbriick, Consulardiptychen und verwandte Denkrndler ( Berlin, 1926- 2g), 40 (plainly visible in che Justinian mosaic at San Vitale in Ravenna ). Cf., e.g., Lucas de Penna, on C. 11,8,4,0 .5 (Venice, 1582), 393: "quatuor sunt insignia regalia, scil. purpura, fibula aurea, sceperum el diadema" ; see also Lucas de Penna, en C.,' ji,', n.2, p.4oi; Matthaeus de Alflictjs, en Lib.aug ., 1,20 (21),0.1, fol.,o4v, Further Isidore of Seville, Elhyrnol., xcx,24,2, quoted , e.g„ in Graphia libellus, a5, ed. Schramm, Kaiser, Rom und Renovafio , 11,95. De la Roche Flavin, loc.cit ., refers aleo to the Hellenistic and Bihlical m.del, 1 Mace ., 10: 89: "Et misil [rex] ej [Jonathaej fibulam auream , sicut consuetudo est dari cognatis regum" ( also 1 Macc ., 11: 58, and 14: 44). That is co say, Jonathan received che (Gula aurea as amicus regís ( evryycvils roo pcurA¿ rs), which was an official cacle designating a high ranking member of che privy council; see John Crook, Consilium Principis (Cambridge , 21f. Nose, che consiliarii of king or emperor were olficially amici regís or imperatoris, a fact well known w che mediaeval jurista; see, e.g., Lucas de Penna, en C . 12,,6,rubr,, 0.1, p.7o6, who, Dice versa , interpreta john 15: 14f (Christ addressing che Apostles: Vos autem dixi amicos), almost constitutionally : amici Christi = privy councillors of Christ. Sine che French presidents- just like che chancell.r and ovo or three other high-ranking ofcials -were of course consiliarii regís, they received che hadge apparently in their capacity al amici regis . This hypothesis perhaps finds support in Graphia libellus, c .21, cd. Schramm, 11,104: at che investiture of a judge che emperor "convertat fibulam [manti ] ad dexcram partem." signifying that on che open right side of che mande ''lex el debeat esse aperta." Cf. La Roche Flavin, Parlemens, x,csi, §12, p.796, for che resoiction of che bouton d'or to che right shoulder; see also, for a few remarks ( nos always correco en che history of che insignia, J. Quicherat, Histoire du coslurne en France (Paris, 1877), 324. How and why che pendants of che (bula nlrned into three golden or red ribbons, can be gathered from Carolingian miniatures ; see Schramm , Kaiser und Kánige in Bildern, u, pl.17. atoo pls .gb,18a,28; cf . Deér, —En Doppelbildnis Kads des Grossen," Forsch ungen zur Kunstgeschichte und christlichen Archdologie , 0(1953), us.

416

DIGNITAS NON MORITUR

robes as well as che bouton d'or were supposed lo mirror-roya] insignia en a smaller scale. Not in vain were these high judges called pars corporis principis, "parí of che king's body."a42 This digression into che study of costumes was necessary to understand yet anocher privilege enjoyed by che justices. While at che royal funerals all che mourners and che whole cortége were ciad in black or displayed signs of mourning, the pall-bearing Presidents of che Paris Parlement alone appeared in their bright red robes. They were exernpts de porter le dueil, "exempt from wearing mourning," as an eye-witness of che funeral procession of Francis 1 (1547) explained, 'because che Crown and Justice never die."390 This exemption of the high judges from wearing mourning, first mentioned in 1.422 in connection with che funeral of Charles VI, goas back lo che fourteench century as the miniatures disclose.244 Tire explanation of chis custom, however, was always the same. Aucuns avoient leer manteau rouge, En exemple cc signiíance

Que Justice jamais ne bouge Pour crespas clu Roy, ne muance.... writes Marcial de Paris, describing clic funeral of Charles VII, in 1461,84° while jean du Tillet, writing a century lacer, remarks 342 Charles de Grassaille , Regalium Franciae libri duo, t, los x11 (Paris, 1545),

116: "Itero illud magmmo cor,ilium dicitur proprio consistorium principis - . . et in corpore unde sumitur ." Cf. Church, Constitutfonal Thoughy 54. The terminology clearly derives from C.q,8,5, where che emperor stvlcs his consiliurn che conscstorium , and understands che senate as pars corporis noslri; see aboye, Ch.v, 0.42; also Ch . ,v,nos.188 and 195.

34s Vieilleville, McHuoires, ed. J. Michaud, and P. Poujoulat , Nouvelle cohechan des mdeuoires sur l 'hisfoire de France ( Paris, 1836 39), 1x,63: ". . car les presidents e4 conseillcurs de la tour de Parlement 1'environnoient [that is, che king é effigy; see below] de mutes partes, en lcuis iobbes rouges, exemn6 de porter le dueil, avec cette raison, que la couronne et la justice ne mearen[ jamais; de laquelle justice i1s sont, souhs l'autoricé des roes, premiers es sourerains administrateurs .'' See below, 0.376, far Vieilleville as onlooker in che suite of llcnrv H. Also De la Roche Flavin, Parlemens , xu1,c.88, §1o, p. 118,: "La Iustice , et mesures l'auchoricé des Parlements est estimee tousiours
417

T1117 RING NLI'FR DIFS

DIGNITAS NON MOR/TUR

that it was the tluty of che foto- Presidcnts to demonstrate by dteir colourful robes 'that by che death of che king Justice does not cease,-11° The underlying ideas are ohvious, and thev sere obviouss lo che contemporaries, loo. The justices in iheir coscume mirroring that of che king liimself displayed no signs of mourning because "Crowsm and Justice never 'l lsev iepresented, and viere parí of che body of, a king svho as King never dicd; and they viere administrators of a justice which likewise never died and whose ministry never suffered interruption. Iustitia enim perpetua est et immortalis, says che Book of Wisdom ( 1:15), and on che strength of that verse Baldus, using Aristotelian definitions, glorified Justice as a habitus qui non moritur, something divine and inmortal like che soul.a.r The individual king may die; but che King who representa sovereign justice and was represented by che supreme judges, cuas not dead; he continued his jurisdiction ceaselessly through tire agency of ]sis officers even though his natural body liad passed away. Parlamentum Franciae non servat ferias, "The Parlement, che supreme court, of France does not observe holidays," tan a French legal maxim based en Roman Law.a'a Hence , che Presidents of Parlement showed by iheir red

robes that the king's death did laos aflect j ustice ''a Iro never clics."

asó Jean do Tillet, Recuei( des Roys de France ( written ca. 1560, first published in 1578; Paris, 1618 ) 1.341: "Le principal office desquels [ membres du Parlement] est bien administrer la justice . .. el falte cognoistre que par la mort desdits Rois elle ne cesse." 847 Baldus , en D.i, t,1,n .2, lo] 7r, and D.1,1,1un. i, fol . iSr; cf. Ullmann , ' Baldus' Conception of Law," 3go ; aboye, Ch.Iv, nos7o and 159. The definition of Justice as habitus, stimulated by che words " Iustitia est constans el perpetua voluntas' (actually the opening words of che ¡naden les), was known to che glossators through Cicero, De inventione rhetorica , 11,53, hui goes hack to Aristocle. aas Grassaille, Regalía Franciae , 1, ius xn, ad quartum (Paris, 1545) , 120: quod parlamentum Franeiae non servat ferias : imo ex consuetudine , omnibus . Ideo, de curia Franciae diebus etiam feriatis (aliquibus exceptis) reddit ius potest dici , quod de Romana dicit[ur] . , quod solennihus diebus solennes processus faca." See De la Roche Flavin, Parle,nens , xm,c.87, pp.1174ff, for che exceptions (including a king's funeral when les Cours de Farlement assistent en corps) which match , by and large, those enumerated in C.3,i2,6 and g. On that basis, already Frederick 11 ordered, Lib.aug., 1,50 ( 52), chal "iustitiarii ... continue curias . . regere debeant, causas audiant el decidant." See che glosses gn that law by Andreas el Isernia , ed. Cervone, io8f, and by Matthaeus de A(Hictis, 1,fol.i95,n.3, who refer for that ideal of uninterrupted activity of the°law courts to C.3,12,9. In France , shas print iple liad been valid caer lince the 13th centuryq see Durandus, Spendum iuris, u, partic.I , " De Feriis," § i,n.10, p5o6: "... quia nulla lex potest curiam Principis coa retare, quin possit quolibet tempore ius reddere. etiam dichos feriatis . . Nam irse est lex animara in tenis ... Et pro hoc potest excusad consuetudo curiae regís Franeiae quo[d] tempore parlamentorum omni die ius reddit... . -

418

Those viere ideas formulated long hefore by clic mediaeval jurists, and die Frencli Presidcnts of Parlement actuta11y may liave appeared, saben acting as palbhemcrs. like a tablean viran[ illustrating Baldus' remark: `-hhe pmver of ordinary jurisdiction lives even when in lhe ineantime che cniperos' dies.' (r is true. added Baldus, tliac a corpse does nos will, but clic dead emperor, liis

-Digntas,"emcowlvtrhisdea,cn.vry thing pleases che Prince drat is done by his judges even alter his death, provided that they do noc act against the Iaw."141 How then could Che justices wear mourning, since their King did noc die? Yet another feature connected wich the burial rites descrees attention here. Charles VIII, in 1498, was entombed as customary at St.-Denis. Pierre d'Urfé, Master of che Horse, bore che sword of the realm at che funeral, and the First Chamberlain carried che banner of France. D'Urfé has left an account of che final burial scene: as che coffin slipped into che vault-that is, at che lament Le Roy est mort!-che stewards broke iheir batons and threw them into che tomb' while che heralds and sergeants-at-arms deposed their coats-of-arms and maces. The banner of France, however, just as che sword, was only dipped for a short moment, and at che cry Vive le roy! it was quickly raised again because, as d'Urfé explains, "che banner never dies," car elle [la banniére] ne meurt jamais.35e Thus, che famous formula was transferred co che banner of France as well. In other words, insofar as che king as King was identifiable wich "sovereign Justice" or with che "Banner of France" che funerary rites suggested indeed thac "che King never dies." EFFIGIES

With Chis symbolism of che King's survival despite che king's death there fell in one of che most startling features of royal ase Baldus, en C.po,i,rubr .,n.i6, fol.232v : ° . , quia non ex vi talis mandati

fui[ facta delegatio , sed ex vi ordinariae iurisdictionis , quae viget licet moriatur interim imperator ... El velle videtur [ imperator ] etiam post mortem, quia etiam post mortem suam verba contulisse videtur: omnia enim placea r principi quae per saos iudices etiam post mortem suam fiunt, nisi contra legem sinC' See aboye, n.296. (Paris, 1619). 3gf, for the aso See Th . Godefroy, Le cérémonial de France Ordonnance of Pierre d'Urfé (''L'Ordre reno á i'enterrement du Roy Charles VIII, Van 1498, par Messire Pierre d'Urfé, grand escu)cr de France ).

419

THE KING NEVER DIES DIGNITAS NON MORITUR

duplication contrived in modern times: tire rites connected in France with the king's effigy.ssr

It is fortunate that, in this case, we are fairly accurately inforlned about the origins of [he usage: it was borrowed froni England where the display of effigies at royal funerals is on record since l327 ss2 On September 21st of that year, King Edward II died or was murdered (we do not know) at Berkeley Castle; some time later, his disemboweled and embalmed body, accompanied by an effigy, was taken lo Gloucester and buried, on December 2oth, in the abbey church of St. Peter. Was it the defaced appearance of the king which made the use of an image advisable? Had some profound changes taken place in Western burial customs2 We might think, of course, of purely practical reasons, since the entombment of Edward II was delayed for duce montlts (September 21 lo December 20); however, the long delay of the burial cannot have been the only reason for replacing the body by the visible efCigy: no efligy was used at the funeral of Edward I who was buried at Westminster almost four months after he died at Burgh, in Norfolk (July 7 lo October 28, 1307)• No master how cve may wish lo explain the introduction of the effigy in 1327, with the funeral of Edward II there begins, to our knowledge, the custom of placing on top of the coffin the "roiall representation" or "personage," a figure or image ad similitudinem regis, which-made of wood or of leather padded with bombast and covered with plaster-was dressed in the coronation garments or, later on, in the parliamentary robe. The effigy displayed the insignia of sovereignty: on the head of the image (worked apparently since Henry VII after the death mask) there was the crown,

while the, artificial hands held orb and scepter.253 Wherever the circumstances were not to the contrary,111 the efligies were henceforth used at the burials of royalty: enclosed in che cofhn of lead, which itself was encased in a casket of wood, there rested the corpse of tire king, his mortal and normally visible-though now invisible-body natural; whereas his normally invisible body politic was on this occasion visibly displayed by the effigy in its pompous regalia: a persona ficta-the effigy-impersonating a persona ficta-the Dignitas.

Ideas such as these, though perhaps not totally absent from the English funerary ceremonial either, hecame very pronounced in France once the usage of the effigy was introduced in that country in the course of the fateful year 1422. King Henry V of England, we recall, died at Vincennes. In agreement with English custom an effigy was prepared for display on the coffin-perhaps already in St.-Denis, and most certainly in Rouen."° When, a few weeks after the demise of Henry V, Charles VI of France also died, the Duke of Bedford, as mentioned before, was responsible, directly or indirectly, for arrangements for the French king' s funeral. On Bedford's return to Paris on November 5th, or just before his return, order was given tu prepare an efhgy of Charles VI for his funeral on November i i th. The records of the funerary expenses show that this order was executed in considerable hurry.111 That is lo say, as a result of the peculiar circumstances of the year 1422, when simultaneously the Anglo-French and the native French kings died and were buried, the English custom of exhibiting the king's funerary effigy vas transplanted lo France. Henceforth the royal effigy literally "played a róle" in the

351 On the effigies in connection with death masks and at large, see Ernst Benkard, Das ewige Antlitz (Berlin, 1927); English version by Margaret M. Green, Undying Faces (New York, 1929); W. H. Hope, "On the Funeral Effigies of the Kings and Queens of England;' Archaeologia , 1.x:2 (1907), 518-565; E. Bickermann, "Die rómische Kaiserapotheose ;" Archiv für Religionswissenschaft , X XVII (1929), Excursus, pp.32f; J. Schlosser, "Geschichte der Portratbildnerei in Wachs;" Jahrbuch der kunsthistorischen Sammlungrn des allerhbchsten Kaiserhauses (Vienna), XXIX ( 1910), i95f; Giesey, Rayal Funeral , Ch.vt. Andreas Pigler. "Portraying che Dead," Acta historias artium Academice scientiarum Hungariae , 1v (1956 ), 1-75, quoted by Harald Keller, " Effigie," in Reallexikon zur Deutschen Kunstgeschichte , iv (1956), 743-749, was not yet accessible to me. 1525ee, in addition to Hope, "Funeral Effigies;" 530f , also S. Nfoore , " Documenta relating to the Death and Burial of King Edward 11,' Archaeo l ogia, 1.a ( 1886), 215-226.

420

funerary ceremonial of French kings. In fact, it played an independent róle of its own, apart from the king's dead body. In 1538, a prominent French jurist, Charles de Grassaille, asserted that "the King of France has two good angels as guardians: one in esas Hope, "Funeral Effigies;' ,31. sea As, e.g,, in the cases of Richard II, Henry Vi, Edward V, and Richard III. sas For the display of the effgy in Rouen, see idonstrelet, ]Y,¡ 12f; for the rites at St. Dénis, the French chronicles do not mention an effigy specifically ; see, however, the very detailed cita Henrici Quinti (ed. T. Hcarue, Oxford, 1727), 336f, which implies that an effigy was used from the outset see Giesey, Roya[ Funeral, Ch.vr, nos. mof. aso Sce Giesey, Ch.vr,nos.96f, for details.

421

DJGN1TAS NON :ITORITOR

T111, AlNG 1VCFFR DJF.

reason of his pu cate person, and the otber in reason of his royal Dignity.`117 Indecd, if tlie king according lo jean Gerson liad "two tires,'' he could nor llave leas than two angels lo protect them; nor will it be too hazardous to conjecture that at the king's

1

funeral the second angcl liovered presunrably around the effigy. At any rate, we notice that the distinction between a ruler's person and his Dignity, disseminated fui centunies by Italian jurists, tras not absent from French pulitica1 ihought cithcr, ' But whereas the natine of Use Dignity was normally expounded ¡ti court and in council only, it was a peculiar knack of tlte Frencli to make the Dignitas also visible and expose it to the eye in pageant and ceremonial. The King ' himself is not the Dignity, but acts the person of che Dignity," said Pierre Grégoire, a French legist writing in the last quarter of the sixteenth century;8°a and he pursued that idea in a remarkable fashion. Crown and diadem, he remarked, viere external accessories of a mortal human head, and the purple was an external accessory of a mortal human body which was exponed to disease and any freak of fortune; true, the regalia "have the divinity of che Dignity," but they do not deliver man of his human nature.a°o And in that connection, Grégoire arrived at an unexpected statement: "The Majesty of God appears in the Prince externally, for the utility of the subjects; but „ter Grégoire, when releinternally there remains what is human. gating the "Majesty of God" to the external display of regalia, duos babel set Grassaille , Regada Franciae, i, ins xx, p. 21o: "Itera, Rex Franciae , alterum ratione bonos angelos custodes: ununr racione suae privatae personae dignitatis regalis." asa For jean Gerson, see aboye, Clr.v,n76. See further Church, Constitutional Thought, 253,n.i, who quotes FianSois Grimaudet ilistinguishing between Che De domamo Prince as Prince and the individual Caesar; or René Choppin, Franciae, III,tir5,n.6 (Basel, 16o5), p449: . dignitati magis quata personae ix,c1,n.u (Lyon, t 6oy; Grst concessa ." See also Pierre Grégoire, De republica, published in 1578), p.e66C: all belongs to the Prince in times of an emergency "in qua principia dicuntur ut priucipis .. , non principis privan" See, however, Church, op.cit., 3og, who emphasizes that by the end of the 1Gth century "the extreme absolutists red u ced drastitally tIse ira titi on al significa nce ... of the (listinction between che king and the crowto . . sss Grégoire , opcit, vI,c.3,n.7: "Docend os est itaque princeps separatim prius se ipsum cognoscere , postea dignitatenr quam gerit. Nam ipso nou est dignitas: sed agit personam dignitatis." The whole chapter (pp 13713) is devoted to the Dignitas. 860 Grégoire , loc.cit., n.7 (quoted by Church, op.clL, 248,n.12), also n.3: "Principum natoram et insignia ... , quae habent dignitatis numen, non adimunt hominis

862Coke, Calvin's Case, foli o: ene a natural body .. , and Chis body is of the creation of Almighty God, and is subject to death .. and the other is a politic body . . . framed by the policy of man ... and in this capacity the King is esteemed to be immortal, invisible, nor subject to death . 861 Marianna Jenkins, The Date Portrait (Monographs on Archaeology and ¡inc Arts, ni tNew York, 1947]), fig.63, cf. p.46. See Thackeray, Paris Sketch Book, in the Charterhouse edition of che ¡Varks of Thackeray (London, 1901), xvt, facing p.913. 3e4While at the funerala of Charles VII (1461) and Charles VIII (,498) the

quod humanum est ..' aei Grégoire , loc.cit., n.: "Mniesms Dci in principibus eAtra apparet in utilitalem subditonum , sed intus remauet quod humanum est."

422

no more sought tu be paradoxical than did his contemporary across the Channel, Coke, who nade the strikiug observation thal the mortal king was God-made, but the immortal King. matr made.2n2 However, the visibility of God in the regalia "luir the utility of the subjects" malees us think of Tltackeray's caricature (fig. 26) in which the great novelist pokes fun at Rigaud's famous painting of Louis XIV by juxtaposing the final pompou.s .state portrait and its neo components: tlie king's pitiful body natural and a dummy decorated with the regalia.°13 In fact, for the utility of the subjects, the Majesty might as well he vested externally in the funerary effigy by the means of which the king's person seemingly doubled: the two bodies, unquestionably united in the living king, were visibly segregated on the king's demise. Actually, the importante of the king's effigy in the funerary rites of the sixteenth century soon matched or even eclipsed that of the dead body itself. Noticeable as early as 1498, at the funeral of Charles VIII, and fully developed in 1547, at the rites held for Francis 1, the display of the effigy was connected successively with the new political ideas of that age, indicating, for example, that the royal Dignity never died and that in the image the dead king's jurisdiction continued until the day he was buried. Under the impact of those ideas-strengthened by influences deriving from the mediaeval tableaux vivants, the Italian trionfi, and the study as well as the application of classical texts-the ceremonial connected with the effigy began to be filled with new contents and to affect fundamentally the funerary mood itself: a new triumphal element carne into the ceremony which was absent in earlier times. Apart from other changes, that new mood led lo the replacement of the simple bier on which in former days the corpse had been carried, by the triumphal "chariot d'armes" en which henceforth the effigy rode-at first en top of the cofhn, later alone and separated froni the corpse.104 Hence, to the lugubrious aspects

1

423

THE KING NEVER DIES

DIGNITAS NON MORITUR

which formerly dominated the funerary ceremonial , a new triumphal element was added, which may not have been caused by cite introduction of the .effigy, but which certainly received from the introduction of the funerary image, and through it, new and unexpected impulses. It should be emphasized, however, that che new triumphal idea differed profoundly froni that substratum of criumph which, of course, gave a certain tinge also to the mediaeval funeral rites; for that new concept of criumph did not mean to amicipate the king's future conregnatio with Christ in heaven, buz to celebrase and display the dead king's conregnalio wich the immortal royal Dignitas en earth of which che substance had passed en to che successor, but which still was visibly represented by the effigy of che deceased ruler.'°' For the las[ time, the dead king "acts the person of the Dignity." Moreover , the deceased king now approached che eternal Judge in heaven in a different attire: in the Middle Ages the king was buried with his crown and tus regalia, or copies thereof; now, however, he was naked or in his winding sheet, and he came to heaven as a poor wretch, whereas the regalía were reserved for the effigy, the true bearer of royal glory and the symbol of a Dignity "which never dies."°°°

Byzantium, as the saying is, was licurgically bifocal: a "liturgy of che court" had been developed side by side with the normal liturgy of the Church. At che French funerary rices, another bifocality developed: one ritual of the Church, observed by che clergy for che misery of che naked or half-naked man in che cofhn ("incernaily títere remains what is human"), and another ritual of cite state, celebrating through che effigy the ¡inmortal and regal Dignicy exposed on che coffin ("externally there appears che Majesty of God"). The criumph of Death and che triumph over Deach were shown side by side. Only a few features of che ceremonial connected wich the effcgy shall be mencioned here to illustrate che continuous juxtaposition of che dead king's earthly remains and his undying Dignicy, each of which alternately cuas given prominente. At che funeral of Francis I, che encoffined body in the flesli was exhibited for about ten days in che hall of che palace. Then che scenario changed: che eofhn concaining che corpse was placed in a small chamber while in che hall fhe lifelike effigy of che king, made by Francois Clouec, took fts place and lay in state-che so-called "imperial" crown on its head, che hands folded, .scepter and main de justice en pillows en either side of it (fig. 27). °' No signs of mourning were visible in che colorfully decorated room in which cloth of gold,

effigy was still lying en top of the cofres , a separation took place al che funeral of Louis XII. With Francis I's funeral 0 547 ), che coffin in a black draped chariot went in che van of che procession , while che effgy; in full royal criumph, was carried near che rear, che position al honor. For che details of a complicated clevelopment , see Giesey , Ch.vu,n.42ff.

si-- The picture shows not Francis 1 , hut Henry IV on bis lit d'honneur (cf. Benkard, Ondying Faces, pl.I , facing p.18 , wich che notes mi p.5g ), lince Clouet's effigy of Francis is not preservad ; however, from che extracts of accounts , published by L. Delaborde , La renacssance des arta a la cour de France (Paris, i85o), i,86-yo, che makeup of che effigy of Francis 1 can be completely reumscructed ; see Giesey, Royal Funeral , Ch,,,n.,7f. For che ''imperial " crown of che French kings see che , evo fundamental sn,dies by losef Deér, "Die ahendlündische Kaiserkrone des Hochmittelalters," alud "Der ❑ rsprung der Kaiserkione ," Sehweizerische Beitrdge zur allgemeinen Geschichte , vi,(194q), 5.3-86, and vm (c 9 n), 51-87; buz che transicion of cinc emblem co che kings of France and England ( cf. Sdvamm , Kdnig von Fra nkreic/s , 1,210) has as ect co be studied in detall, wherebv interesting aspects may be gleaned from tse French jsinista. For che lit d'bnnncnr of Francis 1, see Giesey, who stresses che crimnphal characcer. It is interesting co note in Chis con. nection that che so-called Caso-sm dolmis (limrgi(ally called also tumba) of che Piussian kings (Frederick \Villiam 1 ami Frederick che Grcat) clisplayed che triumphal idea exciusively, ns che picture psihhshed hy Benlatrtl (Undying Faces, pl.vi, an(¡ Pp34ff) shmvs dearly: a canopy of gold hrocade vaulced che elfigy in che ahuse coffn ; en che back of che canopy was che dead king's "State Portraic"

las This antithesis was felt apparently as early as che 156o's by Du Tillet, Recucil des Roys de France (ed. 1617 ), t,341, when he remarks that with Francis I and Henry II "a commencé entre divisé le corps de l'effigie, el mis dedans le chariot d'armes, ou de parement , pour [aire ( comme est vray-semblahle) I'effigie plus eminente : par ce moyen á l'effigic seule ont depuis esté rendues les honneurs appartenans au corps mis en arriére : cambien que par la future resurreccion il sera immortel." That is to say , che eminente of che image which receives en earth all che honors , is set over against che now deeaying corlase which nevertheless will be che truly inmortal body aher che Day of Resurrection. For che conregnatio wich Christ in che future lile (a privilege of the Redeemed at large, but espccially of kings), see che nmteriat collected by Schramm, "Herrscherhild ;" 222-224; also 0. Treitinger , Die ostrdmische Kaiser, und Reichsidee (Jena, 1938), 155f. asswhen che comba of che French kings were opened during che Revolution, che skeletons of all che kings up co Charles VII were found in roya ) robes, and also enclosed were crown . scepter, hand al justice and ring (not always all of [hese irems, l ut always some of them). Beginning wich Charles VIII, however, che rnrpses were found co have been buried without any royal acure or insignia. Cf. A. Lenoir, Musée des Monumens Frangais ( Paris, ,8x1 ), n,xcixfl: "Notice histnrique sur les inhumations faictes en 1793 daos l'abbaye de Saint-Denis ." The same accounc es in G. d'Heilly (pseud. for E. A. Poinsot ), Extraction des cercueils royaux á Saint-Denis en 1793 (Paris, 1868 ). See Giesey , Royal Funeral , Ch.vn,nos.c4,,5,34.

424

(beloav, n 371), while a trumpcc-blowing Victory or winged Genius ( taking che place of che Roman consecralio cagle or of a Christian angel) ascended from tse top of che canopy and carried as an imago clipeata che monogram flourish (which by that tizne had joined che heraldic cmblems ) of che dead king co heaven-a weird conglomera clon of manv svmbols (excepting Chris(ian symbols, which apparcndy did uot lit thc mood of an apotheosis).

1

425

1HL R 1 N'O .XL VER DIES

DIGNITAS NON MORITUR

gold lilies ora bloc ground, alirl othei lieraldic emblems dominated. On either side of rhe ü( el'holartevr viere altars on which [he clergy,

from the holy imagen to the images of kings and princes would

almosi incessantly, celebraren masses, and at tbe Loor of the bed

Portrait' just began to make its reappcaiance, in which images

seas a vesscl tvitb holy water Loe the t isitors tulio ca ie lo aspcrsethat is, keep away the demoras, not from rhe dead man's soul ora

beautifying rhe divine culi appeared on one level-or were 11 equiparated"-with those ''appertaining ro Civile discipline."

its journey lo heaven or from rhe flesh destined to return to dust,

and in which the ground was laid for the latcr renewal of rhe

but from rhe Dignity in efhgv which liad its osen guardian angel

antique custom o[ displaying rhe ruler's image in court rooms and

anyhow.36s

council chambers and thereby signifying dre king's ubiquity in

During that petiod, rhe image (ac(-ording to rhe description of Pierre du Chastel, which seas repeated by jean du Tillet) was attended as though the dummy were rhe living king himself:

court.171 The veneration of the funerary effigy o[ rhe French king, though

The table being set by rhe ofhcers of che commissary; the service carried by the gentleman servants, bread-carnee, cup-bearcr, and carver, with dre usher marching before them and followed by dre officer of rhe cupboard, who spread rhe rabie with rhe reverentes and samplings that were customarily made. After die bread uvas broken and prepared, rhe mear and other courses viere broughc in.... The napkin was presented by dre steward ro the most dignified person prescnt, ro wipe rhe hands of rhe Seigneur [i.e., the king in effigy]. The Cable blessed by a Cardinal; rhe basins of water for washing rhe hands presented at rhe chair of die Seigneur, as if he had been living, and seated in it. The drree courses of rhe mea¡ were carried out with sise sane forros, ceremonies, and samplings as they were wont to do during rhe life of the Seigneur, without forgetting those of the wine, with rhe presentation of rhe cup at rhe places and hours that the Seigneur had been accustomed lo drink, two times at each of his meals.... 38a

These services rendered to an image are as startling as is the active participation of rhe Cardinal and the clergy. To be sure, there were ritual services proffered lo sacred images-anointing, censing, aspersing, laving.a'o And to transfer quasi-religious honors aesFor rhe guardian angels, see aboye, n357. For the mcaning oí tire aspersiml oí the dead , see Ludwig Eisenhofer , Handbuclr der hathnüschen Liiurgik (Freiburg, 1932 ), i,3o8. The aspersion o[ holy images at their dedication was common practice , just like rhe annual washing oí some images; see , e.g., for rhe washing oí the Volto santo , W. F. l'olbach , "ll Cristo di Sutri e la venerazione del SS. Salvatore del Lazio;" Rendiconti della Pont. Academia Romana di Archeologia, xvn(1940-41), 97-126. See also below, n.37o. See Pierre do Chastel, Le Trespas, Obceques et Enterrenent de tres /rnult, tris psiissant et tres magnanime Francovs, par la graee de Dieu, Rey de France ( 1'aris, 1547), reprinted in Godefroy, Cctcmonlal ele France (Parir, 1619), 280f; Jean du Tillet, Recueil des roes de France (Parir, 16,8, first published 1578), follows Du Chastei very elosely. Cf. Giesev, Roval Funeral, Chl,o gin. seo Hofineister , Heilige dle, 2r2f, for the anointings of holy images; see ahoye, n.368, for lavings oí images. Appersion and censing oí images, oí course, was common usage.

426

not llave been quite foreign to a cenrury in which the "State

1

trimmed with some ecclesiastical exterior, was not of ecclesiastical origin . In bis Roman Histories, Herodian, when describing rhe apotheosis of Emperor Septimius Severus, described also a series of ceremonial services which were rendered to rhe effigy of rhe dead ruler: rhe effigy, treated hke a sick man, líes en a bed; senators and matrons are lined up en either side; physicians pretend lo feel rhe pulse of rhe image and give it their medical aid until, after seven days, the effigy " dies."n72 Herodian's Histories, and especially his chapter on Septimius Severos in Use Latin translation of Angelo Poliziano , were not unknown in France around 1500. Moreover, in 1541, rhe first full version of Herodian in 171 For the fluctuations berween ruler image and holy image in tire l6th century, for the English version of Lomazzo's see Jenkins , State Portrait , esp> p.6 ( with 0.39), rhe words culto Tratlato dell'arte, published in 1598, rendering straightforwardly and thus changing rhe referente point oí images. See divino by "Civile discipline" Nantes en also Jacques de la Guesle and Joys Buysson , Remnnstrances faictes a ), 42, where Buysson, Pan MDXCIV en la presente do defjunet Henry IV (Paris, r6io plainly, "que a French jurist oí Use Crown , says in his Remonstrance oí 1594 quite and attrihutes tu thetas " statues estoient tenues comme sainetes j leors [the kings in C.1.21 ami the right oí asylum. What he refers lo are, in fact , rhe laves collected tse way leading 25, also 8,.1,13 . By glossing on those laves the jurista again prepared toward rhe modere valuation oí rhe ruler images; see ahoye Ch.lv,n.72, and, for rhe crime oí lese majesty in case of the injuring of imperial statues and images, similar e.g., Lucas de Penna, on C . 12,2o, 5,n.28, 5.6246 , and 11g0,4,n.3, p446, though Sanders, A '1reaóse of remarks may be gathered in great numbers . See also Nicolas Me Images of Christ ami His Saints (Louva[n, 1567), 109, quoted by Yates, "Elizaoí Christ beth as Astraea ." 77,n.3, who defended against John Jewel the images of Christ are lo be destrdyed, are and the saints : Why, asked Sanders, if rhe images the image oí Use images oí ruleta co be respected? But "hreake .. . if you date rhe Queenes Maiestie or Use Armes oí Use realme " For Use "holiness " oí the "Armes regia, symbolized oí rhe realme ;' rhere is a lino leading hack lo rhe French gorda Use 13th century by the king's coat-of'arms; cf. Kern, Ausdehnungspnlitik, ever lince , was mdendv 4of, passim . The prohlem oí holy images versus ruler images, oí course discussed in the period oí Byzantine Iconoclasm ; see Use studics oí Ladner, in Dumborton Onhs Papera, Mediaeval Studies, 11 (1940), 127-149, esp. 137 fi, and in vi' (.953), 1-34. I shall discuss the rather comples prohlem elsewhere.

372 Herodian , Hist.Rorn., 15, 2; c[. Bickermann , " Kaiserapotheose;' 5f.

427

THE KING NE VER DIES DIGNITAS NON MORITUR

French-by Jehan Collin-was published in Paris, followed by a second edition in 1546, a year before the deatll and burial of Francis I."' Now, the French law clerk and historian jean du Tillet, who himself attended the funeral of Francis I, preceded his description of the modern effigy ceremonial with a detailed account of Herodian's report on Septimius Severus, adding a few scattered passages from other ancient authors as well as Eusebius' report of the post mortero government of Constantine the Great.914 Directly, or through the medium of Du Tillet, the classical authors hegan to exercise a considerable influence on t11e imagination of the French who were tempted lo believe that the French custom had survived from ancient Rome."° But to what extent they infiuenced the French ceremonial itself is a different matter. For the stimuli emanating from the study of Antiquity-undeniable though they were in Renaissance France-should not be overestimated, since the French ceremonial liad been developing the forms and rites of royal funerals quite independently: the effigy vas introduced after the English model, and not after the Roman model, and it was only subsequently that che image ceremonial was perhaps enlarged and embellished also after the pattern of ancient Rome. Moreover, the relation between the effigy and the legalistic Dignity "which never dies" led to the emphasis of certain features which were within the compass of contemporary jurists and political thinkers, but not within that of the Roman historiaras. When, for example, Francis I's successor, King Flenry II of France, carne to asperse the body of his father, it was not the body in effigy but the real corpse which flnally replaced again the effigy lying in state. It seems that the new king could not come lo visit the image 1'5 See F. Saxi, "The classical Inscription in Renaissance Art and Politics," Piarbnrg journal, 5(1940-41), z6 and 45, Lar Foliziano's translation of the Herodian chapter, and, for the French versions, Giesey, Roya( Funeral, Ch.ix. 374 Du Tillet, Recueil, 1.336f, mcntion.s, in addition lo Herodian, 5,2, also Cassius Dio, rvt,S4, and Eusebius, Vita Consl., 5,72. See, for che Conatantinian funerary ceremonial and lis peculiarities, A. Kaniuth, Die Beisetzung Konslantins d.Gr.: Unlersuchungen zar religiósen Hallnng des Kaisers (Breslauer historische Forschungen, 19 [Breslau, i94,J); P. Franchi de' Cavalieri, "1 funerali ed il sepolcro di Constantino Magno,'' Méloolges d'archéoloede el d'histnire, xxxv (1914), 2oy' 2(r and aloa Hubavx`and Leroy, Le mythe d' Phénix, 192ff. Cf. Giesey, Roya¿ Funeral, Ch.lx.

ara This, apparently, was the opinion of Da Tillet himself, and ir hecame a common misa nderstanding en the parí of French humanista who bclieved in the survival of Roman customs.

because- the image was treated as the live king in his Dignity. Apparently one of the two kings, either the demised or tire living one (though one only), had lo represent that immortal Dignity. From the fifteerith century onward the ceremonial involvements were such that, when both the corpse and the effigy were paraded in the great funerary procession, the successor king had to stay away altogether and leave the office of chief nlourner to one of the princes of the royal blood: the new king could not at once wear mourning and not wear mourning; nor could he, at the same time, "act che person of the Dignity" and cede this privilege to the effigy of his deceased predecessor. Therefore, there was no other solution except staying away.910 The funerary procession itself demonstrated very clearly the concurrence of two heterogeneous ideas: the triumph of Death and the triumph over Death. There was the ecclesiastical ritual of the exequies and tse general care attached to the dead king's body and soul; and there was the triumphal state ceremonial attached to the sempiternal glory synibolized by the effigy. This dichotomy was noticeable as early as 1498, at the funeral of Charles VIII. The procession conveying the corpse alone, without effigy, on a chariot from Anlboise, where Charles died, to Paris 17, Cf. Giesey, Ch.w, passim, esp. 47f. JacGues de la Guesle, Remonstrances (see ahuse, 1.371), P.52, sayo: ... messue la presente des Ros, doit estre accorepagnee de joye, el de contentement; raison pour laquelle lis n'ont accoustumé se trouver aux ohseques de tenis predecesseurs, ny encone le fils á celles du pero, n'estant conve'lable a leurs sacrees personncs s'eutremettre des mor tiaires.'' See also Du Tillet, 1,33,1. However, it was nos only unsuitable for a king to show mourning, bus also it ,ould have been 'loar awkseard for the new king lo appear in the presente oí his predecessor's effigy, to which regal honors still adhered; see, e.g., Vieilleville, Mémoires (ahave, n.34'$), 62, who describes hose the new king (Henry II) watched togetlrer with Vieilleville and the Marshal de St. André the funeral of Francis I-secretly and ineognito: y estant comete travesti. 'Ihe custom of staying away was fixed by Louis XII, at tire funeral of Charles VIII in 1498. It is perhaps nor amiss to recall in this connection the fact nlat the IIyzantine emperor avoided also ehe weatiug of mourning in the ordinary sense: wllereas all others wore black, he alune hure white, later vellose, before lit returned Lo purple garments; nor does tire pope seem to wear mourning; cf. Treicinger, Ostrómische Kaiseridee, 156,n.57• The underlying idea gocs far hack in the history oí ceremonial: ''He [the king] must separa te himself from the hmnan passions, and sirase himself clase lo the godo (xxp(¡nrra év cavróv dvd rm'v ávOpwsivwv ,ra&lwv, ceveryryílovra 51 rato Beols) " wiote Diotugenes, aulhor oí a Hellenistic tras tate Oa Kingship; cE Goodenough, "Hellenistic Kingship,° Delatte, Traités de la rorautd, 42f,269f; and for the problem in general, M. I'. Charlcanorrh. "Imperial Ucportmcnt," Journal o( Roman Studies, xxVI1 (1947), 3-1-38. That actntdly lile Itellenistic tractates ora Kingship were used in Lile i61h ce,aury for tire in terpre(a tion of thc French king's ''absolutism" will be demonstrated ora another occasinn: see, however, below, Epilogue, nos. Laff.

428

4,29

1111: kING NFIF.R DIE,S

DICNITAS NON AIORITL'R

liad the lugubrious appearance which one would expect: everything was drapeó in black, the banners itere furled, the sword of the rcalm Iras sheathed, and clic other emblems viere kept covered. When, liowever, upon the entry into Paris, the effigy was placed en top of the coffin, the mood changed fundamentally: the naked sword now preceded clic image adorned with che regalia and roya) insignia; che unfurled Banner of Trance 'which never dies" followed the efligy; likewise unfin-led standards paraded alongside the cofiin; ciad in their regal scarlet robes, che four Presidents of Parlement (there services eventually viere shifted from che corpse lo the effigy) carried che four corners of the cloth of gold on which che figure rested-in short, die effigy representing the Dignity "which never dies" made its Entrée into Paris: a triumphal Adventus rather than a mourning procession."1 Later un, when image and corpse were transponed separately, it remained che custom lo attach all che mournful elements to che naked body in clic coffin and to assemble all clic triumphal paf eantry around che efbigy, which alone was paraded under a canopy (fig. 29). 818 It was apparently in chis intellectual climate that there originated the triumphal clrariot for che dead, che modern funeral car, which until che beginning of che motorized age was used in practically all Western countries-or rather, it was reintroduced from classical models as interpreted by clic taste of the Renaissance.38 At che funeral of clic Emperor Charles V, in 1559, che triumphal idea was carried so far that a float recalling che em-

perur's victories paraded in dlc funeral procession-a blending of Renaissance trionfi and mediaeval tableaux.'a°

377 Cf. Giesey, Ch.v,n.goff, where successive French royal funeral processions of the ,5th and [ 6th centuries are reconstructed , showing che increasing pomp and display. The chivalrous elements may have been influenced by the sumptuous Burgundian processions of che t5th century, out the elements of triumph were decidedly in Italian neo-antique style, and come only after the French expeditions into Italy in 1494. In general on French Renaissance entrées, see J. Charrrou, Les entrées solennelles et triornpAales a la renaissance ( Paris, 1928). 378 See aboye , n.365; also nos .359f, for fierre Crégoirés distinction between Prince and regalia ; for an illustration of che canopy over che efhgy, separated from che wagon carrying che corpse , see Pompe Junerali falte in Pnriggi nella ,,serte dell' invitissimo Henrico IIII Re di Francia el Navarra (Franceseo Vallegio et Casarlo Doino D.D.D .), reproducen ¡ir Oiesey, Royal Funeral, pis, x' xv. The woodcut (fig. 29) forras che frontispicce of a pmnplilct on die funeral of Louis XII, L'obséque et enterrement du rey (Paris , 1515]. 310 See, for a few good rernarks on che snbject, Leopoid Eti!inger, "The Duke of Wellington 's Funeral (lar," )Yarburg lournal, 111(1939-40). 2541L also A. Alfdldi, "Chars funéraires bacchiques daos les provinces occidentales de l'empire romain," Antiguitd classique , nu(i939), 347-359, and A. L. Abaccherli, Tercula, Carpanta and Tensae in the Reman procession;' Bollcrino dell' assnziazione internazionale di studi mediterranei, ;1(1935 36), 111.

130

The juxtaposition of che lugubrious and che triumphal, che mourning for che dead king and che exaltation of che effigy, must have responded to some very general and very deep feeling of che late Middle Ages and che early Renaissance, since che sepulchral monuments of that age reflect similar ideas. Fruto che times of Louis XII onward (d. )515), che tomó monuments of che Prenda kings at St: Denis began to display che king or the royal couple as they were in life, kneeling in their regal attire before a prieDieu en top of che temple-like porcico of the monumeny within the porcico, however, lay the dead king in his human misery, naked (except for a drapery) and his eyes closed.331 That with che spreading of Renaissance ideas Chis nakedness tended to become a nudité heroique rather than a symbol of man s naked misery is a different macter: Caterina de' Medici, disgusted and horrified by a macabre naturalistic tomb efhgy of Ser own self, commissioned a second tomb figure more lo her taste which represented her as a reclining Venus S82 Tliose, liowever, were not the ideas which liad governed che "high Gothic" sentiments of the fifteench cencury at the beginning of which that type of duplicated tomb monuments, or at least a certain type of dual representations of che dead, made its first appearance. Without entering into any details of a complicated development in Western sepulchral art, it may at least be mentioned that in che late twelfth cencury the reclining effigy of the deceased-che gisant-began to replace the hitherco customary sculptured or incised places which showed che dead standing in an upright position, no macter whether che píate itself was placed in che wall of a church or in che floor303 Moreover, double monu380 Ettlinger , op.cit.,255,n.i. 381 See che magnificent reproductions of che tomos at St. Denis by Jean-Fran4ois Noél and Pierre Jahen, Les gisants (Paris, 1949). 382 The macabre first model by Girolamo della Robbia (cf. A. Michel, Flistoire de l'art [Paris , (905-28], 1v:2,67of, also P. Richer, L'art es la médecine [Paris, lgo2], 514f and fig. 322) is now in che Louvre and therefore, ironically, far hetter known today chao [he Venus-like tomó effigy itself, which can be viewed in the abbey of St.-Denis only from a distante. 883 Professor Erwin Panofsky kindly pointed out to me that from che genuine gisant another kind of tomb figure has to be distinguished which mighc be called a pseudo-gisant. The latter is really an upright statue (known from che carlier

1

4,31

THE KING NFVER DIES DIGNITA.S NON MORITUR

ments in which che deceased appeared both as a dead human being (though not as yet as a "corpse") and in the costume of his social rank in life are found sporadically during the late thirteenth and the fourteerith centuries.'a' Finally, a new feature was added. By the very end of che fourteenth century, the skeleton or cadaverous body began to appear in mediaeval art, a definitely latemediaeval feature; we may recall, for example, that the first Danse macabre, the one in the cloisters of Saints Innocents in Paris, was executed under Charles VII, in 1,125 or 1426.385 By that time, however, this grim theme of high Gothic art was combined with the sepulchral representation of both the gisant and the (as yet rare) double representations of the dead. The result was a species of monuments showing the reclining dead as a putrefying skeletonlike corpse, whereas on some higher level, or superimposed on the tomb, che deceased would be seen pictured such as he liad been during his life. The gisant, thereby, was often transformed luto a knecling, or sometimes sitting, figure980 It is usually said that the first te have himself represented as a cadaverous corpse was a physician of Charles VI, Guillaume de Harcigny, wlho died in 1393 and was buried in the episcopal chapel at Laon; in fact, not too much will be lost if we forget about the sculptured or incised [omb piares ) laid horizontal : che drapery hangs stifly clown co che feet as en a standing figure, over che head there is often a sculptured niche, and che enes are oyen. -1 Le genuine gisant , however, fs truly a reposing figure; the eyes are closed , and che folds of che gown fall naturally to either sirle of the recumbent body. Probahly che carliest [ omb effigies of the genuine gisant pattern are those in che Abbey of Fontevrault of che Plantagenets Henry II and Richard 1 as well as their queens, and the Brunswick tomos of Henry che Lion and his wife, a daughter of Henry II of England. The pseudo-gisant, however, dominated (ser, e.g., che tomos of che English bishops, figs . 30, 31 ), lasting in some places until che 16th century, although in che eariy ,4th century the genuinely reposing gisant became more and more popular. asa For one of the carliest specimens - che [omb of Philip ele Courtenay , pretender Lo the Latin Enlpire (d. 1283), at San Francesco in Assisi_see W. R. Valentiner, "The Master of che Tomb of Philippe de Courtenay in Assisi," The Art Quarterly, xrv(1951 ), 3-18. asa For che latest monograph en Ibis suhject , sea james M. Clark , The Dance of Death in the Middle Ages and the Renaissance (Glasgow, 195(3), who could not yet profit from Robert Eisler , " Dance Macabre , Traditio , VI(1948), 287-225, a study en che oasis of which a feo, ¡tenis in iba hrilliant chapter en "Das Bild des Todes'' by J. Huizinga , Herbst des Mittetatters (3rd ed., Snntgart , 1938), 193213, may be revised. aso Por che kneeling figure atop the reclining dead, see ahove,'n.38i; a seated statue of William che Sil-Lit in addition Lo the reclining sarcophagus figure (made between 1614 and 1621 ) is found in the Nieuwe Kerk at Delft.

sliightly earlier tomb of Francis I de La Sarraz, in La Sarraz (Canton of Vaud), che horrors of which would spoil the appetite even of an inveterate ghou195e There followed, within a decade after the Harcigny tomb, dle now destroyed sepulchral monument, in Avignon, of Cardinal Lagrange, who died in 1402. The arrangement of this monument is coniplicated in niany respects, and so is the reconstruction of details. One important feature of tire composition, however, is indisputable: Lagrange was represented both as a naked, skeleton-like corpse and as a cardinal adorned with all the pomp and the regalia of his Dignitas 980 A slighdy different type of tomb architecture, or perhaps only a more condensed and more dialectical version of Lagrange's monument, became famous in the early sixteenth century through che mausoleum tombs, at Brou, of Philibert II of Savoy and his Duchess MIargaret of Austria, although here tire horror of eleath was mitigated asa But tire pattern of those princely [omb figures cuas probably first developed in England. Canterbury Catltedral harbors, as it should, che body of Archbishop Henry Chichele, Primate of England for 29 years-from 1114 lo 1443. In 1424, ten years alter his accession, Chichele began to build che tomb in which finally he 'vas buried. Within che tomb, and barely screened by the Gothic trelliswork, che dead Henry Chichele's mortal body is exposed: naked, all skin and bones, che eyes gazing with a vacant stare, the pitiful corpse lying without a pillow on a linen sheet (fig. 3o).400 On che top of che tomb, however, magnificently actired, rests che gisani: Archbishop-Primate Henricus Cantuariensis in dalmatic, che pallium around his shoulders, 387For Harcigny, see C. R. Moret', Medioeval Art (New York, 1942), 390. For che tomó of la Sariaz, see H. Reiners, Burgu nr}iscls ale,nnrudrehc Plastik (Strasbourg, 1373), p.70 (with notes 99 and ton, on p319) uul figs. 86, g;o; the date of chis tomó, which in its tansemfng repulsiveness is fm- hnn being `realistic,' may be about 13¡0, as Prol'essor I'anofsky kindly pointed out to me. 388 Eugime Mffntz, "A Iravers le comrat Venaissin, Le oausolie du Cardinal de Lagrarige 9 Avignon;" L'Ami des monuments el des orts, Iv(i8go), 91-95,131135, esp. 132; see also Mále, L'art religieux de la fin de moVen elge , . 131, fig. 194.

as) For che romhs at Bmu, sea Victor de Mestral co nbrenlont , La sculpture a l'églíse de Brou ( Paris [1gl7]), pis.23,24,26,27. asn l am greatly indehted to Professor William A. Chaney, in Lawrence College, who firsi called my attemion Lo [his lomb, provided me with phocographs, and gaveme other valuable information . On Chichele, see (he works of E. F. Jacob, and for the present purpose especially his essay en "Chichele aod Canterbury," Studies in Medioeval Hiotory Presenied to Feederick Alaurice Poeuicke (Oxford, 1948), 386-404.

432 433

DIoNITAS NODN MORITf.Vt

thc Canterbury panero. Thcre is, for exarnple, ¡ti addition to the

the precious mitre on his hcad, tie leal iu pontifical shoes. 1-lis

tombof Bishop Richard Fleming ((1. 1.I';t), in Lincoln Cathedral,

eyes are wide upen. his hand, iolded in praver. Nor is hc in clic

the mouumcnt oí Bisliop Beckington of Bath an1 M ells !cl. [4651,

miserable loncliness of ilic cnlaci:uccl bodv bcloty: angels are ucar

which probably vas futislied in 11,,l, fourteeu years hetore tlie

the pillow on ['hiel, bis mitred hcad tests. antl kneeling attcndants

bishop's death (fig. gt).""' His monument is less sumptuous than

near his feet join din in praver.

Chichele's tomó at Canterbury, bur a;grain we recognize the strong

The funerary ceremonial obserrcd on bis dcath has lo be tan-

contrasts: thc naked corpse in the tomó and the efligy in full

sidered roo. Chichele dit•d in I.tuulieth froni tvlierc his rcntains

pontificals lving on top of thc tomó. Sor teas lhis faslaion restricted

were transferred in solemn procession ro Cauterbury, escortecl bv scores el torchbearers and two hundred gentlemen on liorseback

to princes oí the Church. John Fitzalan, ijdi Earl oí Arundel

with their retinues. Whereas in later times it was the custom lo

(d. 1435), was buried in a tomb showing the body in corruption

carry four banners oí saints at tire four corners oí the coffin, the usage still prevailed in tire fifteenth century to have instead the

below the effigy in glory (fig. 28); and King Edward IV decreed in his will ( June 20, 1475) very circumstantially how he wanted

bishop's personal banner as well as the banner of his bishopric

lo be buried in the Chapel of Saint George, at Windsor: bis body

displayed by a gentleman mounted on a charger. One feature, in

was lo be buried low in the ground, 'and upon the same a stone

particular, attracts our attention: the cofin, shouldered un a biei,

to be laied and wrought with the figure of llethe," and on the

was topped by Chichele's effigy dressed in Pulí pontificals and

vault over che tomb there was to be —ara Image el mire figure,

adorned with al¡ the insignia of his office.89r It is true, the display

which figure we will be of silver and gilte," or, may be, in cop-

of a bishop's effigy fell in desuetude in sixtecnth-centurv England;

per.)a* In all those cases, one is tempted to say with the poet:

but it was the common custom in the fifteenth lo parade at

"Of marhle is the stone, and putried ther he lies."8°' We may think, though, of other words as ivell cohen contem-

funerals the dead body oí a high dignitary oí the Church together with his image.112 Hence, the sepulchral monument of Archbisliop

plating those tombs of powerful princes spiritual and secular.

Chichele, showing the effigy on the top of the tomb and the

For the decrepit and decaying body natural in the tomb, now separated from the awe- inspiring body politic aboye it, appears

corpse within the tomb, was the naturalistic reproduction of realthe effigy in regalia on top of che coffin which contained the almost

like an illustration of the doctrine expounded over and over again by mediaeval jurists: Tenens dignitatem est corruptibilis, DiGNt-

naked

TAS tomen semper est, non moritur-"The incumbent el a

ity, rendering simply what was seen at the funerary procession: corpse.

o

Since the parading of tire effigy was the generalansa,,e at a bishop's funeral in fifteenth-centtny England, it might be expected to find more episcopal tombs worked during dtat period alter

393 For che tomh of Bishop Richard Fleming , see G. H. Cook, Portrait of Lincotn Calhedral (London, a9 5o), fig. 62, te which Frofessor Panofsky kindly called my attention ; the tomó is dated by F. S. Prior and A. Gradner, An Account of Medioeval Figure-Sculpture in England (Cambridge, 1912 ), 717, fig. Sa6, erroneWormald, in London, ously Ca 1370; bit, as Profcssor l'anofsky and Mr. Francis inform me, the date of the tomb is ca . 143o. For the Beckington tomb, see Lawrence Stone, Sculpture in Britain: T h e Middle Ages (Penguin Books. 1955), 2a3f. Pro-

asiJacob , "Chichcle and Cauterbury;' 358. Por the hanncrs displayed, ser nexi note. 392 Brit.Mus ., Egerton MS' 2642, fol.,94 ( 1 could avail myself of Dr. Gicsey's G9s copy), contains a Note of ¡he Manner of Che Burieng of a Bysshop in ofd Temo used, of ca . a56o, which describes i5th-centurv customs no longer practicad:

fessor W. A. Chaney was kind enough te provide me with a photograph and to give me additional information about date and some details. On Beckington, see the introduction te Ofcial Correspondence o( Thomas Bekynton, ed. George Williatns (Rolls Series , 562; London, ¡872 ); also W. F. Schirmer, Der englische Friihhumanisnms ( Leipzig, ig3i ), 66ff, with lirerature in n.35.

The Corpse ro bee Layed in th'aforesayd charre, and te hace upon the torse a figure apparelled in a Bisshopps araye Mytred, and in his hand a Croveser, and en bis hands red gloses, and en his feet red shewes , and lisa said gloses to bee garnyshed with Rvnges . Tire figure is not nowe used. And in times past ti gentleman was wonte riding apon a goodly coursier u'apped te beata a ilanner of the Armes of the saicl Bishopp and of the Bvshopprickc to be parte in palle. But now the usage is te hace but lisa üii hanners of Sacnts at che fower corners of the charet borne by fower gentlemen in monaing habites with hoods over theire faces.

fl 3 . ty

ae+I would liare missed (he Arundel tomb without the kind hele of Mi. Francis Wormald, who not only mentioned it te me, but also provided me with :he photo. See, for che will of Fdward IV, W. H. St. John Hope, 11'indsor Castle (London, 1913), 11,376; ser also L. Stone, Sculpture (ahoye, 2. 393), 2i3f. ams Hope, "Funeral Efigies ," r,25, gnnling Robert of Bourn 's translation of luid lingtnn's Chronide.

1

ff35

T HE KING NEVER DIES

DIGNITAS NON MORITUR

Dignity may decay, the Dignity itself is nonetheless forever; it does nót dic."

of countless fictions-was about to lose its absolute, or even its imaginary, values: unless it manifested itself incessantly through new mortal incarnations, it practically ceased to be immortality. The King could not die, was not allowed lo die, test scores of fictions of iinmortality were lo break down; and while kings died, they were granted the comfort of being told that at least "as King' they "never died." The jurists themselves, wlio had done so much to build up the myths of fictitious and irnmortal personalities, rationalized dre weakness of their creatures, and while elaborating their surgical distinctions between dle inmortal Dienity and its mortal incumbent and talking about neo different Bodies, they had to admit that tlieir personihed inunortal Dignity was unable lo act, to work, lo will, or to decide without the debility of mortal men who boye t he Dignity and yet would return to dust.'°°

Our rapid digression on funerary ceremonial, effigies, and sepulchral monuments, though not directly related to che rites observed for English kings, has nevertheless yielded at least one new aspect of the problem of the "two Bodies"-the human background. Never perhaps, except in those "late Gothic" centuries, was the Western mind so keenly conscious of che discrepancy between che transience of the flesh and the ¡inmortal splendor of a Dignity which that flesh was supposed lo represent. We understand how it could happen that the juristic distinctions, though developing quite independently and in a totally different thought compartment, eventually fell in with some very general sentiments, and that the jurists' imaginative fictions met with certain feelings which in the age of the Danses macabres, where all Dignities danced cvith Death, must nave been peculiarly close to the surface. The jurists, as it were, discovered che immortality of che Dignity; but by this very discovery they made che ephemeral nature of the mortal incumbent all the more tangible. We should not forget that che uncanny juxtaposition of a decaying corpse and an immortal Dignity as displayed by the sepulchral monuments, or the sharp dicliotomy of the lugubrious funeral train surrounding the corpse and che triumpliant float of an effigy-dummy wrapped in regalia, was fostered, alter all, in the same ground, came froni che same cvorld of thonght and sentiment, evolved in dre same intellectual climate, in which che juridical tenets concerning the "King's two Bodies" achieved their final formulation. In both instantes, there was a hody mortal, God-made and therefore "subject to alI Infirmities that come by Nature or Accident," set against another body, man-made and therefore immortal, which is "utterly void of Infancy and old Age and other Defects and Imbecilities." In short, one revelled in strong contrasts of fictitious immortality and man's genuine mortality, contrasts which che Renaissanee, through its insaciable desire lo immortalize the individual by any contrivable tour de /orce, not only failed to mitigate, but rather intensified: riere was a reverse side lo che proud reconquest of a terrestrial aevum. At the same time, however, immortality-the decisive mark of divinity, but vulgarized by the artifice 436

Nevertheless, since lile becomes transparent only against the background of death, and death against che background of life, the bone-rattling vitality of the late Middle Ages appears not devoid of some deeper wisdom. W'hat one did was to build up a philosophy according to which a fictitious immortality became transparent through a real morral man as its temporary incarnation, while mortal man became transparent through that new fictitious immortality which, being man-made as immortality always is, was neither that el lile eternal in another world nor that of the godhead, but that of a very terrestrial political institution. REX INSTRt1MENTUM DIGNITATIS

It had been difficult enough to distinguiste between man and his Dignity, and to separate une from the otlier. It was no less difficult to put them together again and to introduce theories which made it plausible that "one person sustains in the place of 390See, e,g.. llaldus, on C.7,613,u- , fol.gi,: "... sine quo dignitas nihil facit." Also Baldus, cona., n1,1zs,n 6, fol.34: ''quia dignitas sine persona nihil agit,' with the addifional renark "quia persona fati[ locura actui;" that is, use person actualizes che potentialities resting in the Dignity. See furthe' Con.c, tu,¡ 59,n 5, fol.ggv: "naco verunt est dicere quod respuhlica nihil per se agit, tapien qui regir rem publicara agit in virmte rcipublirae et dignitatis sibi collatac ab ipsa republica." concerning different concepts of capability and incapahility of a fictitious person to act or lo s,,ill, see Gie'ke, Oen.R., u,,16sff. The English innata, of course, made similar stateraents concerning che hody politic which became capable of action only through the body natural.

tl

437

DIGN¡7AS No \r 11OR17 , 1, R

7III'' Al AG 1'l! PER DIAL

two, one a real and the other a fietitious person,oi that a king has "two bodies" Ihoug^h he has ")lit one person.'"'' Once more it was theology as wcll as Canon Larc tchich procluced tbe similes by means oí tchich the jurists (ould cenarte lo explain die oneness oí the two bodies-o1 the inoital in the inunortal. and oí the immortai in the morral.

"Fhat the king' as Kiug reas "incorporated reilh bis subjects, ami they seith hita, ° rnts a saving at tchich the jurists, dcspite the ominous word "incorporated," con Id base arrived easily [ruin the relatively safe grounds of organological concepts or oí the corpus mysticuna doctrine in its secularized forro; it nteant that the king as the head and tite subjects as the tnembers together formed the body politic oí the realin. It seas a slightly differenf matter, however, when this "together" oí a composite bodyplausible within tite limitations oí the metaphor-was transferred from "head and members" to tite head alone, and when that composite nature was reduced to the king alune, that is, tu bis 'two Bodies. " In the case oí the Duchy oí Lancaster, the jurists argued that the king's body natural seas "neither divided by itseif nor distinct from his office or che roya] Dignity," but that they were a Body natural and a Body politic together indivisible; and [that] these two Bodies are incorporated ¡ti one Person, and nctke oue Body and not divers, that is, the Body corporate in tlte Body natural, et e contra the Body natural in the Body corporate'°0

Once this, so to say, inonistic formula was comed, implying neither more nor less than the king's incorporation with himself, with his Dignity or his Body politic, it was naturally duoted by others as well-for example, by Francis Bacon: There is in the king not a Body natural alone, nor a Body politic alune, but a body natural and politic together: corpus corporatwn in corpore natural¡, et cot pus naturale in corpore corporato °U1 sor Baldus , en c.3 X 2,1 o,n ^, In Decrel., fotaln1': "nota tic quod una persona sustinet vicem duarnm, unans vete, alteran finte, el qumtdoque titraniquc perso iam vere propter concursum officiorum." Cf. Cierke, Gen.R., 111,455,n.74, who mentions other similar places. avs Maitland, Se(Fssa)' s, 110 ,11.4; see also Bacon, Post ieti, 667 (referring tu Plmvden, 285): . not a body natural alune, nor a bo(1y politic alune, bu: a body natural and politic together." Ser ti,,> helor, 15 luo- Nadie) incorporated

in one Person."

It is ea.sy lo see how one arrived at that new formula: the `subjects plus King," being incorporated rvith cacit other and forming together the body politic oí the reahn, rcere replaced by the "King's Body politic" rvhich nou° Tras incorporated rcith the "king's Body natural."

Actually, the vcry long history oí a very old theological formula may tcell base culminaled in this ultra-fanciful ntaxint oí Fnglish jm'ists. In loba, al lit(, beginning' of the Strugglc of Investiture, Petrus Damiani, tbe ptu'est mine1 oí that revolutionarypcriod, developed a progrant of mutual support and understanding lo prevail between papacy and empine and, while summarizing bis arguments, he demanded that henceforth there be fotind "Irte king in the Roman pontiff, and the Roman pontiff in the king."902 This was a political utterance on an almost cosmic rever suggesting titat the two universal powers be incorporated with each other just as kingship and priesthood were one, and quasi "incorporated" with each other, in the divine model oí both powers, in Christ.Petrus Damiani, oí course, was not the source oí the Elizabethan jurists, for bis works were hardly vvithin the compass of juridical thinking. Instead, we are sent back to the jurists. "The Prince is in the respublica, and che respublica is in che Prince," wrote, at the beginning oí the sixteenth century, Matthaeus de Afflictis, an author incessantly quoted by the French jurisprudents;903 and yet he repeated only what Lucas de Penna, in the fourteenth century, and Andreas oí Isernia, around 1300, had said before: "Just as che Church is in the prelate, and the prelate is in the Church ... , so is the Prince in the respublica, and the respublica in the Prince."'°° With this "equipatation" oí prelate and Prince, Lucas de Penna indicated his source, to which Andreas oí Isernia had already referred; °° that is, to Gratian's Decretum, to r93,3gff: "... quatinus, 402 Petrus Damiani, Disceptatio synodalis, in MGH, LdL, mediatore Dei el hominum haec duo, regnum scilicet es sacerdotiuni, sicut in uno personae tanta sibimet divino sunt conflata mysterio , ita sublimes istac duae mutuac caritatis glutino et rex in invicem unanimitate iungantur, et quodam . ,' a place so tchich Romano pontifiice el Romanas pontifex inveniatur in rege . Professor Theodor E. Mmnmscn kindly called my attention. See Fndolin Dressler. Petrus Damiani: Leben and 1-Verk (Studia Anselmiana, xxxiv; Rome, 1964'. 67,1.66.

nos Matthaeus de Aahictis, on Lib.aug., 11,3,n.62, fol.ur: 'quod princeps est in republica et respublica in principé' (quoting Lucas de Penna). ♦aa See aboye, Ch.v,n.6o. (Qui .suceess.ten.), for _'": "Princeps et 452 Andreas of Isernia , on Feud., 1,3,n.16 Respublica idem s¡ni ... En princeps in Repoblica sicut capar. ec Respublica in

ssesee aboye , Ch1,1113, also ag.

405 Plowden, Reporta, 213; see aboye. CIi.rn.q. +01 Bacon, Posbnati, 667

43.9 4,38

TRE KING NEVER DIES

a famous chapter in which it is said that "the bishop is in the Church, and the Church in the bishop."c°a Graban, of course, and other canonical collections before him-such as that of Ivo of Chartres"°'-merely reproduced a famous letter of St. Cyprian, Bishop of Carthage in the third century, which has always been taken as a cornerstone of the doctrine o€ the "monarchic episcopate" and in whicat Cyprian declared: '"The bishop is in the Church, and the Church in the bishop."109 This form of inversion goes back lo tila Fourth Gospel (John 14:10): "I am in tire Father, and the Father is in me," a verse lo which (together with John lo:3o) not only Andreas of Isernia referred, but also-very long before him, and in a most curious fashion-the staunchest fighter against Arianism, Athanasius of Alexandria. When defending tila Pauline doctrine of Christ as the Image of God and, therewith, the divinity of the Son and his coequality with the Fatlier, Athanasius resorted lo che simile of che emperor's image, which he called "risa idea (eiSos) and form (µop^.4) of the emperor," and said: "The image might well speak: '1 and the emperor are one, I am in hin[ and he is in me.' —I`1 eo siart in capita, ur diritur de praelato in Ecclesia, et Erclesia in prxelam." Andreas of Isernia repeats that image in Prooem. ad Eib.ang., ed. Gervone, p.xxvi, and ca,ried the 'equiparatiou' of Prince and prelare even halher in his gloss on Feo d., 11,56,11.81 ¡ Que, sunt regata), fol.3o6. '¡he passage is int eresting because Andreas in fact mm hines and (wi.sts tpassages 'co of the Fo unh Gospel (john 1020, and 14:1o)-just as Athanasius had done long before hizo (below, 11,409). The jurist, however, does not refer to the Gospel bol to the Decre tuco (c.7,C.vu,q.1; see next note) and to a decretal of Innocent III (c,tg X 5,40, where only the Glos.ord. on the rasos and Y. et si capitulum explain the referente). Moreover, in all three passages Andreas quotes Seneca, De clementia, 1,5,1-faithfully repeated by Lucas de Peona, on G. u,58,7,n8, p.564 (see aboye, Gh.v,n.(j5). 406See c.7,C.V1I,q.1, ed. Friedberg, ',568f.

407See Friedheig, t;56S,n.1 o6, for the earlier collections. sos Gyprian, ep.613,c.8, ed. Hartel (CSEL, i n ), 11,733,

409Athanasius, Orados !II contra 4riunos, c,5, PGr, xxv1,332A, (]note{[ by I.adner, "The Concept of the Image," 8 atol 24,n.3,: ebro, 4p ' 80µ8p. 'Byw yhp €p Esetpw elpi a0seivos ip €µ0i. See alzo Ladner tenerfan E Us tilas0i lata á rcpe(i cpti etironss of chal passage by John of Damascus and che Second Conncil of Nicaea (787) with Chas passage une may compare the London Magical Papyrus, cd, K. Preisendanz, Die g'ricchischen Enuberpapyri (Leipzig and Berlin, 1928-3,), 11,17 (P.vm,37f1): oD yap aa, ca! ¿5a aú- :ñ oó, H0µ1 Apdp cal lpi; obp• éyw ry&p 8lµ1 rb ;C5waúp o'ae. See also, foz parallels, Preisendanz, 11,123 (P.xnt,795ff) wilfred L. Knox, Sorne Helienistic Elements in Primitiva Christianity (Schweich Lectores of the British Acaderoy, 1942; London, 1944), 78,11 3, considers [hose passages "the nearest parallel to the Johannine language" (i.e., John 1o: 30, and 14: 111); see also E. Norden, Agnostos Theos (Berlin. 1923), 305, for the language of John. All [hose parallels, however, do 1101 contain the 'lord dp (in), which is essential for the development from John 14: 1o, Co Cyprian, ep.66,e.S, and {[lente Co the eorporarional doctrines of the later Middle Ages.

440

D/GNITAS NON NORITL'R

We now understand where in the last analysis the christological undercurrent in the jurists' language derivad from. At any rate, When the English judges in the sixteenth centliry tried lo conjoin again what they had separated, and declared that the body politic ovas incorporated with the body natural, and vice versa, they clearly applied theological and christological language as well as canonical thought lo their fictions. Once more, as so often before, tila bishop in his relation lo his Church served as a pattern Eor expounding the relation of the king lo his kingdom as well as lo his body politic. No doubt, St. Cyprian's coinage had been changed, but the original die and the die-sinker are still reto'nizable. Moreover, bis doctrine of tila monarchic episcopate did not lit badly as a model for the maruring absolutist monarchies in which the king became, in more iban one respect, pontifical. `° The manner of speech which tila English jurists sported suggests, however, yet another layen of theological thought. When those judges argued in court about [he consolidation of the two bodies in one and thereby used phrases such as "together indivisible" or "two Bodies in one Person," mhey arrogated a set of distinctions found in tila language of tila Creed and normally reserved Eor christolooicat definitions. To be sure, those lawyers were not talking about Clic king's "two Natures" but about his "two Bodies." However, ove may recall that the thcologians, ever sinco, the twelfth century, explained that Christ liad two bodies (one bis individual natural body in the flesh, and the other his mystical cellective body of which he was the head)°r' though indeed but one person. Argument.s concerning the "two Bodies" thus became applicable CO the "two Natures" as well, and vice versa, even though the ovo notions did not coincide completely. Now those arguments served, by transference, lo explain the "two Bodies" of the king; and in that practice tila English lawyers had their predecessors in the fourteenth century. In one of bis Consilia, Baldus, as ove recall, distinguished between the "Majesty" and the "person in Majesty," and while discussing very elaborately the Majesty or Dignity as something distinct from the person of the individual king, he remarked: Here we are aovare ol the Dignity as the principal, and of che person °to Concerning the "Pontificalisnt" ni lile ahsolute mouarchs, see my remark, in "Mysteries of State." 67ff. ul See abovq Cli.v,nos.1 jlf.

T H E FINC NEJER D1l- S

DIGNITAS NON .IORITUR

as the instrumental. 1lence, che Iundamcni of the [king's] acts is that very Dignity rs'lssch is perpetuad.""

concerning che econoiny of salvation. 1-Ie pointed out. for example. that

Baldus must hace considered tse distinction between the (rrinripalis (thc perpetual Dignity) ami tse inshluncnlalis (cite mortal king) peculiarly useful, for he applied dtose notions in other places as svell. But vvitat did those notions really mean and tvhence did Baldus bonote themi The question is interesting enough to justi[y a hrief digression into Thomas Aquinas' teaching about che manhood of Christ. Through Aristotle, Aquinas became acquainted with che various meanings of organon or instrumentum and learned how to distinguish between cite "conjoined instrument" (for example, che hand) and che "separare instrument" (for example, a hanlmer or axe). Moreover, Aquinas adopted also che distinction between che instrumentum animatum (a ltelmsman, for instante) and an instrumentum inanimatum (the rudder).911 Mainly throtigh tire medium of John of Damascos, Aquinas then became acquainted with a tenet of che Greek Fathers according to which Christ with regard to his human nature, tbat is, tse incarnate Christ, xvas tire instrument of che Godhead, chal is, che triune Deity as well as his own divine nature-h u manitas instrumentum divinitatis.411 Aquinas, by combining those two strands (and he seems lo have been che first to do so consistently), naturally gained new aspects

che nlanhoo<1 o[ Christ is che instrument of die Godhead: not, howecer, as an intmimate instrument whidt itself veis in no tvay bus is oniv aucd on, bus as an anirnated insnunicnt (endon'cdi rv'itts a racional soul, tehieia is so acted en thai it also acts.'1

412Bardus, Consilia, m,12t,m6, [01.34: "Ibi attendimus dignitateni tanquam principalem et personara tanquam i nstrumentalem. Unde fundamento u1 actos est ipsa dignítas quise est perpetua." In che same paragraph, Baldus makes also tire distinction "quod persona sit causa inmediata, dignitas amero sic causa remota;' whereby It should he recalled that God is onen said lo art as Use causa veravta. 412 The mosi famous passage is Poü(ics, 159315,27 lo 12545,1; see Aquinas' E.rposino in Polit.Arist., ,/§52ed. Spiazzi, 15f: also 12gbb,11-12, and 888, p.2,. Sed also De anima , 432a,r-2, for sise hand as the organ of organs, and De (arribos animatium , 6875,19-21 further Nicorn.Eth ics, u6rba-5; Endemian Esbies, 12416, 22-24; and che Ps.Arist. Probleniata, 9556,2311. I am greatly indcbted to Professor Harold Cherniss for his help and advice in Chis master. Tschipke (see next llore), 143, secros ro underestimate tse Aristotelian in fluente on Aquinas in this particular case. 414 The whole subject has been treated Tschipke, O.P., Die Menschheit Christi als Berücksichtigung der Lehre des Heiligen gische Studien , LV [Freiburg, 1g4o]); see

and thoroughly investigated by Theophil Heilsorgan der Gottheit unter besonderer Tiramos von Aquin (Freiburger 't'hecloalso M. Grabmann, "Die Lehre des Erzbischofs und Augustinertheologen Jakub von Viterho (+5307-8) vom Episkopat und Primal und itere Beriehung zunt Heiligen Thomas von Aquino," Episcopus: Studien über das Biscliofsarnt ... óardinal von Fau/mber ... dargebraelrt (Regens' burg, 1949), 1go,11 lo, for further literatura on tse subjes1; for Johannes Dauwscenus, see Tschipke, nglf.

442

That is to say. lhe incarnate Christ acis as che ivutrumcnlnm animatum of che Deity, his own divinity included. Or clsc, Aquinas might distinguiste three different grades: God teas che causa principalis, Christ being a mortal man was che instrumentum coniunctum, whereas tse sacraments of che Church appeared as instrumenta separata: The principal effecting cause of grace is God himself, to whom che manhood of Christ compares like a conjoined instrument, and che sacramcnt as a separare instrument.Se

In a similar fashion, Aquinas then interpreted che bishop or priest as an instrumentum coniunctum of che mystical Body of Christ; bus che bishop could appear also vicariously as an instrumentum animatum of che Deity, whereas tbe sacrament which he dispensed, appeared as tse instrumentum separatum.4" Aquinas himself transferred that metaphor also lo his philosophical anduopology when he said that "insofar as che soul is che mover of che body, che body serves che soul as an instrument."111 It seems that what matters chieffy liere is not only che functional cbaracter -of che manhood of Christ, bus also che concept of che bishop who acts as che animare instrument of tse Deity and, at che same time, as a conjoined instrument of che corpus mysticum. Aquinas could nos have foreseen lo !visar extent his teaching might serve che purposes of che jurists when they enlarged upon 415Aquinas, .Sarnosa Usen!., ut,q.7,a.i,ad 3: "quod humanitas Christi est instrm mentum divinitatis, non quidem sicut instrumentum inanimatum, quod nullo modo agit, sed solum agitur, sed tanquam instrumentum animatum anima rationali, quod ira agitar quod etiam agit.410 Aquinas, Sumaa theol., m,q.62,a.5: "principalis autern causa efficiens gratine est ipse Deus, ad quem eomparatur humanitas Christi sicut instrumentum con iuncnun, sacramentum antera sicut instrumentum separatum." Aquinas introduces that passage bv distinguishing between che various instruments: ''Est autem duplex instrumentum: unum quidem separatum ut baeulus, aliad autern coniunctum ut 411 Sumara theoO, 111,1164,a.8,ad 1: "instrumentum animatum sicut est minister." 410 Sumrna chao!., uI,gB,as: "in quantum yero anima est motor corporis, corpus instrumentnliter servil animae' ovith regará lo son! and body of Christ.

443

THE KING NEVER DIES

DIGNITAS NON IIORIT(iR

their political doctrines concerning the Dignitas. It is, however, obvious what Baldas had in mind when he described the immortal Dignity as the "principal" and che mortal person of the individual ruler as the "instrumental," and declared at che same time that the Dignity, which was perpetual, was the fundament (the "mover") of che king's actions. Baldus was perhaps not the very first-and certainly not che last-to apply the notion of "instrumentality" to the relation between the king and the Dignity,1° but he certainly applied it frequently and consistently. The question was raised whether a provincial governor asking the emperor for advice but finding that the emperor had died in tire incantime, might expect an answer from the emperor's successor. Wrote Baldus in his opinion:

his two persons, and says: "The king's person is tire organ and instrument of that other person which is intellectual and publica' And then he continues:

1 answer "Yes," because the [governor's] consultation concerned principally the Dignity which does not die, whereas the person is the instrument of that very Dignity without which the Dignity cannot act anything 9P0

Baldus' application of Thomistic teaching concerningthe instrumentality of the incarnate Christ is even more obvious and direet on another occasion. When discussing che fact that two things concur in che king, the individual person and tire Di-,nity-ivhicli is "something intellectual lasting forever miraculously, though not corporeally"921-he adds a brief commentary on the king and ala Oldra
420 Baldus, un C.7,61,3,n.,, fnl.giv: ''Onaero si Praeses con.suloit Principem et Princeps ntoritur, in debeat exportare responoh m succes,or¡s? Respondeo sic, quia consul talio correinit pri ncipali ter dignitatem quae tono morilla' .. licet persona set organum ipsins dignitatis sine quo dignitas mil facir" 421 See ahnve , 1.295.

444

It is that intellectual and public person [se. the Dignitas] which principally causes che actions; for che mind is turnad more to action, or to the principal power, than lo the instrumental power.422 We shouldoprobably recall that in Baldus' system of thought Deus and Dignitas were interrelated anyhow*L2 so that thcre is no reason lo be surprised how easily they could replace one another. The theological field of coordinates directing Baldus' arguments is obvious: Aquinas' Divinitas is replaced by the likewise "immortal" Dignitas, and the Humanity of Christ by che mortal king. The king, in former days often called digitus 1)ei,424 was juristically the digitus Dignitatis, and whereas the bishop was said to be the "animate instrument" of che Deity, the king appeared as the animate instrument of a fictitious, and therefore immortal, person called Dignity. In other words: Humanitas instrumentum Dignitatis-the incarnate king the instrument of the Dignity or of the King. Not cvithout sume inner logic and some inner necessity have both separation and union of che "King's two Bodies" produced the dogma of a politieal Incarnation, a noetic incarnation of the Dignitas or of the Body politic, and therewith a new secularized version of the hypostatic union of the first and second persons, of Dignitas and rex. Without doubt, it was fronl this general stratum that che English lawyers borrowed also the language which they applied so lavishly when arguing about tse body natural and the body politic "together indivisible" or inaintaining that there were "two bodies but only one person."920 The theological, or even christo422Baldus, Considia, n1,,h9,u.G, fol.lrov: . . loco duanun personaruon Res fuogitur ... EL persona regis eso organum et instrumentunt illius personae incetlectualis et publieae. Et illa persona intellectualis el publica eso illa, quae principaliter fundar actos: quia magis attcuditnr actas, sea cirios principales, quam (organic<sv instrmnentalis, just as organum equals instruvimos organice' mentusn). Baldus, on c.9 X 2,1 .1,1.3, foL,Bq, applies che sama doctrine to hand anal foot as instruntents of che soul with regard Lo clic act of ,aking possession oí a thing: ''et anima per se sine apano corpoiali Ithat is, cvithout ate hand as tire organuos ocganorum and w¡thotit tire (col as the o,gamnr, pnssidendil non potest incipere possidere per se."

4228e, ahoye, n287. 42+For res digitus Dei, see ahoye, n.¢, 9. 410 See ahnve, 11os.398,.ioo. Bacan, Post-nazi, Gg9, sa}s that "gcce,a11s in corpora eions 4 {•)

7 f11 ALAG ,A' E 11R D/ES

logical, patterns by which they tried lo ntake their intellectua1 creations comprehcnsiblc to themselves and u) others, diffcied hardly from die world of thought of their ltalian pedecessurs and from tire juristic metltod of icasoning developed by rhe leading figures in that flcld. Nlaitland, therefore, seas perfectly coilect when he said shas iliose English Crosvn jurists of ihe sixtecnth century were building up a creed of royalty schiclt sliall Etke uo shame if set beside rhe Athanasian svnibol." It was indeed a "rosal Christology" which the jurists esrablished, and which dtcy were almost bound to establish once they started lo interpret consistently the relation benveen the individual king and his irmnortal Dignity by means of the metaphor of the "two Bodies." This expression itself remains startling even now alter ove nave become familiar ' with its historical background. From factors historically given to all European nations and therefore common to all, it was nevertheless in England alone that there liad been developed a consistent political, or legal, theory el tire ''Kitlg's two Bodies," just as the correlated notion of the "corporation sole" was a purely English device. It is true, of course, that rhe other European nations harboured in their constitucional thought kindred ideas; however, they were displayed in a different form. France, for exainple, though fully aovare of tire different manifestations of individual king and immortal Dignity, eventually interpreted rhe absolutist rulership in such a fashion that the distinctions benveen personal and supra-personal aspects were blurred or even eliminated; Hungary carried rhe distineti0n between the mystical Crown and a physical king lo great rt riement, bus the material relic of the Crown of St. Stephen seems lo llave prevented rhe king from growing his own super-body; and in Germany, where constitutional conditions were most unclear and eomplicated anyhow, it finally was the personified State which engulfed rhe romano-canonical notion of Dignity, and it was the abstract State with which a German Prince had to accornmodate rhe natural body is bus sufulcirnenlum corporis eorpos ati, it is bus as a stock to uphold and bear out rhe corporate bodv." Since, however, Ilacon tríes lo prove rhe union of che Crowns of England and Sconand through che king's natural bodv, he has lo attribure greater importante lo the king in the ftesh, because (p66g) "his natural person, which is one, has in operation upon both [Crowns]."

446

DIGIA'ITAS NON MORITUR

himself. At any rate, tlte theory of rhe "King's aso Bodies" in a11 its complexity, and sometimes scurrilous consistency, was practically absent from the Continent; and even ehe lialians, svho first developed the legal thcorv of two persons concurring in the Prince, (lid not pursue tisis concept consisten tly nor in al) direeti sin s. Now-here clid Whe concept of the "King's two Bodies" pcrvade and dominate tlte juristir thinking so generally and so enduringly' as in England, where, not to mention other aspects, that notion liad also its important Ueuristic function in tate period of transition from mediaeval to modern political thought. Any effort lo "explain" a historical phenomenon, even though one may hope to understand some factors by which it vas conditioned and with which it was interrelated, remains a hopeless task because there are too many layers of life effective at rhe same time and actively concatenated as to permit any straightforward explanation; and to answer rhe question why certain potentialities actualized in one way and why they did not crystallize in another will necessarily be an undertaking of limited and doubtful value. It seems, however, that the notion of che "King's two Bodies" cannot be severed from the very early development and the lasting momentum of Parliament in English constitutional thought and practice. Parliament was, by representation, the living "body politic" of the realm. Th'at is lo say, the English Parliament was never a persona ficta or persona repraesentata, but always a very real corpus repraesentans. "Body politic of the realm," therefore, had in England far more than in any other European kingdom a uniquely concrete meaning, and there was no need tu vender it more comprehensible by making of it an artificial abstraction, by transforming that concrete political body of Parliament into a fictitious person, or by talking about rhe realm as a persona politica in rhe way in which Aquinas occasionally talked about head and members of rhe Church community as persona mystica.'2' In other words, owing tu rhe absolute reality, concreteness, and plain visibility of England's "body politic" in this world; owing also to its very material existence and its ever recurrent self-manifestations when the king as rhe head and the lords, knights, and burgesses as members were constituted "in Parliament," the old organological metaphor of "head and limbs" survived in England sur4=a See abuse, Ch.v,n.zq.

4 47

THE KING NEFER DIES

prisingly long. As a result, the notion "body politic of the realm" remained valid and preserved jis concrete meaning at a time when in other countries that particular notion no longer was current. On che other hand, the old corpus mysticurn idea, with all its consequences and implications, continued lo determine-especially alter the Supremacy Act (1584)_some facets of che corpus polilicurn idea in England. It is comprehensible that especially in times of parliamentary weakness, when che king and council were quite obviously the mainspring of government, che notion of "body politic" was ¡nade to refer also lo che king alone, to the pars pro foto. A certain tertninological confusion existed certainly in the ecclesiastical sphere where the "mystical Body of Christ" and the "mystical Body of the Church" were used interchangeably; and che same "confusion of tongues ," as Bacon called it, existed also in the secular sphere wltere notions such as Crown, kingdom, body politic of either che realm or che king as King were used intercllangeably and often inefficiently distinguished.*" In those ambiguities-increased by the fact that the king actually became the head of che mystical body of che Ecclesia Anglicanathe terminological peculiarity of stressing the two bodie.s of che king, and not, for example, the two persons (as was che custom of Italian jurists), inay llave its roots. In a more technical sense it would appear that a fusion, and an indeed pardonable confusion, of Crown and Dignity was at the bottom of the legal fiction of the "King as Corporation" or as "Corporation sole." The Crown, we retal], was interpreted often enough in mediaeval England as a composite body made up of the parliamentary estates with the king as their head 428 The same parliamentary estates together with che king formed, however, in other respecis also che "body politic and mystical" of the realmor, as the French called it, the "body civil and mystical.''"° Hence, 427 See Bacon , Postnati, 66,: '' Son,e say . [o che Law, come lo [he Crown, sume co che kingdom, some co che body politic of [he king: so riere is a confusion of tongues amongst [hem , as it commonly mmeth to pass in opinions cha[ Nave their founda [ ions in subtlety ami imagination of man's svi [, anrl not in che ground of nature." 428Ahove, ios.' 68í[. See, for 1 he esta tes , Chrimes, Constitutio sal Ideas, „6B, esp.126, che Parliamen ,ary Sermon of Bishop Russel, in 1 4 83, who identifies repeatedly the "politike body of Englondé' with tlre "iii estates as principalle membres undir oone hede." 428The ideotification oE estates and king with che mrpu.s civile et nrysticum is found time and again as an expression of French cons[itutionalism ; see, e.g., jean

448

DIGNITAS NON MORITUR

Crown and body politic of che realm frequently had iheir chief components in counnon. With Chis organic-corporational concept of Crown and body politic, however, there interfered the concept of Dignity, that is, of a "corporation by succession." Whereas the Crown could appear "corporate" because it encompassed all the members of the body politic living at che same time, che Dignity was a Phoenix-like orle-man corporation encompassing in che present bearer of che Crown che whose genus, che past and future incumbents of the royal Dignity. What apparently happened was that che English jurists failed lo make a clear-cut distinction between che corporate body of the Crown and the supra-individual personage of the Dignity, and instead equated each with the body politic-tempted perliaps by che current formula "Crown and Dignity royal." That is to say, they fused two different concepts of che current corporational doctrines: the organic and the successional. And froni this fusion of a number of interrelated corporational concepts there originated, it seems, both the "King's body politic" and che king as a "corporation sole.'' This assuniption is not contrary to what Maitland put forth so ingeniously when he derived the Englisli "corporation sole" from che model of the persona, che parson, who in bis village church was die only priest and who, with regard to che landed property of his prebend, took che place of the corporate cathedral chapters or monastic communities in their relation to church property. It is certainly correct lo say tlfat the model of the parson had subsidiary effects in conceiving of che king as a corporation sole, and Maitland struck with his pun at che very root of the problem when lie joked about the king who liad icen "parsonified." However, the common ba.sis of both parson and king was probably the Dignitas, which, in che case of che king, was fused with the organic body politic whose head he was-comparable rather to abbots and bishops who were also boli Dignities and heads of corporate bodies. Hence, it was said that every abbot was a "body politic," and when Coke referred lo che "mystical body" of an abbot in de Gerson , De meditacim ,ihus, 37: " t[abes ¡¡los de primo statu tanquam brachia fortissima ad corpus tuum misticum , quod es[ regalo policía, defendendum" (follow the other two estates).:Usa Terre Rouge, Coquille, and others make that identihcation ; Church, Constitucional Thought, 29 , 11.20; 278,n.16, and passim. The expression corpus potitia, nx is not completely ahsent (see, e .g., Church, 278,n.16), but corpus civile seems to pievail in France, Whereas it is hard1y found in England. 449

THE tyTTT"G NF 1'ER

DILAS

order to explain tire meaning of the king's body politic,'' he

CHAPTERV111

merely referred ro anos er, thongh similar, cunfusion beavecn corpus mysticnni and Dignita., rvhicli was current as early as the

MAN-CENTERED KINGSHIP:

fifteenth century.°It appcars that Blackstone seas, alter all, nos

DAN - E

quite wrong ivhen he boasted shas the idea of coipouation.s, which he derived froin the Ronlans, liad been considcrtbly refmcd and improved "according to tse usual genios oí tire Lnolish notion,'' especially tvhat concerns solo corporatiuns. consisting o[ ocie per son only, oí which Clac Romal latvyers liad no notion:'43

Legal speculation oí tire thirteenth and fourteenth cenniries, for the sake oí interpreting tse nature oí Dignitas, introduced a simile which, being individual and species at che same time, appeared as a prefiguration oí che corporation sole: tse mythical bird Phoenix. To what extent these characteristics liad validity in theological ttought as well is a question which shall not be raised here. However, it sliould not be forgotten that a genuino corporation sole has actually existed, even "historically," if me may say so. It existed in Adam, the first man, who being uhe den only existing man was at tire same time individual and clic totality oí the then existing genes humanum. He was at once man and mankind. In order to recognize, however, some oí tire implications linked with the mytt of Adam, we liad hest entrust ourselves tu the guidance oí Dante. 430See aboye , nos.3r1 and 312. 431 Blackstone , Commentarics, 1,c. 18, p.469: ahoye, Introd.. n.7.

Cotvctr ClONS oí kingship centering in tire God-unan, in Clic ideas oí justice and law, in the coipoiate bodies oí political aillectives or institucional dignitics, viere developed, successicely and alter nately, with much overlap and much ntutnal bonowing, by tteologians, jurists, and political philosophers. It remained to filie poet lo establish an image oí kingship which was merey human and oí which MAN, pare and simple, was the center and standardMAN, to be sure, in all his relations lo God and universe, to law, society, and city, lo nature, knowledge, and fairh. Homo instrumentum humanitatis--chis twist oí the theologico-legal maxim might well serve as a mosto for penetrating into Dante's moralpolitical views, provided that che opalescent notion httmanitas be perceived in all its numerous hues. It has never been denied that Dante the political philosoplier as well as Dante che poet assimilated to the full the political doctrines by which his century was moved. In fact, Dante held a key-position in the political and intellectual discussions around 1300, and if in a superficial manner he has often been labelled reactionary, it is simply the prevalence oí the imperial idea in Dante's worksdifferent though it was from that oí the preceding centurieswhich obscured the overwhelmingly unconventional features of his moral-political outlook.1 Dante, oí course, cannot easily be labelled at all. He was anything but a Thomist although he used the works of Aquinas constantly, nor ivas he an Averroist altllough he quoted the Commentator and gave Siger oí Brabant a place in a See Michele Barhi, "Nuovi probleini della critica dantesca: VI, L'ideale politicoreligioso di Dance,' Studi danteschi , XXIII (1938), 51. Only very few studies on and which may have influenced Dante's political thought, to which 1 feel indebted in che footnotes , shall be my formulations more often than would he indicated ): Francesro Enrole, II mentioned here. Fritz Kern, Humana Civilitas ( Leipzig, 1g13 di filosofía dantesca ); Bruno Nardi, Saggi Hilan, 1927.28 ( di Dante politico pensiero (Paris, 1939; Engl. asl. by la philosophie Dante el , tienne Gilson (Milan, 1g3o); É New York, 1949 [qumed here]); A. P. d'David Moore , Dante Ole Philosopher, as it goes, is Entréves, Dante as a Political Thinker (Oxford, 192). Useful, so fan che comnientary in Gustavo Vinav's edition of tire Monarchia (Florence, u15o). For will he quoted here according to reasons of conveniente, however, tse Monarchia Le opere di Darte Alighieri (4th ed., of E. Moore and Paget Toynhee, the edition Oxford, 1924 ), opon which che Dante Conc01 dance is based.

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Paradise next to St. Thomas.2 Dante castigated the decretalists in tire harshest terms; yet, the most recent studies on the political theories embedded in the glosses en Canon Law show clearly lo what extent Dante followed traditional fines of canonistic thought.e His attitude toward Justinian and toward Roman Law in general, with which he must llave familiarized himself, was certainly most affirming; about the jurists, however, he was acritnonious even though Cynus of Pistoia, the great luminary among the civilians of that age and a teacher of Bartolus, was his friend. But who would care inany event lo label Dante, che judge of the dead and the quick, a jurist? The difficulty with Dante is that he, who reproduced che general knowledge of his age on every page, gave every tlleorem which he reproduced a slant so new and so surpris-

ing that the evidente proving his dependency on other writings serves mainly lo underscore the novelty of his own approach and his own solutions., His stratagem was obvious enough, for the point of referente towards which he assembled and directed his material, or che denominator to which he reduced it, was rarely the institutional phenomenon itself; it was practically alw'ays the man hehind che institution. And in that sense Dante's image of the Prince oí Monarch-though composed of innumerable mosaic tesserae borrowed from theology and philosophy, from historical, political, and legal arguments all of which cvere within the current tradition-refects a concept of Man-centered kingship and of a purely human Diguitas which without Dante would be lacking, and would Nave been lacking most certainly in that age. The other great difficulty is that every Dante interpretation is bound lo be fragtnentary where Dante himself is complex. The visions of Dante tire poet seem to interfere constantly with che logical arguments of Dante che political philosopher, even though in other respects [hose two modes of human approach to the realm of the mind were bound to support each other. Dante's hardriding logic, though perfectly clear and perlsaps even consisten[ within the whole of his work, was yet anything but linear, because every point on the line of iris thought was cross-connected with couniless other points on countless other fines, Any effort, therefore, to reproduce the thoughts of Dante tlre philosopher in a straightforward fashion will hardly escape the danger of falling fiar and becoming trite simply because che complexity of the poet's vicios has been neglected. Moreover, thert are pitfalls which concern none but che interpreter himself. Any deviation from the straight line of argument which the literary critic wishes to trace, will lead immediately onto che otean of Dante speculation on which che interpreten will be lost like Dante's Ulysses after setting sail for his last voyage to che Unknown. Finally, the Dante expositor will be tempted far too often lo read into Dante things which Dante neither said nor meant to say. The maxim Che é fnori della coscienza del poeta a noi non pub importare holds good; it should he ever present lo the interpreter's mind e

2 This point has been (onsiderably clarified by Gilson, Dance, ,531f, 166(I. 2111, azul passim. 3For Dante's throes against che decretalists, see M. Maccarone, "l'eologia e diritto canonico nella Monarchia, 111,3," Rívista di sierra delta Chicsa in Italia, v (1951), 7-42; for Dante's siding wi th che moderare group oí canonists, see helow, nos. 15-17. 4 On the jurists, see, e.g., Monarchia, 11,11,71. Whether or not Dante studied Law, is quite uncertain; but, as has been pointed out eorrecny by Chiappelli, ''Dante in rapporto etc.;' 40 (see end oí tuis note), Dante certainly studied che ara dictarsdi, and every student of that art acquired sople legal knowledge, At any rate, he cited accnrately Roman and Canon Laws, and used also (directly or indirectly) the Glossa ordinaria oí Accursius. Nardi, Dante e la cultura medievale (end ed., Bari, 1949), 218223, has shown one case ¡ti which Dance, depended upon che Gloss. The same, however, is trae in Monarchia, 1,10,12: ''par in parear non habet imperio m," This legal maxim was based en D,4,8,4, and D.36,1,i3,4, the gist oí which the carly glossators rendered ¡ir a form lees lapidary iban the one cited bv Dante; see, e.g., Fitting, furist, Schr., 149,7: 'liar non potosi inperare par¡ legitime,'' or Azo (quoted, together with other places, hy Schulz, "Kingship," ,38f, cf. 149): ''cum par parí imperare non posset." The form cfted by Dance is found in a decretal oí Innocent III; see c.2o x 1,6, ed. Friedberg, 11,62: "quum non habet imperium par in parem." While ft is not totally impossible that Dante ( as assumed by Chiappelli, 18f) cited from the decretal, it Is much more likely that his source was che Accursian Glass, which quotes the maxim not only in connection with D36,1,13,4, v. imperium, but also with C.1,14,4, Y. indicarnus ("quia par in parem non habet imperium"), the latter being che famous lex digna, which, e.g., Aquinas quoted (aboye Ch.rv,n.153; see also jean Marie Auhert, Le droit ronsain dans l'oeuvre de Saint Thomas [Paris, 1955), 84,n.2) and which Dante coold not have fafled lo know. The maxim in che form oí the Glossa ordinaria was repeated over and over again; see, e.g., Andreas of Iseinia, oir Lib.aug., prooem., ed. Cervone, p2 (§ Econtra quod non); and, which may be more importan[, Cynus' glosa un the ¿ex digna, chal is, (in C.',1.1,4,n.7 Frankfurt, 1578), fol.26. Dante's referentes to che two Laws hace herir summed up by Lufgi Chiappelli, "Dance in rappnrto alle fonti del diritto," Archivio ato rico Italiano, Se' 5, x1.1 (19118), 3-44, who may have overshot bis goal, but was right as against Mario Chiauclano, "Dante e ft diritto romano," Giornale Dantesco, xx ( 1312), 3756, 94-119; see tire supplementary note, ¡bid., 202206 (''Aurora su Dante e il (Iiritto romano"). See also Frmscesco Encole, Il pensiero p0lidco di Dante (Milan, 1928), 1,737 (Ch.1: "La cultura giuridfca (if Dante"), and D'Eutrtves, 27f,io4f. 452

, For an example oí ihat kiud, ser my puper on " An 'Autohiogmphy' ot Guido Faba," Medioeval and Renaissance Sludies, '(1941-43), 26,f. s Midlele Barhi, 'Nuovi problcmf;' (aboye, n.1), 48 (cited by Gflseo as the mato oí his hook on Dante), in his impor'tant essay on 'L'ideale politico-religioso di Dante.''

klA6-cl:A'TEIII D kINC.S71 IP DANTE

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the effectiveness of the office caen in a man whom he considerad an untvorthy incumben. Dante liad the lowest possible opioion oí Benedetto Gaetani, but recognized without liesitation the vicariate of Christ in the pontifical robes which Bonifacc (Donad tivhen facing Nogaret and the invadeis. The individual pope and tlhe papal Dignity, Benedetto Gaetani and Bonifacc VIII, were clearly

While admitting rhe dangcrs of botlr isolating a single strand of Dante's eomplex thought and reading finto bis work doctrines which, though perhaps inipe(cable all by thentsclves, conlt1 never Nave crossed his ntind, it wib be possible nevertlie]ess to indicate a theme which illustrates Dante s mode of apportioning theological thought to the secular world and which is inextricably intertwined

distinguished and kept apart. After a similar fashion ])ante proceeded in the Convivio. The problem lie tried to solee concerned tlte true nature of nohility and its definition. To [his problem, widely discussed by the troubadours as well as at tite imperial court, the Emperor Frederick II allegedly fiad contrihuted a statement o The imperial though inspired by definition (antica ricchezza e be' costumi), Aristotle, displeased the peer, and in order lo reject it Dante made a trenchant distinction between Frederick's authority as an emperor and his authority as a philosopher. Trae enough, according to the jurists the emperor as emperor was philosophissimus and philosophiae plenus," and in Dante's general concept of rhe final ends of mankind ir was quite indispensable that imperial and pliilosophec authorities should coincide and ultimately unite to lead mankind lo rhe blessedness of the present lile. Nevertheless, Dante denied that the emperor as emperor liad any binding authority as a philosopher-even though ir seemed worth Dante's while to take cognizance of the private opinion of so educated a man as Frederick II was in the poet' s estimation.'*

with the dua]ity of los fundamental concepts of mankind and man, and of nian's u]tintate goals in this world ami the otlicr.

The distinction between person and ofhce stands out clearly and sharply in Dante's work; in fact, it is found not at all rarely. We may think, for example, of Pope Boniface VIII as lre appears in the Divine Comedy. To Dante, the Gaetani pope was plainly the "Prince of the new Pharisees," who regarded 'lieither the highest office nor the holy orders in himself" or in others; who cynically boasted: "The heaven 1 can shut and open, as thou knowest";' who is styled by an Trate St. Peter a person Usurping en earth my place, Iny place, my place, Which in the presence of God's Son is vacant;a

who in the chasco of the Simonists is shown in that ridiculous position-head down in an earth-hole while legs and feet are fidgeting in the aira-and whom Beatrice, in her last words to Dante, once more remetnbers when slte predicts that Pope Clement V will also be thrust into the earth tabes of Simon Magus and there push deeper down "hico from Anagni. And yet, in that very village of Anagni and in the moment when William of Nogaret and the agents of Pltilip IV dared lay their hands en Boniface lo seize hico, rhe same Pope Boniface appeared to Dante, in reverence of the papal office, as the true vicar of Christ, even as Christ himself:

It would not be toa difficult to extract from Dante's works a considerable nunhber of passages illustrating the way in which 129f,152. 12 Convivio , tv,3ff. See, for the problem at the imperial court, Drg.Bd., referred to tire Emperor . Though the epithets 13 Cf. C6,35,11 ; Nov.22 ,1y, anal 60,1 in general ; sea, eg.,

Marcus Aurelius , they were customarily applicd to the emperor (ed. Mcyers, ji, vis interpretes Bartholomeus oí Capua, on C.5,4,23, 55, v. invictissimo appears among tire imperial titles; also ,6), where philosophissimus saeculi XIII., 19 de Resale Marinus de Caramanico, en Lib.aug., 11,31, ed. Cervone, 256; Albericus quan, canouic1, v. >n iuris taco eivi lis included rhe expression in his Dictionariu oí Isernia, on Feud. 1 , 3,11 16, fol. 2i'', Imperalor (Venice, 1601), fol. 152v. Andreas che epithet with rhe empecer 'o council (''Potest dici quod quia princeps cennects l'hflosophiae plenus"), and ¡cultos haba[ in suo concilio peritos ... et ideo dicilur Lucas de Pcuna, on C.,o,35,n-24, p.2i4, while referring also te the council, defines princeps l'hilosophiae, id est legalis seitire notion oí philosophy: '' Dicitnr enim pectoris censetur habere." 1-aw, or entice, plenos ... Omnia jura in scriniis sui , belonged to l'hilosophy, and more specificatl}', to Ethics. Jurisprudence, oí course

I see the flenr-de-lys enter Anagni And in Iris Vicar Christ ,nade captive. A second time 1 see hico mocked, 1 see The vinegar and Ball rencwed, 1 see Hico slain betwecn tbe living thieves.o

Dante, not being a Donatist, was far from denying or disregarding

1+On che political doctrines oí the Convivio, see Gilson, Dante, 14211. Actually

Inf., xxvn,Srff. 0 Par., xx,a1,22i'. 0 boJ., XIX.521t ro par., xxx ,14gf. 11 Purg., xx,S61F.

454

Dante, Menarchfa , 11,3,15, accepied Erederick's definitien.

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;NAN.CE,NTI RED KINGSH/P: DANTE

sacramental power of Che pope, and, in some respects, depended on him even in temporal matters.'° Dante, while en the whole accepting che teaching of Che dualists,t" carried those doctrines to ends of which tlteir authors had never dreamt. In order lo nrove that his universal Monarch ivas free from papal jurisdiction, Dante liad to build up a whole sector of the world which was independent not only of the pope, but also of the Church and, virtually, caten of tire Christian religion-a world sector actualized in the symbol of the "terrestrial paradise" which, it is true, served at tlle same time as a propylaeum of eternal bliss. Nevertheless, Dante's "terrestrial paradise" liad its own autonomous and independent functions in juxtaposicion with the celestial paradisera Man-Dante argued-being composed of a corruptible body and an incorruptible soul, liolds alone of all created beings an intermediary place, "comparable to Che horizon which holds a middle place between the two hemispheres." As a result of that duality, man alone among all creatures was bound to attain to a duality of goals.

he distinguished between a Dignity and jis human incumbent, and many a time Che place assigned by him to a personage in the Divine Comedy might tacitly betray such distinctions. The principie of making such distinctions was in itself conrmon enough in his time , and it is not a matter of major interest here to know that Dante loo availed himself of it. He struck, however, a completely new chord when, on one occasion, he set over against the office not simply the individual officer, some "Titius" or 'Petrus," but Man-Man as both che individuas and the exponent of his species, or Man in the most emphatic sense of the word. To the Third Book of use Monarchy Dante assigned the task of proving that Che emperor derived his power from God directly, and not through papa] mediation, and even less so from the pope as the ultimate source of imperial power. This problem had been hroadly treated by che canonisis ever since the tweifth century. A powerful group of hierocrats (more recently called the "monists") indeed defended Che thesis that the emperor, occasionally styled in a restricted sense che "vicar of the pope," enjoyed only a delegated power, since in the last analysis all power rested with the spiritual head of the hierarchy who disposed of both the spiritual and the material swords.r a It was against [his radical group of canonists and political publicists that Dante raised his voice and therehy sided with tire broadening opponent group of moderates, the so-called "dualists." Their most prominent spokesman liad been, in Che twelfth century, Huguccio of Pisa, and what thcy stood for was, in fact, the old Gelasian formula of mutual independence of pope and emperor: both powers derived from God directly, and therefore the emperor exercised his power 'by his election alone," even hefore his Reinan coronation. But. of course, there was general agreement that the emperor being a member of tire Church depended in religious matters en Che

Two ends have been set by Providence, that ineffable, before man to be contemplated by him: Che blessedness, lo wit, of chis life, which consists in the exercise of nian's proper power atad is figured by the terrestrial paradise; and Che blessedness of eternal life, which consists in the fruition of dte divine aspect, to which his power may not rs See aboye, ch.vo,no,c24(r,28. and Kempf, louoccuz IIL, 2t2ff. tr.See Aonarchia, nt.rb.roafr, Ihere (}ante dearly reproduces tire opinion oí Che "dual ists." Their tener Ex sota ch e!¿o re priuripunr (see aboye, Ch.vu,nos.28 and 32) served almost as a parry rr y, and it la significan[ that Albericus de Rosa te (d. 13,54) repeatedly referred in connection with that slogan m Dance (especially lo Monarchia , n1) as a juri .stic aurhurirv: see, e.g., on C.r,r,nso, fo1.8; G7,37,3,n.t6, foi.to8; el. B. Nardi, ''Note alfa Monarchia ( 1. La Monarchia e Alberico da Rosciate);' Studi Dmetcr(hi, xxvr(1942), ggf,1o2, wbn (p.roo) breaks off his long quotation just hefore Albericus rontfuues: "Qnod ex sola electione competat sibi administrarlo ..." Anodrer slogan ('Ante enim erant imperatores quam summi pontifices" [ahoye, Ch.v113) 241) was referred ro bv Dance in Monarchia, uyt3,17ff, though in the guise oí svllogisms. 'I'he opinion oí Huguccio (Kempf, op.cit., 22tf): "Ergo ne itmm pemlet ex altero ... quoad lostitutionem" reas, of course, the gis[ oí Dantés thesis, and cien when Huguccio held [ha( ¡he emperor depended opon

tsAhoye, Chvn,nos.22ff. Stickler, " Imperator vicarios Papae," MIGG, Lxu ( 1954), [66.212, has a good point when rescricting Che catchword oí the empero' as vicarios palme lo Che coercive functions oí Che imperial power, at leas [ according m earlier canonistic teaching; he is, however, equall} correct when he stresses Che perpcmal, and inevitable , confusion oí juristic atad political elements in Che argumenta oí lates mediaeval authors as avell as the great number oí mi su nderstandings reaulting from overcharged language and resisting reasoned soladnos. At any rao:, the hierocrats around 1300 rvere not misinterprered canonists , but true hierocrats who hroughr Che more carefully balznced system oí earlier Canon Law neceasarily intu disrepute.

456

Che pope ''in spiritualióus et quodammodo in temporalibus: Chis was not incompatible with Mona rdria, nt,r fi, r261F, cither. 'rherc are, however, far more passages in Che bfonm-chia reaccting tire readrings of the dualists which, hy Dante' s times, haci pcrvaded also Che svritings oí Che chirlaras, until [hese tenets hecame, in 1338, the offcial law oí Clic empine. ts About the "separatisnY' oí Darte (herc can be no doubq see, e.g., M. Barbi, ''Nuovi prohlemi delta critica dantesca vnr, Impero e Chiesa)," Studi Danteschi, xxcu(rp t2), 9-46, clan xx111(1338), ,61 : see alsn Nardi, " Dance e la filosofia ," ¡bid., xXV (rglo), 26ff, and Gilsori, Daule, rgdf, and pasrirrt.

1

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ascend unless assisted by che divine liglii And Ibis blessedness is given to he understood by the celestial paradise.1`

1, is one titing to be roan and another to be pope and just so, it is one thing Yo he man and another to be emperor.'°

Those were, according to Dante. two utterly different goals of thc

At a glance, this may appear like the customary dichotomy of Dignitas and individual dignitary. Dante, however, by a sudden twist, presented the convcntional prublent in a new philosop1nc perspective. Por lie wished "Man" to be understood loor oily generically, but also qualitatively: pope and emperor became comparable as roen not merely because they bclongcd ro the sanee species of mortal human beings, but because Man ni his niost elated forro should determine the standard tire two otlicers liad

human Yace. Therefoie, tan his conclusion, che oflices of pope and emperor, by whose direction mankind should be guided to its predestined ends. were assigned by Providente two completely different tasks and functions whiclt were nitunally independent. The two supremo ofli(cs, which ])ante callad sometchat abstractly papatus and imperiatats,211 were in fact so different frorn one another that, taken al] by themselves, they pretluded comparison. If, however, they were to be compared pone the less, they became comparable only after being reduced to their common origin. Had man remained in the state of innocence, both directivas would have been superfluous; such as man was after the fall, he needed the remedies of the two offices.21 Both papatus and imperiatus, therefore, were institutions established by God for the proper guidance of mankind; both derived from God and both ultimately -referred to God. Hence, they became comparable only when reduced to God himself, "in whom all disposition is universally united," or perhaps to sume substance inferior to God, sume celestial prototype of office, "in which the Godhead appears in a more particularized form."22 In other words, Dante excluded with regard to either office the possihility of a human intermediary, since both depended directly on God. Or, if intermediary there be, he would be an "angel," a celestial prototype of papatus and imperiatus respectively, sume substance inferior to God" from whose universality that particularized form descended.2e Pope and emperor, however, were to be measured not only by the standards of heaven-of God or angel-but they became comparable also when reduced to a standard valid on earth, the

in common. For as roen they nave to be reduced to the best man (optirnus homo), who is the standard vi( all others and, so to say, their Idea, whosoever he may be; to him, that is, who is in the highest degree One within his own kind.s5

Dante, it is true, derived his notions from Aristotle. He himself quoted the Nicomachean Ethics and the Metaphysics, and che notion of the optirnus homo was probably inspired also by the Aristotelian Politics.28 What matters here, however, is how he applied the Aristotelian notions. Dante arrived at two standards by which pope and emperor could be measured, the standards of "God or angel" and of "Man at his best ." The offtces (papatus and imperiatus), established by divine dispensation, were to be measured by the standard of God (or angel ). The human incumbent of the office, however, was to be measured according to the standard of Man, that is, of him

11 Monarchia, ntt6,i41t, and 43ff. 20 See aboye , Ch.vn,n.44. 21 Monarchia, 111,q,071 . 22 Monarchia, 111,12,851f. 23lbid., 93ff: "Et hoc eri1 vel ipso Deus, in quo respectus monis une versali ter unitur; vol aliqua substancia Deo inferior, in qua respecms superposi tionis, per differentíam superpositionis, a simplici respecto descendens, particuletur." For dte neo-platonic substratum, see Wolfram von den Steinen, Dante: Die Monarchie, Breslau, 1926 , 118. Dance arrives at angelie or ''proto-tvpical" personifications of papatus and imperiatus whjch in many, respecta resentble the Dignitas of che jurists.

24Monarchia, 711,12,31ff : " . sciendum quod aliud est esse hominem , et aliud est esse Papam . Et eodem modo , aliud est esse hominem, aliud est esse Imperatorem." To Dance, just as ro che jurists , che office had an independent existente, co vas a res independent of the ineutnbents . See, e.g., Monarchia, ut7,4c ''Antoritas princi' palis non est principia nisi ad usum , quia utdlus pri nceps seipsu ni auc mrizarc potest" ( see aboye, Ch.rv,n.t82 , for Pseudo.Chrysostomus , In Mattheum: "nemo potest (acere se ipsum regem"); also m , 1o,34 : '' officium deputauun Impernmri"; sud ibid., 731f: "Praeterea omnis iurisdictio prior est suo iudice ; iudex millo ad iuris' dictionem ordiuatur , el non e converso ." The imperiunr, however, is a iurisdictio; therefore " ipsa [iurisdictio] ese prior suo iudice , qui est unperatoc" 25Ibid., 111,12 , 62f1: "Nam, prout sunt homines , habent reduci ad optimum hominem, qui est mensura atiorum et idea , ni eta dicam , quisquis ille sir, ad exsistentem maxime unum in genere suo." 25The places referred co are Nicom .Eth., x,5,u76a16 (cf. Aquinas, In Ethica Arist., §1466 , and Commentary , § so62, ed. Spiazzi , pp.534f1), and Metaph., ix,', to521)18. See also Polit., m,1i,8, and 12, 1287b2o and 1288at511 and passim (cf. Aquinas, In Pol., §378, and Commentary , §519, ed. Spiazzi, 1¡8,182).

458

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MAN-CENTF.RED 6ING.SHJP: DANTE

"who is in the highest degree One within his own kind" and the "Idea" of Iris kind, and who by his humanizas represented as well as encompassed most perfectly che genes humanum.'' That is to say, pope and emperor, who were restricted by their functions to two different orbits and therefore svere incomparable entities, became comparable nevertheless when they were referred lo God and to Man. They sliould be measured by either divine or human standards, by either deitas or humanizas, standards relevant to office and officeholder respectively. But they should not be measured by totally irrelevant standards such as the similes of sun and moon, of the two swords. and other cobwebs or fancies so often spelt out te determine the extent of the papal power or of that of the emperor!' Dante thus transferred the age-old struggle about che superiority of either pope or emperor to a plane differing from the customary argumentations when he referred both powers to rheir absolute standards, those of deitas and humanizas, standards so closely interlocked with one anotlrer through the Incarnation that at times they becarne almost exchangeable. The que.stion might arise whedier in Dante's general concept che capacity of "Being Man'' (in che qualitative sense of being che ''most One within Iris kind" and che ''Idea of his kind") did not itself amount to an ' office," the highly responsible office of Man towards mankind-an office equal in rank and responsibility and universality with papatus and imperiatus and adorned with a Dignity no less sempiternal tiran tlrat of either the emperor or che pope: the Dii,graity of Man. Was it perhaps that he, who most perfectly represented the Idea of Man, thereby transcended his incidental individuality of "Petrus'' or "Titius" and became the supra-individual representative of his species, the incumbent of a 27 For "maxime unu.s in genere am," see Menardda, riS.,lt, wherc liante builds np a "g,adation" (gnndalim se halrrent) el being, heing ene, and being good: "maxime enim ens maxime est anuos, et maxime ummn est maxime boom,,," which leads to thc candosiou: "Propter qund in °mni genere rerum illud est optimum, good est maxime unum ." Tisis gradaricn Dante noca transfers lo }tan: he sebo is olas( one scithin bis own kind, is che optimes homo, therefore also thc Idea of his kind and its standard; he is, as it were, husnanitas inipersonated in both che qualitative and [he quontitanve senses. 2s It ts m[erestin [o t g roce [haz rllhericus de Rosate, en C73 7,3,11t9, fol., o8rn,

again makes bis allegation lo Dante in connectlon with tirase si mi les: 'Yicet hoc [the Sun and Nioon metap sor] communiter teneatur, tatuen ipse Dances negar verunr este (¡no(¡ in hoc figurentur sacerdotium et imperium. El hoc probat in dicta (tuaesrione per subtiles el probabiles raciones. Ft ideo dicir de duobu_s gladüs ... negat enim predicla significare sacerdotium el imperium." CL Mosarchia, 111,1,1211. and 9,2ff. See Narrli, "Note alta Mona rchia;' dog.

MAN-CENTERED KINGSHIP: DANTE

personal dignity in which che corporate and generic Dignity of Man became manifest? In fact, the assumption has been put forth that Dante's optimus homo not only was identical with che Aristotelian Sage, hut also that this philosopher-sage represented, as though in a chird orbit, a thid Dignitas apart from and independent of that of che pope or the emperor.21 Correct though this assumption may be in other respects,"° the trichotomy of popeeniperor-philosopher does not lit che clear-cut duality of the A[onarchy in which the standard of che optirnus homo on earth ("whosoever he may he'') and che standard of God or angel in heaven were in a state of equilibrium, which corresponded to che equilibrium of Dante's two paradises, terrestrial and celestial." 2(Gilson, Dance , i89ff. 20 Cf. Bt,rdach, Rienao, ¡off, 5orfi, on the "Apolline Empiré ; Leonardo Olschki, Dance `Poeta Paltro'' (Florenre, 19,3), who identifies che niission bf the Veltro seith thnt of the pacíphilosopher. al In his highly stimulating discussion of Mora mhia, m,12, Cilson ( Dante, i88ff) arrives at a trichoomy of mdcrs pope, emperor, philosopher) by identifyi ng the optimo,, homo witli che Ai istotclia,, szge. That identilicarion all by itself woulcl he possible, though in that chapter nante cines not sav so, sor does he suggest it. Sioreovcr, Gilson luning esmblixhcd che thtce orders oí pope, emperor, and sageall equzl in rank-irner1,rets ¡he plnase non potest dici, qued atferum subalternetur alteri in such a vvay that it reters Lo all Ihrce mdcrs: cach of che three sovereigi, powers 'cmai ns sei thout a superior within his eategory. Although such a trichotomy was definirely within che range uf i3th century thought as well as that of Dante laimrelf, Gilson'a ioterprela tion fails to do justice m che leading idea of Monardda, n1,12. Apart frotn clic fact that his in terpretarion nteets with gramma rical dilficul ties, because atler (caves orily the choice of two, and not of thrce ( see, e.g., with regard to papsrcy and empire: "Distincte enim sunt hae potestades nec una pendet ex altera," qunted by Kenrpf, lrurncenz 111, 2i8,11 .65, aloa 221,13 V), Gilson's coordination of che (bree orders under God is sol cornincisg in other respects. He supports his argument by the folloss'ing diagram (which has been siniplified here): Deta Optimes homo Itnpcra[nr Papa cut (his is nor at all whut n Irte saos, sapo siniply estahlishcs two dilferent referente pomos ta which he relates pope anrl emperor Ii) gira olfice and (2) qua osan, as illuatrulcd by thc hrllosving dingos,:

150

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PAPA OPTIMUS a bo`°o HOMO

461 1160

I I'..A'TFRED h'INGSF17P_ DANTF

MANe1N7FPI D KINGSHIP: D17dTE

whole world," makes little difference here,s but his linos once more show the fundamental duality oí huelan ends and huelan leadeiship. It tvas, however, the major premise of the whole schcme of the Alonarchy that Danta, inspired by Aristotle, attributed to the human community amoral-cthical goal which teas "goal in itself, was para-eedesiastical, and therefore independent oí a Church which liad its own goal. This duality oí moralcthical and ecciesiastical-spiritual values was rather common among die jurists oí Dante's age who pointed out that the universitas was a corpus morase et politicuma° which paralleled the corpus mysticuní oí tire Church, or held with Dante that "just as the Church has its foundation , so has the empire; for the foundation oí the Church is Christ ... , but the foundation oí the empire is human Law."as Dante, in order lo justify the self-sufficiency and sovereignty of the universitas generis humani, appropriated, like die jurists, theological language and ecclesiastical thought for expressing his views concerning the secular body politic; and thereby he arrived at the construction of "a secularized imitation oí the religious notion of the Church,"aa while endowing his creation even with a blessedness of its own : the terrestrial paradise. The result was a duality of mutually independent corporate bodies, one "human-imperial" and the other "Christian-papal," both universal, cach oí which pursued its own ends and had its own goal of human perfection. That duality differed profoundly from the Thomistic system in which invariably the secular ends were subordinated to the spiritual , and it is only roo comprehensible that the dantesque system immediately challenged a contemporary cleric, the Dominican Guido Vernani of Rimini, to launch a formidable attack against

Moreover. the philosopltet-sagc cannot he conceived oí asa dlird entity in the Mortairhy, siete this work was wriuen to demonsl ra te that lt was the tasé of tbe cmperor to lead the gentes hnmmntm lo its terrestrial intellectual oi philosophic perfection. Mente, in the system of the APrfonaíchy emperor and philosoplicr coincided: they were bound to coincide because cilierwise the cmperor would be wanting the etbical justification and moral qualification for his natural (that is, his purely human) task oí guiding mankind bv che proper usage oí philosophic reason to its natural goal-just as the guidance to the supra-natural goal of the Christian fornied the trust of the spiritual shepherd, the pope. In other words, Dante's whole scheine of duality postulated with regard lo humanitas the figure, not oí the Greek philosopher-sage, but oí the Roman emperor-philosopher, just as it postulated che figure oí the Roman pontiff with regard to Christianitas. Alter all, diere viere no more than two roads leading to no more than two goals oí perfection, and these due strade were lit up by the two Roman §uns,

emperor and pope: She, maker el the good world, Rome, was wont To having TWu soNS which made plain to sight Both one road and the other, world and GodP2 Whether or not tire curious metaphor of the "Two Suns" cuas

perhaps Dante's answer to those canonists who talked about "two emperors, one ecclesiastic and the other secular, who ruled the Deus and optimos'h(>rno are the rozo entities to which both pope and cmperor refer: their offtces refer te God aud their individoali tics to ¡he 'hect man', (svho may, or may not, be identical wich ihe Aristotelian sage; the latter is likelv, but it maker no difference with regard to what Danta wishes to expresa here). Bv transferring the óptico os honro m the cieno niinator of pope and emperor, Gilson deprives, as it were, both of thcir cornmon hwnan referente point and eliminates , at tire .same time, che tension betrceen Deos and optimus homo which compares wich thal

Soleva Roma, che il unan mondo feo, due soli ayer, che luna e 1'altro strada lacean vedere, e del mondo e di Deo.

aa Cf. Stickier , '' Imperator vicarios Papae," MIÓG, txu (,g5q), roo, n . 66 (also Kempf, Innocenz 111., ¢11,n.47), quoting the Summa Bambergensis: . infra xevt di., duo , ibl dicitur , quod duo imperatores sel. ecelesiasticus et secularis , torda orbem regunt; verum, set per jura regunt ." The allegation is c.1o,D .xcvl, Friedberg, 1,340, the famous Gelasian definition el pontifical auctoritas and regal potestas, beginning : " Duo sunt quippe , imperator auguste, quihus .. " It secas that the author of the Summa, so to say, twisted the vocative imperator when he raid duo imperatores. 34 see aboye , Ch.v,nos.6o,68,81; also Kantorowicz , "ttlysteries of State," S ,f.

See, for the problem, mv papel on ''Dance's 'Tao Suns; " Sernitic and Oriental Studies in Honor of II'illiam Poppe,' (C niversity of California Puhlications in Semitic Philology, xl (iieikelev and Los Angeles, 195111, 21-, 23i. The smdy' of Michele Maeearone, ' La teoría iemcratica e jl canto XVI del Purgatorio;' Revista di Storia della Chiesa in Italia, n ¡195v), 369395, tras then not known m Inc.

Si Alonarchla, 111,10,4711: " . sicut Ecclesia suuni habet fundamentutn, sic et Imperium sume: nam Ecclesiae fundamenmm Christus est , . . : Iniperú vera fundamenmm los humanum est." This passage was quoted in full by Albeticus cle Rosate, en C.7,37,7,n.3o, fol. 109; ef. Nardi , "Note alta Alonarchia," ro¡, as Gilson, Dance, 179f, also 166 , and passinl ; d'Entréves , Dante, so.

between office and nlan. In fact, the tension of ibis crucial chapter ties in wich the general duality of human goals simbolizad hy Admn and Christ, the evo paragons o£ perfection in the ttvo paradises: Adam in the terrestre al paradise and Christ in the celestial.

sa Purg., xvl,1o6H:

462

1

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MAN-CENTERED KINGSHIP: DANTE

che Monarchy and lo declare that a political beatitude in this life as an ultimate end, attainable by che working of the moral or intellectual virtues alone, did not exista' The duality, however, of corporate bodies marching (so lo speak) par¡ passu towards different goals, was quite indispensable for Dante's vision of a selfsufficient world-nfonarchy not controlled by the pope. Dante's monarch was not simply a man of the sword and thereby the executive arm of the papacy; his monarch was necessarily a philosophic-intellectual power in irs own right. For it was the emperor's chief resportsibility, by mearas of natural reason and moral philosophy lo which legal science belonged,'a lo guide tire hutirui mirad lo secular blessedness, just as the pope was charged by Providente lo guide the Christian soul lo supra-natural illumination. A duality of goals does not necessarily imply a conflict o[ loyalties or even an antithesis. There is no antithesis of ''human'' versus "Christian" in tire work of Dante, who wrote as a Christian and addressed himself to a Christian society, and who, in the last passage of the Monarchy, said clearly that "alter a certain fashion (guodammodo) chis ]portal blessedness is ordained toward an inmortal blessedness."a° Nevertheless, the fact remains that Dante distinguished between a "human" perfection and a "Christian" perfection-two profouudly different aspects of man's possible felicity, even though these two actualizations of mati s potentialities were ultimately destined to support, and not lo antagonize or exc]ude, each otlier. For all that, however, tlte sphere of Humanitas was, in Dante's philosophic system, so radica[ly set apart from that of Chlistianitas, and the autonomous rights of human society-tltough depending on the blessings of the Church-were so powerfully emphasized that indeed it is admissible lo say that Dante has "abruptly and utterly shattered" the concept of the undisputed unity of the temporal in che spiritual. ° sz Cf. Cuido Vernani, De reprobal ion, bforrarchie cmupnsite a Dance, ed. 'rhornao Kiippeli O.P., "Der Dantegegoer Cuido Vernani O.P. von Rimini;' OF, xxvut,i2346, see especially >26,r.111, 146,gff and passim.

3SAh>ove, n.r3. Ser Hermane Kantorowic-z, Glossatm's, 37f. s°dtonnrehia, m,16,1g21L qunm morialis ¡Sta felicitas guodammodo ad immortalcm feliz ira tcm m'dinctur." ao Son Gitson, Dance, 2'rlt, who rightly dcals heavy blows to thc so-rnlled "r h om isnr" of Dance and r eeognices the power of Dante's shnicring political pass ion.

µ6i

MANCENTERED KINGSIIIP: DANTE

Dante's metaphysical surgery exceeded that of others who before him had separated the empire from the embrace of the Clmrch, distinguished philosophic reason from theology, and questioned the oneness of the "intellectual soul" by appropriating, as it were, the intellect for the state and leaving che tare of the soul lo che Church. Dante did not turra humanitas against Christianitas, but thoroughly separated the one from the other; he took the "human" out of the Christian compound and isolated it as a value in its own right-perhaps Dante's most original accomplisltment in the field of political theology. The "separatism" of Dante led lo the creation of different sociological strata. His humana universitas emhraced not only Christians or members of the Roman Church, but was conceived of as the world community of all traen, Christians and non-Christians alike. To be "man," and not lo be "Christian," was the criterion for being a member of che human community of chis world, which for the sake of universal peace, justito, liberty, and concord vas lo he guided by the philosopher-emperor lo its secular self-actualization in the terrestrial paradise. And whereas great portions of men-Jews, Mohammedans, Pagans-did not belong lo the mystical body of Christ, or belonged lo it only potentially,'r Dante's humana civilitas included all men: the pagan (Greek and Roman) heroes and vise men, as well as tlre Muslim Sultan Saladin and che Musliut philosophers Avicenna and Averroes. And Dante, while repeating a conmron argument, could maintain that tire world had been at its bes( when mankind was guided by Divus Augustus, after all a pagan emperor, under whose reign 41 See Aquinas , Suturara theol., m, q.S,art. ,resp.: "Quaedam l amen sunt [membra torporis mysticil in potentia, quae nunquani reclucuntur ad actum." The question argued is Utrure Christus sit caput ocaniare horuinuru , which Aquinas answers in che afhrmative , adding, however, "sed secundum diversos gradus." The hierocrats mere leso careful (han Aquinas , but rather inclined to deduce from che potentiality (that is, che calling of che Church to universali ty) actual universal rights of che vicarias Christi, as, e.g., james of Viterho (De regirnine christiano, 1,4) or Aegidius Romanus (De eccles. potestate, at,2). Ocher authors, however, defended views similar to (hose of Dance, The author of the Sonrnium viridarü (Songe du Verger), e.g., says quite specifically: " Papa non est super paganos secundum apostolicas sanctiones, sed solummodo super Ch ristianos ," and draws che conclusion : " ergo [papa] non ese dominas temporalis ononium." Cf . S'onrninro viridarü, 11,35, ed. Goldast, Monarchia (Hanau, 1612- 614 ). 1, p. 154 (also n,)gq, ed. Goldast, p.175: "Romanos pontifex non pcaesít omnibus '). CL F. Meszhacher, "Das .Sornniunr zriridarii von '376 al$ Spiegel eles gallikanischen Kirchenrechts," ZfPG, kan.Aht, xeu (1956 ), 67,x53.

465

.irAN-(E:NTF: RED 1, /V(; tílIP IIAA'/'E'

Christ himself chose to become man, and, litr that nlatter, a Reman citizen." According to tse opinion of severa] canonist5 and papal political vriters of tse late thirreenth and early [onrtccnth ccnturies, cutre was "no riglitful empine outside the Church.'' tchich iniplied that tse pagan emperors (lid nos liold tse empine ri ht[ully; and Guido V'ernani, Dante's adversaiv, declared sn aightlorscardlc —tia, amo," che pagans cuete ncyer «asa nne respl/DÜca 1105 teas anvone evci a trae emperor.'''1'hat thcory teas nos eses ichited by Dantc it was almost reversed. Saint Paul liad styled tite momeut of che incarnation of Christ tlte "fulness of tse time' (Galatians q: 4), an expression which referred to Christ exclasively. Dante, Ihowever, included Augustos, for he called "fulncss o[ che tnné' that providencial moment in which both Christ and Augustus were treading the ground of chis eardt "that diere he no ministry of out Miss lacking its minister."11 That is to say, only under che perfect 42 Monarchia, t,16,t7ff, and , for che Roman citieenship of Christ, 11,12.441; also Purg., xxxn , Io2: "cive ( Di quella Reina onde Cristo e Romano." Dante is [ar more exuberant in his Augustos thcology when he disnuses tse salve probienn in Convivid , iv,5,5off: Not only heaven, but also the earth tuco appeaicd setter disponed than ever lactare or alter Né'1 nsondo nmt fu mai ne sarri si pci tettameute disposto , come allora che alía vote d'un solo principe del Rolvan popolo e coulsuas pió non mendatore fu ordinato ... E pera pace universale era por tuco, che fu iQ fia: ehé la nave Bella amarla compaguia cosoa rnnl[e (ser.dolce co'rsesino a debito porto correa ." See, for the Pax Augusta, also Par., v48of, and, for tse Edict of Augustus (de iustissimi priucipatvs aula prodüsset edicturn), Epistolae, vn,64ft, aleo unes ,4f for tse application to Ile sry VII (tu, Caesaris el Augusti successor). Barmlus, Bartolus, who knew the Monarchia as wetl as Dante's poetry (cf. Woolf, 17,1.4, and gof ), ffew tuse Augustus theology to the highest pitch when glossing on quis diceret dominum lmperatorem non essc D.49,15.24 ,n.7, fol261v: " Et forte, si dominum et monarcham totius orbis , cese[ haereticus, quia dicerat contra determinationem Ecclesiae , contra textura sancti Evangelii , duna dicit Exivit edictum a Caesare Augusto, ni describeret universos orbis, ut babes Lucas II[:1]. Ita etiam seas citen recognovit Christeis lmperatorent ut dominum" Bartolus' argument referred to or even verbatim repeated; see, e.g., Jason de slayno, Consilia, 111,70,1.3 (Venice, 158x), fol.ugy. Others, however, attacked Bartolus vehemently; see 4voolf, Bartoleo, 25 ,x2. For Darte, no cloubt, Augustus helonged, Eke David and Solomos, among those redeemed at the Harrowing of Hell. To some extent, of cottrse, Dante followed Orosius as seell as Otto of Ereising (Chronica, m,6); see, for tse Orosian Augustus theology, in addition m Erik 5'etersou, '' Der slo nn theismus ale poli tiscbes Problema' in his Theologische Traktate (Munich, 1951), 97ff, tse study of 'Eh. E. Mommsen, "Aponius and Orosius" Late Classical and Medioeval Studies m Honor a( Albert Mathias Eriend, Jr. (Prinreton, 1985), esp. 1o7ff, iof, to whnn41 otee many valuable insights in the problena. Ser aleo below, 1.43. e 4iSee, for the maxint extra ecrlesiam non esí` irnperuun, Caines Post, ''Sotoe Unpublished Glosses;' 408 (tvlth referente to elo post, (:.xxn',q.l, ed. 1rieelberg, 1,982) and 41111', e'here similar opinions are reviewcd. Ser, for Guido Vernani, below, nos.So and 82. Cf, Acgidius Routanus, De erclcs. potestate, m,2, ed. Scholz, 66

tl 4S- ( ,lAT1FEI( 1) K/xe;s11 / Pr DA .'TE

tse emperor, Divos Augustas, vas there the perfecta monarchia, and in che ; empine of tse Romans, in a state sil perfect peace "fulncss of tse time " tse perfect imperial guide to mortal bliss vas no more a Clrrisrian iban V' ergil, tse poet of rice empire, rvho finally seas che guide of Dante himself co che paradise oí: this world. In other words, against chose hierocrats sebo held that the and a veras im pagaos could rever Itave liad a vera respublica , such as it peratoi, Dante inainrained that tse perfecta monarchia never existed ehher before or alter. seas found only under a pagas Prince , tse nrost human Divos Augustos. Perhaps tse atnhivalence of che word humanitas has to be taken the truly huinto account , roo. Humanitas meant, qualftatively , tlte whole human , quantitatively man behavior; and it meant , race-two notions which in Dante's work were definitely interdependent and even might relate, theologically , lo the human nature of Christ. In order lo achieve the highest perfection of each bis humanitas , qualitatively, all men liad co contribute share-to the whole hody of man; and accordingly, the human race, or humanitas quantitatively , appeared to Dante like One Man, a single all-embracing community , a universal hody corporate or "some totality" ( quoddam totum) which the poet called humana universitas or humana civilitas. whereas universitas was the customary legal-technical term for corporate bodies, civilitas (though not unknown in legal speech ) had sorne additional overhis human tones: man ' s universal citizenhood , his civic thinking , civilitas humana civility or perhaps even education . 44 At any rate , implied-beyond all practical problems of division of labor, demand of goods , and other necessities of the social animal-a un¡153: "... apud infideles nec est proprie imperioso neque regmlm .'' Tire oppositc Somnium point of viese ( similar m that of Bartolus; ahove, n.42 ) is found in tse certius notum est quod üli ): ... 134,10ff (esp. viridarü , 1,179, ed. Coldast, t33f . Vana ele vero imperio seo refino illo iofidelium infideles erant veri imperatores habemus testimonium Christi" ( referentes tu Matth. 22 : 21, and Luke 2: r). Cf. Monarchia 1,16,191f: "Vete tempus et temporalia quaeque plena fueront, quia nullum nostrae felicitatis ministerium ministro vacavit." See also preceding note. aleo 43.31); for 44 Monardiia , t 7,21f, for quoddarn totum and universitas ( Humana Civilitas, 33f: civilitas, ser 1,2,5off, and passint- See , for civilitas , also Kern, politice, 0,7Bff, who Nartli, Saggi di filosofia dantesca, 26o; Ercole, 11 pcnsiero ,oi,ld refer to che homaua points out ( u5tf) that both ius gerditmt and ios civlle 55 civilitas as distingoished fiom tse positiva lase of individual otunmunities . See aleo and others as che commentary of Vinay, on Monarchia , 1,3,1, p.y,n.13. Baldus ( well) secas to use che word chiefly in the serse of "citilensh ip"; cf., e.g., Consilia,

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versal community bound by natural as we11 as intellectual or educational ties, by a mental attitude which was that oí a citizen oí the world-polity . Dante did not in that connection avail himself of the term corpus mysticum, neither for the supra -natural community oí the sons oí Christ nor for the natural community oí the sons oí Adam; but if ever there existed a secular "mystical body," it existed in Dante's humana civilitas . For this universal community oí man renresented , as it were, the mystical body oí the father oí the human race, the corpus mysticum Adae, the head oí which was the emperor charged by Dante with che task oí leading mankind back to whence it carne: the terrestrial paradise. The way to the terrestrial paradise was marked by the intellectual or moral - political virtues ; that is, by the classical-pagan cardinal virtues : Prudente, Fortitude, Temperance, and Justice. Now, scholastic philosophy distinguished between two sets oí virtues: the four cardinal virtues, called technically virtutes intellectuales or acquisitae , which existed in man and were within his reach according to the conditions of his human nature and human reason; and the three theological virtues-Faith , Charity and Hope-which could he bestowed on man only by divine grace and, consequently , only on Christians , and which technically were known as virtutes infusae or divinitus infusae , "virtues infused by God" for the purpose oí ordaining man to his supra - natural ends. Following in the wake oí Augustinian arguments , the theologians oí the twelfth and thirteenth centuries recognized only the virtutes infusae as authentic, as verae virtutes without restriction. They did not deny, oí course , the existente oí the acquired political or moral virtues ; but they denied their raison d'étre without their infused theological sisters, because they attributed to those purely human virtues no independent supra-natural merits, and therefore virtuous actions, performable even by a pagan or infidel, were in view oí salvation without true consequence . It was Aquinas only vello, under the pressure oí Aristotle , broke away from that tradition and first attributed to the moral - political virtues their full and proper value secundum rationem: "An action oí political virtue is not devoid oí consequence , but is good by itself (actus de se honus)." And he added : " and if [such action] were prometed by grace, it would be even meritorious."" 45 This developmmnt has been excellently traced by O . Lottin OSB , " Les vertus 468 e

Dance, as usual, was the loyal, if undutiful, disciple oí Aquinas. Nothing could be more acceptable to him than a tenet according to which an action oí political virtue was de se bonus. It was, in fact, so acceptable to him that he could venture te isolate this independent value oí the intellectual virtues and to set it overequal in rank, though different in kind-against the supra-natural value oí the virtutes infusae. At the same time, he clung to the distinction between hurnanly acquired and divinely infused virtues to which he referred in unambiguous terms.4e But whereas Aquinas merely distinguished between intellectual and theological virtues, their functions and their ends, without disintegrating the functional unity oí the total oí seven virtues (which in their turra correspond with the seven vices), Dante broke the two sets oí virtues apart. He combined them with his concept oí the two paradises, consigning the intellectual virtues to the terrestrial paradise and the infused virtues lo the celestial. In twelfth-century art the custom arose to represent so-called "Trees oí Virtues and Vices"-diagramtnatic representations oí there two sets oí human conduct-whereby che seven vices were sometimes superseded by a human figure inscribed Vetus Adam and the seven virtues by one inscribed Novus Adam, that is, Christ" Dante perhaps would Nave suggested yet another division by allotting, not to the Vetus Adam, but to Adam in Paradise the four intellectual virtues, and accordingly to the Novus Adam, the thrre infused ones. He did not say so, but in his scherne oí the two paradises it was appropriate to use the pagan-human virtues-autonomotisly in order to provide his universal monarchy with an intellectual ultimate goal which did not depend on the mearas oí grace oí the Church. In other words, man, if properly guided, could attain lo the terrestrial paradise of the first man through his own devices, through the morales acquises sonoelles de Sraies vernlr La réponse des théologiens de Pierre -Ibélard 5 saint Thomas dl4quiv,'' Recherches de tlobologie aneienne et nsédidvale, xx(,953), 13-39, rvho (p38) que (es che decisive passage of Aquinas, In II Sent., D.4o,q. i . a. 5. sSee also the continuation of Lottin's study, ibid., xx, (1954), 101-129. +e Mouarchia, 111,16,53ff; cf. Aquinas, Sun,ma Uicol., 1- ti gq61 -63, also 9.65. *s A. Katunellenbogen, Allegories of ¿he Vire,,, and tices in Medioeval Art (London, 1939), 63ff, and pls.xl-xn; also Herbert ven Einem. Der Mainzer Kopf mit der Rinde (Arbeitsgemeinschaft des Landes NordrheinWestfalen, Heft 37 [Colegie and Opladen, 19J5]), 28,1183. and f1g5 .go-3i. For che spreading of those representations in che 12th centnrv, see also F. ,Saxl. "A Spiritual Eneyclopaedia of the Lacer Middle Ages;' (Varburg Journal, v (1942), 1o7ff.

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power oí natural reasun and of rhe Tour cardinal virtues alune. It is true, man qua Christian teas in peed of rhe assistance of the Church, oí thevirlues inftlsed bv God. and thcrefore also uf papal guidance in order lo achieve tlic eternal peace oí celestial beatitude and ascend lo rhe envine Light in the lile thcreafter. lbut man qua man did not need the support of rhe Church lo arrice at a philosophic beatitude, al temporal peace, utstice. liberte- and concord, which were within his own reach through the agente oí the four intellectual virtues.

That fundamental idea teas well tmderstood not only by contemporaries such as Guido Vernani, who vehemently objected lo Dante's interpretation,<s but also by later scholars wito interpreted Dante approvingly. In the Auditing Hall oí the Collegio del Cambio in Perugia, for exaniple, tlic walls are covered witli famous frescoes which Perugino and his pupils executed according to the scholarly advice oí a local httmanist, Prancesco Maturanzio. The central small wall, showing the human and tlic divine Christ (Nativity and Transfiguration), braces, as it were, rhe ovo long walls: one, displaying a theological scene-tlie Eternal God with cherubs and angels, prophets and sibyls-and tlte other displaying the four cardinal Virtues each of which is accompanied and symbolized by three men. The chief point oí interest here is that the cortége attending the four Virtues-consisting of their twelve human concomitants or incarnations-is composed of pagan heroes and wise men, that is, oí pagans exclusively, who under tlre conduct el the pagan human virtues balance che transcendental world visualized by prophets and sibyls90 Dante's ultimate responsibility for that composition, however, is evidenced by the fact that we find a solitary tbirteenth figure, Cato Uticensis-for Dante (as shall be shown presently), che truest embodiment oí all four civic virtues.00 48Vernani , De reproha done Nonarchie, on dfonarchia, ni,tG, ed. Ksppeli, '4r,f. •a See Lionello Venturi, 11 Perugino: Gli Aljresclsi del Collegio del Cambio, a cura di Giovanni Carandente (Edizioni Radio Italiana, 1g6b), 28, for the hum.unist Francesco Maturanzio ; see further pl. n. Prudencia and fu,rtitia with rabino Maximus, Socrates, Numa Pompilius, Furi us Camillus, Pittacos, Trnjaq and pl tv: Fortiludo and Temperancia with Lucios Sicinius, Leonidas, Horatius Cueto, l'ublitu Seipio, Pericles, and C. incinuatuc Mv thanks go to Protessor Frie Paeofskv, who not only called lar attcntiun to the pioblem, boa atoo pul at mv disposal the publication quoted aboye. 20Venturi, op.rit. pl.; tf. Pito

t_ aff,g711, antl below, nns.gtff.

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However that mar be, Dante, br separating the intellect [runa its furmer unity with tlic sotil and separating dte intellectual virntes from their unity with tlic divinely infused rirlucs, reieasetl tate power o[ ¡he note free intellect. I le used it lo bind iuto une. for the pursuit oí tltis-worldly happiness. Ihc huelan wmld-community contposed uf all aten, Christians and non-Christians alike, To he sure, rhe universal Christian faith leas connnon to al¡ 'Christians; Ihe human intellect, ltuwever, and human natural reason were common lo all men..And wliereas tlte salvation oí the individual soul could apply only to those who believed in salvation through Christ, the purely intellectual perfection and philosophic self-redemption in the terrestrial paradise was within rhe grasp of all men-including the Scythians and Garamantes mentioned in rhe MMonarchy,11 It is evident that Dante, in his ardent endeavor tu prove the secular monarch's independence oí the pope, " borrowed from tlic Church its ideal oí universal Cbristendom and secularized á' 1,12 it by substituting the notion oí " inankind" for "Christendom." His contemporaries, the so-called Averroistic philosophers at the University of Paris, advocated the philosopher' s intellectual beatitude in this world more or less as rhe ultimare goal of the human individual ." Dante, however, though never taking terrestrial felicity for the ultimate goal, transferred much of their radicalized Aristotelian doctrine from the individual to che universitas humana , advocating a philosophic- intellectual beatitude in Lt Monarchia, 1,14,4211.

52 Gilion, Dance , 166. Por a striking example, see , e.g., Afonarchia , 1,t6,25, and ohn 'g'2$, traditionally reterring esp. 111,10,44 , whcre the immnsutilis tunica oí j to the indivisible faith or indivisible Church ( see, e.g., Liber aug., 1,1 ), has hecn rnansferred tu Che indivisible world empire. —n is, tus the present purpose, quite sutlicient m glance at che list uf errorev condemnati oí 1277, pubtished by Denifle atad others (see aboye, Ch.vi,n.g), in urdes lo understand rhe meaning oí Dante's stress en the virtutes intellectuales; see, e.g., Denifle , No. 1441 " Quod omne bonum, quod homini possibile est, cousistit in virtutibus ilrtellect ualibui or, Denifle , No. 157: "Quod horno ordinatus quantum ad intellectum el affeetum , sito1 potest suf leienter esse per virtutes intellectuales, el alias morales , de gnibus loquitur Philosophus in Fthit is, est suficientes dispositus ad fclicitatem aeternam." C:f. Grabmaun , Der Iateinische Averroismus , tuf. 1he most prominent tepresentative uf that idea oí philosophic beatitude was Itoetius of Dacia, especially in his tractate De srunnm bono sive de vita philosophi , ed. Grabmanu, d1i[ie l alcerfiches Geiscesleben, 11,200224. For the Aristntelian background in general, see the useful stud, of Harry V , jaffa, ThomR ,n and A risco te lia ni nn: A stndv of rhe Co,nmentan' by '1 hm,,, Arp,i,ms on lhe N,,.... eta, Ethics Chicago. q-,2

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this world not only for che individual or che sum-total of individuals, but rather for the greater collective as such, che body corporate of Man. That body was supposed lo be knit together by che united intellectual capacities of man; it took its justification from the intellectual oneness of the human yace; and chal oneness again made the oneness of monarchic-philosophic leadership imperative. Nocv, that combination of human oneness, intellectual oneness, and political oneness-directed towards the intellectual self-manifestation of the body of mankind as the natural goal en earth-prompted Dante lo draw a very bold conclusion, logically perhaps unavoidable, but seemingly unorthodox. By analogy with man's individual body and intellect, Dante provided the body corporate of universal mankind with a Universal Intellect. Dante was not heedless of the fact that che "Unity of che Intellecc" was taken co be one of the outstanding axioms of che Averroistic doctrine, for he himself quoted Averroes explicitly, when he argued:

matic personality, but undoubtedly meant to be a mirror of che virtutes politicae, a man owning all and desiring nothing and therefore capable at all times of actuating Justice as well as the other virtues.®a One point, at leas[, demands further clarification. Strictly speaking, Dante did not say that an individual man could not possibly reach his own perfection or personal actuation. This assumption would have been in confiict with the teaching of the Church; it would nave been refuted by Dante himself and tacitly by his pilgrimage to the terrestrial and celestial paradises, and would perhaps be belied even by che figure of Dante's world-monarch.tT What Dante actually said was that the totality of human knowl5 A detailed analysis of the figure of Dante's monarch (probably most rewarding, though rather difhculc) is not inceoded here. Decisive is Monarchia , 1,11, with its invocation of Vergil's F'ourth Eclogne. Dance visualizes as a potentiality che retoco of che Saturnia regna (which he interpreta as optima tesnpora) under che rule of 7stitia actualized by, or incarnated in, che Monarcha, who, so to speak, cannot I

avoid che exercise of croe justice, hecause while possessing all, he lacks cupidity: "Remota cupiditate omnino, nihil iustitiae restar adversunl." Were Iustitia actualized, [han Pax, Libertas, Concordia, and al¡ che res[ would be actualized loo. See, for the all-possessing monarch, i,11,81ff: ''Sed Monarcha non hahet quod possit optare; sua namque iurisdictio cerminamr Oceano solum, quod non contingit principibus aliis, quorum principatus ad alios terminantur." Dance's source for che all-possessing Prince was mainly Aristoue; see Gilson, Darte, t76ff; Vinay (ed.), Monarchia, p.62,n.21. It should nor be forgotten, however, chal che jurists, especially che civilians, discussed that topic over and over again, granting to che Prince che possession of alt de jure, though not de facto. They, loo, broadened the basis of their argument philosophically, although their philosopher was not Aristotle, but Serreta and Iris ideal of the "Sage" who possesses everything "in che manner of a king" (regio more) and with whom che king is both concrasted and placed, as it were, en che same denominator (De benepcüs, vn,31f). See, e.g., Andreas of Isernia, on Feud., u,56,n.78 (Quae sunt regatia), fol.3o5v: , . et melius per Senecam, de henefi.§.itlr.civili, [vn4,21 'omnia regir sunt etc.' et sequitur 'ad Regem potestas omnium pertinet, ad .singulos proprietas'; el sequitur 'quemadmodum sub optimo Rege omnia Rex imperio possidec dominia' [vu,5,r 1, et hoc modo dicit infra 'Caesar omnia haber etc.' [v11,6,31. Seneca fuic im'isca optimus, ut pace[ illis qui iegerunt curo ..." See also Andreas oí Isernia, Prooe,n, ad Lib. aug., ed. Gervone, xxvii. The copie Seneca Turista optimas has as yet to be invescigated. The Dantesque idea of che monarch "qui non habet quod possit optare" is generally that of che jurists; see, e.g., Baldas, on C., prooem. ("De novo Codice faciendo"), rubr.n.14, fo1.3v, who argues against applying co che emperor the word "oportet,. "quia sibi [imperatori] nihil ese necessarium; nam imperacor libere agic ad similitudinem Dei, qui est agens omnino liberum . ." This imperial philosophy is also represented in che surroundings of Frederick II; see, e.g., his letter co John Vacatzes (HuillardBréholles, vt,685). That Dancee s vision docs nor agree with so-called "reality" should nos, however, he interpretad as "un bel gioco dialettico" (Vinay, loc.cit.). What Darte outlines is noc the .Monarcha "body natural," but (so to speak) che perpetual Monarcha "body politic." m See, for a few remarks en che problens in general, Vinav (ed-), Monarchia, 23ff,n.16 (en t,3); also below, nos.62f.

It is evident, then, Ihat che specific potentiality of humanitas is a potentiality, or capacity, of the intellect. And because that potentiality cannot wholly and simultaneously (tota simul) be reduced to actuation by one man alone, or by one of the .. . particularized communities, che human race is necessarily a compound of many (multiludo) through whom the entire potentiality can become actuality. And Dante added that Averroes, in his commentary en che Aristotelian De anima, agreed with chis doctrine.14 That is lo say, only the whole body corporate of mankind was able lo achieve what neither che individual nor a local corporate body could achieve: lo allow all potentialities of the total human intellect to be actualized semper and simul, "at all times" and "all at the same time."51 Hence, Dante concluded, the world-monarchy was needed lo secure the perpecual actuation of the whole of humanitas, quantitatively and qualitacively. He visualized a huge political collective whole intellectual potentialities, through the agency of the four cardinal virtues, were guided to perfection by che Roman philosopher-monarch-adnlittedly a somewhat undefined and enig54 Monarchia, t,3,631 . 6s Mona?chja, 1,3,6611: "potentia isla per unum hominenr . fofa simnl in actum reduci non potes .. - ibid., 73f: "ut potentia tota ... semper sub acto sic .. . 1,4,3E "actuare semper totnna potentiam intellectus possihilis." See also Vernani, De reprobatione, cd. Kdppeli, 127,19: "todos humani generis simal sumpti."

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1

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edge, the totality o[ that by which nlan becaine Man, or, briefly, the totality oí humanitas, could become actuated only by che COIlec tive effort of the corporate body of mankiLid. The fati that Chis perfection oí the human totality was a desirablc tasé arad creo a necessary one, is a different matter. Dantes intent pcrhaps may be conveniently gadtered from a stanza in thc Comedy: The human namrc, rckien in its totalil, It sinned in its fist secd, vas partcd hoth From its own dignities and from thc paracise." That is, with regard to original sin the whole o[ mankind was like one body and one man , as Aquinas put it.'a Against that totality of mankind which fel] guilty potentially in che first man, Dante set the totality oí mankind which potentially can regalo "its own dignities " and paradise as we11. It can achieve, by its own power and through the intellectual virtues, its own actuation in the terrestrial paradise whence Adam had been expelled, who, in the state oí innocence , himself was che actuation oí humanitas without restriction. Dante reversed, as it were, the potentialities: just as Adam potentially boye mankind and sin in his limhs, so did mankind in its totality bear Adam and his perfection, his status sublilis (if we may say so), in its limbs. What had fanned out from Adammankind-was reduced again corporately Lo Adam. For there is no doubt about it that Dante conceived oí the genes humanum as though it were a single person, a single body corporate which, just like the universitas oí che jurists, svas °always" and "all at the same time" actuality. In comparison with that sempiterna] humana universitas the intellectual powers oí its individual constituents -mortal and ever changing as they were-could be but fragmentary, ephemeral, and imperfect just as in the case oí any other corporate community. Hence, the status oí perpetual actualization-normally a privilege of tire celestial intelligences"°-could 58 Paradiso , vu,e5fb Vostra natura. quando pescó rota nel seme seo , da questl dignimdi, come da Paradiso fu remota. Qa See below, 1.72.

60 Monarchia , 1,3,55-62, Dante seems to mean that che seco piternal beings are coincided in che perpetual actualizar ion ; but he conteuds that esse and in te!!igere celestial intelligences , and therehy immediately met vith che protest of Guido Chis coincidente an Vernani ( De refn'ohatione , ecl. Klppeli, 127,4) who brauded and or telligere. intolerabilis error, hecause in Gocl alome could there coincide rase See, for che passage , also Vinay, Monarchia, 22,1.15.

471

he achieved only by Lile whole coi poration, che species o[ man, to which Dante attributed a single, if universal, intellect. That Dante borrowed che notion oí tire "universal intellect" from Averroes, whom he quoted quite frankiv. is evident; but it mcant to Dante something different from Averroism. The Averroist dreamt oí a separate world-intellect to be actualizad in, or by, the philosopher, che individual; Dante, however, thoughr oí che colleclive. He had in mirad ara immanent world-intellect which was not separate from its individual human constituents, tilougli it transcended each one of them, and which could be actualized in its fulness only by an universitas acting as "one man," as a collective individual.-' For all that, however, it is undeniable that Dante's concept could llave an odor oí heterodoxy, especially since Dante himself quoted, and certainly thought of, Averroes in that connection. In a superficial way, therefore, his adversary Guido Vernani svas right when he branded che poet's philosophical tenet a pessimus error. But the pessimus error was not seated simply in che tener oí a collective intellect itself. Vernani-correctly from che convencional point oí view-proceeded from Lile anima intellectiva, tlre intellectual soul, implying therefore che traditional unity oí soul and intellect; and on that premise, Dante's collective intellect would have implied also a "collective soul," or world-soul, denying thereby Lo man the individual soul and the possibility oí its individual perfection and redemption.02 Dante, however, had separated, as it were, the intellect from the soul, and tire virtutes intellectuales from the virtutes infusae; and perhaps, in an admittedly exaggerated fashion, one could advance the hypothesis that qua intellect Dante visualized a predominantly collective perfection, whereas qua soul he foresaw the traditional individual perfection.°a All dtat, however, is beside che point here. 61 Gitson. Dance, 169, is excellent m1 the difference between Averroistic individual perfection and Dante's collective perfection. 62 See Vernani, De reprohatione, ed. KSppeli, 127f. ea See, for that distinction, M. Barbi, "Nuovi prohlensi, VIII: Impero e Chiesa;" more than doubiful, however, whether this Studi danteschi, xxvi (1942 ), 13,1.1. It is distinction can be made: che goal of tire vita con teospfalira in Chis world is always the beatitude of che individual, whereas Dance, in the Monarchia, wishes co speak mainly about che vita activa or politica (cf.1,2,36ft), which is collective by definied. P. O. Kristeller (beloe', tion. See, e .g., Jacobus de Pismrio, Quaestio de felicita!,', n.71), 462, lines 46ofE, who distinguishes between ipsa felicitas of che contemplating multitudiais, and perpemation of the individual , felicitas practica of man as pars human roce with regard io man as pars universi.

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Far more relevant, it seems, was Dante's request that the universal intellect should be actuated semper and simul, that is, a demand of perpetuality which individually could not possibly be metjust as no individual citizen of Bologna could actuate the sempiternity of Bologna itself. At chis juntare it becomes apparent that, more perhaps [han with Averroes, Dante fell in with the corporational doctrines current in Iris time among jurists and philosophers. Difficult though it was for the jurists to define accurately the culpabilicy and responsibility of the universitas , there was at least some agreement about the fact that corporate bodies had neither a head nor a soul nor an intellect .°° The corporation lacking a soul could therefore not be surrendered by excommunication to the hands of Satan or, lacking a head, be beheaded, whereas che problem of collective guilt (often interpreted as a secular parallel of the original sin with which che totality of mankind was charged) was as widely open to discussion in the thirteenth century as it is today.06 It was hardly more than a playing with notions and words when occasionally a jurist declared that corporations, since they liad by fiction a body, "could by the same fiction have a soul,"16 which naturally had as little lo do with "monopsychism" BS as Dante's teaching had with the Averroistic 6s See, for a few signifirant passages , Gierke, Gen . R., 111,363,11.36 ; cf28of,282, n.112. That the whole world could be a "corporation " goes without saying; see, e.g., Bartolus , en D.6,1,,,3,n . 2, £01.204 (aboye, Ch.vi, n.7o): " . quia mundos est universitas quaedam." See , for Baldas , aboye, Ch.vi , n.91, and aleo Gierke, Gen.R., 111,356,n 8, 545,11.64. 65 The problem of collective guilt (peccatum multitudinis), of internacional concern alter 1945, has been treated in recent years quite frequently also from a scholastic- canonistic point of view and in connection with che peccaturn originale; see, e-g., Franz KBnig, "Kollektivschuld und Erbschuld ," Zeitschrift jür katholische Theologie , rxxu ( 1950), 4065; Eschmann , " Studies in che Notion of Society " (ahoye, Ch.vt,n.77 ), esp. 1.7, both with hrief reviews of modern literature , and hoth showing convincingly che inapplicahility of che modern notion of collective guilt to that of original sin. That does nor exelude , however, that corporational doctrines were applicable ro mankind with regard to the peccatum originale; see helow, n.72. °°See Oldradus de Ponte, Concilia , rxv,n.7, fol.24r , and che criticism of Gierke, Gen.R., 111,364f. 67 Strangely enough, some jurists occasionally talked about che anima mundi. See, e.g., Azo , en Inst.2,2, fol.276v , ed. Maitland , Azo and Bracton , 130: "Forte el res incorporales' stmt , quae in iure non existrmt , ut genera et species , et calodaemones et cacodaemones , el animae hominum et anima mundi "-a passage repeated by Bracton , fol.,ob, ed . Woodbine, 11,48. The notion was well known in che school of Chartres ; see, e.g., Theodore Silverstein, "The Fabulous Cosmogony of Bernardus Silvestris ," Modero Phflolo gy, XLVI ( 1948-49), n4lf. Professor Silverstein was kind enough te point out te me that Azo horrowed all his exempla of incorporeal chings

476

"Unid of the Intellecc." On the other hand, however, the jurists of Dante's century claimed that the universitas was itself an indivisible Whole, "a kind of individual which therefore does not distinguish parts." When subscituting for universitas the notion of patria, it became even more obvious that the Whole was an entity transcending che sum of its constituents, for (said Andreas of Isernia) " to divide patria into as many parts as she has inhabitants is a mutilation (concilio ), and not a division (divisio)."°a With Bartolus, the pupil of Cynus, it then became quite customary lo argue that the "universitas represents one person which is different from the individuals composing it," for whereas the components change 'che universitas itself remains the same."86 And if finally Baldus styled the community " some universal person having the intellect of a single person, which nevertheless consists of many bodies ," 70 it becomes obvious that Dante's ways of thinking and arguing were closely related to those of the jurists. Technically, Baldus said exactly what Dante had said before him, although Baldus stopped at his definition of a corporational "single intellect" and did nor build up that teleology of the human species which was the very essence of Dante's idea of a moral-political and pedagogical world-ntonarchy. The conceptual collectivism of che Icalian jurists was not Averroistic either, even though che lawyers were often accused of Averroistic inclinations.rr It was no more Averroistic than the from William o£ Conches, De philosophia mundi, ed. ( under the narre of Bede, Elemento philosophiae ) in PL, xn,1L271f; see, for calodaernones and cacodaemones, 113,B , and, for che anima mundi, 113oCD. See, for the work of William of Conches, also Silverstein, " Elementatum : Its appearance among che Twelfth-Century Cosmogonists ," Medioeval Studies, xvi(i954), 157,11. 6, and his most recen[ study "Hermano of Carinthia and Gieek: A Poblem in che 'New Science ' of the Twelfth Cennny," Medioevo e Rinascimento: Studi in onore di Bruno Nardi (Florence, 1956), 693f. It is clear Ihat Azo did nor think of doctrines of monopsychism. Professor Silverstein's identibmtion of the Azo text, however, is very valuable , because it shows that interrelations existed hetwecn che earlier glossators and che philosophers of Chartres ; see, for anodser example, Ilermann Kantorowicz , Glossalore, igf,n.io.

°s See ahoye , Ch.vI,n.75, fm' Andreas of Isernia, and Gierke, Gen .R., 111,204, for Rotfred of Benevento. 66 Aboye, Ch. vt,n.89, for Bartolus on D.48,19,16,10. 7o Baldas, on C.6,26,2,n.2, fol . Sov: "Est quaedam persona universalis , quae unius personae intellectum habet, tatuen ex multis corporibus consta[, ut populus . Et haec persona similiter loco unius habetur et individuum corpus reputatur .. . CE Gierke, Gen.R., 111,433, nos.61 lt. 7r See aboye , Ch.vl,n.62, and add Paul Oskar Kristeller, "A Philosophical Treatise from Bologna Dedicated to Guido Cavalcanti: Magister Iacobus de Pistorio and his 477

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MAS-cENTF:RED RJN(;S'HIP DANTE

Therefore, tire citizcn must lovc tire city more [han hiniself, because che city is his only possible actuation: tire Whole, che city, is more perfect [han che individual and, being more perfect, it is more co che likcness oí Goda' Remigio ovcrstressed chal idea to such ara extent that lie denied the individual deprived oí as city even the qualification oí man:

"collectivism" represented by Thomas Aquinas svhen, in liis Summa Theologiae, he disnlssed che reasons of Adam's [all in(] its effects om mankind. For ou that occasion Aquinas, loo. idvanced a corporational explanation oí Ihe guilt oí mankind. We may say thac al¡ meo borra froto Adato can he consalered as one man (possunt con.sidcrari ut unes iovao) in so far as thev concur in che nature which thev have rece ved h-om thc first manjust as in view oí che citizens all loen of a conuuunity are répntcd, so to say, as one hody and che whole community as one ata n.7''

If Florence were destroyed, he, who was a F7orentine citizcn, no longer can he called a Florentine.. . . And if he no longer is a citizen, he no longer is man, because man by his nature is a civic animal.45

"Mankind a corporation by che unity oí che original sin, not by' che unity oí che intellect," so we miglit sum up che collectivism of Aquinas, thereby leaving undiscussed che curiosity that a collectivity by sin should be orthodox, and a collectivity by che intellect, lo say che least, suspect of heterodoxy. It is evident, however, how closely interrelated the arguments oí Dante, Aquinas, and tire jurists were, and how narrow che margin was which separated corporational doctrines from pure collectivism. That narrow margin was not always guarded by Remigio de' Girolami, Aquinas' pupil and Dante's teacher. Remigio's extreme and radical corporacionalism had all but smothered che value oí individual perfection. He, like Dance, operated with che Aristotelian doctrine oí che actuation of che potencial, and, by applying it to che political field, held thac there was perfection only in che community, in che Whole.

What Remigio produced was simply a caricature of Aristotle who had explained that a man asocial by nature, and not by fortune, was either less or more than man-a beast or a god.'° However, Remigio, chal curious thomistic proco-Hegelian,77 was an extremis[ of anti -individualism: "being man" depended for him upon being a citizen because without a city che individual could not achieve perfection at all. True, Dante also admitted that man would be worse off on earth, were he not a citizen.7 8 Remigio, however, liad gone far beyond Dance; he was even ready to deny to che individual che eternal salvation oí che soul should that prove necessary for the good of the city. To some extent Remigio finally 74 Egenter, op.cit., 84,0.[1: -Unde [ commune] . direc t e amatur, praeamatur autem post Deum propter similitudinem , quam haber ad Deum . See also Egenter, 87 ,n.zo. For che doctrine holding chal che superior enticy ( commune m' emperor) "is loved directly" and without intermediary, cf. Monarchia , t,u,'utf. 75 Egenter , op.cit., 8a,n.1o : —linde destructa civitate remanet civil lapideus aut depictus, quia se. carel vincule et operatione quam prius habebat, . uc qui eras civis Florentinos per destruccionem Florentiae fato non si [ Florentinos dicendus, sed potius flerentinus. Et si non est civis, non est homo, quia homo est naturaliter animal civile ." See G. de Lagarde, "Henri de Gand" (aboye, Ch.v, n.52), 88f, and "Individualisme et corporatismé ' (aboye, Ch.v, n.aso), 38f. 76 Remigio actually quotes ( in addition to che Ethics) Aristocles ' Polities, 1,1,1252b, co which Aquinas in his Commencary , §35, ed. Spiazzi, u, remarks that [hose being "more [han man " migh[ have " naturam perfecciorem aliis hominibus communiter" and therefore could lave self-sufciendy without che society of men "sitar fui[ in Ioanne Baptista et beato Antonio heremita" 77 See, e.g., Hegel's Philosophie des Rechis , §258: "Since che state is mirad objectified, che individual has objeccivicy, truth, and ethical status only as one of che members of che state . The community as such is che croe comen[ and final aim." 74 See [ he famous terzine in Par., val,u5if: Ond' egli [Cado Martello] ancora: "Or di', sarebbe il peggio per l'uomo in terca se non fosse civeT "Si," rispos' fo , "e qui ragion non cheggio." See also che able discussion of cha[ passage by D'Entréves, Dance, t itl. who, however, does not consider Remigio at al].

The Whole has more being [han che parí. Tire Whole, as a Whole. is existing in actualicy, wlrereas tire parí, as parí, has no being except in potentiality.73 'Questio de felicitare ; " Medioevo e Rinascim ente : Studi in onore di Bruno Nardi (Florence, 1955 ) , 427-463, a treatise revealing once llore Dante ' s affinities to che non-Thomistic philosophers of his time.

72 Aquinas, Summa theol ., t-n,q.81,a.1, resp .: '' Fi ideo alia via procedendum est, dicendo quod omnes homines qui naseuntur ex Adato, possunt considerara ni unos horno, in quantum conveniunt in natura quam a primo parente aecipiunt secunduni quod in civilibus omnes homines (lui sunt unjas connumimtis , reputantur quasi unum corpus , et toca communicas quasi unos homo." 73 Remigio de' Girolami 's Tractatus de bono comnurni is known to me only, through che long excerpts published by Richard Egenter , " Gemeinnutz vor Eigennutz: Die soziale Leitidee im Tradatus de bono ronnmzni des Fr. Remigius Non Florenz (t 1319);' Scholastik, ix (1gy4), 79.92. For the place quoled ¡ir che tea, see 82,n.m: . totum plus babe[ de entinte quam pars. Totum enim ut totunt est existen acto, pars veto ut par,, non haber esse nisi in potencia secundum Philosophum in 7 ¡'buje."

478

1

479

,Al b LEA' TERED KINGSHIP: DANTE

MAN-CENTERED KING.SHIP: DANTE

toned doren his statenrent. He argued, however, that even the perfectly guiltless citizen should take upon himself Iris own eternal condemnation, if this would prevent his community from being eternally condemned lo Hell; he should prefer being punished lo being saved while his city was condemned. Apart from che fact that Remigio recognized a possibility of condemning to infernal punishment a hctitious person which had no soul, he carried his argument in every other respect lo quite illicit extremes. For what he advocated was not a simple pro patria morí, that is, to suffer the natural death of the body for the community and expect the reward in heaven for a sacrifice on earth ; Remigio advocated the eternal death of the soul, that is, the jeopardy of individual salvation and celestial beatitude, for the sake of the temporal fatherland.ra Dante, though lagging far behind his teacher's relentless corporationalism and anti -individualism, was nevertheless not uninfluenced by the general compound of ideas and ways of thinking of which Remigio was but an extreme exponent. Dante, toa, carried Aristotelianism to (wbat seemed to him) the logical ends when he emphasized, time and time again , that the actuation of the total human intellect was a task which could be performed collectively only by the greatest ot all possible communities , the universitas generis humani organized in the Roman world-monarchy-as it were, the body corporate of Man as distinguished from the body natural of each individual man. Into that scheme, however, Dante had to lit his world-monarch, whom the reader of the Monarchy could hardly avoid recognizing as an individual near lo perfection and whose shadowy figure, as conjured by Dante, resembled the "body politic" of the world-monarch rather than his body natural. Not quite wrongly did Dante's adversary Guido Vernani describe that imaginary world-monarch as a Prince who (if the teaching of Aristotle be accepted) had to exceed all his subjects by virtue:

he "compares with all Iris subjects as the WVhole compares with its parts ,"ao That interpretation, in fact, comes close enough no the doctrine of the jurists-Andreas of Isernia and others-who held that "the Prince was in the respublica, and the respublica in the Prince."at But since in Dante's case the respublica was replaced by the universitas humana and thereby widened to its very limits, Guido Vernani could score once more when he concluded that "the [dantesque] monarch of the whole human race must needs exceed in virtues and wisdom the whole human race." Vernani rejected Dante's thesis on the grounds that so perfect a human being could not possibly be found. He made, however, one reservation; for he declared that according to Dante's own philosophy there could be imaginable but one being in whom in fact the whole of humanizas was actuality: in Christ, the only true monarch of the world.12 Guido Vernani's conclusion was to the point. Moreover, it serves to demonstrate once more the fundamental dualityaa in srVernani , De re.probatione, ed. Kdppeli, 128,1rlf, first refers lo Aristotlés Politics, 111 , 17,i288ai5 , Latin version ed. Spiazzi , § 386, with Aquinas ' Commentary. §627f, pp.i83ff , and tiren says : "... rex debet excellere el excedere in virtute totam multitudinem subditorum, et comparatur ad omnes subditos sicut totum comparatur ad partes ." See Monarchia , ,,G,i ff, rshere Dante applies m his monarch the Aristotelian maxim of the duplex ordo, including the comparison with the relations prevailing hetsveen army and general ; ahoye, Ch.v, nos.221ff. sr Kantorowicz , " Mysteries of State," 79f, nos.48 and s; also ahoye, Ch.v,nos.64ff. 82 Vernani , ed. Kappeli, 128,13ff: "Monarcha ergo totios humani generis debet excedere fn virtutibns el in prodentia lotum genes humanum. Talem autem purum hnminem impossibi le fuit aliquandn reperire . Unde secondum islam philosophicarn ta ti enero solos do mi nos lesas Ch vistos et nullos alias fuit veras monarch a:' Vernani then refutes Dante ' s ,bol, thesis of a monarchy based nn humanitas as set against Christianitas by pointing out (¡bid., 128 ,n-4) "quod in infidelibus nnmquam fuit vera respnhlica i ec aliquis veras imperaron ." See above, n.43. siDantes system of "(Iiialiries' and "juxlapositions" should not be mistaken for "dualísm" of the Augustinian pattern. The lalter places the immaterial compound of soul and intellect (aniraa intellectiva) over and against the material corpus. Dance, however, separating powerfully and consequently the intellect from the soul, in fact reverts again to tire trichotorny of cru r,, vais , yto xij of which residuals are foond in tire writings of St. Augustine as well as in the li turgies ; see Erich Dinkler, Die Anthropologie Augustins (Stuttgart, 1934), 2r5.266, and, for the liturgies, F. E. Brighnnan , "Soul, Body, Spirir," Journal of Theological Studies, 11(1901 ), 273f, lo which there might be added the Benedictio olet of the Gelasian Sacramentan, ed. H. A. Wilson (Oxford, 1894), 7°. See, for Antiquity , the important passage in Plutarch, hloralia , 943a ("The Face en the Moon," c. s8), arguing against "the many" who fail te disti nguish properly hetween soul and intellect , with the note of Harold Cherniss , in bis edition of ¿he traaate, in Loeb Classical Library; Plutarch, vol.xii, 197, note c. Hence, Dante' s "heterodoxy " was not "Averroistic" (or it was Averroistic only inciden tally), hut resulted from the general trichotomy of his vieres.

rs Egenter , op.cit., 89f,n . 24. Remigio raises tire question about a citizen's attitude in the case that "suum commune in interno danmetur ," and argues that "ex virtute amoris ordinati homo deberet potius ipsam [poenam] velle pati cum immunitate communis , quam quod commune suum ipsam [poenam ] incurreret cuto intinu nitate sol , inquantum est pare communis ." That monstrosity, it is true, is subsequently somewhat alleviated by the fact that a guiltless person could not be condemned anyhow by divine Justice; also, Remigio leaves a few loopholes in the case that love of the city aud love of God should come into conflict; see, on those points, Egenter, 8gff.

480

1

481

AIAAvCI:.A'TLRP.D FJNGS1-111': DARTE

Dante's thought ni which every nionopoly of Christianitas teas obviated as well as suppietuented by a counterpart belonging lo humanitas. Undeniably, as Guido A'ernani shows. the question thrust opon the reader of the,l1onarchy was lo what extent Dante's world-monarch matched that image of rhe optimas homo who was ''the most One in his kind" and who usas "tlle Idea of his kind.'' that js, the "perfect roan" in whonl rhe wfiole of haniaoilas [vas actualized just as a kingdoni teas actualized in its king. Ilas [hese ever been such perfection in the individual? Has it ever happened that the whole community of universal mankind teas epitomized in one man except in Christ? In the Divine Comedy Dante gives a fair answer lo this question. Yes, such perfection did exist; for there have been two perfect beings, Adam and Christ. The }coman nature never was, nor shall it be, Such as it was in those two personages.aa

Adam and Christ were perfect, no doubt: they descended from God himself, they were not burdened by original sin. They were, however, perfect also in a philosophic sense in so far as both were the actuation of all human potentialities and both epitomized, if in different ways, the totality of mankind: Adam, because at his creation and in the state of innocence he was the only man then living so that in this extraordinary case individual and species, man and mankind coincided; Christ, because he was at the lame time God and man, and also because (said Dante) by the judge of the Roman emperor who had jurisdiction over che whole Suman race, it was "the whole human yace that was punished ir the flesh of Christ."a' Moreover, both Adam and Christ were man in a peculiarly double fashion. The first man was, if successively, both the Adam subtilis of the state of innocence, immortal, "a little less

MAN-CENTERED KINCSHIP DANTE

only [han the angels, crowned with glory arel honor, and rhe Adam enortalis after having tasted the fruir of rhe cree of knowiedge. Christ, according to scholastie tcaching. as.sumed at his incarnation the nature of rhe At1am su btilis in so far as he leas without guilt or sin, and assunied of his usen [ice will an accident of the nantre of the Adani mortalis in so far as lie liad rhe capahility of siiffering deatll.`t Heme, the tico actuatious of mankind in a single individual are those in Adam aod in Cluist, lords of die terrestrial paradise and rhe celestial paradise respectively, para gons of perfection in chis lile and in che other lile, and figures indicating once more the duality of Dante's philosophy concerning the "ovo ends which have been set by Providence, that ineffable, before man to be contemplated by him." Every century of the Christian era had its own ideas about man's renovation , reformation , regeneration-in short, his moral as weil as supra-natural rebirth; and these ideas varied considerably.aa On certain basic points, however, rhe Christian writers agreed. On the one hand , it was the goal of every Christian , and of Christianity at large , to recover tbe original image of man such as it had been before the fall-created to the likeness of God "a little lower than the angels." On the other hand , every believer was potentially elected , owing lo the Incarnation of the Son of God, to participare in rhe divine nature of Christ and thereby to re-establish in himself also the original integrity of human nature, that is, rhe very similitude with God which had been bestowed upon the hrst man en the day of his making. In other words, the image of the paradisian Adam was merged in that of Christ, the new Adam; and the original God-likeness of Adam in paradise was, by rhe

se paradiso, xn1,86f: Ché 1'uniana natura ala¡ non fue, N8 6a, qual fu in quelle due persone. Non fue, cé fia is Dantes rustomary way of expressing what may he termed the moment of actuation ; see, e.g., Convivio, iv,5,6off; above,n.42. as Monarchia , u,13(11 ), 4011: " .. ct iudex ordinarios esse non poterat , nisi supra totum humanum genus iurisdictionem hahens, quum totum humanum genus in carne illa Christi ... puturetur." 'chis is. of (nurse, rhe tradicional doctrine which, however, does flor imply that by his iucarnation Christ assumed Use human nature in the sense of the human "species" and not in rhe cense of rhe human " individual" See, for this controversial point, karl Holl, An,philoch¡os con 1koniuso (Ttibingen and Leipzig, 1904), 222ff.

ae See, in addition ( o Monarchia, 1,4,14, also Convivid , '5,19,65, where rhe words of Ps. 8: 6 (also Hebr. 2 : 7) are used ro describe (he actuation of human nobility based en virtue . The Psalter verse, el course , was quoted also in the Proocmium of the Liber aug ., where, however , very imperially ( he word "dialem " has been added: "honoris el gloriae diademate coronato . ." See, for a similar change, Monarchia, n,g,89, where Licero, De officiis , ', 11,34: imperii gloria, has been chauged into imperii corona. sr For rhe problem, see M. Landgraf , " Die Sterblichkeit Christi nach der L.ehre dar Frühscholastik ;" Zeitschrift fúr katholische Theologie, Lxx111 ( 1451 ), 2 57-312. 88 This is rhe subject of rhe forthcoming book of Gerhart B. Ladner, Reform: The Influence of an Early Christian Idea on Medioeval and Renaissance Civilizatian, quoted by him in his preliminary study "Die mittelalterliche Reform-Idee und ihr Verhsltnis zur Idee der Renaissance ," MIóG, Lx(1952), 32-59.

482

483

MAN-GENTERED KINGSHIP: DANTE

MAN-GENTERED KINGSHIP: DANTE

support of divino grace, recovered through Christ. This new image of man was considered (for example, by Saint Augustine) superior to that of Adam before the falla' There was no need for disintegrating what had been merged, or for taking the idea of a restitution of Adam's original image out of the general compound of Christian doctrines. It was left lo Dante lo re-"humanize" the idea of a recovery of Adam's original nature and again to release the "fuman" from the Christian aggregate of thought.00 For, as a consequence of his philosophy of dualities, or of his concept of perfection in both a terrestrial and a celestial paradise, it was probably unavoidable lo "secularize" also the current Adam-theology and build up a doctrine of a purely human regeneration which was not identical with the doctrine of Christian regeneration-though the one did not need to contradict the other. The first two parts of the Divine Comedy, Inferno and Purgatory, have clearly the function of demonstrating how Dantethat is, man in general or mankind impersonated in the poetwas led by philosophy and secular wisdom from a sinful state back to the natura sincera e buona of tire first man before the fall. 91 To be sure, none but the Church was competent to prepare man for his future immortality, since as a remedy for the first transgression and the ensuing loss of corporeal immortality the Church administered the sacrament of spiritual rebirth, baptism. It is obvious that in one way or another some of the effects of the sacrament of baptism were to be fitted into Dante's concept of the terrestrial paradise where man was supposed to recover, not his eternal, but his temporal beatitude, his original human dignity, and his inner freedom from guilt. This state of temporal perfection, however, was to be achieved not by means of a sacramental and supra-natural act, but by man's own powers, by bis natural

reason, and by the intellectual virtues. There is, of course, not the slightest reason for assuming that cvith regard to the effects of baptism Dante deviated in any respect from the common tradition. But since his idea of a return to the guiltless Adam in a terrestrial Eden was not at all within the scope of either the Church or the ecclesiastical sacrament or even the economy of salvation, the regeneration of man as visualized by Dante had to proceed necessarily para-ecclesiastically, though often in imitation of the procedures of the Church. I-lence, as a consequence o£ his setting apart of humanitas froni Christianitas, of virtutes intellectuales from virtutes infusae, terrestrial paradise from celestial paradise, Dante had to set apart also Adam from Christ and make the return lo man's original image on earth independent of man's transcendental perfection in Christ by grace. In other words, Dante liad to cleanse man from the peccatum originale in a nonsacramental fashion.°a According to Dante, it was in man's own power lo recover the purity of tire first man, to re-enter into the Garden of Eden, and finally return lo the Tree of Knowledge and undo che effects of its fruits which had turned Adam's lordship co serfdom. In the Comedy, it was chiefly tire pilgrimage through Purgatory which signified the purification of man in a philosophic, not in a theologico-sacramental, serse, and the result of this pilgrimage and purification paralleled in a way the effects of the sacrament of baptism: just as the neophyte, after his catechumenate, emerged from the baptismal font as one reborn and freed from original sin, so would Dante finally emerge from Purgatory as a new Adam-like being, "free, upright, and whole."°a To be sure, there was also rebirth for Dante; but this rebirth was moral and ethical and not sacramental. The purifying and regenerating power of moral philosophy and civic virtue was the theme which Dante struck in the first song of the Purgatory. The guardian watching the entrante of the Ante-Purgatory was a solitaty old man, Cato Uticensis, the phi. losopher-hero who sacrificed his life, if suicidally, for political freedom, which in that case was almost identical with philosophic-

ea See Ladner, op.cit., Off, and also 'Sc Augustini s Conception of the Reformation of Man lo the Image of God;' Augustinus Magister ( Congrés International Augustinien , Paris, 21-24 Septembre ^g54, Communications; Paris, 1954), 867-878. See also Walter Durig, Imago. Ein Beitrag zur Terminotogie und Theotogie der rdmisehen Liturgie (Munich. 1952). so In a very prominent place-in the prologue of the Liber augustatis-[he image of Adam had been used before by Frederick II. See, in general . Burdach, Bienio, 297ff,313ff, for the mysticism connected with Adam; also Georg Jellinek, Adam in der Staatslehre ( Heidelberg , a8g3), especially for the circones of Absolutism. 91 Par., vn,36f.

484

9 2See, in that connection, the diatribe of Guido Vernani, De reprobatione, ed. Káppeli, '37f, against Monarchia , u,13, where Dante fries to link the judgment of Pilate with the punishment for the sin of Adam. sa Purg., xxvu,,4o.

1

485

Al.9N-CFF7FUEl) R,'e;sulI' DANTE

dIAN-cliarERED Eln'G1nIP: DANTE

intellectual frccdoni.' Ile teas. for Dante, the impcrsonator of

nos the catechumen viere achniuecl lo the Níass oí che Faithful.

the four cardinal iirntcs. from Cato's fcauees there shone forth

and both ieceived dtn-ing [liar period oral instruction in urdes

"che rays oí the foto- hok lights. the bote stars which "never

lo lead them, siep by step, ro tlieir final illunlination and purifi-

yet viere seen sacc hv the lirst people.What Dante liad in mirad

cation. In Dante's Purgatory both penitencial and baptisntal cites

was, presumably, the Sondtcrn Cross belonging to the allegedly

hace their place. They are interncined, and on more chau one

"unpeopled world behind che Sun," tlic southern hemisphere.pr >e oí the ntotint oí Eden the four stars liad Froni che vanta_!e-

oecasion ara interpretation in eithci tbe penitencial or the bap-

Leen visible to Adani ami Ice. but alter che couple s ball thev

however, tliat Dante seas not only a sinner lo be reconciled with

vanished from the siglit of mmn. Dante, rherefore, pretended lo be

che Church, but that lie was aboye all a man striving after both

the ftrst living man lo see again che cross oí the four virtutes in-

human perfection independent oí the Church and supra-human

tellectuales, che lodestars of the intellectual catechumen for steering towards secular perfection and beatitude. Under this sign, pr under the guidance oí che "four fair ones" who imperially viere

perfection within the Church.

"ciad in purple,"°I and whose light was reflected by Cato, Dante's secular catechumenate began. As in the Inferno, his guide was Vergil, the poet oí che Roman empire, who at che bidding of che other pagan, Cato, cleansed his friend's face from che smoke and soot oí Hell and girded Dante with the humble rushes, the only plant that still would grow in the waves oí the buffeting sea-here a symbol of humility °a

In the mediaeval Church, che two rices oí purification, baptism and reconciliation of the penitents, liad in their preparatory stages many features in common. During the seven weeks from Lenten to Easter, penitencial exercises, combined with acople ecciesiastical ceremonial, prepared the sinner for che reconciliation on Thursday in Holy Week: and during that same period, che catechumen was prepared by the so-called "scrutinies"-that is, liturgical actions and exorcisms combined with instructions-for his baptism on Saturday in Holy Week.°° Neither the penitent 92For the Cato problem ¡ti general, see the tiren tare quoted in the critical edition of Dante's Convivio , bv G. Busnelli and G. Vandelli ( Florence, 1937 ), 1155,n.4, esp. Francesco d'Ovidio, 11 Purgatorio e it suo preludio (Milan, )906), 33-147. °b Purg.

I,23f,37f.

96 Cf. znf, xxv1,! 17.

97 Purg., xxlx , 13of ("quattro ... ni po'pura vcstite ), and xxx1,104 (`alta danza delle quattro belle'). 99 See Ferdinand Koenen,''Ankl(nge an das Busswesen der alcen Kirche in Dontes Purgatorio ," Deutsches Danle-Jahrhuch, VII (1923), 93, for Saint Elizabeth's interpretation of the rvshes, 99 Koenen , "Busswesen," 9!-los. has collected clic relevan[ passages . See, for the scrutinia in general, Eiseuhofer, Liru rgik. 1,25011. and, for greater detall, A. Dondeyne, ''La discipline dcs scnutlus dmis l'égllsc ¡atine grane Charlenlagne:' 486

tismal sense o'ould be adntissible. It should not be foxgotten,

According to the rices of the early mediaeval Church, which survived in aNorthern Italy certainly until the eleventh century and perhaps (if tve may trust Durandus) until the thirteenth, che entrance into catechumenate seas followed by seven "scrutinies" designed to test che catechumen and lo prepare him by degrees.'°° The scrutinies viere distributed over che period oí the seven weeks oí Lent whereby che last scrutiny almost coincided with baptism itself.'°' It may be said that Dante's scrutinies in preparation for his intellectual baptism began when he entered into Purgatory proper, ready to start-in accordance with Cato's advice-his ascent of the Mount of Purgatory on whose summit the terrestrial paradise was located.102 To che gate of Purgatory Dante was borne by a dream. He dreamt that Jupiter's eagle snatched him like another Ganymede up to che fiery sphere of heaven where both the eagle and the poet seemed to go up in flames-a dream of purification through the imperial (that is, moral-philosophic) power which here compared also with che customary meaning oí che eagle as a symbol of bapRevue d'histoire ecelésiasíique, xxaau (1932), 5 33, 75!-787, as well as M. Andrieu, Les Ordines Romani du haut utoyen dge (Louvain, !948), 11,382ff. A very elaborate ritual was observed in Northern Italy as late as che 1! th anal lzth centones; see Dona C. Lambo[, Recueil d'Ordines du Xle sude provenant de la Houte-palie (Henry Bradshaw Society, txvu; London, 1928), xiiff,7fi. roo Marténe , De antiquis ecclesiae ritibus , i,cl,art.!!,^4, gnotes Durandus asserting that in Italy and in a few other churches che ceremonias of che scrutinies were observed even in the isth century. See che preceding note.

rol Eisenhofer, Liturgik, 11,254. The laos scrutiny took place on SinurdaN ni F101,, Week. roa Purg. lao7f.

487

MAN-CENTERED KINGSHIP: DANTE

MAN-CENTERED KINGSHIP: DANTE

tismal regeneration.t09 When Dante awoke he found himself at the Bate of Purgatory where an angel, ciad in the gray garb of penitence, was sitting en a step of diamond, his feet resting en the imperial porphyry of which the next lower step was made, usually interpreted as the step of Love. Like che penitent, but also like the catechumen who demands his first exorcisms and therewith admission to further purification, instruction, and final reception into the pale of the Church, Dante prostrated himself before the angel of penitente, smiting his breast and craving for his admission tu Purgatory. The angel, yielding, unlocked che gate with the silver and golden keys of scrutiny and absolution and allowed Dante to enter, though not before having carved with the point of his sword en the poet's brow seven times the letter P.104 The seven P's marked the seven peccata-moral vices, not spiritual sins-of which Dante was to be freed, one by one, while ascending and perambulating the terraces of the Mount of Purgatory. They compare, however, also with the seven scrutinies'°' which che catechumen had to pass before, through baptism, he was freed of the last and impersonal sin as well, the peccatum originale . The last P svas removed from Dante's forehead by an angel standing outside the wall of flames which, since the fall of man, surrounded the Garden of Eden and which alone now separated Dante from the beatitude of the terrestrial paradise.11° Hence, the last "scrutiny" directly preceded Dante's crossing of the heavenly flames whose heat meant burning and lustration, but not death; and as a man cleansed and haptized by fire, the poet finally entered into the Garden of Eden whence Adam had been barred by the cherub with the flaming sword.'°' To this point Vergil had served Dante as a guide; beyond the terrestrial paradise he no longer was competent, as he himself declared. Death, the punishment for man's transgression, was conquered by Christ only; his death arid resurrection restored man's immortality in the eternal life. Man's natura sincera e

buena, however, was restored by human wisdom and intellectual virtue alone, and this original nature of man was worthy of being immortalized: it no longer could falter When directed by its own free will ("It were a fault not to act according to its prompting"),toa and, like a habiteis, man's trae nature had become ¡inmutable. Hence, the consequences of original sin, so far as this meant the loss of the human dignity of the Adam subtilis, che loss of his natural judgment and of his inner and outer freedom, were undone When Dante crossed the (lames; tire curse of mankind was conquered, withont the intervention of che Church and its sacraments, by tire forces of intellect and supreme reason alone, forces symbolized by the pagan Vergil who, witlt regard to the individual Dante, took the place and the functions entrusted to the emperor with regard to the whole human race, the humana civilitas. But whereas che terrestrial paradise into which Dante entered was lacking that multitude of inliabitants of which the writer of the Monarchy had dreamt, becatise empine and papacy were negligent in tlteir duties, °0 che individual Dante reached human perfection and his own actuation through Vergil, who finally will dismiss his pupil, now a true likeness of Adam before the fall.

loaPurg., ix,igff. For the eagle as a symbol of regeneration and resurrection, see Physiologus latinos, c.vut, ed. F. J. Carmody (Paris, 1939), 19. '0'Purg., tx,9gff. loe See F. X. Kraus, Dan te (Berlin, '897), 424; also Temple Classics edition of Purgatorio, l 55. roa Purg., xxvu,711, the angel nmst llave removed wi th his wing tire last P before greeting che poeis as "h.dlowed souls" and singing Beati mundo corde. 507Ibid., 2i (" qui pub esser tormento , ma non morte").

488

1,

One of the goals which Providente has set before man was reached. In the very last stanzas of the Divine Comedy it will be disclosed by Dante how man may reaclt his second goal and recognizc his oneness with Christ: the vision of the features of Vjan's face, a dim reflex della riostra effige, faintly visible in outline only iyithin the second circie of the Divine Light, which will allow Uante also to understand the mystery of the Incarnation"o But man's perfection in the triune God and in the eternal paradise was preceded by his perfection in the terrestrial paradise, the perfection in Adam. According lo the rites of the Church, the return to the guiltless Adam in the state of innocence was achieved by baptism. And ever since che earliest times of the Church the baptismal unction was exponed in the sense which Peter gave it when addressing the converts (I Peter 2:9): "Ye are a chosen generation, a royal priesthood, " Baptisni was, spiritually, a conferment of royal and sacerdotal dignities on the neo- baptized. nos ¡bid.., 1 }o(. 100 This may be dedoced (rom Purg., xxxn,tooff. See the preliminary note to this canto by P. H. Wicksteed, in the Temple Classics edition of the Purgatorio. no Par., xxxm, i 3off.

481)

,1 fAT"-CEN TERED XINCSHIP: DANTE

All of us are anointed inio the kingship and priesdlood of God by special grace (Anihrose)J" It is shown to tire baptized, throngh rhe infusion of chrism, that unto them therc has been conferred bv God [he royal aire¡ the sacerdotal dignities (Maximus of Ttn-in).11a May Use baptized undersiand that he bears rhe king's diadem and die dignity of pricsthood (Carolingi;m).1'"

It would be easy lo assemble any nunlber ol similar gnotations from the works of mediacval theologians and liturgiologists.111 And perhaps we should also recall che fact that in the rites of practically all Oriental Chinches the custom was (or still is) observed of crowning tire neo-baptized with che baptismal crown, a ceremony logically followed by acclamations comparable to those offered at royal coronations and priesdy ordinations.11s Although the ceremony of baptismal crownings was not developed in the West, it was nevertheless not quite unknown: Durandus mentions for the province of Narbonne Use custom of applying a red trimming in ntodurn coronae lo che cap of the chrisom, che white baptismal robe, whicit inay hardly Nave differed from the redlii Ambrose, De mysteriis, 51,30, PL, xw,4t5B: ' omnes enim in regnum Dei el in sacerdotium ungimur gratia speciali." See, for rhe following, Thomas Michels, "Die Akklamation in der Tau fii tu rgie;" Jahrbueh für- Li turgiewissee schafi, in¡ (1928), 7685. ostendi sur ns Maximus of Turin, De baptisrno,uod m, PL, Lv11,777:.. per quod

baptizatis regalem et saeerdotalem conferri a Domino dignitatem." 1,3 Pseudo-Arralar of Trier, Epistola ad Karolum (une of the numerous answers to Charlemagne's inquiry concerning baptism), ed. J. M. Hanssens, "Deux documents carolingiens sur le baptéme," Ephemerides Liturgicae, xw(1927), Sn.7ff: "Tunc sacro crismate raput perungitur et mistico tegitur velamine ut intelligat se diadema regni et sacerdotei dignitatem portare." The text has been printed Epp., 1,274.24; repeatedly; see, e.g., PL, xcvu1,939C; MCI-I, Epp., iv,536g4, and Kircheogeschichte, Morin, in Rev. béndd., xnl(18g6), 291; Burn, in Zeitsdlrift für xxv (1904), 153. For tire genuine Ama lar, see PL, xcix,898D: ''ut intelligat baptizatus regale el sacerdotale ministerium aceepisse, qui illius corpori adunaras est, qui Rex summus et Sacerdos est verus."

114See Michels, "Akklamation" (ahoye, 0.111). 79,n.q, for other places- For che laten centuries, there may be adtled e.g., Ernaud de Bonneval, Liben de ca rdinalibus operibus Christi, c.V1ii ("De unctione chrismatis'"), PL, ctxxxix,t6u4 A: '' - . in quo mistum oleo balsamum regase et sacerdotalis gloriae exprzmt unitalem, quibus dignitatibus initiandis divinilus est ancho institumP Aquinas, De regara ne principum, 1,14, ed. Joseph Mathis ('Turin and Ronee, 1948), 18: ". . . onines Christi fideles, in quantum snnt hembra eiu3, reges et sacerdotes dicunnlr.', john of Paris, De potestate, 1S, ed. Leclercq, 228,27 Seo also L. Certaux, "Regale Sacerdotium;" Revue des sciences philosopltigs,es el théologiques, xxvul (1939), 5 115 Michels, "Akklamation;' 77ff. In thc Coptic ate, quoted by Michels, the acclamation at the crowning promptly quotes Ps 8: 6: 'Gloria et honore coronasti

490

MAtN-CE.NTERP_D XINCSHIP: DANTE

trimmed coifje, tse finen cap for the protection of Use holy oil, with which the head of che baptized was covered quasi quadam milrn 11fi At any rate, it was an opinion eta rent rhroughout rhe Middle Ages and beyond"' that haptisin cuuferred on tire neobaptized the royal and che sacerdotal dignities ro indicate that he had become-said Isidore of Seville-a member of Use body of Christ, the King and High-Priest,11' Against 1he baeknaund of these simple facas it seems strange tliat the coronation of Dante at dre hands of Vergil has been subject to so much guessing. It is trae, of course, that the euiperor in addition lo bis crown wore a mitre,11` and that tire pope in addition co bis mitre wore a tiara-crown, and that Vergil inay have crowned Dante either emperor or pope or both. Within the setting of the Twenty-seventh Canto of Purgatory, liowever, the primary meaning is obvious: in the moment when Dante re-enters into the terrestrial paradise like another Adam "crowned with glory and honor," he is "crowned and mitred" by Vergil. That is, the royal and sacerdotal dignities have been hestowed opon Dante just as on every newly baptized who through the sacrament of baptism was reborn in Use original status of Adam and thereby potentially acquired immortality and eternal co-rulership with Christ in the kingdom of heaven lao Dante's coronation "with mitre and with crown," of course, was not sacramental; it was, las Marttne, De antiquis Ecclesiae ritibus, 1,c.t,art.15,17 (Rones, 1700), 1,141 and (Bassano, 1788), 1,54: "Coronae neophytorum." He quotes Durandus, Rationale, v1,c.82 (cf. Michels, 85,n.23) to the effect ehat "hanc fuisse adhuc suo tempore ecclcsiae Narbonensis consuetudinem, ut in candidae vestis haptizatorum superiori parte rubea vitta in madura coronae assueretur." See afro ¡bid., §6, where the auctore anonyrno) deAnonymous of Tours (Chronicon S. Martini Turonensis scribes rhe chrisom: "Induitur deinde chrismali Neophytus, scilicet alba verte, quae instar cappae lineae caputium haber, quo caput quasi quadam mitra operitur et filo rubeo supersuitur." 117 In the Assertio Septena Sacramenlarum or Defence of ¿he Seven Sacrarnents, ed. Louis O'Donovan and prefaced by james Cardinal Cibhons (New York, 1go8), 422f, Henry VIII argued against Luther and pointed out, while citing 1 Peter 2: 9, that if al} Ch risti ans are priests as Luther asserts, cien "in a sviud all Ch rist i alas are Kings in ¡he same manner that thev are Priests" l'rofessor George H. williams kindly ealled my attention to this passage, las Isidore, De ofticüs ecdesiasticis, 11,26,PL, 1xxx111,824A: "Omnis ecclesia unetione chrismatis consecratnr pro eo quod membrum est aeterni regis ct sacerdotes. Ergo quia genus sacerdotale el regale sumus, ideo post lavan um ungimur . . Cf. Michels, "Akklamation;' So,n.g. See aboye, n.114. 119 Schramm, Herrschaftszeiehen and Staatssymbolik (Stuttgart, 1954), i,68ff. aod 88,n.2. 120 Cf. Aquinas, Summa theoL, nl,q.69,a7; see also a.5 aud a.6.

491

MAN-CENTERED KINGSHIP: DANTE

natura, non gratia, an intellectual and moral "baptism by transference," prepared ever since Dante became a "catechumen," seeing again the Four Stars and prostrating himself-"reverent my knees and broca"-before the suicide pagan, Cato."' In other words, Dante achieved his "baptism" into humanitas in a parasacramental and para-ecclesiastical fashion, with Cato acting as the sponsor, and with dte prophet Vergil as his Baptist-a Baptist, though, who this time unlocked to man not the heavens, but the paradise of Man.

MANCENTERED KINGSHIP: DANTE

relations and inter-relations that it would be hopeles's to analyze at length what poetic felicity was able to express by one image. And yet, the imagery of Dante is by no means exhausted. Adam, of course, who in paradise cuas the only man and therefore identical with mankind, was at that particular time the full actuality of all intellectual potencies of man, or of humanitas. Crowned with glory and honor, he cvas the sovereign lord not on#y of the creation in general over which he was set, but also of mankind wfliich he himself represented. He was both species and

Whereas Dante's investiture with crown and mitre seems to demand no further explanation, there remain other problems which need some commentary. The baptismal rites of the Church appeared as tire conferment of royal and sacerdotal dignities because the neo-baptized became a "member of Christ the eternal King and Priest." Through the intellectual baptism administered by Vergil, however, Dante became a member, not of the corpus mysticum Christi quod est ecclesia, but of the corpus mysticum Adae quod est humanitas. Dante was baptized roto the likeness of Adam, the purely human model of man's perfection and actualization. But the divine model of man's perfection, Christ, cvas not absent either; he was, most significantly, integrated into the terrestrial paradise when Beatrice, with the first words she addressed to Dance afrer his slumber in Eden, conjured-and in the same breath transcendentalized-the image of che Incarnate in his human-political capacity of a Roman citizen.

individifal at the same time; he, therefore, quite logically was "angel-like"' and he, therefore, rvas (as cae might say) the only genuine corporation sole of this world. Noca, however, Dante was crowned Adam's fellow-ruler. His "baptismal" crowning was, metaphorically, his investiture with the Adam sublilis, with that supraindividual humanitas of which he himself, like Adam, was the actuality; or (as cve might say) he cuas invested with man's body corporate and politic. Hence, he was entitled to receive the insignia of his universal and sovereign status, crown and mitre, which conferred on him not so much che dignity of emperor and pope (these two directives, instituted alter the fall of man as a remedy, were superfluous in the state of innocence) but conferred that almost objectified "Dignity of Man" which "never dies," of which Dante was the mortal incumbent, and which in later centuries was to fascinate Renaissance scholars-for example, Gianozzo Manetti and Pico.'23 Indeed, ' :Man" appeared as a sovereign Dignity and a universal Office whose holder was probably that

Here shalt thou be short time a forester; Thou shalt be everlastingly with me A burgher o£ that Rome whence Christ is Roman.322

"best man, who is che standard of all others and, so to say, their Idea, whosoever he may be." And that Dignity of Man included supreme jurisdiction over man qua mortal man, regardless of

The replacement of transcendental Jerusalem by a transcendental-

position and rank, while he "who cvas in the highest degree One

ized Rome; the transfiguration of the purely human capacity of

within his kind," acted as the instrument of that Dignity-homo instrumentum humanitatis.

Christ as a Roman citizen and thereby a member of the body of Adam; the promise to Dante of his future co-citizenship with Christ as a fellow-Romas alter having been crowned by the Roman Vergil a fellow-citizen and co-ruler of Adam; the setting of Beatrice's prophecy loto the scenarium of che terrestrial paradise-so numerous and so chiastically intertwined are the cross'-' Purg. ¡,Si, 122 Purg. xxxn,iooff,

Admittedly, these legal theories most certainly did not cross Dante's mind. But the essence of the doctrine of the Two Bodies, of "Man's Two Bodies," was just as certainly present to his mind. 123 Gianozzo Nfanetti (,gg6-i 4g9) mote a tractate De dignitate et excellentia hominis, dedicateel ro Alfonso of Aragon, which is not easily accessible; for some excerpts, see, however, Prosatori Latini del Quathrocento, a cura di Eugenio Garin (Milan and Naples, n.(.), P''-.187 par Pico della Nli,andola's De hominis dignitate, see the edition by Eugenio Gario (Florence, 1942).

449.2 493

SAN-GENTERED KINGSHIP: DANTE

61AA'.C r.Y7ERED RING 51111'- DANTE

"Free, upright, and whoie in judgenrent," Dante had become a

know that tila secutingly strauge talle of [hese jurists simply means

likeness of Whe .4darn sllbtilis in paradise, who was supreme oven

that, philosophically speaking, tila king as King, oi as Crolcn, is

mankind, and tirar mean[, in Adam's particular case, supreme over

full actuality-pcrpet ually and at anv Ilioment-whercas the

himself. 4Vhen Vergil imested Dance vcidt tila insignia of crown

individual body natural is mere potentiality. lleve, then, we find

and mitre, tirat ceremony meant the coronation of the Adam subtilis in Dante over rhe Adam mortalis in Dante. Lapidarily, as a

also tlte phIIosophical explanation for odter features of the king as King: that he never dies; that he is frce from tila imbecility of

Roman would, A'ergil expressed tilat idea in six all-embracing

infancy and the defects of old age; that he cannot sin or do w'rong.

words when; at the distnissal of his pupil, he concluded tris address

For he is rhe perpetua] actualization of all royal potencies and therefore owns tila character angelicus which the political theorists tried lo understand, sometimes in terms of the two-natured God,

with the words: TE SOPRA TE corono e mitrio.

sometimes in che sense of Justice and Law, and sometimes on the

Dante crowned and mitredm" over Dante himself: there is no need lo empliasize that this verse is pregnant with implications and allusions, and that its fulness, radiating into so many directions, is as inexhaustible as that of any work of art cliarged with lite. The image is a refiexive one: object and subject coincide and are turned back each upon itself as well as lo each other. And in this respect there was, on the human level, some similarity with the likewise reflexive vision en tila divine level, at the very end of the Comedy, when Dante visualizes tila circle of light of- the Second Person "painted, of its own color, with our effigy"-the coincidence of God and Son of Man and of Man in general and of the beholder in tira state of perfection, each turned back upon himself and to each other. The intention was itere only lo bring one aspect into focos: Dante's Adam-centered or man-centered concept of kingship, the reflexiveness of "man" and "Man," of homo and humanitas, of Adam mortalis and Adam subtilis, and, by transference, of body natural of man and body corporate of Man. Perhaps we will find it easier now, or perhaps more difficult, to understand the later definitions of English jurists, opining that 'to tila natural Body [of the king] there is conjoined his Body politic which contains his royal Estate and Dignity," or that ' the Body politic, annexed lo his Body natural, takes away tila Imbeeility of tila body natural." We now

basis of People and Polity. It remained, however, co the poet co visualiza the very tension of the "Two Bodies" in man himself, lo make humanizas (according to Roman Law che medium of God-imitation"°) the sovereign of homo, and co find for all those intricate cross-relations and interrelations che most complex, terse, and simple, because most human, formula: "I crown and mitre you over yourself." ras CE C.5,16,a7,c . cum nihil aliad tan[ peculiare est imperiali maiestati quam humanitas , per quam solam dei servatur imitalio ." Actually humanues nosna (vestra) served, like maiestas, acternitas, and similar notions, also as an imperial title; see, e . g., Nov.a3,4, or C.11,56,i; also Thesaurus linguae !atine, s.v. "humanilas." Most bafing is , in chis connection , Dante's cuntemporary Andrea of Isernia (d. ,316). He wrote a lengchy gloss en Barbarossa ' s Authentica "F/ahitó (published at Roneaglia , in 1158; cf . MGH, Const.,I,249,No.176), the so-called Privilegium S'cholasticum granting proteccion co students and studies, which was incorporated in Roinan Law (C.413,5 post) and which cannot have failed Lo attract Dante'a curiosity. In Chis gloss (n.4) Andreas of Isernia (In usos (eudorurn, fol. 318) writes 'Qun. iser autem esr REX sur trsms , dici1 Augustitius super illttd Psalmum ' Terribili apud omnes Reges terraé [Pa. 75:13]. Multum dehent reges virtuose et fn virtuosis actibus sequi Deum, maxime in humanitate , per quam Dei servatur imimcio [C 5,15,27,11." There is no point in drawing iash conchusions: bus che passage is importan[ enough Lo cal] attention to it. See, fm' che history of Barbarossa's Law, N'alter tlllmann, "The Medieval Interpretation of 1'rederick Ds Authentic 'Habita,' " L'Euro)m e i] Dirilto Romano: Siudi in memoria di Paolo Koschaker (Hilan, 1954), 1,99-136.

1aa According to Ecchns. 45:,4, Aaron 1eccivcs from T1 oses a golde. crown over a mitre signo sanctitalis cl gloria honoris. a passage gtroted sometimes in connection uith che Dante verse ; see, eg., Koenen. ' 13usswesen" (a óove, n.oS), lo0,n.34.'though chis place , together with oihcl passages of tilo old Testament, certainly had sume bearing en tire develop mear of rhe papal hcadgear (seo Schiamm, Ilerrschaitszeichen, 1,571), it has hanllc :mc relevnnce ]viril regard Lo Danie's coronation.

494

1

496

EPILOGUE C H A P T E R I X

Bacon's dialectical combination of these two mottos is skilful,

EPILOGUE

but not really surprising. Others expressed similar ideas in those days,' and the antithesis itself implies no more than just another variety of a theme on which Bacon fell back quite frequently:

"ALL precepts concerning kings are in effect comprehended in those two remembrances: Memento quod es homo, and Memento quod es Deus, or vice Dei." Of these two mottos, writes Francis Bacon in his essay Of Empire, the first bridles the power and the other the will of princes who, in other respects, appeared "like to heavenly bodies, which cause good or evil times, and which have much veneration, but no rest."r Bacon's first "remembrance" should not be mistaken for the famous Camaldolite motto Memento morí which, especially in connection with its artistic symbol, the skull, had a singular appeal to the religious sentiment of the later Middle Ages. Memento quod es homo is not of monastic origin, but descended from classical Antiquity; and Francis Bacon could not Nave been ignoran[ of its proper Roman setting. When, on the day of his triumph, the victorious Roman iniperator rolled on the chariot drawn by tour white horses from the Campus Martius to the Capitol-a living god clothed in the embroidered purpie toga of jupiter Capitolinus, in his hand the eagle sceptre of the god, and his face painted red with cinnabar-ihe slave riding with hito on the chariot and holding the gulden wreath over his Ilead, whispered to him: "Look behind thee. Remember thou art a man."2 This, apparently, was the scene to which Bacon's first motto alluded. 1-lis other remembrance may have referred to P.salm S1:6, "Ye are gods," a versicle very much to the taste of political writers in the age of absolutism and most certainly to that of james 1, who quoted it and gavie his own interpretation of it in great detail.e 'Bacon, Essays, ed. Spedding (Boston, 1860), xn, 146. Eor tire king who has no rest (rex exsomuis), see ahoye, Ch.m,nus.s3r,146,167. The passage is qunted by Per Palme, Triumph of Peace:: A Study of the Whitehall Banqueting House (Stockholm, rg56), ¡73, a book co which Professor Erwin Panofsky called my auention. 2 ef. W. Ehlers, "Triumphus," HE, vnAn, Sol; Tertulian, Apologeticus, xxxiii,4. That Reinan emperors u uid be very conscious of their "manhood" is demonstrated, not co mention Marcus Aurelios, by Tiherius; see, for his letter to the conununity oí Gytheion, near Sparta, E. Kornemann, Neue Dohuntenle zum lahonisrhen Kaiserhule (Breslau, 1926), 7, line 20. My thanks go here, as well as in [he following pages, co Professor Andreas Alfüldi and tire kind interest he took in [his brief Epilogue. 2 See james' "Speech oí 609," ed. Mcllwain, The Politiral TPorhs of James 1 (Cato. bridge, Mass., ig18), 30711; also Kantorowicz, "Mysteries oí State," 68, n.g, and (for

496

the king a mortal being, and yet immortal with regard to his Dignity and his Body politic. Bacon's allusion, however, to the ancient Roman custoin of whispering a Memento to the triumphant general in the moment when he acted as the deus praesens, may be a "remembrance" to us that a final question should at least be broached here, a question which has loomed more than once in che foregoing pages: Has the late-mediaeval juristic concept and constitutional figure of speech, the King's Two Bodies, in any respect classical antecedents or parallels? Is there a classical pagan parentage of the metaphor? Or, more succinctly and more crudely, is the concept of the King's Two Bodies of pagan or of Christian origin?

The answer is that there are indeed certain features suggesting that the dichotomous concept of rulership might have had roots in classical Antiquity.° The doctrine of capacities-that is, the plain distinetion between a man and his office (or offices)-was certainly not beyond the imagination of classical thinkers. We do not have to look for such extreme cases as might he detected in the monarchies of the ancient Near East.e It will suffice here to Bossuet) " Deus per na[uram," 274,1 .72. Also Ussher ( below, n-1,), 269, and passim, retes to the Psalm; so do De La Guesle (below, 1.13 ), 42, and innumerable other authors. 4 Cf. Palme, Triumph of Peare, 174 , quoting from Ben Jonson, A Panegyrie on ihe Happie Entrante of James, our .Soveraigne , to his Eirst High Session of Parlia' ment . 16o3, in Poema, ed. B. H. Nevdigate ( Oxford, 1836), 275ff, esp. 277: She [Themis] tells hilo first, that Kings Are here on carth tire most conspicuous thiugs: That they, by Heaven, are placed opon his throne To rule like Heaven; and have no more , their owne, As they are men, then unen. It is beyond [ he scope oE [ his study and the competente of its author to review in any detail the classical parallels. But my brief notes might he a stimutant to others to pursue the problem more successfully. s In Egypt , [he representa t ion oí the Ka would lead ipso facto to duplication; see, e.g., for Ramses II inaugurating his own sanchuarv and worshipping bis own image, A. D. Nock , " 2Grvaos O 4s ," Harvard Sitsdies in Classical Philology, XLI (1930). 14, 1.q also Kantorowicz , " puinity," 8if, nos.481f. Most intriguing is [he Egyptian custom sporadically observed oí entombing two statrtes oí a dead oficer: one, attired with wig and loincloch, in his capacity oí a royal of icer ; and the other 497

EPILOG UE

recall Alexander the Great who, according to Plutareh, distinguished benveen a friend of Alexander (fitXaXE^av8pos) and a friend of the king (rbtXOí3aatñeu's).7 It is not even impossible tliat this remark was inspired ultimately by Aristotle, who, in the Politics, made a clear distinction between tire friends of tire pi irue and the friends o[ tbe princedom.a Morcover, we may recall what Seneca raid about the pilot of a chip.

EPIL 0G UF

copy of the "suprenle Artificer who, when fashioning the king. used himself as an archetype."" This author Iras, alter Stobaeus liad been edited and translated into L.atin during dte fnst hall of the sixteenth century, not wichont influence on che political theorisis of absolutism.'' By the end of the century, Jacques de La Guesle, Procureur général of che Crom'n, worked finto his solemn speeches before the Erench Pai lement long passages from Ecphan-

Duas personas babel gubernator-Two persons are combined in thc pilot: one he shares with all his fellow-passengers, for he also is a passenger; the other is peculiar to him, for he is the pilot. A storm harms him as a passenger, but it harms him not as a pilot.°

Here, at any rate, the principie of "gemination" is put forth in so many words, and it is quite likely that, for a conclusion de similibus ad similia, this passage may have been used also by one of che mediaeval jurists who all liked to quote Seneca for their special purposes.'° ° Related ideas with regard to kingship liad been advanged independently by the so-called Neo-Pythagorean writers "On King, ship" whose works Nave been handed down lo us fragmentarily by Stobaeus. In a fragment bearing tbe name of Ecphantus, the author explains that the king in his earthly tabernacle (that is, in the flesh) is like the rest of mankind; as a king, however, he is the

tus, including the passage quoted here."' The latter was used also, though in the guise of a quotation from Agapetus," by Archbishop James Ussher in a tractate handling Of the Power Communicated by Cod lo the Prince, which originally he intended to dedicare to Charles I'° In another Pythagorean tractate, likewise transmitted by Stobaeus and quoted by absolutists, the author, Diotogenes, declared [liar the king, "who has an absolute rulership and is himself the animare Law, has been metamorphosed into a deity

lo The place, actually, was quoted ¡ir 1625 hy Hugo Grotius, De jure helli oc pacis, II, c.rv, §12 (Amsterdam, 1720), 234; cf. Vassalli, "Fisco;' 205; above, Ch.V,n.23o.

u Goodenough, "The Political Philosophy of Hellenistic Kingship," )ale Classical .Studies, 1 (1928), 76; Delatte, Traités de la Royouté, 26,2ff, no(¡ 47; also 177ff, for a similar fragment by Eurysus. Another related fragment, falsely ascribed co Philo, derives from Agapetus who himself depended en cite Neo-Pythagorean treatises; cf. Sevlenko (below, n.14), ,46ff, who has dispelled tire myth of Philonic authorship. 12 The editio princeps of Stobaeus was published in Venice, 1539, and the first Latin translation , by C. Gesner, in Zurich, 1543; cf. Delatte, op.cit., 7 and 21. 13Jacques de La Guesle , Les Renlonstrances (Paris, [611 ), 42 (Remonstrance of 21 July ¡588): "La Iustice est la fin de la loy, la ley l'oeuvre du Roy, le Roy rouvrage et le chef-d'oeuvre du grand Dieu (cf. Plutareh, Ad principem ineruditum, c.3, 78oE). Et combien qu'il ne soit point dissemblable en apparence des autres hommes, comme estant faict et crée de mesure matiere, si est-ce qu'il est fait et fabriqué de ce tres.grand et tres-parfaict artisan, lequel en soy, et sur soy en a pris le modelle." A few lines later he refers to un certain Pythagoricien. His speech of 1595 ac'ually opens with the words of Ecphantus; cf. the passage quoted by Church, Constitutional Thought, 266,1154 14 Agapetus Diaconus , Capita admonitoria, c.21, PGr, 1xxxvr:1,1171A. This chapter, though paraphrased, is taken from Ecpbantus; Agapetus betrays also in other passages the influence of the Pythagorean political philosophers. Ever since the 12th century, Agapetus (nnd, through his agency, Ecpbantus) exercised sorne influence on Russian political Iheory also, as has been convincingly demonstrated by Ihor SevEenko, "A Neglected Byzantine Source of Muscovite Political ldeology," Harvard Slavic Studies, ti (1954), 141-179. The first Lacio translation of Agapetus seems to be that of 1509 (PGr, Lxxxvc1,, r5gff); a French translation of the Greek was published by jean Picot, in 1563; and King Louis XIII aclded a translation from Latin foro French (1613 ). Two English translations were published ¡ir the ¡6th century, the first by Thomas Paynell (ea, lsgo); the second, by james Whit (London, 1564), whose work was dedicated co Mary Stuart. (I was able to avail myself of microfilms of both treatises at the Firestone Library, in Princeton.) 15 Ser james Ussher, The Whole Works (Dublin, 1864), x[,28,. I am grateful to Mes. Margaret Bentley Sevienko lee calling my attention to Ussher's numerous quotations from the Neo-Pythagorean tracmtes.

498

499

one, bald asid in a long garment, as the "man" that the dead was; cf. Jean Capar[, "Some Remarks en the Sheikh El-Beled," Journal of Egyptian Archaeology, vi (1920), 225.233; alío A. Wiedemann, "itgyptische Religion;" Archiv fíir Religions. wissenschaft , xxi (1922 ), 457, who calls attention also to occasional double entomhmenis of Egyptian kings. A Roman funus duplex should he admitted in several cases, certainly in those of Pertinax and Septimius Severus, although it was not so general a custom, as Bickermann, "Die riimische Kaiserapotheose," Archiv fue Religionswissenschaft, xxix (1929), 1 34, ingeniously tried to prove; cf. Ernst Hohl, "Die angebliche 'Doppelbestattung' des Ammninus Pius," Klio, xxxi (1938), ¡69-18 For duplications in Achaemenian seals (King and Ahuramazda), sea, e.g., H. P. L'Orange, Studies on ¡he Iconography of Cosmic Kingship in the Ancient ikbrld (Oslo, 1953), 93, fig.65b. r Plutareh. Alexander, c.47. s Aristotle, Politics, nt,r6p3,12876; cf. W. L. Newman, The Polftics (Oxford, 1887), tsl,3osf. Aboye, Ch.vn,n.18o. 9Seneca, Epistolae, Lxxxv,35. The distinction between man and his profession (in the exercise of which man is "playing a certain role") has been carefully worked out by the physician Scribonius Largus (first rennlry A.o.); cf. Ludwig Edelstein, "The Professional Ethics of the Greek physician;' Bulletin of the History of Medicine, xxx (1956), s2ff.

EPILOGUE

among men."18 A metamorphosis of the king was not unknown in mediaeval political rhought either, even though this doctrine was inspired not by Pythagorean theorists, but by the Old Testament. One could, however, almost believe that one is hearing Diotogenes-or Sthenidas of Locri; ° another author of the same school -in the words of the Norman Anonymous, saying: We have lo recognize [in the king] a twin person, one descending from nature, the other from grace ... ; one through which, by the condition of nature, he conformed with other men: another through,wlrich by the eminente of [his] deification and by the power of the sacrament [of consecration], he excelled all others.'a

Admittedly, the Norman Anonymous would claim that his king was metamorphosed by the power of Grace which " leaps" finto him at his consecration; whereas the Pythagorean claimed that the metamorphosis was the result of the king's mimesis, his imitation of the godhead. Grace and mimesis, however, are not mutually exclusive, since Grace ( at least in this connection) is the power enabling man lo be, or act as, the "image of God."1B The antique problem of royal duplication becomes increasingly complex and involved once we include certain cultual aspects and feel inclined to "equiparate" the king's Body politic, in one way or another, with the divinity of Hellenistic kings and Roman emperors. Would it be permissible to say that in Antiquity the immortal super-body of the ruler coincided with his supposedly divine nature? Certainly the duplication of human and divine natures in one man was an idea not at all foreign to classical thought: Herodotus praised those Greek cides which devoted two culis lo Heracles, "sacrificing to one Heracles as to an immortal and calling him the Olympian, but bringing offerings lo the other as to a dead pero."20 Heracles, of course, vas a mythical figure; but there 1s Coodenough, "Hellenistic Kingship," 68; Delatte, Traités de la Royauté, 39,mff; aleo P.53. That the king holds a role os which no accountiug is so be rendered (dpxáv txwv dvvroé O uvov; Delatte, 140 and 248 ) must have heen grist m the milis of absolutista . Diotogenes was repeatedly quoted by name in the tractate of Ussher, pp.266, 280f, 285. 17 For Sthenidas, arguing that "God is the first king and ruler by nature, and the king only by becoming and by imitation of God" ( Delacte, 45f; cf.56 and 274&), see my remarks in "Deus per naturam," 268ff. 1e Aboye, Ch. III,n.8. ls Kantorowicz , " Deus per naturam ," 2¡41!. 20 Herodotus, 11,44

500

EPILOGUE is no dearth of historical equivalente. What, for instante, did it imply when King Philip II of Macedonia took his seat in the theatre at 'Aigai, while in solemn procession the images of the Twelve Gods were carried finto the theatre with the image of Philip added to their number as that of the Thirteenth?" Was, in that case, the king in his body natural seated in his royal box (in which, incidentally, Chis natural body was murdered), whereas in his body politic, or the equivalent thereof, he was displayed on the couches prepared for the deities? Strange situations could easily arise in imperial Rome. Gods who themselves offered sacrifices, were not at al¡ unheard of in Antiquity; 12 but it is more perplexing to find Roman emperors in a somewhat similar attitude. As early as 7 B.c. altars were dedicated in Rome to the genius of Augustus, and for the cultual functions at the ara numinis Augusti a very noble college of priests was instituted." Hence, in his capacity of Pontifex Maximus, the emperor could offer sacrifices and also receive them, could be at once offerer and recipient of offerings." Caligula, according to Suetonius, went so far as to dedicare a temple with priests to his own numen and lo put up within the shrine his golden culi statue which was ciad daily with the same clothes as were worn, on that day, by the emperor himself°6-indeed a perfect, though a rather baffling, form of duplication. What it all implied was an "objectification" of the ruler's persona publica. This is true also for the obligation lo deliver the oath in court by the TGXig, the genius of the emperor (a custom observed from Domitian until well beyond the time of 21 Diodorus, xv1,92,5. 22 Cf. Erika Simon, Op(ernde Cdtter ( Berlin, 1953 ), who has discussed very ef iciently tire material found in vase paintings . See also S. Eitrem , " Zur Apotheose," Symbolae Osloenses, xv-xvi (1936), 137, for various examples of "self- worship" ("kultisehe Ungerein[theiten').

23 See D. M. Pippidi, Recherches sur le culte irnpérial ( Paris, 1989), Chapters 1, ir, anal vu; Georg Niebling, "Laribus Augustis Magistri Primi;' Historia, v ( 1956), 303-331. 2s The Christian version of this duplication, or interaction of divine and human natures, has found lis most pointed expression in the Cherubic Hymn, sung in the Eastern Churches at the Great Entrance: "Thou art he that offerest, and art offered: and that acceptest and art distributed." Cf. F. E. Brightman, Liturgias Eastern and Western ( Oxford, 1896 ), 1,318,34; 378,5; 431,6. See aboye, Ch.7II ,n.43, and aleo my remarks, "Quinity," 83f, for the resulting controversy as welt as for the pictorial representations of that duplication. 25 Suetonius, Caligula, 22,3 : "Templum eti: un numini suo pruprium el sacerdotes et excogitissimas hostias institui r. In templo simulacrum stabat aureum iconicum amiciebaturque cotidie veste , quali ipse uteretur."

501

EPfLO CUC

EPILOGUE

j ustinian ); conscqucntly, it could, aud did, happen that a subject fiad to sesear au oath by the Gmperor to he loyal to the emperor.21 While riere is no doubt that riese are fcatures vaguely related to the later objectification of [he king's immortal body politic, the differences are at leasi as great as tic similarities. After al], the ,genios or nonicii of an emperor, though an ohject of puhlic worship, was not separated from the individual but was still ara immanent component o[ the individual human being. It would, therefore, be difficult to maintain that the emperor became the instrumentum numinis or gen¡¡ in the sense in which ¡he latemediaeval Prince became che instrumentum Dignitatis and che incarnation of his immortal office. Yet, "incarnationí' as well as "instrumentality " likewise were within the compass of ancient ruler culis.

and Hercules th emsel ves."R2 It belonged to the same compound of ideas when a god ivas recognized as die corales Atigttsti, the perpettlal companion of an emperor,r° whercby the genios Augoso g became almost indistinguishable, as a number of and the od coins may casily prove. Postumus issued a coin which by nreatls of jugate busts combined the profiles of the emperor aud of 1-Icrcules-a Hercules, to wit, whose fcatures viere so strongly assimilated to tliose of his human-imperial double that the image unfailingly suggested ''ti niship" or sume kind of identity of the god and the ruler (fig. 32a).11 The same is true for the jugate busts of Probus and SOL COMES PROBI AUGUSTI, the emperor's unconquered com-

panion, that is, the Sun god whose head with upright rays appears like a mirage behind the helmeted head of Probus (fig. 32b).32 It should be stressed, however, that it was not the emperor's features that were idealized to match those of his divise companion but the features of the god that were formed tu appear as a likeness, or a super-face, of the individual emperor. This assertion is borne out strikingly by coinages of Constantine the Great in which the same SOL INV1CTUS COMES has changed his features so completely that the god now appears as though "created in the own image of Constantine" (figs. 32d-E)." We recognize a gemination indicating that sume kind el double-being was suggested-a human-divine duplication representing Constantine and Sol invictus as interchangeable magnitudes and displaying the ruler's

Instead of worshipping the numen or genios of an individual emperor, the ruler could he identified with an existing and recognized deity which he represented as a novus Hercules, a novus Sol. Caligula, it is true , was ridiculed because he consecrated himself to his own service as Jupiter Latiaris-air,s ¿airar

iepa"ro, as Cassius Dio expressed it" Gallienus carried his identity with the goddess Ceres to curious extremes when on coins he not only displayed his bristle-bearded portrait with the attribute of the goddess, the crown of corn-ears, but also surrounded it with the telling inscription GALLIENAE AUGUSFAE.2P Other features llave to

29 Harold Mattingly , in Cambridge Ancient History (Cambridge, igsg), x11,88o. Cf. C. H. V. Sutherland, " Flexibility in (he 'Reformed ' Coinage of Diocletian," Essays in Roman Coinage Presented to Harold Mattingly (Oxford, 1936),174189. --A. D. Nock, "The Emperor's Divine Comes," Journal of Roman Studies, XXXVII (1947), 102-116. ar H. Mattingly sud E. A. Sydenham, The Roman Imperial Coinage (London. 1923-33 ), V:2, pl.xiu, fig .u, also figs.g'io ; for a slightly diterent type, where the similarity is less outspoken , see Alfdldi, op.cit., pl.vn,fig. lo, who stresses (p.'g2) "dass ein Doppelwesen gemcint ist "; also Jocelyn M. C. Toynbee, Rornan Medallions (New York, 1944), pl.xcvI,fig.8. For the general religious background of tic "jugate heads;' see Hermann Usener, "Zwillingsbildung;" G'leine Schriften (Leipzig and Berlin , 1gi3), 3341f, esp. 355f, who unfortunately did not discuss the imperial coins. s2 Toynhee, olecit., pl.u, fig.7.

be taken more seriously. When, in the third century, Diocletian established the Tetrarchy and therewith the "jovian" and "Herculean" dynasties , the multiplicity of gen¡¡ was difficult to disentangle, because "the Genios of each emperor, itself divine and an object of worship, was declared to be the very Genius of Jupiter 2a See E. Seidl , Der Lid in rdmisch-dgyptischen Provirtzialrecht (Milnchener Beitrige zur Papyntsforschung , xvii and xxly [ Munich, 1933 and 193,1 ), i,uff, and n,5ff, for the formulae , which show rdxy still invoked under Heraclius I; Cf. 1,231, and u,,6f. For the oam by che Lmperor ro the emperor, see F itrcm, "Zur Apotheosé' (ahoye, no.22), 137. 27 Cassius Dio, 1 .1x,28 ,3. 5ce, for the noems praedication, A. D. Nock, ''Notes en Ruler-Cult;' ]Onmlal of Hellenic Studics, xlviii (1948), 3ef; ancl, for tic Mniffi( Ages, my remarks in Laudes regiae, ,7,nag8, 6q,n.t5, 74,n.31.

22Cf. Toynbee, op.cit., pl.xvu, fig,ii; J. Maurice, Numismatique Cotutnntinienne (Paris, 1908 11)l2), u,23Slt; E. Bahelon, "Un nouveau médaillon en ot de Consmntiu le Grand,'' Afdlanges Boissier (Paris, igo3), 49f; see siso Maurice, op.cit.. p236, pl vil, fig. 14. See further, for Constantinian coins, Alftildi, 'The Helmet of Constantine with the Christian Monogram,' Pnnial of Rnmm1 Studies, XXII (1932). pl.n, figs. 15.16. Cf. Kanterowicz, ''Quinity;' figs.27-21), sud p.82.

2eA. Alfbldi, 'Zur Eco neo is der Zeit dcr rdmischeu Soldatenkaiser,' Zeitschrift für Numismatik, xxxvu ( '928). 17]It, esp . 188ff (sce ahoye , Ch.I1I,n.g3); cf. 1938, for the androgyne hybridisni (emei,oes(Jdechtliches Zw itt eneesen) expressed by the insrription- See alieno, Ch for the jurista mi hennaphrodites.

502

1

503

EPILOGUE

human body which is mortal together with his concomitant superbody which, being a god, is immortal and divine. a* Deus imago regís-so we are inclined lo think while twisting the Christian maxim of rex imago Dei, a concept responsible also in Christian art for occasional facial similitude between the deity and the ruler, between Christ and his vicar on earth.a, Moreover, when we recall other sets of Roman inscriptions, we seem to Glose in also on che problem of instrumentality. Ever since late Republican times, the Genius populi Romani was repre-

EPILOGUE such as Seneca's "The Prince is the soul of che res publica; and the res publica, the body of the Prince," implies, philosophically, a very y similar idea-no less "antique" than Cyprian's "The Church is in the bishop; and tire bishop, in tire Church."a° To summarize, ir cannot be denied that isolated features are recognizable in classical political philosophy and political theology which world suggest that the substance of the idea of the King's Two Bodies had been anticipated in pagan Antiquity. Moreover, it sounds plausible enough that one or another of those antique

sented en coins: Hercules-like, with sceptre and cornucopiae, bis

theorems became effective in the High Renaissance when, in addi-

feet en che globe of the world or en the footstool of divinity; or

tion te tire literary sources, che archaeological and numismatic

else bis head only, "accompanied by sceptre, royal wreath, and

material also became available again. There is no doubt that the classical model occasionally served to rationalize certain phenomena (as, for example, tire display of effigies at royal funerals) which had originated and developed from totally different con-

globe."sa In the third century, we find coins in which the emperor himself was hailed as the GENJus POPULI ROMANI, the incarnation

or personification of che eternally productive power of the Roman people.»P Here, then, the emperor may safely be conceived of as an "instrument" of something that was not identical with him and not an immanent component of his own self-indeed, the instrumentum Gen¡¡ populi Romani and the exponent of an immortal polity "which never dies." Or, when, in the third century, inscriptions were dedicated, time and again, numini maiestatique, to che emperor's divine numen and his earthly maiestas, sve may remember that it was ultimately the Maiestas populi Romani of which he was the incarnation 98 Nor should we forget that a formulation 1, Less suggestive are cerrero images en coins of Carus where god and emperor face each other; bus the imperial title of deus et dominas , cnstomary by that time (cf. Alftildi, " Insignien ," 9211), surrounds the two heads as an inscription and tells, in fact, a story similar to th at of the numini maiestatique inscriptions of the same period (sce helow, n.38). For the coin of Carus, cf. Mattingly and Sydenham , op.cit., v:2, pI.vr, fig.13. as See aboye , Ch.III,n.5o. ae Cf. Alftildi, "The Mafn Aspecto of Political Propaganda on che Coinage of the Roman Repuhlic," Essays ... Mattingly (aboye, 0.29), 87, 93f. zr Alftildi, "Zeremoniell ," g1, and fig.3 ( Gallienus); also in Zeitschrift für Numismatik, xxxvnr, pl.vu,fig.s, and p.rga. 38 That che maiestas of che Roman People itself was a continuation of che ancient molestas of che regar power, is a different master. The formula of dedication la found indeed very often during che third century; see , e.g., H. Deseo , Inscripciones Latinee selectae (Berlin, 1giG), nr:2, p779, Index, s.v. "N N M QE." For an example, see Dessau , No.499 ( vol.I, p.120): " Imperatori Caesari M. Antonio Gordiano etc. Numisius Quintianus v(ir) p(erfectissimus ) ab epistulis Latinis, devotas numini maiestatique eius" As Professor Alftildi kindly informs me , che formula itself, probably on account of its frequency, has as yet nos been made che subject of a special study.

ditions and strata.'° It remains, however, more than doubtful whether a summing-up of all che individual classical features of duplications world result in a compact theory comparable to that of the late mediaeval lawyers. For despite all the parallels, similarities, and "antecedente" in classical times, there is nevertheless one detail which world exclude a pagan origin of the Tudor formula from the outset; that is, the concept of the king having two Bodies. There is apparently nothing in pagan thought that would justify this diction, and there£ore it has a false ring if, by modera scholars, che Roman emperor is sometimes called a "corporation sole."" It is true, of course, that in Greek philosophy che cosmos, the polis, or the individual could be interpreted cach as a body (or"dµa), and it is true also tliat St. Paul's definition of the Church as corpus Christi reflects that philosophy.*= On the other hand, however, this aggressive Pauline concept eventually endowed the late antique "corporations" with a philosophico-theological ímpetus which apparently those bodies were lacking before Constantine the Great referred to the Church as a corpus and thereby 1 a°Seneca, Declementia, r ,5,1; ahoye, Ch.V,n.65, and Ch.VII,n405, aleo n.4o8. *° See aboyé Ch.VIl,nos.37af. +r Cf. F.6chultz, Classical Roman Late (Oxford, gof: "Adopting the English conception of'corporation sole,' we nray simply say tiran che princeps is a corporation sale." Cf. p.8g, for the stacement: '-l he Roman people is a corporation."

42 For the whole problem, see Arnold Ehrhardt, "Das Corpus Christi und die Korporationen im sp5t-romischen Recht," ZfRG., rom.Abt., 1.xx (1958), 299-347, and txxr (1954), 25-40.

504 505

EPILOG UE

introduced that philosophical and theological notion into the language of law.", Besides, the influcnce of the corpus Christi doctrine on the interpretation of legal un iversitates, ancf thereby also on the mediaeval corporational thenries, is a'fact to be reckoned with.11

It might be possible lo argue tllat che general concept of tlw Norman Anonymous still drifted in the wake of ancient ruler deification. The tenct, however, of the Tudor jurists definitely hangs upon the Pauline language and its later development: the change from the Pauline corpus Christi to the mediaeval corpus ecclesiae mysticum, thence to the corpus reipublicae mysticum which was equated with the corpus morale et politicum of the commonwealth, until finally (though confused by the notion of Dignitas) the slogan emerged saying that every abbot was a "mystical body" or a "body politic," and that accordingly the king, too, was, or liad, a body politic which "never died." Notwithstanding, therefore, some similarities with disconnected pagan concepts, the KING's Two BOTES is an offshoot of Cliristian theological thought and consequently stands as a landmark of Christian political theology. 48 Ehrhardt, op.cu , rxxi, 37-40; also Roberti (see next note), 79f. H Cf. M. Roberti, "11 corpus mysticuna di S. l'aolo pella storia della persona giuridica;' Studi in Ovore di Enrico Resta (Milan, ,q$9), tv, 37-52; Tierney, Conciliar Theory, rgitl: also Gierke, Gcn.R., ci,uSil,, nli.

LIST OF ILLUSTRATIONS I. Medallions of 1642 [pp. 21E] a. King Charles 1 in Parliament (no reverse ilnage) New York, The American Numismatic Society (,Piloto: courtesy of Use Society). b-c. Obv.: Portrait of Charles I Legend: PRO•RELIGIONE•LEGE'REGE'ET'PARLIAMENTO

Rev.: The King in Parliament d-e. Obv.: Portrait of Robert Devereux, 3rd Farl of Essex, Commander-in-Chief of the Parliamentary Army Legend (outer): SHOULD HEAR BOTH HOUSES OF PARLIAMENT FOR TRUE RELIGION AND SUBJECTS FREDOM STANDS (inner): PRO•RELIGIONE4.ECE'REGE•ET•PARLIAMENTO

Rev.: The King in Parliament f-g. Obv.: Portrait of Charles 1 Legend: SHOULD HEAR BOTH IIOUSES OF PARLIAMENT FOR TRUE RELIGION AND SUBJECTS FREDOM STANDS

Rev.: The King in Parliament The medallion of Essex (d-e) combines the inscriptions of the two royal medallions (b-c, f-g). The reverse remained unchanged (see also fig. 2). These three medallions are in Glasgow, The Hunterian Museum; plaster casts were obtained by the kindness of Miss Anne S. Robertson, Curator of the Hunter Coin Cabinet. Cf. Hawkins, Medallic Illustrations, pl. xxv, figs. 5, 6, 11. 2. Medallion of 1642, enlarged [p. 22] Obv.: Battleship Rev.: The King in Parliament Legend: PRO: RELIGIONE:GREGE : ET: RECE:

London, British Museum (Photo: courtesy of Mr. J. K. Jenkins of the British Museum). 3- Seal (so-called "Fifth Seal") of King Charles 1 [P. 22] From: Trésor de numismatique et de glyptique: Sceaux des rois et reines d'Angleterre (Paris, 1858), pl. xx 505

507

LIST OF ILLUSTRATIONS

LIST OF ILLUSTRATIONS

4. Personal Badges of King Richard II [p. 32]

1

a. Banner, b . Standard. From: Lord Howard de Walden, Banners, Standards, and Badges from a Tudor Manuseript in the College of Arms (1904), figs. 5 and 71.

2. Triumph of Basil II [pp. 69, 78] Miniature, Byzantine (nth cent . ); Venice , Bibl . M arc i ana, MS gr. 17. Photo: Princeton University, Dept. of Art and Archaeology.

13. Christ Triumphant [ p. 7 2]

5. The Emperor in Majesty [p. 62]

Mosaic (6th cent.); Ravenna, Archiepiscopal Chapel. Photo: courtesy of K. Weitzmann.

Otto II in a miniature of the Reichenau School; Aachen, Cathedral Treasury: Gospel Book, fol. 16r (ca. A.D. 975). Photo: Mrs. Ano Bredol-Lepper, Aachen.

14.

Miniature, Gospel Book of St. Bernward (tath cent.); Hildesheim , Cathedral Treasury, MS 18, fol. 175" From: S. Beissel, Des Hlg. Bernward Evangelienbuch (Hildesheim , 1891 ), pl. xxiv.

6. Christ in Majesty [p. 64] Ivory Book Cocer (Belgian), Darmstadt (ca. A.D. 900) From: A. Goldschmidt, Elfenbeinskulpturen, 1, pl. LXXN, fig. 162; cf. Rosalie B. Green, in Art Bulletin, xxvnl (1946), 112f. i•

15. Christ in Majesty with 24 Elders [p. 76] a. Miniature, Carolingian ; Rome, San Paolo f.l.m., Bible, foj. 116°.

Christ in Majesty [p. 64] Ivory Book Cover from St. Gall (ca. A.D. 900). Photo: courtesy of Professor K. Weitzmann; cf. Goldschmidt, op.cit., I, pl. Lxxv, fig. 163a.

bm Miniature, Carolingian; Trier Apocalypse, Stadtbibl. , MS 31, fol. 61. Photos: Princeton University, Dept. of Art and Archaeology.

8. Terra Carryin; che Crucified [p. 66] Ivory from Ecllternach, Gotha (i 1± cent.) Photo: courtesy of K. Weitzmann; cf. Goldschmidt, op.cit., II , pl. 1x , fig. 239

16. Charles the Bald Enthroned [pp. 63 n.46, 66, 76J a. Miniature, Carolingian; Vivian Bible (aboye, fig. g), fol. 423• From: W. K6hler, Die Schule von Tours (1930), pl. 76.

Eschatological Scene, Carolingian [p. 69]

h. Miniature, Carolingian; Gospel Book from St. Eenmeram (Codex aureus): Munich, Staatsbibl., Clm. 14000, Cim. 55, fol. 5 From: G. Leidinger, Codex aureus (1921), 1, pl. 1o.

Miniature, Vivian Bible: Paris, Bibl. Nat. MS lat. 1, fol. 416. Photo: Princeton University, Dept. of Art and Archaeology. 1o. Eschatological Scene, Carolingian [pp. 6g, 75]

17. Capuan Gate of Emperor Frederick II [p. u 1]

Miniature; Rome, San Paolo fuori le Mura, Bible, fol. 3o7°. Photo: Princeton University, Dept. of Art and Archaeology. 11 .

13th century (reconstruction). From: C. A. Willemsen, Kaiser Friedrichs II . Triu mp ht or zu Capua (Wiesbaden, 1953), fig. 1o6.

Mai es ta s D om ini supra C ae l um [p. 6 g] Sarcophagus of Junius Bassus (A.D. 359); Rome, Grottos of

18. Ambrogio Lorenzetti [p. 112]

Vatican. From: F. Gerke, Der Sarkophag des Junius Bassus ( Berlin, 1936), pl. 5; cf. Gerke, Christus in der Spdtantike ( Mainz,

a, Iustitia, b. Buen Governo. Fresco, Siena, Palazzo Pubblico ( 14th cent.). Photo: Alinari.

1948), pls. 52 and 53. 508

Christ Disappearing: Ascension [p. 74]

11,

509

1,157 OF TLL OSTRATIONS

LIS'T OF ILL USTRA TIONS

Medallion by Thomas Rawlins, struck by Royalisis alter the execution of Charles 1; Glasgow, Hunter Coin Cabinet, of whicll Mr. J. K. Jenkins of the British Museum kindly provided a plaster casi, the pliotos viere made by the American Numismatic Society. Cf. Hawkins, Pedallic Illustrations, pl. xxx, 19.

iq. Last Judgment with lustitia [p. 112] Enamel Triptvch from Stablo 112th cent.); Collection Mr. and Mrs. Alistair Bradlev Martin, New York. Photo: courtesy of \L. A. B. Martin. 20. Emperor I lcnrc 11 as Judg( [p. 1 13]

Miniature, Gospel Book from Monte Cassino A.D. 10221023); Vatican, Ottobon. lat. 74, fol. 193° Photo: courtesy of the Vatican Library.

24. Jetton, Design for 16,13 1P. 414] Paris, Bibl . Mazarine , MS 4355, fol. 1'. Photo: courtesy of Dr. R. E. Giesey.

21. Emblem Quod non capit Christus, rapil Fiscus [p. 174]

25. Medallion (Design): Lit de Justice of Louis XIV [p. 414]

Andrea Alciati, Emblemata (Lyon, 1551; first edition 1531), No. cxLvii, p. 158.

From: Claude-Fran4ois Menestrier, Histoire de Louis le Grand (Paris, 1651), pl. 28; photo: Dumbarton Oaks Research Library and Collection, Washington, D.C.

22. Medallion of 1603: Queen Elizabeth: Unica Phoenix [p. 413] Obv.: Queen Elizabeth. Legend ( outer):

HEI-MIHI -QUOD-TANTO'VIRTUS'PER-

26. Caricature by Thackeray of Rigaud's Portrait of Louis XIV

FUSA- DECORE-

[P• 423] The Caricature is taken from the first edition (1840) of The Paris Sketch Book by Titmarsh in the Pierpont Morgan Library; cf. Works of Thackeray (Charterhouse Edition; London, Igo1), vol. xvi, facing p. 313. Photo: courtesy of the Pierpont Morgan Library.

NON-HABET - ETERNOS • INVIOLATA'DIES(inner): ELIZABETHA -D-C-ANC-FR'ET - HIB-REGINA-

Rev.: Phoenix Burning on Pyre; aboye it the Queen's Monogram and Imperial Crown. Legend

( outer ): FELICES'ARABES-MUNDI - QUIBUS -UNICAPHOENIXPHOENICEM -REPARAT - DEPEREUDIDO-

27. King Henry IV of France on the Lit d'Honneur [p. 425]

NOVAM(inner ):

a-b. Engravings by Isaac Briot (1558-1670). Paris, Bibl. Nat., MS Ciarembault 1127, fol. 25°. Cf. P. Mathieu, Historia della morte d'Enrico quarto Ré di Francia (Modena, 1625), 757; E. Benkard, Undying Faces, fig. 1, facing p. 18. Photo: courtesy of Dr. R. E. Giesey.

O•MISEROS -ANGLOS' M UNDI'QUIBUS' UNICA' PHOENIXVITIIIA-FIT-NOSTRO • TRISTIA FATASOLO'

From: J. D. Kühler, Munz Belustigung (Nürnberg, 1729ff), xxi, 225ff. See, for the Phoenix medallions issued at Elizabeth's accession in 1558, Hawkins, Medallic Illustrations, pl. VI, 7, 8, 9; and also viii, 17. 23. Medallion of 1649: Charles 1 and the Phoenix King Charles II [p. 413] Obv.: King Charles 1. Legend: c AR OLUS' I'D :G: MA G:B R:FR:

28. Tomb of John Fitzalan, 17th Earl of Arundel [p. 435] Arundel, Essex (ca. 1435). Photo: courtesy of Mr. Francis Wormald and The Warburg Institute, London.

29. The Effigy under the Canopy [p. 430]

ET'HT:REX'

Frontispiece of L'obséque et enterrement du roy (Louis XII), [Paris, 1515]. Photo: courtesy of Dr. R. E. Giesey.

Rey.: Phoenix Rising from Pyre. Legend: CAROLUS-11.D:G:MAG:BRIT:FRAN ET'HIBER:REX: (inner) Ex'CINERIBUS

510

11

511

LIST OF ILLUSTRATIONS

30. Tomb of Archbishop Henry Chichele [p. 4331 Canterbury Cathedral (ca. 1424). Photo: courtesy of Professor William A. Chaney. 31. Tomb of Thomas Beckington, Bishop of Bath and Wells [p. 4351 Wells Cathedral (ca. 1451). Plioto: Philip's City Studio, Wells, by courtesy of Professor W. A. Chaney. 32. Roman Medallions and Coins. a. Jugate Busts: Postumus and Hercules [pp. 65, 5031 New York, American Numismatic Society; photo: courtesy of the Society. Cf. Mattingly and Sydenham, Roman Imperial Coinage, V:2, pl. xnu, fig. u; also F. Gnecchi, Medaglioni Romani, pl. cxvl, figs. 7-8-

a

b, Jugate Busts: Probos and Sol invictos [pp. 65, 5031 From: Joceline M. C. Toynbee, Roman Medallions (New York, 1944), pl. u, fig. 7e. Oriens Augusti [p. 321 Aureus of Aurelian. From: Mattingly and Sydenham, Roman Imperial Coinage, V:2, pl. v11I, fig. 129. See Shakespeare, Richard II, III,ii,41ff: ... Then murders, treasons, and detested sins, The cloak of night being plucked from off their backs, Stand bate and naked, trembling at themselves.... d. Jugate Busts: Constantine and Sol invictos [pp. 503f1 Gold Medallion, Collection Beistegui (Paris, Bibl. Nat., Cabinet des Médailles). From: Toynbee, Roman Medallions, pl. xvtt, fig. 11; cf. E. Babelon, in Mélange.s Boissier (Paris, 1903), 49ff,

b

d f

e-f. Jugate Busts: Constantine and Sol invictos [pp. 5o3f1 Gold solidi. From: A. Alfóldi, in Journal of Roman Studies, xxli (1932), pl. II, figs. 15-16.

51$

e g Fig. 1. a, e, e, g: Charles 1 in Parliainent ; b, f: Charles; d: Essex.

Fig. 2. Charles 1 in Parliament (Mfcdallion of 03 ,12)

Fig. ^. "Fifth Seal" of Charles 1 b. Snut^Ia rd

Fig, 4. Personal Beiges of Richa rd ti

l

Fig. 5. Otto II in nlajesty (Aachen Gospels, ca. 975)

Fig. 6. Christ in Nlajesty (Ivory Book Coecr, Darmstadt, ea. goo)

t C. -.-^, \I

1 1, `

Fig. S. Terra Cai

Fig. 7. Christ in Majesty (Ivory Book Cover, St. Gall, ca. goo)

rl+Jo-

^i"

n

s+_^IV

°^^ 'j j . • -

!

he Crucified (&ory, ttth century)

Fig. 9. Eschatological Scene (Vivian Bible, 9th centu y)

Fig. io. Eschatological Scene (San Paolo f. 1.m. Bible, gth century)

Fig. ti. Maiestas Domini supra Caeium (Junius Bassus Sarcophagus, A.D. 359)

Fig. 12. Triumph of Basil II (Byzantine MS, 1lth century)

Fig, sg. Christ Disappcanng (B rd Go ]sHnd h m, lith c

a. San Paolo Bible, gth century

b. Trier Apocalypsc, gth ccntm,

Fig. 15. Christ in Alajesty with 21 Eldcrs

Fig. 17. Capuan Gate of Frcderick II (reconstruction)

U. lustit

Fig. 18. Fresco by Ambrogio Lorcnzetti (Palazzo Pubblico, Siena)

b. Buon Governo

Fig. ig. Last Judgment with Iustitia (Enamel Triptych from Stablo, t2th century)

Fig. 20. Emperor Henry II as Judge (Monte Cassino Gospels, A.D. 1022-1023)

aP,,rxcEPS-

Qu od non capit Chriflus, rapi t fitcus.

Fig. 22. Queen Elizaberh: Unua P/rorn
(\Lcd ul1lun. i0

t,pri,nit bwo.nre,,g vas iem n: ad, fererar corté Spm:,lt1er,oepldi 2n ndper are6e ,noma.

Pmnelir ad rrin:n een fracs.-gno,ednndeediere [eri Lll rl 12 fjflll]

mole parta jkunl.

Fig. 23. Charles 1 and Charles II as Phocuix (Niedullion. ^6-l g)

Fig. 21. Andrea Alciad: Emblem (1531)

r

Fig. 26. Caricature by Tbackeray of Rigaud 's Portrait of Louis XIV

^^

Po~ ntir M NMwnxE & GR ND

1CDV

CFysm aa..r w. .cc raMr Yb d` S r,&S+wp4ds9

C aRs r' nw,4Jna. el.;La

:T 'v &4m 4r

Fig. 27. Henry IV on the Lit d'Honneur (Engravings, MS Clarembault, 1127)

(iOI,Riifle lu n7Iim_ n f i, res: _._

i swñ Ya'W' n _ R1 ?L P -'I ILi t-LwRu¢ í 9mí^^ów!' m yim .pm

Fig. 28. Tomb of John Fhralan, i th Earl of Arundel (ca. 1485)

3o. Tomb of Arcllbishop Henry Chichcle, Canterbury Cathedral (1424)

E

ttl'imprímétie deRob . EltiennelmprimuurduRoy Auecq'Priuilegedudi @ feigneur. 13 4 f: Fig. eg. Thc Effig,° under Clac Canoly

Eig. ^l1. Tomb of Rishop Thomas Bekington, ANells Cathedral (ca. 1451)

a. Postumus and Hercules

b. Probus and Sol Invictus JUGATE BUSTS

c. Oriens Augusti Aureus of Aurelian

d

e

d-f. Jugate Busts: Constantine and Sol Invictos

Fig.32. Coins

A. ABBREVIATIONS AHR Anterican IJisiorlrol Revicty AKKR Archiv für kath o lischcs Kirch cnrecht A rch UF Archiv für Urkundenforschung BZ Byzantinische Zeitschrift G. Codex Justiniani (see Corpus Iuris Civilis [1584], vols. V and IV) CSEL Corpus seriptorum ecclesiastirorum lalinorum D. Digesta (see Corpus Iuris Civilis [1584], vols. IDA Deutsches Archiv für Erforsehung des Mittelalters DACL Dictionnaire d'archéologie chrétienne et de liturgie EHR English Historical Review Erg. Bd, see Kantorowicz, Kaiser Friedrich der Zweite, Feud. E)gdnzungsband Libri feudorum (see Corpus Inris Civilis [1584], vol. IV) Glos. ord. see Glossa ordinaria HZ Historische Zeitschrift Inst. Institutiones Justiniani (see Corpus Iuris Civilis [1584], vol. IV) JRS Journal of Roman Studies Lib. aug. See Liber augustalis MGH Monumenta Germaniae Historica The series cited in abbreviation are: Epp. sel. Epistolae selectae (octavo) LdL. Libelli de Lite SS.r.Germ. Scriptores rerum Germanicarum (octavo) Const. Constitutiones el acta publica MÓIG [MIÓG] Mitteilungen des Ósterreichisdren Instituís fúr Geschichtsforschung Nov. Novellae (see Corpus luris Civilis [1584], vol. IV) PGr Migne, Patrologia graeca PL Migne, Patrologia latina QF, QFiAB Quellen und Forschungen ates italienischen Archiven und Bibliotheken RE Realencyclopddie der classischen Altertumswissenschaft, edd. Pauly, Wissowa, Kroll, and others Rev. bénéd. Reune bénédictine RM Mitteilungen des deutschen archdologischen Instituts: Rdmische Abteilung

Sitz. Ber. Sitztzngsberichte VI Liber Sextus (see Corpus Iuris Canonici [1588], vol. III)

515

ABBREVIATIONS Warburg Journal Journal of the Warburg and Courtauld Institutes X Liber Extra (see orpC us I urzsC anonte [1588],

vol. II)

ZJKT ZfRG

Zeitschrift für Katholische Theologie Zeitschrift der Savigny-Stiftung für Rechtsgeschichte

B. SELECTED BIBLIOGRAPHY Accursius, Glossa ordinaria to Roman Law (Corpus iuris civilis [Ven. lee, 1584]) Aegidius Romanos, De ecclesiastica potestate, ed. R. Scholz (Weimar, 1929). Albericus de Rosate , In Di vum gestum vetos (Infortiatum, Digestum no. ) Commentaria (Venice, 1585). --, In Codicem Commentaria (Venice, 1585). Dictionarium Iuris tam Civilis quam Canonici (Venice, 16o1). Andreas de Barulo, Commentaria super tribus libris Codicis 16oi) . (Venice, Andreas de Isernia, Cmnmentaria in Usas Feudorum (Naples, 1571). -,, Peregrina Lectura super Constitutionibus el Glossis Regni Sacahae, in: Liber augustaiis, Andrieu, M., Le Pontifical Romained. Cervone. au moycn-dge (Studi e Testi, 86-88, 99 [Vatican City, 1938x941]). Angeles de Ubaldis, In Digestum vetos (Infortiatum, Digestum novum) Commentaria (Venice, 1580). In Codicem Commentaria (Venice, 1579) In Autlzenticorum volumen Commentaria (Venice, 1580) Aquinas, see Thomas Aquinas. Arbusow, Leonid, (Bonn, 1951). Liturgie und Geschiclatsschreibung im Mittelalter Aristotle, Latin Version, see Thomas Aquinas. Aubert, Jean-Marie, Le droit rornain dans l'oeuvre de Saint Thomas (Bibliothéque Thomiste, xxx [paris, 1955]) Augustinus Triumphus de Ancona, De sum"' Potestate ecclesiastica (Augsburg, Johannes Schüssler, 1483), Azo, Summa [Codicis, Institutionunl, Novcllarum] (Lyon, 1530). -, see Maitland. Bacon, Francis,

The Works of Sir Francis Bacon, edd. J. Spedding and D. D. Heath, 7 vols. (London, 1859-1870) ; also edd, Spedding, R. L. Ellis, and Heath, 15 vols. (Boston, 1861). Baethgen, Friedrich, "Der Anspruch des Papsttums auf das Reichsvikariat," ZfRG, kan. Abt., x (1920). Baldus de Ubaldis, Consilia (Venice, 1575). In Decretalium volumen Commentaria (Venice, 1580). In Digestum vetos, Infortiatum, Digestum novnm, Libros Codicis Commentaria (Venice, 1586). Liber de Pace Constantiac, in: Corpus Iuris Civilis, vol. IV, 159-1go (following after (he Libri Feudorum) Barbi, Michele, 'Nuovi problemi Bella critica dantesca: VI. L'ideale politicoreligioso di Dante," and "VIII. Impero e cine,,,,, Studi danteschi, xxul (1938), xxvn (1942).

516 517

11 l R LI O C R A P HY

BIBLIOG R A PHY

Bartolti s de Saxo1 el1 a t0, Cn112 vnr11 lacia ir? Digestun, vetos, Infnrtia t rm,, Digestum no-tnna, Codiren, (Vence, 1567). Super AuU,rnhrin °( lnslitotiooibos (l colee. 1567). .,o ti, 154¡). Consilia, {)uae. nones et 7rnr1 a1ns Boda Venerabilis, Exposilio Arhunn Apostoiorum et Iletrartatio, ed.

Chiappclli, Luigi, "Dance in rapporto alle fonti del diritto," Archn'io storico Italiano, Ser- b, vol. xi.s (igofl). Choppin, René, De Dumnnio Franeiae (Para 160,51 Chrimes, S B, English Canst, tutionn( Ideas m che Fifteenth Ceotim' (Cambridge, 1936). Chureh, William Farr, Constitutional Thonght in .Sixt reo th-Cenhrry Franco (Harvard Historical Studics, xt.vu [Cambridge, 1g1r] . Coester, Hildegard, Der Kdnigskoit in Frankreich um r3oo iTn Spiegel (.S taatsexamensShesis, npeseripL der DOminiknne,predigten Frankfun, 19351936). Coke, Sir Edward, Reports, ed. G. Wilson, 7 vols. (Dublin, 1792x798). The Institutes of che Laws of England (editions London 1681 and 1809). Coquille, Cuy, Les oeuvres, 2 vols. (Paris, 1(566). Coroner's Roll, Select Cases from the, ed. Charles Gross (Selden Society, 1x [London, 1886]). Corpus iuris canonici, 3 vols. (Turin, 1588), containing the Glossae ordinariae to Decretum Gratiani (vol. t), Decretales Gregorii IX, Liber Extra (vol. n), Liber Sextos and the later Decretals (vol. m). ed. Emil Friedberg, 2 vols. (Leipzig, 1879-1881). Corpus iuris civilis, 5 vols. (Venice, 1584), containing Accursius' Glossa ordinaria te Digest (vols. rm), Codex (vols. v and iv), Institutes and Novels, also the Libri Feudorum and other material (vol. ,v). Crompton, Richard, L'Authoritie et Jurisdiction (London, 1591). Cuias, J., Opera, 12 vols. (Prato, 1836-1843). Cynus de Pistoia, Commentarium in Codicem el Digestum vetus (Frankfurt, 1578). Dante Alighieri, De Monarchia, ed. Gustavo Vinay (Florence, 1950). Le opere, ed. E. Moore and P. Toynbee (4th ed., Oxford, 1924). Davies, J. C., The Baronial Opposition lo Edward II (Cambridge, 1918). Davis, Gifford, "The Incipient Sentiment of Nationality in Mediaeval Castile: The Patrimonio real," Speculum, xr1 (1937). De la Guesle, see Guesle. De la Roche Flavin, Bernard, Treize Iivres des Parlemens de France (Geneva, 1621). Delatte, Louis, Les traités de la royouté d'Ecphante, Diotogéne et Sthénidas (Bibl. de la Faculté de Philosophie et Lettres ele i'Université (le Liége, xcvu [Liége, 1942]). Deusdedit, Collectio canonum, ed. Victor Wolf von Glanvell, Die Kanonessammlung des Kardinals Deusdedit (Paderborn, 1905). Diehl, C., Manuel d'art byzantin, 2 vols., 2nd ed. (Paris, 1925). Dólger, F. J., Sol Salutis, 2nd ed. (Münster, 1925). Die Sonne der Gerechtigkeit und der Schwarze (Münster, 1918).

M. L. W. Laistner (Cambridge, Mass., 1930). Bcemelmans, F., Zeit und i-7vogheit narii Thmnas von Aquino (Bcitrilge zur Geschichtc dcr Philosophie ¡ni Mittelaltcr, xv11, 1 [Münster, 1911]). Beissel, Stephan, Die Bilder dcr 1-Im,dsclo-ift des Raiscrs Otto iot Münster zu Aachen (Aachen, 1886) , Geschichtc der Evangelienbüciher in der ersten Hülfte des bfiltelalters (Stimnlcn aus Maria-Laach, 92-93 [Freiburg, rgo6]). Benkard, Ernst, Das ewige Antlitz (Bcrlin, 1927); English transl. by Margaret M. Green, Undying Faces (New York, 1929). Berges, Wilhelm, Die Fürstenspicgel des ho/ten und spdten Mittelalters (MGH, Schriften, 11 [Leipzig, 1g,8]). Bernard (de Botone) of Parma, Glossa ordinaria to Decretales Gregorii Papae IX (seo Corpus iuris canonici [Turin, 1588], vol. 11). Bibliotheca jurídica medii aevi, ed. A. Gaudenzi, 3 vols. (Bologna, 1888-1901). Blackstone, Sir William, Commentories en the Laws of England (London, 1765). Bloch, Marc, Les rois thaurnahcrges (Strasbourg, 1924). Bodin, jean, Les six liares de la république (Paris, 1583). Bóhmer, Heinrich, Kirche und Staat in England und in der Nor&nandie im ir. und 12. Jalzrhundcrt (Leipzig, 1899). a Bóhmer, Johann Friedlicll, Acta izoperü selecta, 2 vols. (Innsbruck, 1870). Boncompagno, Magister, Rhetorica novissima, ed. A. Gaudenzi, in: Bibl. jurid. med. aevi, 11 (Bologna, 1892). Bossuet, J: B., Oeuvres oratoires, ed. J. Lebarq (Lille and Paris, 1882). Bracton, Henry of, De legibus el consuetudinibus Angliae, ed. G. E. Woodbine, 4 vols. (New 1-laven, 1g15 1942). Budé, Guillaume, Annotationes in XXHII Pandectarum libros (Lyon, 1551). Burdach, Konrad, Rienzo und die geistige id'altdlung seiner Zeit, Vom Mittelalter zur Refmrolation, 11, 1 (Berlin, 1913-1928). Calasso, F., 1 glossatori e la teoria della sovranitá (Milan, 1951). Capasso, B., "Salla storia esterna delle costituzioni di Federico II," Atti della Accadernia Pontaniana, 1x (1871). Carlyle, R. W, and A. J., A History of Medioeval Political Theory, 6 vols. (Edinburgh and London, 1903-1936). Cases before the King's Coancil, 1243-1482, ed. I. S. Leadam and J. F. Baldwin (Selden Society, xxxv [Cambridge, 1g18]). Cervone, A., see Libre augustalis.

518

519

1 Ü

1 1

BIBLIOGRAPHY

BIBLIOGRAPH1'

Folz, Robert, Le souvenir el la légende de Charlemagne dans

Dubois, Pierre, De recuperatione Terrae Sanctae, ed. Ch.-V. Langlois

germanique medieval (Paris, 1950).

(Collection des textes, 1x [Paris, 1891]). , Summaria brevis el compendiosa doctrina felicis expediciones el abbreviacionis guerrarum ac litium regni Francorum, ed. H. Kámpf (Leipzig and Berlin, 1986). Dupré-Theseider, Eugenio, L'idea imperiale di Roma nella tradizione del 'medioevo (Milan, 1942). Dupuy, Pierre, Histoire du dipérend d'entre Pape Boniface VIII el Philippe le Bel, Roy de France (Paris, 1(355). Durandus, Gulielinus, Rationale divinorum ofciorum (Lyon, 1565). Speculum iuris, 4 vols. (Venice, 16o2). Du Tillet, jean, Recueil des Roys de France (Paris, 1(318). Egenter, Richard, "Gemeinnutz vor Eigennutz: Die soziale Leitidee ¡in Tractatus de bono communi des Fr. Remigius von Floren (+ 1319) , " Scholastik, 1x (1934). Ehrhardt, Arnold, "Das Corpus Christi und die Korporationem im spátriimischen Rccht," ZfRG, rom. Abt., LXX (1953), Lxx1 (1954). Ehrlich, L., Proceedings against the Crown, 1216-1377 (Oxford, 1821). Eichmann, Eduard, Die Kaiserkr5nung im Abendland, 2 vols. (Würzburg, 1942). "Konigs- und Bischofsweihe," Sitz. Ber. bayer. Akad., phil.-hist. Klasse (Munich, 1928), No. 6. Eitrem, S., "Zur Apotheose," Symbolae Osloenses, xv-xv1 (1936). d'Entréves, A. Passerin, Dante as a Political Thinker (Oxford, 1952). "La tcoria del diritto e della politica in Inghilterra all' initio dell' etá moderna," R. Universitá di Torino: Memoria dellIstituto Giuridico, Ser. ir, No. 1v (1929). Ercole, Francesco, Il pensiero politico di Dante (hilan, 1927- 1928). Erdmann, Carl, Die Entstehung des Kreuzzugsgedankens (Stuttgart, 1935). , Forschungen zur politischen Ideenwelt des Frühmittelalters (Berlin, 1951). Esmein, A., "La maxime Princeps legibus solutus est dans l'ancien droit public fran4ais," Essays in Legal History, ed. P. Vinogradoff (Oxford, 1913). Ettlinger, L., "The Duke of Wellington's Funeral Car," Warburg Journal, ni (1939-1940). Figgis, ]. N., The Devine Right of Kings, 2nd ed. (Cambridge, 1934). Finke, H., Acta Arrzgonensia, 3 vols. (Berlin and Leipzig, 1908-1922). Fitting, H., Juristische Schriften des früheren Mittelalters (Halle, 1876). , Quaestiones de iuris subtilitatibus des Irnerius ( Berlin, 1894). Fitzpatrick, Mary Cletus, Lactantii De Ave Phoenice (University of Pennsylvania thesis [Philadelphia, 1933]). Fleta, ed. John Selden, 2nd ed. (London, 1685).

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t

521

It IBLIOG RAPIlY BIBLIO G R A Pl1Y die rail te la ti(, i,drerr Theorizn dice das 1'crhaltnis 0,2 Ki) clic 7t 77,1 Staat (Si ti. 1i( r, Ni ti ni dr, rg8q. Nn. 2).

Grassaille, Charles dc, Hr,uliurn 1 rancios lil,,i duo (Paris, Grégoire, Pierrc, Dr Rrpr, hliur ILson, rriog; firsi publishcd r57S). Gregorv VII, Das Regrster Crc"urr 111., cd. Lrich Gaspar (MGH. Epp. sel., u [Berlín, 102(1-1112,;]), Gregorv of Bergamn, 1)r ,uiLrrin rurpnris Christi, al. II. Hurter, Smrctorunr patruru npusculo srlrrtn rlnnshruek, Grotius, l-fugo, Dc inri hell? et finos (.Amster(1aun, 1720). Guesle, Jacques de la, Les Hcm unsl rnne
522

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5°09

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Toynbee, Jocelvn M. C.. Rovtan Al, dallinnc (N( w York, I9.l.l), 17eitinger, O., Dir uetrü,t he Kaiser- und flei, b dec' lla(ll i7tit 1 Gcstaltung nn holi,crAelt Ye re,uoo irll (Jena, ul°61. Überweg. F. and B:uungan raer, AL, Gnnrcfi iss dr, Grsrl+irh l,• drr losophie de' pntristise-h cn and srholnrl isrlren Zeit, m b ed. (Berlin, 1015).

INDEX II nu

s Ihe r t , r bro hr mrs al Lr 1 111 lo - ael, ca 1pktcmss, , n,ld 7, roundrA 't0 ,rd 1, tha? or anos ,o i! iv n w ,2 I1,u, 1501 ")'ad it Lave Oaru es¡andcd dOvout upp, uxirnatb,d a em,cordw¢c Loe at7 Os m.... io,n' and I or'corn ingv, hworwrr, it slip urav hm.'e i...... fulndss uva e,pude (ce th< srh ofa r. [r drx rufas esos 1, a foolnot. ,f,', us ofIrn as not, afro 1o OI( taxi to Lid, tl.e nrle t'elon?s. Te,' abbrevia io:u (ubp. = a,chbúüap, bp. _ buhop 0.,m ,',error i. = kiug, (y . = que') fofm.v Jrc acs -nnn b olIcen, nnd Oinsr oJ , rjrer narras si11 be (il n hola rL irle gibe siU o,l fvrti,e'r erplmmtio n. '

üllmann, Walter, "1-hc Influcncc of final ol Saltsbwy ora Aicdiacsal Italian Jm-ists," LilRR, i ix (ig41.

"Baldas' Conc(prion o[ Lao,' Lete ^)uanrrl^' Remen: Lc[n (1942). The Medie-.,el Idea of Law as Represen red by Lucas de Penna (London, 1946). Medieval Papalism (London, 1949). Ussher, james, The TVkole Works (Dublin, 1864). Vassalli, Filippo E., "Concetto e natura del fisco," Studi Senesi, xxv (1908). Vernani, Guido, De reprobatione Monarehie cotoposite a Dante, ed. Thomas Káppeli O.P., "Der Dantegegner Guido Vernani O.P. von Rimini," QFiAB, XXVIII (1937-1(988). Vieilleville, Marquis de, Mémoires, ed. J. Michaud and P. Poujoulat, Nouvelle collection des rné>noires sur l'histoire de France, vol. ix (Paris, 1850). Watkins, Robert D., The State as a Party Litigpnt (Johns Hopkins diss,, Baltimorc , 1927). Wieruszowski, Helene, Vom Imperium zum nationalen Kónigtum (HZ, Beiheft, 30 [,Munich and Berlin, 1983]). Wilkinson, B., "The Coronation Oath of Edward II and the Statute of York," Speculum, xix (1944). "The 'Political Revolution' of die Thirteenth and Fourteendh Centuries in England," .Speculunt, XXIV (1949). Willemsen, Carl A., Kaiser Fricdrichs II. Triurnphtor zu Capm (Wiesbaden, 1953). Williams, George H., The Norman Anonynlous of ca. rooo A.D.: Tuward the Identification and the Evatuation of tlre So-called Anonymous of York (Harvard Theological Studics, xvnl [Cambridge, Mass., 1951]). Wilson, John Dover, cd., King Richard II, in: The II'orks of Shakespeare (Cambridge, igtg). Wipo, Gesta Chuonradi, ed. H. Bresslau (MGH, SS.rer.germ., 1815). Woodbine, G. E., see Bracton, Glanvill. Woolf, C.N.S., Bartolus of Sassoferrato (Cambridge, 1913). Wunderlich, Agathon, Anecdota rluae processuns civilem speetont (Góttingen , 1841). Yates, Frances A ., "Queen Elizabeth as Astraca," JParburg Journal,

Aachen: 83 n.1o0 (Borran futura), 89156, 204 n.34 (anothcr Rome)

Ahingdon, Edmund, abp. of Canterbury: 350 Absolutism: 98 0.31, 151, 194. 220, 230 n.112, and passim Acclamations: 68 0.57 (1o king), 81 (Louis the Pious), So 0.93 (queens), 83 n.1o2, 85 15.105, 4111ff (le Roy eso mort ...), 490 (baptislnal) Accursius (ser Law: Romas, Glos. ord. [c.1227-12401); 103, 121 15.102 , 122f, 126,

140, 171 11e46, 295 n.48, 297, 306, 324 0.29, 452 1.4, passim Accursius, Francia: 44 n.4, 361 Acre: 243, 251 0.,82

Adam: 66 11.52, 7o (giant), 308 (belongs to corpus mysticum), 450 (prototype of corporation sole), 4681f passim (see Darte) Adoprion, Adoptionisln: 49, 52 0.21 Adventus: 70 0.64, 255 0.191 (Christ), 430 0.377 (efligy) Aegidius Romanos (d1316): 130 15.128, 131 15.131, 134 (De reg. princ.), 135, 139 n.,6,, 148, 466 1143 Aclia Capitolina (Jerusalem): 83 Aelfric: 85 n.1o5, 150 3.182 Amena: 253 Aeschytos: 230 11.113 Aethelwold Benedictional: 52 0.22 Africa: 328 Agapetus Diaconus: 49,9 nos.'' and 14 Aigai: 501 (tireatre at A.) Ailly, Cardinal Pierre d': 124 Albericus de Rosate (d.1354): 122 n.1o.f (jurista priests of Juscice), 130 11.129 (Prince in lege, flor sub lege), 136 15.154 (¿ex animara), 175 11.266 (Christ and fue), 213 15.57 (Prince's 3maiage ro reahu), 310 n.go (univ'crsilvs), 324 0.29 (regnal years), 392 15.263 (identity

X (1947).

j30

J

531

of testator and hcir), 397 0.280 (perpecuite), 399 n _90 (dignimr perpelua), 455 0_13 (Pr' ce phifosojd,issimus), 457 15.17, 460 n.28, and 463 15.35 (refereuces to Dante) Albertus Magnas : 133, 389 11.237 Alchemy: 307 0.81 Alciari, Andrea: 174 15.254, 175 Aa1in: 280 0. 14 (aevuen ), 320 1.15 Alexander of Roes: 202 11.28, 254 0.187 Alexander the GreaC 498

At'F2ráb5: 387 ns40 Alearas Pelagios: 204, 205 15.35 Arralar of Metz: Si [Ps.]Amalar of Trier: 490 n.,13 Amanieu of Anuagnac, ahp. of Auch: 351 n.136 Amarcius: 54 0.26 Amboise: 429 St. Ambrose, bp. of Milan: 50 15.19, 53 0.24, 7of (gigas geminae substanliae), 91 0.12, 188, 205 n.36 (azbi Christus ibi Jordania), 280 11 14, 389 11.247, 390 0.253, 391, 490 Ambrosiaster: 89 0.7, 91 n. 12, 161 amicus regir (title; cf. Bible: Apostles): 406 0.341 (privy councillor) Anagni: 250 1.177, 454 Andreas de Barulo (fl. 1260-1290): gg 0.36 (vigor institiae), 106 15 .54 (lex digna) Andreas of Caesarea: 71 n-65 Andreas of Isernia (d. 1316): 92 n.16 (Prince: numen divinum), 97 n.29 (-ex i ropera toe), 109 0.63 ( ten,plum fnstitiae), 111 0.72 ( inlagcs, royal and holy), 117 n.86 o uristic authorily of Bible), 124 n.u1 (Prince iudex iudieum), 130 -.131 (lex anirnntals 136 11.154 (vis directiva of law aboye lile Primor), 1,38 11.m59 (iue!si urandi religío), 153 1.191 (raro princeps mm-

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INDEX INDEX tri('). 247 n. 167 (Avignon), 269 1.229 Austin Friars: 173 persona personatis and jsisoAuthentica "Habita" of 11,58 (ser C_i. (Prince 13, 5 post): 92 o.16, 491, n-125 lis), 277 11.8 (Time and Truth), 282 Averroes, Averruwrs verrojsm 27gff, n. 1S (setn p11ern itv 1,1 511(711111011), 292 276 passim, 281 282 11.16 283f -96 0.38 (seoiplterniry of Empir(). 220,1 n.51, 301 n.62 302 307 21.81, 465, 471 11.39 (Four world monarahlesl 295 98 29) non marsturl 0.53. 472, 79, 475f, 417. 481 u 83 0.5o (pof!ulus 465 ti -,7 (Aristotld, 304 (0.0.,21:1 sitas sem Avicenna: 2 J.6 11.8! (frenan Avignon: 204, 217 o 7 247 1.167. 288 pirerual, lió g , 11.28, 414 11332, 433 imitares nawrc., 307 11.81 (lduplion). Azo (d. ca. 1230): 98 11 .31, 115 1032 (die 30. 11.91 (aspire universal in apare no vox), ,o8 22 .59, 12011,10() Irncrrdolrs aud time). 312 11.97 (one-non wrpora institiae ), 125 x116, 13S 11 159 (iuris ,ion), 327 044 (pre' coronational religio), 13911.161, 14011,1(i4, 14611.175, rights), 328 11-1.45-46 (coronation on150, 151 0.!84, 156 0.202, 160, 162 ly ornamental), 330 0.52 (king's burtriduurn), 336 n.76 (Clowns vnsn 221, 179, 182 0.283 (prescription), ¡al post 187, 452 11,4, 476 11,67 (anima nuandi). ible and invisible), 337 0.77 (porpetuSee also Law , Roman iry of Crown), 352 0.139, and 357 n.153

(coronatlon oath), 376 nstiffl (Church a (rex tutor regni)„ Bacon, Sir Francis: 11 11.9. 14 0.17, 24 rni0or), 377 11.215 11.230 (oficium, dignitas), 388-389 .64, 367 1.175, 366 1.176, 384 0.5, 41, 333 0 378 11.219, 380 0.221, 381 0 . 225, 382, 1108 ,247-249 (Phoenix), 393 n.267 (tn405 n.31o, 438 nos.398 and 401, 445 heritance), 398 0.283 (digoitas non nroritur), 398 0.284 (contracta bind 11.425, 446 x425, 448 0.427, 496 11.1, 497 successor), 399 (regal quality non morotatr), 400 nos.292f (majesty non moriBadges: 22 ( of Essex ), 32 (Richard II) Baeblanus (Ohitus Baebianr): 395 n.273 tul), 400 0.295 (king acis f0.' two per), 401 0.296 (king wills aher Baldus de Ubaldis (c. 1327-1400): 1o n.8 sons (hermaphrodites ), 14 11 ,14 (nomen dig- death), 4(>1 11 297 (praise of Baldas), 418 0,347 (Justicia hahitus qui non morinitatis), 92 n.16- (Princc deus in terris), 101 0.41 (Huguccio 011 Astraca), ti¿'), 419 0.349 (jurisdiction survives che Prince), Prince), 437 11.396 (Dignity without fo,o6 0.55 ( Reason aboye 124 0.110 (mi- cumbent inactivated), 438 11.297 (one Concordia), 113 0.77 ( for two), 441 (Majesty litia doctoralis), 126 0.117 (emperor person standing est rex [Chry- vs. person in majesty), 442 0.412 (inpontifex), 131 11.131 (Lex ), strumentalis vs. principalis), 444 0419 sippus] ), 1330,145 ( iustum animatum person organ of 135 0.151 (lex viva), 137 11.156 (Justice (orgenurn), 44411,420 ( king instrument Dignity), 445 0422 ( iustitia infusa ( 13811.159 ), triumphant of Dignity), 467 11.44 (humana civitiand acquisita), 139 11 , 159 (iuris mysPrince's freedom likens terium), 142 n,,66f ( iustitia non errat), tas), 473 n.56 ( 172 n.250 ( capacities), 177 0.269 (pre- chal of God), 476 0.64 (world an uni(universitas 11as seription ), 177 11.270 ( Donation of Con' versitos), 477 11.70 pers05200 iv tellatum) ), 179 11275 (fue), 180 11.276 unjas stantine (ubi fiscus ibi imperium), 181 ns8o Bamberg: 215 11.61, 352; bp. Ekberr (praescriptio centenaria), 183 0.285 353 11.140 ), 184 11.287 (fiscos col- Banuers: 33 1118 (Black Prince, Riehanl (ecclesia: fiscos pus inanimatum ), 184 11 ,288 (fiscos rd- 11), 255 21.191 (French king), 411 11.323, publicae anima), 184 n .291 (fiscos 419 (of France)

Liturgica ubique, Deo sirnilis), 185 0.292 (fiscos Baptism, see numquam moritar), 189 0,308 (fiscos, Bartholomeus of Capita (1248-1328): 455 respublica, patria), 190 0,310 (ad- 11 .13 ministrator fisci), 204 11.34 (cf. 18o Bartldus (1314-1357): 1111 11169 (iustitia), 0.276), 205 11.35 (ubi papa ¡Si Rorna), 113 0.77, 177 0.268 (Churclt and (¡se), (papados 210 11.49 (corpus mYsciaun), 230 x113 178 11.271 (6sc), 179 1.275 (Princc), 246 11.,64. (fratricide pro pa- sibi est f cus), 1815 11276 (irse and pa-

trimon ju no), 183 11.265 (res sacras' and pabGcae), 282 11.18 (perpemity by succcssion), 292 11-39 (Four World Monarchies), 29,1 11.41 (an(1 3115 narcli of Christ), 291 nos .42-43 (regu ,aritos orbis resling in enlperur), ,to1 12.62 (donblc truth). 302 n.61 (juristic and philosophica1 2ruth), 301 11 .70 (world one utu._rsi tos), 3o6, 307 o81 (fictlu11 imltates naturc), 3o8 0.84 (perpetual by substitution), 3150 11 .89 (scmpiternitr of univcrsims sclmiarium), 315 21.61 (sempiterni ly of Prince), 327 (Dona' tion of Constantine), 384 11.23(1 (officium and dignitas), 452 (and Dante), 466 o,42 (hcresy to deny universal monarchy lo emperor ), 467 0-43 (pagan emperors were trae emperors), 476 11.64 ( mundos universitas quaedam), 477 n.6g (identity of universitas)

(72f, 751), 91 (71), 9,: off (71), 1-9 (393 1.265), 115:15 (251 11.182), 147:5 (157); Pr0v. 4:8 (393 11.265), 8:15 (116); Oant, , _ (131 1.131), 8:6

(244):

- (011$): ¡'Actos.

2:1 (466 1142, 467 0.43), 2:7 (393 11.265), 4:18 (52 11.32), 11:20 (444 11.419 ), 1531 (393 11.265); John 3:31

Bath and Wells: bp. Thomas Beckington, 435; bp. John Stafford, 363 Beaucaire: 236 Beckington, bp. Thomas, see Bath and Welis Bede, The Venerable: 5o 11.18, 53 11.23, 63 0,47, 67 11 .54, 68 1135, (39 1160, 711 0.64, ,6, 0.217 . [Pseudo-] Bede In Psalmos, 70 0.63, 72 11.69 Bedfurd, Duke of: 410, 411. 421 Belleperche ( Bellapertica ), Pierre de (d. 1308): 247 0.167 Benedict , The Order of SI., Inc.: 405 Benzo of Alba: 129 11.125 Berengar of Tours: 156 Bernard (de Bottone) of Parma (d.r263): 386f; see Law, Decretales Gregorü IX, Glossa ordinaria

Bernard of Clairvaux: 44 11 ,4, roo n,40 Bible: and jurisprudence: 116, 117 n.86, mg n.93; Psalter: 72f (Glos. ord., Augustine), 0.9, 176 (Augusrine) Gen. 1:31 (264); Exod, 12:9 (70 11.64), 25:25 (337 1176), 26:3! (67), 26: 33 (6g); Lev, ,6a2ff (67); Deut. 21:17 (393 11.264); II Kings 12:1524 (393 0.265), 14:17 (229 11.93); 111 Kings 3:11 (159); 1 Chron. 22:10 ( 224 11.91); II Chron. 15:6 (1615 0.214); Ps. 1:2 (136 0.154), 4:6 (117 n.88), 8:6 (483 n.86, 490 n.m5), 9:5 (159), ,8 (70), 18:5 (5o 11.19, 70 11.63), 44:8 ( 55 0.28), 5o: 21 (119 0.93 ), 71 (loo n,38), 75:13 (495 x125), 8,:6 (409 11.19, 496), 88:15 (159), 90 (72f, 75), 90:10 ( 7,), 90:13

535 534

nssda n

(256 11- 95). 75:14 (494 11.12{); 1 Isomh 45:1 (3 n` 31, 61: 1 (2 11 22), 6z 10 (85); Dan :39-40 (9' 11,39. (122 1`94 413); Zarh 9 : 9 ( 851: Sial 11.,ol); 1 Mac ab 3'1122 -.,1 11 182), 10:89 (-116 117416 1158 (-116 11.341), 1914 (416 11.341) Mart. 22:21 53 11,24, 467 11.43); 1 ,dse

1:33

(33,), 7:,41E ( 128), 10:18 (389 11.246), 10:30 (440 nos4O5, 409), 12:6 (176 11 ,263), 14:10 (4,10 1105.405, 409), 15:'4f (416 0,341), 16:5 (393 11.265), 19:23 (471 11.52); Acts 10:38 (52 11.22); Romans 8:17 (393 11.265), 12:, (117 n.88, 320 n.15), 13 (226); I Car. 11:3 (206 0.39), 12:12 (195 n.6, 199, 225), 12:14 (199), 12:27 (195 0.6, 199); Gal, 4:4 (466), 4:7 (393 n.265); Eph. 4:4,16 (195 11,6), 4:4,25 (195 n.6), 5 (2141), 5:23 (216 n.66), 5:25 (215 n.61), 5:30 (195 n.6); Phjl. 3:20 (88 11.4); II Thess, 218 (292 0.38); Hehr. 2:7 (483 n,86), 11, 13f (234); 1 Peter 2:9 (320 11.15, 489 0.117), 2:13-18 (54 0.26); II Peter 1:13 (71 11.67); 1 John 3:,6 (241 11.148, 244 o.157); Apoc. 1:15 (71) Aaron: 44 0.4, 46, 56 11,30 (anoint. ed king), 494 0.124 (receives crown from Meses); Abel: 44 0.4 (pope); Abraham: 44 o.4; Adam: s.v.; Apostles: 68f, 416 n.34! (amici [=councillors] Christi); Daniel: 292; David, David kingship: s.v.; Elijafa: 63 11.47 (Ascension); Evangclists (animal symbols): 6s, 66, 68; Eve: 395, 486; Israel: (high priest) 67, (kings) 46, 53 (11911 christi) 11.23, 117, (judges) 227; Jehoshaphat, K. of joda: 160 1,124; jerusalem: lv.; St. John, che Baptist 479 n.76; S: John, Evangelio: 69 11 .59, 74, 104 11.41, 114, 440 11.4o9 (11is language); (amicus regis; jonathan: 416 0 .341 fibula); ] oras : 26,; judas : 29, 33, 35, 38, 176 11.263 ; Lucifer: 33; St. Luke: 75; St. Mark: 75; Mary, Virgin: 0.v.: St. Matthew: 74: Melchisedek: 44 0.4, 125 11.13 (rex iustitia:), ,4o; Moses:

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7NDJ9X

ÍNDEX

Crown material, 33782: 337 1.76, 339 (selle); immemrial and nvisible:

(nnsiical m' political bod ) 29. 25Ciff. (Mtonian lilurgical dish). 8.; r Ioy. C, 1ff (con337 11.76- .los '51 (sel1-saalfc, for c-m.) 86, 155 (augustr (Drogheda), 413f 2 1 sN, ,0;f unuils of tire '1but r. nn t cq s ^ ' . 143 ilegal enllertiv a^,. io4f uiirrr'Cake, Si, Edwarl 1 'c ( : n l , in England. Cose,): 4 r 3 - 15.2.9 u9, r i,', 3oP_[ 'Ayui nos d i,m on;, 312 n 15.9, 4 n.18 ns-. 16 15.24E 41. (hrearm rr1stirnl. 363 ¢r -lrrt, 396 223 nSq, 228 . 229 u .iu8, 317 1.8, 318. (nvu nmril ur), 4o6 a1,1),[, a e. `M

3,011 3396 342, 7 38,; personified and c... nal 138, fiscal: 341, 3418 passim, [onstrturir nob 347, 319, perpetua!: 33,11 34• 3tr3. 373• 378 383: status coronas': 356f, 362, 36811 382; compadre (organic) charac[er 363, 379. 381; a corporation: 3781, 3815E 60111 politic of the Crown: 378, 382; and reahn: 3411fE passinq and

128, 330, 366 n r 6. 1r 5 n.3 ` . 406 t u 151)- 498 I I r. 413 (of ( hnst) 448 11.312, 408 31 317 4 3 u.362, Iggf 15.419 (Franre c avilr et r rwr), n1-, 1491 (abbnu 1 ( S I6q. 468 Ic f. ;051 Cola di Rieneo: r113 11 Collective guilt (b ru, r t nnr rr, u=): c rl 1.1 morn7c c1 poli tica rn. X10 211 oralc el 1.51. 214 (rrm ,rrroniurn 476 165 (and perczltwn o'iginaír) p0 lilinln), 2,6 15 .67, 211 221 11.81, Collin, Jeltan: 428 Comes Augusti: 400, 5o3f 2676, 311, 463 Consciente in court : 395 15.275 Corsica: 352 (Corsican sees) Consecrdtio (Roman imperial): 48, 49 Councils (Church): Chalcedon: 17, 64; 11.13 Hispanic, Second: 49f; Latente Third:

king: 3401, 343E 319 nos.rggf, 364372, 377, 38off; and Dlgnity: 383, 401; and unmcrsita.s: 358-364, 368; is tire coro'non patria: 341; touches all: 362, 372, 381, 384; public: 362, 372f; a minor: 374ff, 377381; act, for the Crown: 3391E (defense), 348ff (conserve rights ot), 369 n,,86 (freedom ot), 376, 381; acts against the Crown: 359 15.159 (plotting), 348ff passim (deprivation), 369-383 (blemishing), 369 (treason), 369, 372ff (disherison) Crusadcs, Crusaders, Crusading Idea (see 'I-oxea): 235f, 237f, 239 (remissions), 240, 246, 250 0.177 (defense of faith),

Constance, Peace of (Baldas' gloss): 300, 51 15.19; Limoges (1031): 239; Lyon 304 (1245): 282 n.18, 305; Nicaca, Second Constantine the Grear (ind. Cousti]u- (787): 440 )] -1u9: Ravenna (877): 87 tum Constantini): 6-, n5o ( facial simi- 15 .3; Roman Svnod (1078): 353 n.r4o; larity with Sun-god), So (saltt ), So Spanish Councils: 51; Toledo, Third: 15.92 (¡rango en hosrs), 82 15.99 (Roma- 68 15.57; Fourih: 291; Sixth: 5o; Amor), 128 (Lactancias), 337 0.76, Eighth: 150 15.182; Eleventh: 5o, loo 346 (Geoffrey of Monmouth), 428 n.4o; Fourteenth: 50; Trent: 157 1205; General Council, appeal to: 264 n.874 (funerary ceremonial), 503 (Sol 11.220, 266 11.223 ; presided over by comes), 505 (ecclesia corpus) Donation: 152 15.188

D u1tc 133 156 211 2`2 239, 215, 279 1 t 1 495 and Aquinas 411, 464 u 1:, ,178 15,71 passrnr: angranrs Wc' nlogv 465, 16(i 11..12, 46 13catrice, 454, 491' Catr 485ff; Jurisrs 2 n r,

254, 256, 268

0.250, 177 0.270 (Baldas, Dante ), 190 Courrenay, Philip of, pretender to che 0.310 (John of Paris), 325 11.32, 328 Latin Empire: 432 0.384 (bis tomó) 0.46 (Baldas ), 358 n.158 (Andreas of Courtrai: 250 Isernia), 370 n.191 (and King John), Cowell, Dr. John: 24. 405 399 n.29o (Albericus de Rosate, Dan- Cranmcr, Thomas J., ahp. of Canterte) bury: 17, 318, 328, 33! Coquille, Cuy ( 1523- 1603 ): 220 0.79, 225, Creeds: 17 (Athanasian, Chalcedonian), 449 0.429 49f (Hispanic synods), 5o (Rhabanus Corbie, Monastery: 195 Marras) Corippus: 184 0.288 Créton: 38 0.24 Comer Stone ( Biblical): 43 152 Crompton, Richard: 24, 405 Coronations , see Liturgica Cromwell. Oliver: 413 Corporation solo: 3ff, 379, 383. 384 osa! Crown: 16 (a hieroglvphic of thclaws), 394 (Phoenix), 405 (bishops), 4468 18 (its will), 30, 79 15.89 (France), So 1,05 0.93 (Hungary), 144 n.168;0148 15.177,

Cynus of Pistola (1270-1337): 103 15.49 (emperor from people, empire from God; el. 297), 130 15.129 (Prince is lex animata, tornen est horno), 154 15.194 (Prince has iura in scrinio pectoris), 169 n.24o (Prince is judge in causa propria) and 1.241 (Fiscal law is public law), 179 15.275 (fise and lex regia), 213 n.56 (Prince's marriage lo his realm), 214 0.59 (and Locas de Peona), 297, 307 n.81 (fiction imitares nature), 321 15.21 (Prince receives gifts of the

Corpus seysticum: 156 (and body poli- 149 ( Rracton ), 153 11.59! ( Bracton),^ tic), 19¢ 206 (ecdesiastical), 19,E (c. 157 n.2o8 (nonsuabili ry), 164 (interest Christi: Church, Eucharlst: also Feast), of he C'rown), 16611 (and demesne), 19711 (Church, che e. Christi mysti170E lit "touches all'), 173 (and rex cura), 2o5f (Church, a persona vnys20811 regnaus), 186E (and res qunsi sacrae), Dei), (c. mTSticum tico), 205E ), 20gf (_ 221 15.82 and 222 n.8g (pnuimony of passim (res publica, a. c.rn. patria), fictitious person), 210 (populus), 218ff the Crown), 247 (communis (Franee), 2igf (a C. civile et mysti- 259 (king's defense of), 272 (continuitv), 3,6, 399 ( non alienation cum), 220 (corps politique et tnysoath), 4036, 446 (Hungary), 418, 449 corps mys220 (Parlement tique), tique), 223ff passim (England), 224ff (and body politie), 495

Holy Spirit), 324 0.29

( astas imperii), 325 0.34 (pre-coronational powers), 327 nos.41,44 (imperatorio iurisdictio), 336 11.73 (pope not che vicar of the empire), 395 15.275 (bishop has duplex persona), 452 15 .4 (lex digna), 477 (universitas)

Cyprian, bp. of Carthage: 222, 230, 440 1105.408 and 4og, 44!, 505 Cyril of Alexandria: 53 15.23

1

(J1

1)an,iaui. R'vus: 8r, 8 n6. 8;, .139 11102 Danemark: 346 11-154

Cujas (1522-1590): 1og n.63, ''o 15.64, 138 15.159, 139 n.162 Curtius, Marcos: 261 Gusanos, Nicholas: 231 (Concordantia catholica)

(Gerhoh), 172 Prince: 51

538

Cysil of Jcrusalcro : vo 15,64 Cvrus, k . of 1 1 1'r 5'1 u:23 Le, , 11

539

2 96 115 2 , 452, 477 15 .17, 460 n.28, 476ff, and passim ; Veltro, 461 1130; Ver-gil, imperar: philosopher, 46111, 464€, 472f, 48711, passim; universal monarch, 457, 464, 468, 472, 473 15.56, 4806, 482 (and optimus {room), 481) passim; and Pope, 4568, 4591E (deitas and hurnanitos tire standards of both), 489, 493 (superffuous in state of innocence); vira activa (política), 475 15.63 "Separatism": 457 11 a8, 46411, 475ff. 481 nos.82-83, 48411 passim; Reatitude (intellectual), 471, 475 15.63, 48411 par' sim; Perfection (cf. Paradisc): Intellectual, 462, 464, 47!f, 473 (individual), 474 (corpoate), 475, 482ff, 486f, 489 (personal), 4goff; Spirimal: 464, 482ff, 487, 489 passim. Purifica[ion (penicence, baptism), 48711 passim. Paradise: terrestrial, 212, 457f, 461, 462 15.3!, 465, 468 (see Virtutes intellectuales), 469, 474, 483 (Adatn), 484, 487ff, 49111 passim; celestial: 212, 457f, 461, 462 15.3!, 469 (Virtute,s in/usas'), 483 (Christ), 484, 489. Rebirth (moralphilosophical), 483f, 485ff passim. Trichotomy (body. son], and intellect), 48t n.83. Universal Intellect: 472ff, 475f (actuation semper and simul), 477 passim. Virtues: lote llectual (moral, political), 464, 468f, 470 (Perugino frescoes), 471 15.53, 472475, 485E (Cato), and passim; infused (theological), 46Sf, 4708, 475, 485 passim Man: 451 (instrument of humanitas), 45411 (and mankind), 457 (intermediate), 458 (state of innocence), 459 (Idea of Man), 460 (Man as office), 460 0.27, 472 (body corporate of Man, cf.48o), 474 (totaliry of humanitas), 482ff passim; Adam: 468 (corpus 17'ys1 iclnn), 469 (vetos, uovus Adam),

ÍNDEX 474 (actuation of hulnanitas), 478, 482, xx,91: 38 n.24; xxvn,7ff: 488 1) 106; 483 (A. subtilis and A. rcnrtalis), 480, xxvn,2c 488 o.107; xxVI1,,40: 485 0.93: passim, .494 (su p reme ol er hi msel f]; xxvn,240f: 489

optimas homo: 458 (standard of pope and cmperor), 459, 460 0.27, 461 0,31, 482; tire Wise: 46, 0,31, 4621 473 0.56, and passim Humanitas (quantitatively: human race): 4.51, 454ff. 458 (goals), 460 (rePresented by optimus homo), 462 (and Christianitas), 463 (mora4philosophical goal), 467, 471 (terrestriaf beati. Lude), 472 (corporate, universal intellect), 474 (one body with regará to sin), 476 (universitas), 477 (ut anua 1

horno), 481 (actuation in Christ), 482 (in Adam), 484 (in poed), 489 passim; Humanitas (quali tatizely: humaneness): 451, 460 (and deltas), 464ff (and Christinnitas), 481f (actuations), 492f, 495 (instrument of God.imitatlon); Humana afincas: 211, 465, 467 0.44, 468, 489 De Monarchia (cf. 122 o.103): LI: 278 0.10; 2,36t6 475 o.63; 3,i: 467 11.4,1; 3,55ff: 474 11.60; 3,63ff: 472 005.54-55; 4,14: 483 0.86; 6,Iff: 481 n.8o; 6,2; 266 6.222; 10,12: 452 0.4; 11,81L 473 11.56: 14,7: 294 0.42; 14.42ff: 471 0.51; 15,1 4601127; 16,17: 4661142; ,6,Igff: 467 0.43; 16,23: 471 0.52. 11,3,15: 455 0.14: 9,39: 483 n.86; 11.71: 452 0.4; 12: 156 11.205; 12,441: 466 0.42; 13: 485 0.92; 13,4uff: 482 n.85. III: 456; 4,12ff: 460 `t 28; 4,1o7ff: Í5811.21; 7,41: 459 o.24; 9,2ff: 460 0.28: 1o: 150 11.180; 'u,34: 459 0.24; 10,44: 471 o.52; 111,47ff: 463 03.5; 10,73: 459 o.24; 12: 327 n.44; '2: 461 0.31; 12,62ff: 459 0.25; 12,8516: 458 n°s.22-23; 12,93ff: 4,8 nos.22f; 12,31ff: 459 n.24; 13,17ff: 457 11 .17; 14,7: 294 0.42; 16,14ff: 458 0.19; 1653: 469 0.46; 16,102ff: 457 11.17; 16,,32ff: 464 0-39 La Divina Cormnedía: NFEaso, 111,7: 278 n.u; vt,88: 278 n.',; x1,1o5: 3o7 0.81; xur,53; 278 n.,i; x11,85: 278 11.12; x1x,52ff: 454; xix,115ff: 3,99 n.2go; xxv1,, 17: 486 n.96; xxvn,85: 454: XXIX, 139: 307 n.8,. PURGAmal0, 485ff passim; 1,226: 470 0.50; 1,23f: 486 0.95; 1,37f: 486 0.95; 1,5c 492 0.121; 1,107f: 487 11.102; Ix,19ff: 488 o.103; Ix,94if: 488 0.104; xv1,306: 462; xvn,,8: 279 0.12; xxIx33oE 486 0.97; xx,86ff: 454;

540

n.io8; xxxl,iooff: 489 0.109, 492 o.122; xxw1,102: 156 0.205, 466 n .42; xxxu1,13off: 489 n. no. PAaADISn: VI,8off : 466 0.42; v1,88: 134 0.147;

v11,35f: 484 n.glp vIr,85ff: 474 n.58; vi",' 15ff: 479 0.78; x111,86f: 482 1.84; xv,148: 239; xxvu,22: 454; xxx,147ff: 454; XXXIII ,,: loo n.4o; xxx111,130: 489, 495 Convivio: Iv ,3ff: 455 0.12 (cf.n.,4); Iv,5,5off: 466 n 42; Iv,5,6off: 482 0.84; Iv,r9,65: 483 n.86

David, David kingship: 77, 81, 83, 466 0.42 De anulo es baculo: 212 n-54

De unitate Ecalesiae 11.41, 331 11.55

(A.D. 1090): 207

Death (me¡. Demis e): 13 (delnise), 30, 32 (Dance of Death), 40 (demise), 407 (demise), 436 (Dance of Death), 488 (conquered by Christ) Decretares Gregoril IX: see I,aw, Canon Decretals, Pseudo-Isidorian: 51, 58, 64 Deésis: 101 0.41

Degradation (arma reversata, forma degradationis): 35 11.19 Delegation (iudex delegatus): 385 (Jacta personae, Jacta dignitati), 386 (delegating sovereign: persona or dignitas), 396, 398 Della Robbia, Girolamo: 431 0.382 Despenser, Hugh, the Elder and che Younger: 231 o.115, 365 0.175, 366, 383 0.229 Dcusdedit, cardinal: 87, 188 n.305, 349 nos.!26f Dialectfcal Method: 57ff Dictamen (ars dictandi): 119 0.90, 131, '37 0.156, 149E 0.181, 159, ,6o 0.213, 361, 452 11.4 Dictatus papae: 28 0.15, 107 11.56 Didascalia Apostolorurn: 56 0.30 Dieulacres Abbey, Chronicle of: 36 0.20 Dignitas (see Quonimn abbas): g (and royal estala), 13, 58 0.34 (honor), 82 (square halo), 142 n.,66 (actuation of Justice), 144 1.168 (perfection secularizad), 149 n. 18,1 (and Crown; also 169 11.240, 187 n.300), 219 n.76 (equals status regalis), 259, 316 (immortal), 338 (and Oflice), 380 (and Crown), 383-401 (corporate entity, non mar¡sur, Phoenix, species, Deus et Dignilas,

ÍNDEX Persona ideal"), 402

(England), 416ff ro the effigy), 428 nos. 374f (antique (and ody politic), 412ff (perpe[uity, origin of effigy), 429 n.376 419 (survives king's death), Dynasty, Dynasticism ( 421ff (cffgv, see also France): guardian angel), 422-428 265, 272, 296 11.51 (john of Paris), (Dignity nn effigy), 433ff (sepulchral 316ff ssim, 326, 330 ( religiously en art), 437 396 (a potentiality if with- pa hanced), 331 out an incumbent), 441ff (king Its in- 332 (sc (e inder of r adionbtuya]) cism)ti338 (corpoationn, 333 strument), 445 . ,1 (Persona ( a Tos edessien) rtnoir ; gy weleclualis ublia , 4 et p ) 49 3833 ( ig. cesn), l 380 guardian with Cmwn), 453ff a passitn m ors), 411 Crown), 381 ( ben 8, heirs and su andnce irs incum- ce ssors), c493 (Da ent), 497, . 50 502, 506

Diodorus Siculus: 501 0.21 Earth (personified), see Diotogenes: 429 0.376, 499, 500 Ecphanms: 49g

Tellus: 62

D1dpolos) acy: 290 (permanent ambassa- Effigy (funerary), see Dignitas: 420 (Englan(1), 421ff ( France), 426 (meals Diplovatatios, Thomas: 12,3 11.188 served to), 427 (1t "dies' , Disputatio ínter clericum et militem: Inodels, 429 1denrified 4w8haDigni254 '1.189 ras de ). 430 ( (tentar of funerary ah), Doctorare: 123 11.,og (dignitas auctori431 (exaltation), 434E (episcopal l and tate publica), 114 (militia princely in England), 505 doctoradas) Dominicans: 238 1 -138 EgyPt: 79, 497 n.6 (K.) Donatism: 18 Eigenkirche; 5, 0.8; 394 Double truth (juristic and philosophic): Ekbatana: 163 300, 301 11.62 El'azar, Rabbi: 7° 0.62 Electos: Papa: Drogheda, Willimn of ca.1s 323, 327 0.41; Imperator: 39): 366 o.177, 401 323, 324ff passim, 327 11.41; Episcopus: Dubois, Pierre (ca. 1300): 221 n.8,, z 8 323 n.,38 , 254 0.,88, 256 n195 26sf, Elizabeth of Thuringia, Saint: 48611.98 311 0.60, 333 11.64 265, Emblem books: 174E Duhrick, Sr, bp. of Caerleon: 240, 241 Em 11.29; Cafusl CahRulaan: Arcadios: 31; (Geoffrey of Monmouth g 332 n.62, 5oq Duccio: 112 11.76 (Madonna Ri cellai) CCaros: 504 onstantine tI ba Great:dlee l.,.; Dio le-

Du Chastel, Pierre: .26 ,. = 0..

53 11.185, 334 0.67 1 3 74, 5 02; DuliOS Gambarini, feudalist (late 131h Dominan; 501; Gallienus: 8o 0.93. 334 com.): 278 0.10 (fame) 0.67, 502; Graban: 158 11.209; HadriDumbarton Oaks Collection: 52 0,22 an: 83, 1so, 245; Justinian: see s.v.; Duns Scotus: 3026, 282 0.17 Marcus AOrelios: 4,55 11.,31 496 0.2; Dupuy, Pierre: 222 0.83 Maximian: 253 o.185, 374; Nero: 116, Durandus, Guilelmus, hp. of Mande (d. 215; Pertinax: 498 11.6; Postumus: 65 1296): 35 0.19 (Pontifical), 121 ame 11.50, 503; Probos: 65 n 50, 503; SeP(on passing sentence), 245 n.16, (partimius Severos: 427f, 498 0.6; Severos ricide pro Patria), Alexander: 295 0.48; The o d 251 n.I8o (defense os i us 1 : of patria et corona), 28 3 mi, n. . 120 0. 98, 127, 158 3.209, 263 15.e 16, 18 104, sentences ), 324 0.24 (ortos 324 499: Tiberios: 53 ;.13, 54f, 78, imperii), 325 032 (pre-consecracional rights), X56• 496 11.2; Tims: 83; 324 0.29inian 341, 418 0.348 (feriae), 487 11.100 II: 104, 158 11,209, 188, 314 11.29; Va(serutinics), 490-491 11.116 (baptismal lerirOll: 33411.67; Vespasfan: 10311.45 Crown) Emperors and Kings of che Romans, Durham, bp. oE 44 mediaeval: Charlenlagne (see CarolinDu ó illc[, Jcan: 417, 418 113,1131 giane); Charles V: ,130 (funerary dis(justice), 424 3n. 6 play);oftomad íC 58 11.39, 188 n.3oG 5 (separation e(figy (Pavia rastle); Comal IV: 33, n.6o, and corpsoc), 126 0.369 (meals served 392 0.259; Frcderick 1, Barbarossa: 8g

541

INDEX

INDEX (bp. f Don iaul). 329 (acccssiun), 316 1.113 (ArtlwRan legen(1), 317, 11 .n6 3.18 loalh) 5 -y3 (D cretal on Ina 1 .rnabilbl3,5 (oath) 3i;0 (nlagnales' oath), 361[ 1.,66 (('101(1), 364 1166 1.177, 361) (capacítít) 372t (Oltron) , 420 (funeral): Edwanl IL. 3,8 T 1 321 (John XXII), ;l7 1.116 (C onfessol) S -,7f (oath) Sf1 Dcdaraucn nf uecli, r' (and I nd

-6 (conscaanonl. lz 1.16 (. 'Hahita'), 119 n-go iar,r,gae). 1'. aninmta), 197 n :.acuna 1, 01 1 ion; 207 (same), 285 n 3 (Ronulgll l ouation ), 3oof (Peace of Consiallee: Bal dus), 495 1.123 (Av hrn(irn 'Habita': Andreas of Iscrnía ); Frcde ick II. see s-v.; Fredcrick III: 26(> Inca .Silvio): Henry II: b n , Gufm nuc, I,n (flius eecl pnlrr e ic:7, 1.39 113€ (Monte Cau41u 1 1sp t, (same), 317; Henry 111: ni 11.79 (h. nea iustitiae); Henry IV: 58, 335; Ile,ry V: 178 1.274 (charter of Speicr);

u) -3 Faul(n u). j7-,f (1, al 1) 380 (1 11 383, .1.2 1D1gnin9, 4-"l (efftip) Edward 111: '31 1, 3 (rle' ,11,15, 1-,,% 22_-) (boXIN el 226 11.100 (Burley), 336 (vi(ar of ero pire). 371 1,195, 378 (minority); Edward IV: 9, 228. 371 (de facto aud de

Henry VI: 119 n.go; Henry (VII): 1c5 0.51 (lex digna), 131E (lex mtirnata): Henry VII: 214 (jurist cuuneillors), 292 1.39 (Edict Ad reprirnenda: Bar(same), 31o 1.92 tolus), 294 1.42

jure king), 403f (Incorporation of I.ancaster), 406, 412 x328 (funeral), 435, (tomb); Edward V: 421 1.334; Edward VI: 7, 14, 318, 408: Elizabeth: 7, 40, toa 1.41, 147 (Astraea), 388 n.245 (Phoenix), 413; George III: 3; Henry I: 161, 183, 342 (Charter for London), 342 1593 (Leges Henriei); Henry II: 49 1,13 (citristus Domini), 51 020 (rcx impero lar), 167 ([eudal

(,ame), 326 (jurist cuuncillors), 466 n-42 (Dance ); Lothar III: 189 11.306; Louis of Bavaria: 326 (jurist couucillors), 327 (Rheuse), 336 (vicariate of che empine); Otto [?]: 84 01513 (liturgical dish); Otto 11: 61, 74. 713, 78, 160 ( Reichenau misia lare); O1to III: 65 n.50, 360 I L21)8; Rudolf of Habsburg: 325 (pre-curonational poseer), 362 1.166 (Quod anotes langiti;

and fiscal), 103 (tempvs mernor'o tuco),

Sigismund : 8o 51.93

Empire ( see also Dante, Rex impcrator, Rome): Distinction hetween irruperiurn and imperatio, imperatura, imperianls: 327 0.44, 458ff; Four World Monarchies: 53 ns3 , 292 11 39, 293 10,.4041 (fifth that of Christ), 396 (Roman emp. che fourth and final world room archy) Sacxum imperiunl: 197 1-12, 2(7; Semper esa 29211, 298f , 386, 396, 397 nos. 279-28o , and passim: Founded bc God: 294ff, 2971; Universal universo tas: 324 0.29, 466 1.42 (heresy to deny the emperor the universal tnonarchy); Jurisdiction : 459 11.4: ortos imperü: 324 0.29; Kaiser Saga: 392 0.259 Engelbert of Admonn 135 0.1511 England: Rings (pre.conquesl): Actbelstan: 346 n.113; Aethelred: 175 0.257; Cante: 175 1.257; Edward: 175 0.257; Guthrum: 17,5 n 2,57; Edward the Confessor: 345f. 347 0.16, 857

Kings (post-eonqucst): Charles 1: 2lf, 41, 86, 413. 499: Charles ID 41 0.32, 413 (Phoenix); Edward 1: 44

542

187 (demesnc), 343 (Crown), 345, 432 1.383 (tomb); Young Henry (son of 11.11): 359 1.159 (oath); Henry III: 147, 162, 163 (Praecipe Henrico), 329E 0.52 (death), 347 (oath), 353-356 (nonalienation oath), 372 (Crown), 378 (minority); Henry IV (g, 29, 32-40 [Bolingbroke], 370, 403, 414 1,332; Henry V: 9, 24, 26, 28, 370, 410f, 421: Henry VI: 9, 37o4, 378, 403, 41of, 421 11.354; Henry VII: 11, 12 11.9, 20, 37of (De Jacto Act), 374 11-2 03 (first Parliament). 406, 412, 420 (effigy)t Henry VIII: 131, 228 (addresses), 229 (Cardinal Pole), 230 (incorporation with sohjects), 3ou 1.651 (dead hand of mrporatiols), 382, 407, 408 (nante ami Digoitas), 412 (funeral), 49,1 n.117; James 1: 24, 163 1 .224, 223 105.88-8e) (nlarriage to Island), 317, 405 1-310, 415 0335 (a Deo r( s, a rige lex), 496 ("ye are go(ls"): John: 1o 0.7, 3rn n.13o (feudal oath), 354 1.142 (oath lo pope), 355 1,145. 356. 358, 359 0.159 (Crown), 37o (Donar ion of Constantinte), 3761, .107 (Alagna Charla); Richard 1: 183, 432 0.383; Richard II: 24-

41, 231. 369. 372, 383, 421 1554; Rich' arel 111: 421 T1354; Stepben: 345; M ilI 0.n, 1, 43 Bacon,: 1 ;211 (coundl), 164 (llorona Mar, t ), (eouneil of Imlgnales), 225E (a"([ bode politir), 228f, 362 0.168 (Groom corpo late k. as che head, peer, as che nmmbc u), 364 (Declaration of 1308; d. 379) , 364 (separuto k. froro (rosco). 369 (I ords Appcllant), 373 (chalge divhcri,on of Ihc Crown) 1 ulianmu,: 18, 211 (revolution), 119 11 .92 «1.2 2-,), 225 (body ol' che reaten), 226 n. g8 (k. is caput, principium et ¡sis of Parla), 227 (mysticoallegorical interprelation of Parl.), 228 (a corporation), 363 (universitas), 364 (k. and Parla the body corporate of che Crown), 368 (York, 1322), 370, 374 1.203, 382 (and Crown), 403 (consents to incotporation of Lancaster), 420 (k, 's parliamentary robe), 447ff Parliamentary, serlnons: 28 1.14 (John Busshyspeaker?), 224 (Dr. William of Lyndwood), 225 (John Russell), 227 (Parí. cotnpared to 'Frinity, its procedure, to Mass), 227 0.103 (Henry of Winchester courpaing councillors 151 elephants), 363 (bp, of llath and Wells), 374 1,213. 448 -428 (J. Russell) Legal Material: Acts, Laws, Statute,, Customs: Act of the Incorporation of Lancaster: 4o3ff; Act in Restraint of Appeals: 228 ; Act of Supremacy: 19, 448; Assize of Northampion: 343; Constitutions of Clarendon: 44; Declaration of Lords and Commons (1642): 21f; De tacto Act 370ff; Iter (_ Forma procedersdi in placitis Coronas'): 342, 345; Magna Chama: 407; Modus Tenendi Partiarnentum: 244 0.91, 226 1.98, 364 1.173; Statute of Praenlunire: 369 1.186; Statute of Tscasons: 369; Statute of York: 380 11.223

Writs: Praecipe: 163 1.224; Quare irnpedit: 376E Cases: Abbot of Waltham's Case: 18 1.31; abp. el York vs. bp. of Durham: 366 1,177; Calvin's case: 4 0.5. 7 11.2, 14, 15, 16 0.24, 317f, 408; Duchy of Lancaster: 7, 9, 20, 24 0. 4, 370, 4o3ff passim, 438; Hales vs. Petit: 15. 25 n.7; Hill vs. Grange: 131, 407; Humphrey of Bohun vs. Gilbert of Clave: 163;

543

King vs. LaGmcr. 376; Prior of ICirk' ha... 's rase: 4o2 1.299; King ns. I'rfor c f Worksop 3-,7J: - ' l aali: 1 0e), tl n.I7 (set 15acuny: Si 11 :con VA'roth's casa , 1: lAillfa0, 1t V'9onm so. Godfrey, bp, of A8 orces05 3;g n.16o; Wi11o11 vs. llcrklcy: Ti, 13, 15, 230 Sean Book 22 Ed werd I (Rolls Seuc 1 37t n! 0; 1 Ed1 al 1 II fS Idc1 S(ucrr): 37 lat),,; 5 I ls IL. 366 n 177, 378 t1,2 16102 1.299 C t I(dsr. Il: 402 nos 299 aro; 8 Ldw. II 378 1216; u, Fdw. Il: 376 nos.2lo and 212, 377 nus.213-215; 16 Edward III (Rolls Series): 380 n,224; 17 Edw.111: 377 n.215; 12 Richard II (Ames Foundation ): 371 n.1g5; 1o Edward IV (Selden Socicty): 371 nos.194-195; 21 Edward IV (Totrell edition): 15, 406 0.312; 49 Henry VI: 371 nos,t94f; 3 Henry VII: 406 11,311

Justices and Jurists: 12 119 , 14, 16, 191, 41, 44, 46, 52, and passim; Bacon, Si, Francis : see s ,Y.; Bereford, William de: 377, 378 1.216, 379; Blackstone, Sir William: see s.v,; Brabanzoti, Roger de: 366 1.177; Bracton, Ifenry de: see s.v.; Brian, Sir Thontas: 45 116, 315; Brook: 407 0.314; Brown: 15, 20, 23, 4o7; Choke: 315; Coke, Si, Edward: see s.v.; Dyer, Sir Jaines: 15; Fairfax: 406; Fineux: 228 , 364; Furtescue, Sir John: sed s.v.; Glanvil: see s ,v.; Harper: 13; Inge: 402; Littletml, Sir Thomas: 315, 371 n.1g; Paston, John: 173ff, 371 n.194; Saundcrs: 14, 407; Scrope: 377; Southcote: 13, t5; Staunford: 407; Toudeby: 377, 378 n,216, 379; Vavasor: 406 Courts Christian: 344f; English canonists: 16, 1 .226; Coronen: 342 Miscellaneous ítems: alabo t, a body politic ro- mystical: 406, 408, 4491, 506; advowson: in n.S, 376!, 380 1.223; Anglicana Ecclesia: 2291; coro muní ty el (he realm: 191, 36of, 363 (represcnted in the Crown), 368, 370 and passim; corporate concepls: 228, 230, 3t5f, 4o1ff passim; corpus suyatinsm: 223ff passim, 374 1.203, 382, ami passim; constitutionalism : 1511, 225ff, 230; England, another Arabia: 413 0.380, an empine: 228 0.1 oB (see Rex irnperator), patria: 237ff, 240, 269 n.229, and passim; Lancaster , Duchy: gf, 49ff,

INDEX INDEX House of: 13 11 13, 38, 223• 403-406; father and son, a legal ficcion), 396f Liber regalis: 357; London: 22, 44, 342, passim (fictitious immortality), 421 (ef410; mysteria legis Angliae (Fortescue): figy), 436f ( immortality) 223 0.89; Navy: 22; Prerogative, royal: Fisc: 28 0.15 (has all rights in serbio '49, '5'-'54, 155 n.199, 157f, ,62f, pectoris ), 165 0.226 (prescription), 185 0.293, and passim; primogeniture: 167 0.231 (and patrimonium), 169 333: recording of che kings aetions: 0.240 (judge in causa propria) and 20 0.35; seal: 22; Spoouer' s Hall: 20; 0.241 (public), 170 0.246 (and res l ernpus memoratum:8 13 privatae), 171.175 (Pasmn, Alciati), 176 Individuals : Allan, John: 21 ; Busshy, (of Christ ), 177 (manos perpetua), John: 28 n.4 ; Robert, k.'s clcrk: 376 178 0.274 (sacculus regís), 179 (and 0.2,2; Paules, Sir William: 14 0.17; res publica), 179 (a fictitious per. Simon che Norman, master : 64, 36o; son?), ,8o 11.276 (uhi fiscos, ibi imSimon de Steland : 290 1.34 perium), 181-183 (mo.years' prescripEnnodius of Pavia: Si tion), 183 0.285 (a minor), 184 (sacraEphrcm che Syrian: 85 n.1o5, 119 n93 tiss¡mus, senctissinios), 184 x288 (reiErasmus: 277 n.8 publicae anima; instar stornachi), 184 Ernaud de Bonneval: 490 o,114 nos.289-291 ( sempiternal and ubiqui-

Errores co,,demnati (see Averroisin): 276 0.5, 471 0.53

tous, as God), ,85 ("never dies"), .86ff (res nuilius; Deus el fiscos), 189 (fiscos

Eschatology : 140, 147 ( messianism), 191, el patria), 1go 0.310 (a mino), 191 292ff (selnpiternity), 212, 214, 2t7f (che Escouchy, Mathieu d ': 411 1.325 dowry of respublica; cf. Marriage), 221 Essex, Robert Devereux, 2nd earl oí: (France), 230 (Princeps est fiscos), 284 4of: 3rd earl of: 22 (impersonal), 299 ("rever dies"), 325, Essoign: 237 (patria) 343 (England), 362, 379 0.220 (king Eternity: see Time, Problem of ics administrator), 38, (Crown), 397 "Eternity" of che World (see Averro- 0.280 (sempiternal), 399 (and God) ism): 27311, 276, 283, aggf, 3,1 n.62 Firzalan, John, ,7th Earl of Arundel: 435 Etimasia (empty throne): 415 0.335 (of Flanders, Flemings: 250, 253 Justice and Faith) Fleming, Ricllard, bp. of Lincoln: 485 Eulogium Historiaruin: 29 n.i6 Fleta: 226 n.99 Eurysus: 499 0.11 Florence: 335. 479 Exchequer, Dialogue of che: 348 Flotte, Pierre: 238 n-138 Exeter, bp. of: 362 Fontevrault, Abbey of: 432 11383 (tombs of Henry II, Richard 1) Fame: 245 (immortal), 27 (death for Fool: 29f, 33f, 37, 39 res publica) Fortescue, Sir John: 8 ( angels), 16 n.26, Felony: 173f, 174 n.253 138 n.i5g' (mysteria legis Angliae), 144 Feudalism, feudal age: ,33 0.283, ,88, n,17o ( succession ), 16o 0.214, 162 0.221 190, 233f, 237, 259, 284 (aids), 287E (sacerdotes iustitiae), 223f (c. mysti(taxes), 348, 349 (libri /eudorum), 350 cura), 226f (dominium regale el politin.130 (oath of k. John) cura), 230 0.112, 231, 373 15.202 Fibula, see Insignia "Four Dociors" of Bologna: 129 Fictitious person (see also Dignitas, France: Kings: Charles IV: 415 0336; Crown): 172 0.250, 173 0:52, 186 n.297 Charles V: 12 n.g, 218, 219 n.76, 222 (res nullius), 202 (persona mystica: n84, 264 0.219, 416 0.340 (Q. Jeanne Aquinas), 209 (corpus niysticum), 270, de Bourbon); Charles VI: 219 0.76, 282 (species, angel-like), 3o2ff passim 410 (Queen Isabeau), 411, 417, 421, (universitas, fictiones intellectuaies), 432; Charles VII: 219, 411 0.325. 417, 3o6f (fiction imitates nature), 3og n.8g 423 0.364, 424 n.366, 432; Charles VIII: (universitas , a ficho iuris), 336ff pas- 220, 412, 419, 423 0364. 424 n.366, 429 sim (Crown), 382 (England), 386 (Dig- 0.376; Francia 1: 221, 412 `1.326, 417, nity), 387 (successive diguitaries = cine 423, 424 nos 364-365, 425, 428, 429 fictitious person ), 391 (identity of 0.376; Henry II: 222, 417 0.434, 424

544

0.365, 428, 429 o 376; Henry III: 414 versity of Paris: 2,8 , 252 n . 183, 283• n.332; Henry IV: 222 n.85, 394 n.269; 471; Parlemenu 22of, 222 n .83, 414(, Louis VII: 340; Louis VIII (as Prince 4,6, 418 (non servat ferias); presidenta of France): 355 m145; Louis IX: 318; of Paris Parlemenr: 415 (attend pall al Louis XII: 220, 411, 412 n.326, 424 dead king), 415 0.338 and 4,6 n.34' 0364, 429 n.376. 43,; Louis XIII: 394 (scarlet robes and bouton d'or), 4'7 0269, 413, 499 n.,4; Louis XIV: 4, 413, (exempt from wearing mournin 430 414 0333, 415 n.335, 568; Louis XV: attend effi g 3731.2os. 4'4 1333; Philip II: 34of, 444 4 9; ( SYll Salic Lnos 4.2 Phili III: 11 394 0.271; Talag 286 002.24 - 25, 329(; X P 328f; Philip IV: 66 1151, Trojan descenr. 2 253 0.185 34• X95. 229, 326 0,28, 249, 250ff Francia 1 de La Sarraz: 433 passim (propaganda), 262, 270, 285, 454 Frederick 1I, emp. ( see aleo Liber augltsRoyal insignia, thles, and prerogalatís): '1 15.8 (maxim: magia dignum), tires: King: begecring ,mis: 2 52f 29 0.15 (maxim: omnia iura), 66 0.52 i185; he ling power: 252f; nonfigh,(tema marique dominas), 92 D-16 g: pre-eorooa rional rights: 324 (Seneca), 97 (Lib.aug.; imperator in 030; regllal years: 328; snrviving hicoreguo suo), 98ff (pacer iustiel filias self: 41911 (see E(figies), 423, 426ff (qua tiae), 1o,f (in cellecmal gímate of jurisdic[ion) court), 103E (lex regia), 104E (¡ex digBanner of France: 4,1 0.3231 419 na), ,o6ff (ratio), 109 0. 63 ( tem lora (never dies); C111-of-arras: 427 n.371 iusliliae) (gorda regis); lit (Capuan Cate), p 115 Coronation lnysticism: (artistic ideals), 116 (vicCate t of 50 n.ig, 21811 (marriage co realm), 223 Cod; Seneca), 0.87 (snyslicus coniunx), 321 nos.2o.21, to God), ,off 1,9 (laves 0.u oblation (sacerdotes iustitiae). 333 (holy balm), 338; Coronation oatl,, ^3if (lex anímala), 136E (legal mediamediasee O aths; Crown: 339( (holds a relle), torship), X41, 242 0.167 (ubiquity), 42e5367 (i (imperial), 236 0 ,28, 3381f 44f, 146f, 149, i51 (1,x, regia), 153 p' (impersonal; see Crown); Dau- 0.192 (omnia jura in manu regis), 154 Phl(councillors), i55, 158 0.209 ( sacrip332: ll 9as3942r(pe til Phd ivina domus, 2rt, y 0 11.183 ( lege lo dispute decisions of Prince), k 59 933 (blood royal, saintly ,59, 162 (christological substratum), ings), e D n , DynasUcism: Fu- 164, 172, 182f (prescripton of roo nerary rices: 409(1 ( ) ese mort years), 188, 191 (vicarios lustitiae), )• 4191E (e(figies); Imperial ambibona: 66 n .52, 104 0,34. 0.163 (sanctus), 256 0.193 254 n . , 88, see Rex ¡,m 152 ( ratio), 282 n.18 ( peroeor; Lilies: 255 m^g,; Lit L¡c sentence of deposljus- tion), 285 (Sicilian collecta), 290 0.34 e: 4'4f; Order of che Phénix de (final'y: of che Hol Ghost)- (ambassadors), 324, 33' (.s66 y), 337 o s taof Bari Y 414 332; (Nicholas n 0.166 (quod )), 362 (q Ori6amme: 255 n.19q Patriotic propítos orre e langit , 389 11.249 ( Phoenix), ganga (see Patrio): 250-262; Sol i us 392 n.259, (identity of father and son), titiae: 102 0.42 Kingdom: Church: 229 ( 418 0.348 (3 11. 56, 455 (problem o asa¡ can nobilit 56rus n.g4 (AUam) 251 (epiecopate), 257, and -lssim; Con- Y)• 47 3 0.,

ni tutionalists: 21911, 230 0.112 (sce Fre (dcastick , "k el Pmssia: 425 0.367 runn Idoloris) Terne Rouge); Cultural mission: 25311; Frederick III, k. of Sicily (Trinacria): 326 Escotes: 22Sf; Freedom from empire by Frederick, bp. of Munster: 89 n.6 prescription: 183 n.283; French terri- Frederick William I, k, of Prussia: 425 tory; 79 o-8g, 235ff (communis pa0.367 ( cnstrum doloris) tría), 237f ( semi-religious exaltation ), Froissart, J.: 264 0.219 237 0.135 and 238 n.,38 (franci = Froummjud of Tegernsee: loo 0.39 free; cf. 2and 191).277, 278159 (sena- Funeral ccremonies: 41011 passim, 412 P alienation: (England), 4'5f1 (France; Presidents of 221, 35615 .146; Paris: 85 0.105, 243, 247 Parlemenf), 419 (0.t Sr. Denis), 4zoff (mkes the place of Rome), 253, 254 (e(figies), 423 (corpse and effgy), 424 x,87 (sludium ), 410, 429f, 432; Uni- (regalía and royal honora reserved for

545

INDEX

INDEX

pire 111)10 Codl . 537 11.76 ( dexlera Dci), 599 11 .287 (D,i u2 ci Drgni,ci s), 4221 (uppesrs cx tcrnallc in thc rosal iu' siG ur14.1' d 13 (carea j 11¡,1.1 'r , ibosls 11111 -115 nuld Dr n r Ietsff cmnal p,wc19 from (;od), 470 Christ ( sce ala, Chrisiological tcncts, CLrisse rnirnrsis , Cbristus domini. Corpus my. Cc u1), 7111.131)D Ireas 1: dan, 66 11 .5 4691E 4 Sil 1 ..'simt Advcn11, tIso 711 11 64, 253 n.191 ::1 pos-

425 (Iriumphul aep(crs' q3, (cpixupal 11.379 ('I'riunlph), 431. 431E Cunerals), 498 1 6 (huna dupicxl

effig-v),

Gaius , 11111 ilu ( cs: 103 11 .15 i'rs c1. ,cin) Ganynmdc: 487 Garamantcs: 471 Callia, personihetl 711 o, no nG4. ti (i1), Gellius, Aulas: m 120, 277 11.8 Geneva: 83

Ocs as councillsrs : 154 1.1941 Aseen' ,ion (,ce Art): 49. 63 a47, 65 11 .49, 6g n.6o, 70, 73f : Anoiniment ni Jordan: 52 11.22, 319 , 320 11.14; Augustos: 467 11,43; Capuan gafe (allegory ): 101 11 .41; ChrisSus-dnistus : 65: Church property, osvner 1)E 4 112, 173ff ( res Cbristi), pas-

Ceaiws: 7g, 80 (enip), 82f (Ronre), 5111, 502f

Genuflection: 29 11 16, 31 Geoffrey el Munmoutir: 237 11.132, 240, 244, 261 11.213, 346 11.113

Gerhert of Reims: 26. 11.208 Gerholf of Reichersberg: 152 11.188, 172 11.250, 185 11.294, 183 11.31)6 Germany: 131, 254, 324E 446

sim: Corncrstone : 43f; Coronalion: 52 11.12; Coronalor : 78 n.85, 8, 1194; Cyrus, a prefiguxai ion : 53 11.3: Dating regnanle Cleristo : 334ff; i€Grepse BEbs: 48 n.ii: Etimasia : 415 11.335! Fe(" [manliondj: 70 , 74. and Hcacl [godhcnd]: 70; Fisc 173(y 176 (has bis 6,c), 183f, 185 , 188; France, protector

Gerson, jean: 218ff, 402 11.299 (smlus regalis aut dignilas), 422 (king's uvo lives), 449 11.429

Cesta Romanmvm: lo, 11.41 Gévaudan, bp. el: 66 11.52 Gilbert of Tournai: 143 11.168, 208 Glanvill: 152 n.i89, 1G5 11.226, 344 11111.

uf dyuasty 1)f: 333 ; Giant el '1seo Nimes: 5o 11 .19, 70, 73f ; Image of God die Father : 440; Irnages broken by English iconoclasts : 427 11.371; Incarnation: 50, 70. 467, 482 n . 85, 483; instnunentum divinila lis : 44211; lnterrex: 314. 334ff ; Iudex: 91 a12, 140 n.163 passim ; luriscousultus : 101 1142. 396 11.275; Iustilia : 95 (ipsa iustitia),

105-107, 345

Globe Theatre: 40f Gloucester: 420 Godefroy, Th.: 222 nos.84f Godfrey el Fonmines: 202 1127, 211 Godfrey el Trani: 397 11279 Godfrey of Viterbo: 123 Godhead: Holy Trinity: 160 (distinction between 6rst and secoud Persons often confused), 217 11.71 (Triuitas Pe t,, sponsae [i.e. Eectesiae]), 227 (king, lords, and commons competed tuFriuity), 228, 442 (the 7uGlrmlte, "ti inscromen1 of che Trinity) God che Father (sce Irnaóo Dei. Vi' carius De¡): 62 (des¿,,, Dar). 74 11 .76 (Christ co' roler secoudunt bunlmri-

mi (501 iustiliae ); King and Enrpcmr: 46 (King of (lors ), 48 11 .11 (sumnlus el celestis impera lar), 53 n-23 ( Cyrus), 6o n.40 , 64 (in lnajesty [iconographic]), 65, 66 11 .51 (en'a nrarique dominas), 71 (irnperalor), 72 n.68 (in imperial uttiform), 85 11.11)5 ( acclaimed), 87ff, 143, and passim ; 233E (monarchy of Christ), 335 11 .70: King and Priest: 67 11.54, 90, 439 passim; Law : aboye and

talern), 76-77 n.85 (dexlera Dei), 87under the Law: 144, under che Law: 93 (no clear distinction between fint 105, 156ff, 162 ; rnaior el mino' se ipso: and second Persons). 143 (justice), 156 50, loo; Medicas : 252 1.184 ( paralleled (Deus et Lex), 15gff (Bracton), 184 by Frencli kings ); Phoenix: 388ff paso . 291 (Deus el lis(os). 185 (legal Se"' 205[ (ad sin, Primogenimre: 393 11.265; Ronian bol), 186 (and res nullius), corpus myslicuee: Gckbam), 206 nos. citizen: i56 11.205, 466, 492 passim: Rooe el im'erted tree: 200 11.20; Trib38-39 (reluctantly styled cap u! eec/( siae), 227 (King of Israel: Fortescue), ate money: 53 11.24, 54f (and Tiheri' 280 (aelernitas: set also Time), 296 us), 283 11 ,33: Triumphant, steppug (acting as causa rcrnom), 297f (em 011 tion lo,¡ basilisk: 72 11.70: Turca

o.; a

inconndilis: 471 11.52 (refer'ed lo cmpire): Two Bodles: r q9f (individual and co] lcctivc) 200, :06 268, 441; 'Fmn Nato,,,: r6í, 1.c u 19. 586q, 7o. 89. 141 yr, 1oS4q1_ and passim; Volto santo: 6i Holy SpiriL 47, 52 11.22, 1141, 319, 320 11.15, 321 n 21, 328, 331 Gonzaga, Lu cl ovi co, margrave of Mantua: 290 11.34

ni-,7,26311218 IIcor', 1)f 3fondeville: 2,2 11 184 1711',', 1he Lio11, dulce of Sanonr and Ilacaria: 432 11387 (mmb)

Cathia (personi6w!): 63 11.46 Gothofredus: 121 11.11)1

IIercules, Horades: -o. 50,, ,o21f Hereford, Bp. of: 224

Grace and Nature (see also Dante: Virmes): 46f, Off, 5if, 77, 84, 87, 14off, 191, 211 , 272, 296, 298, 308, 331, 457ff passim (Dante), 5oo Graphia aureae urbis Romae: Libellus: 41611.341 (fibula) Grassaille, Charles de: 221, 417 11.342, 418 11.348, 422 x357 Gratian: see Law, Decrelurn Grégoire, Pierre: 183 n.307, 221, 422 1101.358-361. 430 11.378 Gregory of Bergamo: 138 11.15, 268 0.227 Gregory Nazianzen: 71 n.65

Hermano vo r Schilditz: 203 11,31 Herlnaphrodite: lo 11.8 (corpus mivIra nl), 390 (Phoenix), 394 (an(lmgytiy), 502 Hermetica: 141 11.165 (Trirnegistus, quoted by Lucas de Penna), 332 11.63 (Asclepius, Roce Kosmou), 391 (Phoenix)

Gregory of Tours: 178 11.273 Grimaudet, Fran4ois: 422 11$58

Honorius of Angustodunum: 52 11.21 Horaco. 307 n.8s Hostiensis [Henry 1)f Segusia] (d .r271): ni n.8 (maxim magis dignum applied to delegate judges), 122 11.104 (worthiness of just judges exceeds chal of monks), 129 n.128 (Icx digna), 204 1.35 (ubi papa, ibi Roma), 320 0.14 (1)n imperial unetions), 321 11.21) (rosal unctions), 325 1.31 (on Nov. 83, i), 335 11.73 (papal interregral vicariate), 374 1.203 (Church a minor), 37,5 0,206 (differs froin a minor) Hotman, Frantnis: 109 11.69,1)1ao 11.64, 220 11.77, 221 Hrabanus Maurus: 195 n Hugli 1)f Fleury: 56 n.30, 88 11,5, 161, 207 11.41 Huguccio of Pisa (d.1110): ix, 91 (everc priest a vicar of Christ), rol 11.41 (Astraea), 212 11.55 (marriage broceen bishop and bis see), 21, n.6o (consummation el that marriage), 322 11.24 (emperors, hefore there were podes), 323 1125 (two swords), 456 (' dualisi" ), 457 11 .17 (and Dante) Humanism, humanists: 95, 245E (en patria), 248f, 26of, 267E Humbert 1)f Silva Candida, cardinal 8 Hungary: So 11.98, 339 n.8I (Crown), 944,

Grosseteste, Robert, bp. of Lincoln: 36 11.22

Grotius, Hugo: 498 nao Guala Bicchieri, papal legate: 353. 356 Guesle, Jacques de la: 427 11.371, 429 11376. 497 113, 499 11.13 Guibert of Nogent: i98 n,i6 Guido de Baysio ("Archidiaconus"): 328 Guido Faba: i6o 11.213, 453 11.5 (and Dante) Guiscard, Robert: 349 Gytheion (near Sparta): 496 11.2 Halo (mandorla): 55, 62, 64, 76, 77 n.85, 79 n-88 (Autumnus cross-haloe(1), So (Byzantium), Si (Carolingian, papal), 82f (Romo, Jerusalem), 84 (general); square halo referring to office, not te person: 81 o 94, 82 11.97 Harcigny, Guillaume de: 432 Hauran, Inscription of: 334 nos 67 and 69 Haymon, bp. of Halberstadr. 53 11.23, 71 n.65 Hegel, F. W-.: 479 n.77 Helen, St. (mother nf Constantine): S0 11.92 (her imago en hosts)

Helinand 1)f lroidmom : 7.1 n-^„ 1.1J 11.168 llenrv . bp. o[ A1'indasrer (1-1 221 11.1113

Henry of Ghcnt : 236 11.1.9 24¡f 215.

Herodian: 204 11.34, 427, 428 nos. 373 and 374 Herodotus: 500 Hesych of Jerusalem: 91 Hincmar, ahp. of Reinrs: 45 11.7 Holinshed: 28 11.1.4

547

INDEX 355f, 446; kings: Andrew II: 354f 11.144; Louis tire Crear: So n.93; q: María: So o93 (rex Hungariae); St. Stephen: 339, 446

nix: 388ff; Dynasty: 336; King: 4f, 13, 15, 23f (corporation that liveth ever), 30, 315 (imperial office), 399 asgo (qualitas regia), 40o n.292 (regia malestas), 407, 408 (k. in genere, not in individuo), 409, 423 (immortal k. is man-made, the mortal is God-made); Dignitas: 316, 385, 386, 394, 397f, 400 x291, 408f, 424 (cffigy); Crown: 337, 417; Fisc: ,77f, 180 11.276, 185, 284, 299 n.58; Banner el France: 419 Inalienability (see Constantine [Donation ], Crown, Fisc, Oaths): 58 0.34 Visigothic), 165 (and prescription), ,66 (demesne; councillors' oath), 167 (arel Crown), 168E (maxim: nullum tempus), 170 (regalian rights), 176 (fisc, church property), 177 11.269 (things imprescriptible are inalienable; Donation of Consmntine), 178 (Church property), 18of (fisc), 183 (property of che templa), 205 (Church property), 212 (fisc), 217 (dowry), 221 (dowry), 284 (continuity), 298 (of rights el the people), 329 n.5o (coronation oath), 345 (Leges Anglorum), 347.357 Non-alienation oath, roya]: 347, 353, 354 (Hungary), 356 n.146 (France), 356ff (England); episcopal: 35off (of a minor's property), 376 (Crown a minor), 38t

Icarus: 33 Iconostasis: 67

Identity and Chango: universitates and ficurious persons 185 11.292 (fisc), ag4ff (the principie), 2gef n.57 (Saldos), 3ox (Bononitas), 308 0.83 (Petr. Ancharanus), 3uf passim; father and son, testator and heir: 219 0.76, 299E n.59 (respublica non habet heredero), 330, 332 161, 338, 391, 394 394 1268; predecesor and successor: 315, 338, 386 nos.2361, 387 0.240, 197 0.280, 402, 408 passim; Phoenix: 389ff Ignarius el Antioch: 204 Imago Dei (Christi): 34 (k.: figure el Goda majesty), 48 (Dei et Christi [k D, 59 (Christi rather than Dei), 6,5 n.5o (facial similarity: ruler and Christ), 87 (Christi), 89 0.7, 94 (k. imago aequitetis), 144 x168, 16, (Dei), 162 (Christi [hishop, judge]), 191 (Christi), 440 (Christus (mago Del), 500 (man as imago Del) Immortality (see also Time: acvum): 84 (signified by halo), 143 (through justice), 267 (throne-sharing with God), 272, 277E (fame), 300 (species, corporations, things universal), 304 (cilios), 308 (by suhstitution), 3,off (corporate bodics), 424 0.36,5 (future conregnatio with Christ), 436E (and Renaissancc), 484, 488E (resurrection)

non rnoritur ("never dies'): Christ 396; Holy See: 177 n.267, 386, 396, and passim; Church: 169 0.240, 177 0.267, 291f, 294 0.64, 314; chapters: 315; abbcys: 316 17; abbot 406 ("a mysrical body which never dies") Justice: 139, 140 n.t63 (hahitus), 417ff; the Just 141 n.165 Rome: 292 n.38: populus Romanos: 294ff passim; every populus: 2gsff pas. sis, 314; empire: 177 n.267 (semper est), 192, 29211, 294 0.46, 300, 301 n.6,, 398; res publica (regni): 299 11.58, 3981; universitas: 314, 316, 387, 397f; corpus ulysticum: 231t (spiritual and secular): corporations: lisio n-6o, and passim Man as apecies: 277, 299; Phoe-

Inferno (see Danta): 278 n.ii (sempiterna]), 281 n.15

Infidels (Mohammedans): 239f, 241, 251 n.182, 318, 465 Insignia: 36 (papa], roya]), 6l a, 72f 171 (Christ, gods in uniform; fihula), 212 11.54 (coronation ring), 215 n.6, (marriage ring; see Marriage), 416 n.341 (imperial, royal; bouton d'or and fibula), 4201 (display at burials), 422E (are the "divinity of the dignity ), 424ff, 427 0.371 (coas-of-arms el che realm), 430 (reserved for effigy), 433ff (sepulchral art), 436, 49off (mitre and crown, baptismal crownings) Instrumentum: 134 (king instrument of just law), 442ff (king instrument el Dignitas; body instr. of soul; humanitas Christi insrr. of his divinitas), 445 (k. instrum. el a fiction), 451, 493 (Dance), 504 Interregnum, interregna: 316, 318 11.10, 325, 328330, 334ff (Christ as interrex) Intestate death: 173, 174 n.253, ¡75 0.259

548

INDEX Investiture, Investiture Struggle: 44, 45 Johannes de Deo: 131 (Liber poenitentin.6, 53 n -z4, 54 11.26, 90, 117f, 178 11.271, arius) 197, 207, Iphigeneia: 261 212 n.54, 439 Johannes de Fan. (probably: de Fantutiis, and certainly not de Fano): 157 Ironaeus, St, bp. el Lyon: 68 n.56, 125 11.206 Iguerius: 107 1157, 113 0.79, 139 n.161 John of Damascos: Isaac of SteHa: 200 1,21 44o 11.409. 442 14x4 .20 John of Euboea: 157 0.205 Isidore gf Scville: 64, 125 n.116, !6i John el Grandisson, b. of Exeter: 362 n2'7, 389 n.247, 491 n.u8 John of Paris: 103 0.48 (Prince: populo Italy: 233 11.120, 234 11-124 (patria, eitJaciente, Deo inspirante), 133 11.144 íes), 238 (dis sacra), 254, 324, 447 (iustilia animara), 190 agio (ConIustitia; see Justice stantine's donatio non vale!), 252 n.i83 Ivo, bp. of Chartres: 44, 57 0.33, 59 138, (and French dynasty), 296 11.5! (dynas165 11.226, 242, 440 ty; che army and God make [he long), 152 (referred to by jurista), 297, 326 Jacobus de Arena: 325 n.24 n.38 (roya] anointlnent superfluous), Jacobus de Pistorio: 475 0.6 33 54 0( ki ng 1111 atan in persona Jacques de Révigny (de Ra anis) (d. ca. vel in 490 4 (baptismal rex d "m 1296): 122 11.103, 177 n.268, 213 n.56, el saeerdos)) 49 247 11'168' 34, John el Salerno: 43 11.2 James el Viterbo: 56 n-30, 203 11.28, 309 john el Salisbury: 51 n.20 n.85, 465 141 (rex imperaroe), jean Jason de Mayno: 466 0.42 de tius), 9497 (Prince s ¡mago ,quita Jandun: 238 113$ 3% 181, tis and serous nequilatis; U, regi gio a an d 327 11422les digna), Jean Gotero: .9 104, 105 n.52 (Christ sub 1 11 lega), 124 n i lo (and Ralph Níger), Jeanne d'Arc: 255 n.,92 1e), jerome, Sr: 80 193, 122 0.1114, 292 ,36 11'154' 143 11.168 (his influence), jerusalem: 8 0.10 44 156 (Christ sub lega), 169, 172 64 11.1303 3 Ottonjau of celestial (long as privare person), 199 11.19 (sir. J.), (sin Ottonia liturgical ganic eoncepts), 200, 207 (res publica dish), 85 (j, Judaea), 204, 205 11.35 (ubi popo, ibi Hierusaleo') , aria in heaven, s 234

lPe-

corpus quoddarn), ttie 3,1 208 11.42, 216 n.66 (Plu ]ow

peas of celestial 3,5 ..126 (policial as- John of of T Viterbow: 2, n.15z .J.), 235 (kingdom of john el Viterbo: 122, 130 J). 492 ( celestial J. and ti anscenden. John tim Scot: 279 (PS.Dionysian retalized Rome) ival) ¡ene], John: 52 n.2o, 427 1371 (i,n,gcs) J-11,1 Wyditfc 61 Jewle s: 38, 124 11.1 0, 308 (and corpus Jonson. Ben: 497 11.4 mysticum), 465 Jordana 52 11.22 (anointmeor of Christ), Jocundos, Trm¡s(atio s, S ervatii: 240 205 11.36 11.144 Johannes Andrea, (d.r3181: 1, o.8 (Max- JOpiter: 487 (eagle), 496 (Capitalinos), 02 elan dynasty) ¡,o: n,,gis digno,,,), 129 e.128 o e 5 lex animara, 20, n. ünuina o(ípisto Juncar ud dente, Jurisprucients (see Jusi lorurn are wheret[he POP isce, les aeoce: e), 208 a42 n Legal Sc ence; ) (cardinals pars corporis papa,) 94ff, 99ff (vs. Theol, 3o7 ogy), lag, 115, 123E (and theology), 0.82 (excommunication of coltegie), 126, 1381, i4of , 189, 192, 302 (and 372 11.197 (Innocent JII 011 dispute scholastic philosophy), 455 0.13, 464 about che empire), 384 x231 (dignitas, 11.38 oficium, personulus), 386 0.238 (digLegal Profcasion (judges and jurists): rlitas semper est), 388-389 11.247 (Phoe28 11.15, 101 ( jurists' century ), nix), 396 x277 (Christus non mori116f (law hooks and Bible), 123f, 132E lar) (judges as in termcdiarics ), 137 1.156 (doctorJohannes Branchazolus (ca. 1312): 125 -f Law), 138, 140 n.163 (in place 1.114, 204 n.58, 326 n.4o of Christ sud King), 153, r54 11.195

549

IND

INDEX (raro princeps iurisfa), 223 n8q, 269 kalocsa (Hungarvl, bp. of 35.1 (I mg,mge) Karolus de Lor c ca-121)81 1 ,311 n 1230 (duplex persona). 11, Iustitiae (Ce klrkbam. Prior >I Idee EnglandSacerdotes ,2 (compared to thcologians ),( nsti, 402 110 kitcllin , Josepb : 24, 405 101 0.42, m9 (clcrgv of Ju R('), G no 11 ,1 09 (pries,s Knights Pemplar: 249 u .7120ff , n.4 spirftual and priests temporal), 124, Konradia, Duke of Suabfa (s 125 1).,14, 133, 138 11.159, 139 1,.1(i2, .'king'): 264 1.3,S

140, 162, and passim; judging "11) ti)' Name of God": 121 1.102, 139f Labarum: 334 n.68 11'I',; „a le gum: ,=3f (el Doctorales l.abco: 37.1 (les anvn,ala), ggo Juris religio (cf. Inst., proen): 1111. Lactanuus: 128 1.123 lag 1).42, 138 11.159, 142 11 251 (Pbocnix), 391, 395 n J'73 Templum Iustitiae: 1o7ff, uof, 112, Lagrange, Cardinal: 433 115, 120 1).97, 121 0.101 Lambeth: 434 Justire, Tullida (sea also Jurisprudence, Lanfranc: 43 , Law, lex anienala): 54 Langton, Stephen, abp. of Canterbury: Jurisprudents 1).25, 79 (personified and haloed), g4. 124 0.110, 358 g6 (Idea), g8ff passim (Frederick 11: Laon: 432 farher and son el J.), 98 1).31 (¡al- La Roche Flaviu, Bernard de: 414 11-334, personated by Prince), 99 (¡os- ininis- 416 nos-339 anal 341, 417 11343, 418 (f eriae) ter ver filius Iustitiae), loo (intermedi- 1348 ary), golf (ministry, cult el J.; sol los- La Sarraz: 433 . tihae), o7ff (virtue; goddess), ,o8 Law (see also Jurisprudence, Justce, Liber augustalis, individual jurists): (melancholy of J.; cf. 11o 0.64, 137), ordinaria by Ac109 n.63 (Idea; Justice franSai,se), uoff RO]MAN Law (Glossa 112 25.73 (Virgin cursius, ca.1227-1240): passim ( mediatrix), Mary), 113, 117 (sacrificiurn luslitiae), Digest: 116, 11gff, 138, 187, 236, 245f, Deo auctore: 109 1).63: ef. 227 11.102 , 1181 (law books, obla- 300; Const. ), 120 (Dike-), 123 (mysteries; cf. Const. Omnem: 399 0.290 (Alber.Ros., tions (vigilans), 132 Angelus Ubald.); Const. Tanta: 119 138E 1).159), 131 0.131 (intermediary; cf,354 135 D-152 0.9,; 1,1,1: ,6 0.26 (Bracton), 99 n.14o (Glos.ord.), 1o8 n.6o (Glos.ord.), (Prince and judge: intermediaries), n.37 136 (dualities in Justice and Prince), 109 0.63 (Cuias), nno 0.64 (Budé), 111 0.70 (Cuias, Hot137 (virtue el virtues; two-natured), 1.69 (Glos.ord.), .15q (culp silence; iurisiurandi man, Glos.ord.), 120 n 94, 0.100 ((los: 138 n ord.), 121 11.101 (Glos.ord.), 0.102 (Bu religio), 139 1).162 (Den sanctissima; (Glos.ord.), 123 n.1o9 Dei motos), 14of n.,65 (Christ), 141E dé), 122 1).103 (Baldus, Paul.Castr.), 125 1).114 (Du(two.natured), 142 n.,66 (nunquam er(sovereign), 227 0.102 (de- randus, Joh. Branchaz.), 126 1).117, rar), 220 137 n.156 (Baldus), 139 1).161 (Glos.fense of patria), 256 1).195 (agonizare ord.), n.,62 (Cunas, Budé), 162 11.221 pro iustitia), 257 (reason of acate), 272 (never dies), 397 (inmortal idea), (Azo, Bracton, Fortescue), 169 0.241 Canos), 181 1).276 ((;los. 400 (and Dignity), 414 (lex et 12x), (Glos.ord., ord.), 278 o.10 (Angel.Ub.), 418 1347 414 1).334 (a French m0nopoly), 415 (Lit de Justice and Etimasia; symbol (Baldus); 5: 113 1).77 (Baldus), 135 el continuity), 417 (non moritur), 418 x151 (samc); 8: 106154; 20: 123 0.107 (perpetua et immortalis), 470 0.49 (Glos.ord.), 138 1.159 (Baldus), 139 (Glos.ord.), 418 0.347 (Perugino frescoes), 473 0.56 (Dance: n.16o, ,80 1)276 actualized in World Monarch) (Baldes); 1,3,2: 130 0.131 (Mario: Justin Martyr: 70 1) .63 Car.), ,3, 1).131 (Baldus); 22: 13o 1).129 (Glos.ord., Alhcr.ROS); 31: 136 0.154 Justinian I, emp.: 62 0.45. 103 o.45, 104, 109, ,15, 1,7ff, 126ff, 133, 167 0.231, (lame); 32: 277 n.8 (Baldus); 1,4,1,1:

{

An(1r_lsern. (gnus); 8: 152 n 188; 9: 121 1.101¡ 1,17,1: 117 0B( 336 1)76; ,,5: 109 1.63 17. 1113 2105. 4546. 2,18: 2111).15 (Marin.Car ), 98 1)31, l<`7 1).56: 2102: 09 1.[3; 1,24:.727 0371; 1,25: 427 1.371; 2,53[54],4: 179 21.275 (CY-

1.2111 (lame); 4,6,22,2: 374 11.2op 4,8,4: 452 1,.4; 5,1,2,3. 205 1).35 (sabe), 247 0.167 (sabe); 54: 11 1)A (Marin.Car.); 76: 295 0.48 (filos-ord., Vivianus), 11.50 (Baldus, Paul.Castr.), 308 0.83 (Pccr.Anchar), 397 0.28 (Al-

(Joli.Vi lcrb-): 3,12,6 : 418 1.348: 6,5. 32.1 1).29 (G1os.ord); 9: 418 11.348 (Andr.lscrn., Matth.Alf.); 3,28,34,1: 92 0.18 (Andr.lsern.); 4,5,1: 183 11.285 (Saldos); 4,27,1: 184 0.291 (Baldus); 5,4,23 ,5: 455 113 (Barthol.Cap.); 28,1: 115 n.83; 5,16,27,1: 495 0.125; 5,59,' 5,2: 361 n.166; 6,23,3: 130 o .131 (Karolus de Tosco); 11: 154 1.194 (CYnos): 1g,c 28 1).15 (Glos.ord.); 6,26,2: 304 0.73 (Baldas), 477 1).70 (same);

berRos.); 6,1,1,3: 304 n.7o (Bartolus), 476 0.64 (same); 7,1,56: 300 n.6o; 8,2,33: 282 n .t8 (Glos.ord., Odofr., Bart., Baldas, Angel.Ub.), 308 1).34 (Bartolus), 315 n.6 ( lame ); 9,2,7,4: 2781).9 (Glos.ord.); 11,7,35: 245 n.,6o, n.,6, (Glo.s.ord.), 246 n.163 (Luc.Peona); 14 ,2,9: 9,2 1).16; 17,2,3 : 306 n.8, (Glos.ord., Bart., Baldas), 307 n.81 (Bart.); 28,2,11: 338 nSo, 392 n.26o, 11.263 (Alhez.Ros.); 31,1,67,10: 138 1159: 32,1,101: 236 0.230 (Glos.ord.); 33,10 ,3: 28 1).15 (Glos.ord.); 34,9,22: 401 1).29.5 (Baldas); 35,2,1,5: 92 n.,6 (Glos.ord.); 36,1,13,4: 452 1).4 (Glos.ord.); 41 ,3,30: 295 1).48, 303 n.66 (Bab dos), 316 1)q (Glos.ord., Bracton); 41,4,7,3: 190 1).310 (Joh.Paris.); 43,8,2,4: 179 11.275; 46,1,22: 2og 1).46, 304 1).73 (Baldas), 305 0.74, 3og n.8g (Bartolus); 48,19 ,16,10: Sol 1).62 (lame), 302 0.64 (same), 3og n.Bg (lame), 477 n.69 (lame ); 48,21 ,3: 269 1).2291 48,22,7.1G 247 n.z65; 49,14 ,2: 179 1).275 (same); 49,15 ,19,7: 236 0.128 (Pea: Anchar); 24: 466 142; 50,1,33: 247 n.165; 50,16 ,220: 392 1),260 (filos: ord.), 393 n.265 (Terre Rouge); 50,17,30: 212 1).55, 213 0.57 (Alber.Ros.)

Code: 104, 116f, 124, 183, 213f, 392f; Const. De aovo Codice: 473 n.q6 (Baldus); Prooemium in tilulurn: 177 x269 (Baldus); 1,1: 457 0.17 (Alber.Ros.); 1: 115 1).83; 8,,: 117 n.86, 1,2,23: 177 n.268 (Bartolus), 18, 1).278, 182 1).283 (Glos.ord., Marin.Car.), 183 1).285; 25: 314 n2: 1,3,23: 278 1).10 (Angel.Ub.); 1,14,4: 104 1).51, 13o 0.31 (Karolus de Tosco), 452 1).4 (Glos.ord_ Aquinas.

171 1).249, 181, 182 11.283, 294, 341, ,03 0.45, 350, 151 11.184 (Bracton); 396, 416 1)341 452 1,5,10: lo n.8 (Baldus); 1,7,16: 306

550

n.8, (lame); 1,8,1: 181 1.35119. 125 0.114 (Dorandus Joh.Brnnchez) 1)„5 (Glos.ord.), 126 11: 187 n302; 1,18,,: 20 5 135 (Baldus); 2,1,5: 130 11.29 (filos ord Cynus); ,,1: 106 11.55 (Baldus); 2,3,4: 299 (lame); 3,1,10'. 189 n.308 (Glos.ord.); 3,2,2,3: 205 0.35 (Baldus); 25: 278 ira) (Glos.ord.); 3,4,7,2 : 305 1).75 (Andr.111111), 312 n.cl6; 4,4,39: ,06 1).55 (Baldus), 376

1

551

(Petr.Ancbar.): 2,58[59] .1: 123 1105, 138 1159 (4ndr. lSer1): 2,8: 123 0.105

11: 392 0.260; 6,35,1,: 455 1). 13: 6,43,2: ,o n.8 (same); 6,51,1,6a: 399 1).290 (sane); 7,15,3: 393 0.267 (lame); 7,30,2: 181 0.280 (sane); 7,37,,: 169 0.240 (Cynus), 184 1).289 (Glos.ord.), 0.290 (Marin.Car.), 0.291 (Baldas); 2: 184 n.286 (Luc. Peo.); 3: 92 n.,6, 117 n.86 (Marin.Car.), 171 1).246 (filos: ord.), 21,3 1).56 (Cynus), 1).57 (Alber.Ros.), 307 n.81 (Cynus), 324 nsg (Glos.ord., Cynus, Alber.Ros.), 327 0.44 (Baldas), 337 1).76 (same), 457 1).17 (Alber.Ros.), 460 11.28 (same); 7: 463 1).35 (lame); 7,38: 182 1).283 (Azo); 1: 177 11.269 (Baldas), 124 ano (same); 3: 183 0.285; 7,39,3: 18t 1).280 (sama); 4,2: 180 1).277; 7,40,,: 182 0,280 (same); 7,53,5: 304 n.71 (lame); 7,61,3: 437 11.396 (lame), 444 1).420 (same); 8,11,13: 427 1).371; 9,1,5: 10 n.8 (lame); 9,8,5: 154 0.195 (Matth: Afl.), 208 0.42 (Joh.Andr.), 362 1).166 (Frederiek II), 417 1)342 (Crassaile); 9,29,2: 158 0 . 209; 10 ,1: 176 1.264 (Luc.Pen.), 178 11.274 (Bartolus), ,79 0.275 (Baldus), 180 1).276 (Glos.ord., Baldus), 184 1.286 (Luc.Pen.), 204 0.34 (Baldus), 230 11.113 (same), 401 0.296 (sane), 4,9 0.349 (sama); 3: 183 0.285 (sama); 5,2: 99 n.36 (Glos.ord.), 130 1).129 (Glos.ord.); 10,5,1: 11 n.8 (Luc.Pcn.); 10,8,3: 106 0.54 (Andr.Barul.); 10,9,,: 'So 1).x76 (Odofred., Bartolus); 10,10 ,1: 175 0.259 (Phi). Leyden), 176

INDEX n.264 (Luc.Pen.); 10,31 [32],35: 246 n.163 (same), 248 0.173 (lame); 10,35: 455 0.13 (same); 10,70,4: 141 0.165 (same), 248 0.172 (same); 10,74: 326 0.37 (same): 11,8,4: 416 0,341 (same); 11,9,2: 315 n.G (Bartolus); 11,11,1: 4,6 n.341 (Luc.Pen.); 11,40,4: 427 0.371 (same); 11,41 : 132 0139 (same), 135 0.150 (same); 4: 111 0.72 (same); 11,56 ,,: 495 11.125; 11,58 ,7: 169 0.240 (same), 184 0.288 (same), 203 0.29 (same), 214 0.59 (salle), n.6o (same), 440 0.405 (saíne); 11,62 [61]4: 177 n-268 (Bartolus); 11,69 ,1: 132 0.139 (Luc.Pen.); 5: 177 0.267 (.ame); 12,1: 384 0230 (Bartolus); 12,16 : 154 0.194 (LucPen.), 416 0.341 (same); 12,17,1: 158 11.209; 12,20 ,5: 427 0.371 (same); 12,45 ,': 141 n.165 (same) Institutes of Justinian: 103, '09 n,62 (Materia lnstitutionune), 116, 125, 128 11.122, '38, 187, 245, 338, 391, 393, 418 0347; Proem: 138 n,,59 (Placentinus, Aro, Glos.ord., Cuias); 1,1: 98 0.31 (Azo), ,o8 0.59 (Azo, Glos.ord.), 1og 0.63 (Hotman), 110 069 (Glos.ord., Bartolus, Baldus), 111 0.69 (Gtos.ord.), 111 0,70 (Gto.s-ord,, Hotman, Colas), 113 0.77 (Bartolus), 139 n.,6o; 5: 113 0.77 (Baldas); 1,2: s39 n.16s (Azo): 03 1105.45-46: 6: 297 0.53; 1,11,4: 306 n.8, (Baldas); 1,25,pr.: 245 n,,6o, 278 11.9 (Glos.ord.): 2,1: '25 n.116 (Azo), 568 n.237 (Azo, Bracton); 4: 168 0.238; 7: 187 1130l ; 8: 125 0.114 (Joh.Branchaz.), n.'15 (Glos.ord.), n. 156 (Azo, Glos.ord.), 126 0117, 187 0.303; m: 187 0.302; 2,2: 476 0.67 (Azo); 3,1,3: 338 0.78 (Glos.ord.), 391 0.258 (Glos.ord.); 4,4,2: 213 21.57 (Albcr.Rosat.); 4,12: 171 n.249; 4,16: 138 0.159 Novels: 116f, 127, 130, 132f, 186; 4,5.1: 183 n.288 (Baldas); 6,pr.: 336 0.76 (same), epil.: 192 0311, 294 11.45, 299 057 (same); 7,2: 122 0.103, 183 11.283 (Clos.ord.), n.2BS (Glos.ord., Bartolus), 186 0.296; 5,11: 119 0.92 (Marin.Car.); 9: 119 0.91, 18, n.278; 12,4: 99 1.37 (Glos.ord.), seo 0.38 (Matth.Aftl.), sao 0.129 (Glos.ord.); 22,19: 455 0. 13; 23 ,4: 495 11.125; 60,,: 455 113: 73: 'no 0.38 (Matth.Alll.), 103 0.49, 117 n.86 (Marin,Car,), 294 0.44, 297 0.53 (Glos.ord.), 336 0.76;

552

83,': 324 031; 98,2,2: 92 n.,8 (Glosa ord.); 99 ,2: 99 0.37 (Glos.ord.); 105,2,4; 92 n.,6 (Glos.ord., Baldas), 99 nos.36 (Ande. Barul.) and 37, 100 0,38 (MatthAlff.), 127 0.120, 129 21.125, 130 0.129 (Glos.ord.), 0.13, (Karolus de Tocco), 133 0145 (Baldas); 111: 181 0.278, 182 0.283; 113,,: 336 11,76; 131: ,81 0.278 , 324 0.31 Codex Theodasianus: 1,6,9: 158 0.209; IX,14,3: 208 0.42 Other collections: Gaius, Institutienes: 103 0.45; Paulus, Sententiae: 11 0.8; Perros, E.xceptlones: 121 n.lo3; Libri feudorum: 348f (see also Feudal¡sin); Lombarda, see Karolus de Tocco; Sicilian Assizes: s,8ff, 188 0. 209; Sicilian Constimtions, see Liber augustalis CANON LAW:

Canonists: "Hierocrats" and "Dualists," 322ff passini, 456, 465 0.41, 457 0.17. Johannes Teutonicus, Bernard of Parma, Johannes Andreae, see s v. and Glos.ord.; Huguccio, Hostiensis, Petrus Ancharanus, Baldas, sce s.w.; Innocent IV, see s.v. Papacy Commentators, Gloses, and Summae casually mentioned: Alanos: 129; Apparatus Ecce vicit Leo: 247 n.,66; Apparatus Tus naturale : 213 0.55; Bazianus: 322 nos 24-2,5; Bernard of Pavia: 213 0.55; Damassus: 385; Glossa palatina: 323 0.28; Cuido de Baysio: 328 0.45; Guilelmus Naso: 274 0.203; Johannes De Fan[tutiis7]: 157 0.206 (replacing "de Fano"); Quaestiones Grielenses: 322 nos.24-25; Richard of Mores: 322 0.24; Rufinus: 323 0.27; Simon of Bisignano: 322 0.24; Silvester Hispanos: 297 0.53; Summa Barnbergen. sis: 463 083; Summa Imperatorie mniestati; 72 n.68; Summa Parisiensis, 239 0.141. Collections: Deusdedit, Ivo of Chartres, sea svv.; Anselm of Luces, el al.: 91 0.12; Cohecho Hispana: 64; Compilatio Quinta: 355 1143 Decretum Gratiani (Glossa ordinaria by Johamses Teutonicus): 91, 125, 165, 175, 215, 216 0.69, 2,8, 223, 230, 242, 292, 322 n.23, 323, 325, 349, 392f, 439f; D.XXI,c : 125 n.116; D.XXII,c.,: 323 0.27 (Rufinus); D.LIV, C.24: 291 n.36 (Glos.ord.); D.LXII1,0.to: 312 0.55 (same); D.XCIII,a24: 220 0.77 (Terne

INDEX Rouge), 323 0.28 (same), 328 0.45 1,41: 374 11.203 ( Hostiensis). 2,1,3: (Guido de Baysio); D.XCVI,c,to: 463 lo n.8 (Glos.ord., Baldus); 13: 238 0.33 (Summa Barubergensis); e.u: 294 n.137; 2,2,'1: 163 1,223; 2,12,3: 303 0.44, 297 0.53; C.I,q.4.c8: 392 m26,; n.66 (Baldas); 4: 312 11.2 (Innocent C.II,q.3,c.7: 324 0.3, (Glos.Palalina); IV), 396 0.277 (same, Joh,Andreae ; C,V,hq.7,c4: 395 0.275 (Glos.ord.); 2,14,9: '84 0.29' (Baldas), 445 0.422 93 3: 375 0.207 (Glos.ord.); (same) ; 2,19,3: 438 x397 (same); C.VI1,q.1,c.7: 215 0.62 (Luc-Pen.), 440 2,20,57: 306 0.77 (Innocent IV); 0406, 11407 (Ivo) ; c8 : 392 0264 . 2,24,4: 2o4f 0.35 (Joh.Andreae), 205

(Glos.ord.); C.XI,q.1,c.28: 289 0.33 (Oldradus,) 9.3,184: 141 0,165 (Luc. Peu.); C.XII,q.',c.52: '76 11.265; c.17: 176 0.265; q.2,c.20: '30 0.'28 (Glosa ord.); c65: 291 0.36; C.XVI,q.3,c.14: '65 n.226, 239 0.241 (Summa Par ¡-

0.35 (Baldas), 208 1142 (Joh-Andreae), 350 0.131, 352 0.139 (Baldas), 33: 133 0.145 (same), 177 0.270 (same), 328 0.46 (same), 354 1.143, 355ff, 357 0.150, 358 0,154 (Glos.ord.), 388 n.,56 (Petr.Anchar.), 358 n.158 (Andreas Isern., ,'n'i,); 9.3,c,17: 127 0."9, 18, 0.278; Oldradus), 377 0215 (Baldas), 399 q 7,c.8: 175 n.26o (Alber.Ros.): C.XXI1, 0.287 (same); 2,26,14: 181 0.279 q.5,c'8: 234 1.125 (Glos.ord.), (Glos.ord., Baldas). 3,5,28: 384 0.231 349 0.127; C.XXIIl,q.,,c.4: 289 0.33 (0I(Innocent IV, Joh. Andreae), 394 1.270 dradus); q.4,c.42: 57 033; q.8,c.zc 188 (Joh.Andreac); 3,7,6: 394 11.270 (Job.'1305; c.22: 157 0.206; C,XXIV,q.,,c.. Andreac); 3,10: 152 n.,88 ; 3,13,8: 33: 292 0-37. 396 0.276; c.39Post: 466 350 0.132 , 352 0 . 1 3 8 ( Gl os. ord .); 143: c.42: 392 0.263; C.XXV,q.t,c. m: 3 , 20 , 2: 350 0 .,. 1 33 352 0'39 ( B a ld as); 57 0.206 (Johannes de Fan.); q.2,c.'6: 3,33,,: 246 0.163; 3,40,3: lo n.8 28 0.15 (Glos.ord.); C.XXX,q.5,cq: 222 (Glos.ord.); 5,39,5.3: 3o n.66 Baldn.85; 93 C.XXXIII, de 3 ( penitentm, ir* 306 D-77 (Innocent IV), 306 0.83 ,35; 91 0.12 (Glos.ord.); (PetrAnchar.); 64: 3 92 11. q,5,c.,3: o6 0.77; 5,40,19: 91 11.'2; c.,9: g' 11.12; C.XXXV,q.,, 440 0.405 (Glos.ord,)

can.: 2,60.69 (Luc.Pen.) Liben Sextos (Glossa ordinaria by De consecratione, D,,,e.,,: 260 0.210 Johannes Andrea,): 386; 1, 2,c.,: 28 Libar Extra = Decretals of Pope 0,15; 3,c.5: 386 0.238, 0.239 (Joh.An-

Gregory IX (Glossa ordinaria by Ber- dreae), 396 '5.276 (sane); 14,c.r1: 129 nmd of Parma): 35of, 355. 357, 361, 0.128 (same); 2,14,0.2: 282 0,18; '9,385, and passim; Proem (Rex pacificas): c.2: 306 0.77 (I11noe.IV); 3,19.e.un.: 126 0.117 (Baldas), 139 0.159, 328 1-45 ,o n.8 (Juh.Andreae); 5,'r,c.5: 3o6 (same); 1,2,7: 400 0232 (same); 8: 0.77 (InnocIV), 307 11.8' (same, Job: 384 0.230 (same); 1,3,'5: 123 n.,o8 Andreae) (same); 1,4,11: 169 15.242 (Glos.ord., Clementines: II,9,c.un.: 372 0.197 Andreas Isern.); 1,6,20: 452 04; 24: (Glos.ord.) 337 177 (Baldas); 28: 386 11.237 (In- Extravagantes Johannes XXII: III,nocent IV); 34: 'o' 0.42 (Saldos), 293 c,un. (Execrabilis); 392 0.261 (Glosa 0.45 (Bartolus), 444 1.419 (Baldas); ord.); XIV,c.5: 176 0.x65 36; 137 0.156 (sale), 313 0.97, 330 Codex iuris canonici: 12, 11.102 0.52 (same), 337 0.77 (same); 1,7,2: Leidrad, bp. of Lyon: 320 11.'5 213 0.55, 215 n.61; 1,8 : 204 0.35 (Hos- Leicester, Abbot of: 385 tiensis); 1,15,e.un.: 320 0,14 (Hos- Lea animara (see Nov. 105 , also iuslitia tiensis), 321 21.20 (same); 1,29: lo animara, iostum animatum, lea viva): 11.8 (same); 14 (cf. s.v. Quoniam ab- 8 11.4, 92 n.'8 (and pote- subiectorum: bas): 285 0.232, 0,234 (Damasus), 301 Andreas of Isernia), 94 0.2,, 97 (not 11,6', 386 0236 (Glos.ord.), 388 0.242 used by John of Salisbury), 99 0.36 (same), 389 1.247 (Joh.Andreae, Bal. (Andreas of Barulo), 99 0.37 (Glosa das), 0.248 (Glos.ord, Baldas), 393 ord.), loo 0.38 (et pater leguen: Matth. 11.266 (Terne Rouge), 397 1279 (God. AM.), 127 0.120 (Nov.'o5), 0.121 (rhefrey of Trani ); 1,30: 129 0.128 (Hos- mustios), 128 0.1x3 (Lactantius, refertiensis); 1,31,3: 303 n .66 (Baldas); ring lo Christ), 129 0.126 (Godfrey of

553

INDEX

INDEX 1535 0 . 226 (Atll.), 169

( Af9.): 39 [ 111]: Viterbo), 0.127 (Pope: 10000 virus), n,11 iLar . 71, :H1 n.279 ( Car., ls_), n.128 (Pope), 130 ".129 (Prince nmr 18_ 282 . n N( ¿(:ar ., Is). 184 0.2(u est, homo, sed es' (ex 0.n .: Gloso 0.t., (Lar. A[II) Cynus), 131 u 138 (r _x bi r io diri1 ) 1 -90 , 349 rs. 126 and i c . r ur tur 1an132 n 139 ((e x 1n.a mortua), 0.140 (judge as "'!"'o ani- 12 3.10 nos 30 1 d 134.3311143 Libe, Diun:us: ,;48, 3,1 11 .142. 359 11 .159 matero: Arismtle), 1,33 (iushnn ani1:he 7 galis 357 matunl), 0.144 (indicio 1m,) 134 1.148 L,br r.1),onsa 1" 118 0.88 pinceju (1ex inanimatus )rinceps 1 eclesiae: 156 neo: I.anima(a), 135 1,37 (.ushlio anmmLQ, I rber de unifn e 144 0.168, 146E 1)! Frederick ll). L ,t n:riq ('.onvisutlon: 325 72_3.2 327. ( Durandus , refclring to 3,19 418 n.348 King of France), 499 (Diotogencs) 1.igudnus: 28; Liutoges: 239 Lex digna (see C.1, 14, 4): g6, 1o4ft, 129

11 23

0.128, 130, 136 0.154, 146, 150 0.183. Lincoln, bp. of: 225, 230; ser bps. Rich151 n.i86, 452 0.4 ard Fleming, Robert Grossetes0:, Julio Lex mortuo (see D.46,1,22): 209 0 .46, Russel; 435: cathedral 304 0.73, 305 0.74, 309 0.89 Litt1eton, Sir Thomas: 315, 371 1.195 Liturgica: General: 2 n.9 (baptism Lex regia (see D.,,4,,,' ; 6.1,17,1,7; Insta 1,2,5): 96, 98, 99 0.36, 102 0.44, w3ff, and rosal consecration), 43 (Norman Ano".), 50 0.19 (Armcn i an), 52 11.21

,o6, 146, ,5off, 155, 179 0.275, 294. 297 (baptisin), 6, 0.43 (Cherubic Hymn; 0.53, 29B, 301, 322, 325, 326 0.36 Divise L.), 67 (curtains), 68 0.57 (MisLiher augustalis (Gtossa ordinaria: Masa pro rege), 83 1.103 (church dedicarinus de Caramanico [- Car.]. See also tion hymn; Ottonian liturgical disli), Andreas of Isernia Is.] and Ma[ 87ff, Bgff, ,t8 0.88 (antiphones for thaeus de Afflictis [= Afil.]. The nonoking's reception), n.go (lit. language bering of che laws is that of che Cer[Canon of che Mass; Esultet] in royal vone edition, sometienes with that of documents), 153 1.192 (oraciones so' AM. in brackets): 975, 10o, 102 n.43 ternnes, oratio super regent), 155E (Eu(Petrus de Vinea), 115, 130, 139, 146, charist: corpus rnysticum, c. verum), 162, 182, 184; Proem to che Gloss of lggff passim, 210 (debasement of lit. Car.: 45 n.6, 109 0.63, 157 n.2o6; Protercos), 212 11 .54 (bestowal of the ring), cm te the Commentary of Is.: 325 11.35• 222 110584f (Frunce: king's marriage 326 0.36, 473 n.56 co realm), 227 (procedure in ParliaProem: 92 n.,6 (Car., Is.), 116 n.84, ment compared lo Mass), 292 n.38 i ig 0.92 (Car.), 452 0.4 (Is), 483 n.86, (prayer for emperor and empire), 319 484 n.go. I,,: 471 n.52; 4: 158 n.2o9: (baptism anrl ordination), 32o 0.15 6: 132 0.138 (Affi.), 143 n.167 (Am.); (confirmation), 334 0.68 (datings), 351 7: 1,6 0.55 (AM.), 17,5 0.258 (Alti.). n. 136 (laudes), 443 (saeraments: in337 n.76 (AM.); ,6: 107 0.56; 17: 142 strunlenta separata) 48, 0.83 (trichon.167; so[z1]: 416 0.341 (AM.); 30: 135 tomy ¡ti lit. formulae), 484f (baptism), n.,S, (Am.); 31: g7ff, 98 0.33 (Af6.), 486ff (Scrutinies: baptism and peni11-34, 99 0.38 (Aftl.), 107 n.56, 130 0.131 tente), 489 (baptism), 501 0.24 (Che(AM.), 155 0.200; 32: 138 0.159; 38[37]: rubic Hymn) 29 0.15, 98 0.31, 107 n.56, 154 0.195 Anointings: 1o n.B (holy oil), 18 (AM.); 41: 11 n.8 (Car., AM.); 50[52]: (characcer indelihilis), 350.15 (chrism), 418 0.348 (is., Ahl.); 72: 122 0.104 36 n.22 (roya¡), 40 (kings and bish(Car., AM.); 74: 92 n.,8 (Cae). I1,3: ops), 60 (belief in power of a.), 74 (of 439 n.403 (AM.); 31[31]: 154 0.195 king's hands), 125 (not a lauree of (AM.), 455 21.[3 (Car.). 111,4: 171 n-246 royal priesthoo(1), 318 (clafined un(Is.); 5: ,o6 0.54 (Guillehnus de Vinecessary), 319E (valor lowered), 320 nea); 7: iSi 0.279 (AI6); 8: 165 n.241 0.15 (holy oil and chrism), 326 n.38 8o1 n2 (Car ls.) . 77 , 183 0.283 ( Is.), (Is.); (not practfced everywhere), 328 (gifts (Is.); 26: 92 0 . 18 (ls ), 130 0.131 without anointings) 31: 165 0.226 (AM.); 36[35]: 4110 31.291 of H.Spirit

Magna 6harta: 407

Corona (ion, consecra (ion (see also Oaths): General: 2g 0.16 (festival crownings), 65, 68, 87, 88 n.6, 126, 14of, 222ff (France), 285 0.23 (laxes So. posed), 298 0.55. 3,-, (debased), 318 (superfiuoos) 319 21.12 (rclatcd to baptism), 32off passim, 328 (only ornamental), 329 (late-mediaeval pomp), 411 (acclamations), 420 (garments), 444 0.419 (musical conduc(us), 490

Maitlaull, F. R.: 3ff, 16f, 55 n 375, 391 406, 446. 449 Malaspma, bouse of: 1o 21.8 Manero, Gianozzo: 1193 Manfred, k. of Sitily: 331 21.59 Mantua: 290 0.34 Margaret of Austria: 433 (her tomh. at Bro11)

(baptismal crowmngs), 49]1 (Dante's coro nation); Ordels: 45 n.6 (Cencius II), 74 (imperial and Gcrman), 88, 89 nos.6 and 8, 90 0.9. 153 0.192 (Frankish), 2211 (France), 351 0.136 (imperial)

Liturgical kingship: 87ff, 8gf, 114f, 117, 126, 141, 152, 329, and passim Logoi (cf. Angels): 84 Lomazzo, Giovan Paolo: 427 0.371 Lombard Law: 182 Lorenzetti, Ambrogio: u2, 113 (figs. 18a-b) Loyseau, Charles (d.1627): 332 n.6o, 332 n.63, 333 0.64, 409 0319 Lucan: 214 Lucas de Penna (1320-ca.139o): u 21.8 (maxim: magis dignum), 94 15.20 (and John of Salisbury), n.21, 111 0.72 (porta Capuana), 132 0 .139 (Lex animara applied to universitas), 135 n.15o (lex viva, lex mortua), 141 n.165 (Christus iustitia), 154 0.194 (apostles council of Christ), 169 0.240 (Prince is iudex in causa sua), 176 n.264 (Church property), 177 n.267 (fiscusomanus perpetua), 184 n.286 (fiscus sanctissimus), 184 n.288 (fiscos instar stomachi), 202, 203 0.29 (papa quasi rex in regno), 214218 (Princc's marriage te realm), 221,

222 n.83 (and French jurists), 245 n.16, and 246 n.163 (parricide pro patria), 248 0.173 (procreation pro patria), 26t (and Enea Silvio), 326 n.37 (pre-coronational Tights), 336 0.73 (papal interregnal vicariate), 358 (coronation oath), 396 0.275 (and Pontius Pilate), 4,6 0.340 (fibula), 427 0.371 (statues of Princes), 43g (and Matthaeus de Afflictis), 440 0.405 (and Andreas of Isernia), 455 n.13 (emperor philosophiae plenos) Luther, Martin: 491 0.117 Macrobius: 307 n.8,, 332 0.62 (raciones seminales)

Maria, q. of Hungarv: So 0.93 (res 11un, garlar) Maria Theresia, empress: So 0.93 Marinos de Caramanico (fi. ea. 1275[283): u 21.8 (maxim: magia dignurn), 45 n.6 (rex non Domino laicos), 92 n,,6 (Seneca), 92 n.:8 (pacer suhiecto. rum), 97 0.29 (rex imperatos), 98 0.32 (dictamen of Lib.aug., 1,31), 109 0.63 (templum iustitiae), 116 n.85 (Seneca), 117, 729 0.92 (en Lib.aug., proem), 122 n.1o4 (indices sacerdotes), 130 0.131 (tex est rex), 157 0.206 (papal tribute due co king), 165 0.242 (no prescription against demesne), 18o x277 (or against fisc), 181 0.279 (hundred-years' prescription), 1B2 0.283 (sume), 183 0.283 (things fiscal are public), 184 0.290 (fiscus semper praesens), 455 ata (Prince is philosophissimus) Marlowe, Christopher: 366 Marriage: Prince's m. te realm: 212, 213 nos.gy56, 2,4ff, 218 (France), 221 (matrimonium morare et potiticum), 222 n.85 (marriage salot et politique), 223 (England); bishop's m. te his church: 212ff passim Sponsus: Bishop sp. of his church: 212, 2,8; Pope sp. of Roman Church: 217 nq1, also maritus of States of che Church: 223 0.87; Christ sp. of che Chnrch: 204 0.32, 2,6, 217 11.71, 218 (identical also with che sponsa); Prince sp. of his realm: 216ff, 221 0.82, 223 0.87 (mysticus coniunx) Marriage ring: 212, 215 n.6,, 222 n.85 (see Insignia) Mars, heaven of: 239 Marsiglio of Padua: 298, 327, 329 Marcial de Paris, dit d'Auvergne: 417 0.34.5 Martyr, Martyrdom: 41 (Charles l), no n.65 (Acts of S. Schastian), 334 nos.67 and 69 (Acts of SS. Agape, Dasius, Cyprian and others)

555 554

INDEX martyrdom for Chrisr: 239 passim; for Crown: 340; for feudal lord: 239; for Franca: 240, 268 passim; for Holy Land: 238f, 251 n.182, 268; against Infidels (Sang of Roland): 240; for the patria: 245; and brothers: 248 Mary, Holy Virgin: loo 11.40 (Church), sos (lnother and daughter of Chrisr), 144 n.17o a (Nata nati, matar patria), 156 n.2o5 (aboye tire Law) Mary Stuart, q. of Scots: 499 11.14 Manhacus de Afflictis (ea. 1453-1523: see also Libar augustalis): 51 n.8 (maxim: magis dignum), 94 11.20 (and John of Salisbury), 98 11.33 (en Lib.aug. 1, 31), 99 11.38 (lex animara), o6 0.55 (Prin. ceps ligatur natural¡ ratione), 121 n.m2 (court sentenccs

sub nomine regis), 522 1.104 (iudex sacerdos temporalis, angelus Dei), 130 11.131 (lex animara), 132 11.138 (res in regno dicitur lex animata), 135 11.151 (rex and lex), 143 0.567 (ubiquity, rex exsomnis), 154 0.195 (councillors as pars corporis regís), 165 11.226 (no prescription against fisc), 575 1.258 (Chrisr and fisc), 176 n.265 (fisc of Christ), 181 n.279 (hundred-vears' prescription), 184 11290 (ubiquity of fisc), 337 0.76 (crowns visible and invisible), 399, 400 11.291 (dignitas regia nunquam moritur), 416 11.341 (insignia), 418 11.348 (feriae), 439 11.403 (king in state, mate in king)

Macthew Paris: 1o n.7, 162 n.222, 164, 360 Maturanzio, Francesco: 470 Maxims, legal and others: A Deo rex, a rege [ex: 455 0.335 Ante eran[ imperatores quarn summi pontificas: 457 11.17 Civiles sibi princeps: 298, cf. 179 11.275 Eccesia el fiscus paribus passibus ambulent: 177 11.268, cf. 18off Ecclesia (respublica, universitas) fungitur iure minoris: 374 11.203

Ex sola electione competir irnperatori administrado: 457 si 17, 323 0.28, 325 11.32

Longa possessio parit ¡os: 165

Magis dignum trahit ad se minus dignum: of Melius est bonos rex quam bona lex: 135 Le mort saisit le vif: 394, 409 1.319 Mortuus aperit ,culos viventis: 393 Neeessitas non habet legem: 260 11.211 Necio potest facere se ipsum regem: 150 n.182, 457, 11.24 Non nisi per allegara iudex iudicet: 396 11.275 Non nobis solum nazi sumos: 260 11.210

Nullum tempus currit contra regem: 164, 165, 11.226, 166, 168, 170E nos. 248f, 330, 376f Omnia jura in srrinio pectoris principia: 28 11.15 (fisci), 1531, 4.55 0.13, passim

Par in paren non habet imperium: 451 114 Populus facit regem: 296 n.5t (see exercitus) Populo faciente el Dea inspirante: 296, 329, 399, passim Princeps legibus solutus: 95, 105 11.52, 106 Pugna pro patria: 241 11.174, 245 n.159, 246 11.164, and passim Quod non capit Christus, capit fiscus: 174ff Quod ontnes tangit, ab omnibus approbetur: 571 n.247, 172, 1,90 (quod diadema tangit), 365f, 381, passim Quod principi placuit, legis habet vigorem: 546, 50, and passim Parlamentum Praneiae non servat ferias: 418

Respublica non haber heredero: 299 Rex est imperator in regno sum see Rex est lex: 134 Rex supra legem el supra se ipsum: 163 11.223; cf . 495 n.125: quilibet est rex sui ipsius; also 5o n.16, 159, 164: el maior et maior se ipso

Senatores pars corporis nostri [princi-

Exercitus imperatorem facit: 220 n.77, pis] sunt: 154 n.195, 208 n.42, 362 296 11.5,; see below: populus ... 11.166, 457 11.342, and passim

Extra ecclesiam non est imperium: 466 Ubi papa, ibi ecclesia Romana: 2o4f n 43, 485 11.82 Maximus el Turin: 490 Fiscos ubique praesens: 184 Mcllwain, Charles H.: 148 Intperium sernper est: 192, passim Medid, Cacerina dé: .43,

556

INDEX Medici, Maria de': 454 11.332 Mediator, intermcdiar: see Prince Méhun-sur-Yivre: 410' Melfi: 97

11.167, 252 11.583, 331 n.58 cisco), 337 11.76, 389 n249 N'icolaus de Braia: u 11-8

Menenius Agrippa: 184 11.288, 195 116, 208 0.42 Menestrier, C. E: 455 11.385 mensa episeopalis: 355 Mercier, Cardinal: 235 1.126 Messina, abp. of: 350 11.230 Michael Akominates: 75 11.615 Milan, abp. of: 349, 350, 352; duchy of: 290 11.34 minislenum-mysferiurn: io5 11.42 Minority, minors (see Fisc, Crown): 7E passim (king), 18, 583 11.285 (Chnrch, fist), 191) 11.310 (1111), 374 (furiosi, im )antes, ci,it,tes), 374ff (Crown), 327 (k.), 377-381 (C1-11n), 374f (restit u tio in intcgrmn); guardiam of minors: 374 385

(dynasti-

Nih¡lianism, christological: 51 11.19 Nohility, problem of: 455

Nogaret, Willianl of: 238 n.138, 245 n.56,, 250 nos .176-i78, 252 11.184, 255 11 .1931 256 11.593. 257, 258 11.202, 259, 454f Nominalism, see Narre: 29, 302 0.64, 309 11.89, 326 n4o Nonos basileus (see Chrysippus): lex est imperator: 130 11.529 (Glos.ord.): lex cal rex: 1301,531 (.Marin.Caram.); lex est regina: 135 11.131 non moritur:

see Immortality

Norfolk: 420

Norman .Anonymm5s: 42-6,; bis dualities: 46 (long a gemina persona, human by natura and divina by grace), 556 (hishop, [he santa), 59 (king and bishop also persona, rnixtae [spiritual

Modoiluls: 204 1.34 Monastic piety: 90 11.9 Monophysitism: 54, 18 Monopsychlsm: 476 11.67 (anima mundi) Monotheletism: 58 Monst,eler 411 11.223, 425 11.355 Monte Cassino, Abbey of: 553 Moscow: 83 (third Rome) Mythographus lII: nn 11.64

amd secular]), 49 (Chrisc two natured), 56 (Christ borh king and priest), 52 (Christus and chrisnls), 53ff (Tiberius, iniquitous as mau and divina as Caesar), 56f (Canterbury: church [build ing] vs. Church [see]), 57 (abp. of Canterbury: archiepiscopus vs. homo), 57

Name (see also Dignity, Quoniant abbas, Nominalism): King's mame: r3f 11.14,

(pope: office vs. Perlon), 57 (heaven and sky): 63f (imperator ad eelum erechss), 78 (Tiberius), 82 (bricks and

29, 31. 34, 37; body politic, a narre: 29 11.17 Naples, kingdom nf: 260, 321 11.20 (coronation), 325f; Kings: Charles 1 of An]ou: 254 11.188 (menlorandum), 260, 285 0.23, 324, 328; Charles II: 532 n.,38 ((ex animara), 321 1120, 333 11.65 (Dynasticism); Robert the Wise: 137 n.15G Narbonne: 490

Se' of Canterbury), 84 (two-natured king), 88 (kings and bishops as mediators), 89 n.8 (language of Coronation Orders), 95 11 .52 (and Ambrosiastcr), 94 (not a jurisl), 96 (no interest in king's persona privata), 117 (king rex el sacerdos by Grace), 125 0.113 (Melchizcdek, rex iustitiae), 141, 156 (Christ under the Law), 160 11.213 (throne of

God), sG,, 162 (nnknown to Bracton), natalicium: 391 0.255 171 11.249 (rex sanctus, beyond Time Navarre: 326 n.38 and Space), 191 (Chrishcentered kingnecessitas: 106 (reason), 116 (crealion of ship), 205 1.35 (Rome vs. Jerusalem), kings), 574 11.253 (casos n.), 235f (de206, 319 (regal and episcopal offices fense of realml, oa,. n `°'°"0csell, 500 (king metamorphosed habet le% eco ) , ^g - 4 ff (perpetua,¡,, of by consecration), 506 (still in che wake n.), 287f (n. in actu and n. in habito), of classical tradition) and passim

Neo-Pythagoreans, Tractates on king- Normnns: ,8211 298, 234 n.t24 shlp: 8 n0,, 332 163, 429 1376, 498f, Northampton: 34,3 499 n11, 500 Norway: 346 Nestorianism: 57, 18, 49. 50 11.18, 52, 271 Norwich, city of: 315 Nieblas of Bar¡, abbor: 102 0.42, 142 Notitia dignitatum: 79

557

INDEX

INDEX peror), 47(3 nb6 corporalioni)

Novas, tide: 81 (novio David), 83 (Con stantinus , David, Indios, ete). Niirnbcrg: 362 1.1611 (dict of 127-1)

(fictitious soul oí

Oléro', ide of: 373 of San SalvaOnofrius, Archimandrit toro. 350 1.130 Ontol gy: 59 Ordcricus Vitalis:.13 1$ Orders oí Knighthoo(1: 3, (Garter, tolden Fleece) }3 (spiritual), 329 (dvnas-

Oaths: King lo subjecis (Cosnnation oath): 167 0.235 (1.egei .4nglontm), 217 1.71 (compared to niartiage vosea) 222 nos.83-85 (Franc,, bcaosval of the ring), 329 0 .611 (solemnited bv Clmrch). 846 (Edward the Con(ector), 3478 passim (England) 348 n-123 (Ron.an),

tic) Organological concepts: 15 1955 0.309. 199Q 203, 20 711, 211 1.51 .16 21 Sf, 230, 25[, 2211 1179, 22.1, 2251 1 ,

348ff (canonfstic Inllucocc) 363 (m` n 354 (Hungary), 3,56 (Edward T), 356 x146 (France), 357 x151, 358 (England : spurious), 359 1.169

257f, 267ff passim, 306, 308, 311, 362 1.166, 363f, 380, 382, 438. 447t

Oriens Augusti: 32 (coro) Origen: 48 n.11 Orléans, Louis d': 109 11.63 Orosius: 156, 466 1.42 Orphica: 391 Otto oí Freising: 88 n.6, 292 11.39, 297

(K. Henry, son oí Henry II), 370 (nonalienation), 399

Subjects to King and Crown (officers' oath : 164, 166 (councillors), 358E (bishops), 360 (councillors), 3611E (magnates), 36, 1.174 (Declaration oí 1308), 502 (by the emperor to the emperrar) (bishops' oath to Ecclesiastical pope): 217 n.71 (compared to marriage vows), 3,gof ( non-alienation dause), 352f (exempte), 334, 358f (ro king), 362; papal officers atad dependenrs: 351 1.130 Feudal: 185, 259, 1.204, 349, 354 Obediente, suffering: 54f Ocean: 66 ng2 (personified) Odes of Solomon: 70 n.64 Odo oí Bayeux: 43 Odofredus: 1811 n .276 (Ese). 282 1.18 (perpetuity oí succession ), 300 n 60 per-

n-54. 466 442 Ovid: 39,1 (en Phoenix) Oxford: 22, 86, 360 Padua: 301, 301 1.62 Palermo: 65 1.50 (Martorana) Palindrome: 82

Palo Sunday: 84f Panegyrici Latini: 64, 65 11.50, 204 1.34 Paradite (see Dante): 234 (patria Paradisi), 239 (crosacler martyrs), 240, 278 nal (timeless ), 481 n.15

Paris de Puteo (d.1493): 285 11.23 Parker, Matthew, abp. of Canterbury: 42 Parson-Person: 3, 394 1.270, 449 Paschasius Radpertus: 195 Paston, family (see England: Justices):

petual usufruct) Office, see Dignitas: 384 (a Dignity is attached co it)

173 Pater, Walter: 36

Oldradus de Ponte (d 1335): 11 n.8 (maxim: Magis dignurn). 28 n.r5 (maxint: Ornnia iora ), 8,5 mw5 (quotes Aquinas on [Ps _j Chrysosmute), 12,9 11.128 (les animara), 204 435 (usaxim: Ubi papa), 205 11.35 (Ronco altera Hientsalem), 209 1.46 (Chitar corpus repre-

Patria: terminology, ancient: 232E, mediaeval: 233f, ecclesiastical: 69 n.60, 234[; trial per p., 233 1 .123; cause for writ-

sentat), 217 n.71 (pope married te Roman Church), 287-289 (taxes), 307 n.8, (alcheiny imitates nature), 323 n.26 (en confirmare), 324 11.29 (regnal years), 325 1.33 (Prc-coronatimtal powcrs), 327 1.44 (irapcratio), 329 11.49 (veras imperator and regnal vcars), 358 n.158 (coronation oath), 441 1.419 (empire from God, pope promotes era-

558

ing oí history: 233 1.121 defense of: 234.250, 256[ passim, 289; against father and brother: 236 0.133. 245ff. 250, 289; act oí caritas: 113 11.78, 24211, 246 (of publica caritas), 248; equals justice: 248, 253 n.,86, 256 n,t91: piezas: 240 11.146, 243: pugna pro patria: 241 11.147, 245f, 256; pro p. augenda: 245, 246 1.163

martyrdom for: 234, 249, 256f; remission oí sins: 24off : death for: 242ff, 256f, 265, 480 (eternal death)

designations: territory oí the reahn: 11.83 (idcmity of u...i,,ttat s,ithi,, 229, 236f, 247, 25olG holy esil: 2371. tum(), 358 u-156 (coronutlo0 oath). dulcissima: 236 '.1311; natalis: 2,313 3321,26o ([dende of testaron a0d lmirl 1.128; naturalis: 246 1.146; militare Petcr III, k.01 Ar1gon: 261 iand e itarh's cante: 204 0.34 (thc soldicr's p); has of ilnjou), 326 11.38 no superior- 248 Ic(era( lucu4uc Isce 1 lmn .Aq'10ac. rarurour,is patria: the ttether-worid: .Ariso,tle's L0lydc1): 133 ( 71 ' 235 1 1 . 1 2 6 ; heaven; 6g n-611, 234, 235 (reacl Peter of A-, for AAdl t , 66 11. 1 26, 212 213 1.11-4 ubi papa' 105 11171. 367 1135 Romo 71 u.89, 20, 11.3, _33 7 vos de lirll pcitiet (lielleporch,, d. n t -ni: kingdon of France: 237 1.131; f So 213 n 1 (:t." ti: 7, u-8] 341 7 ctu of Blol f 1 22, 111 n 3, 88 n,{ patúods'1' 24. f 249258, 311, 342- I'uws Chrysolr (,o. 73 11.71 amor pab'iae: 113 1.78, 242, 245f, 248, Perros Dmniani: see Da...iani 250ff, 255ff; viewed in religious Per- Fierre Dubuis: see Duhois

speetive : 267ff; king and p.: 206 11.3r5, Peter che Lonibard: 51 11.19. 72 n.69, 91 259ff passim ; Crown and p.: 251 11.180; 11.12 fisc and p.: 183 n.3o8; taxation for: Petrus de Lutra: 203 n.28 234ff passim, 284; corporate aspects: Peter of Poitiers: 51 11.19, 67 11.54, 206 211, 305 (coltegium), 477 (universitas) o39 Patriarchs, Latin (fn che East): 353 n.140 Peter oí Prece: 264 x218 (see also Byzantium ) Petros de Vinca: tire \'loca Patrimonium (see also Fisc): 167 1.231 Phaemn: 32, 33 (and fisc), 170 n.246 (oí prineipatus Philibert 4I, Prince of Savoy: 433 (tomó, and oí Prince), 175 (oí Christ), 180 at l3rou) .5.276 (Bartolus), 214 (oí Prince), 217 Philip II, k, oí Macedonia: 501 1.71 (patr. Petri, dowry oí Church lo Philip oí Leyden: 142 n. 167, 174 4253, pope), 221 1.82 (dowry oí France to 175 11.259, 248 1.170 (quilibet in paking), 222 2.83 (oí tire Crown), 222 iris sna imperator)

n.85 (Navarre) Philo, Judaeus: 54 2.26, 332 11.62, 499 Patripassianism: i8 n.11 Paulus de Castro (d.1441): 123 1.109, Phoenix: 388-401, 389 (nmrtal aud ¡in 2o6 n.38, 295 1.50 (identity of foros ) mortal), 390 (father and son m himself; androgynous), 391E (heir co liimPavia: 58 1 .34, 125 1.114, 317, 318 n-111 Paynell, Thomas: 499 1.14 selt), 394 (species and individual), 391, Peregrinos , M. A.: 92 1.16, 170 11.246, (Rabbinic tradition), 413 (medallioiss 178 n.272, 179 n.274, i811 1 .276, 182 and jettons), 414 (lit de justice), 415, n.28o, 184 nos . 290-291, 190 1.310 449f (corporation role) Persia: 263 (Great King), 414 1.334 Physiologus: 389 x246 (Phoenix) Personifications : 7811; oí aras and virtues : Piecolomini, Enea Silvio (see Papacy, 79 n.88, 1o7ff, 110, 114, passim; oí Pius II): 216 n .68, 26of cides and countries : 63 1146, 79 n.BS; Pico della Mirandola, Giommni: 493 oí seasons : 79 n.88; antique city god- Picot, jean: 499 1.14 des," and mediaeval fictions: 303 Pictt: 240 Perugino (see Ara Perugia): 470 Pindar: 130 x131 Placentinus (d1192): 98 1.31 (veioi a Petrarca, Franeesco: 107, 248 (patria), [once rivuli) and 35 (au thorsh ip of 301 n.62 (Averroists), 307 n.81 (ofiQuaestiones), 107 o57 (and his
Placidus oí Nunantula: 178 1.271 plina castrorum older than caritas Iiberorum), 244 1.157 (death pro patria Plaisians , Guillaume (te: 66 1.22. 238 compares co sacrifica oí Christ), 308 x138, 252 1.184

559

T99

099

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X3QNI

INDEX

INDEX feudal lord and hcad of body politic ,91E passim, 270; flghting pro paliza: 2711 nom fighting: a6211 pu rara tricnds of the Pduce and thc prm tpue: 367; hcad of corpus rnrs Gcunc 217, 261, 268f (seo Corpus ntysticnni); incor porated with membets; 13, with suhjeets, and they witb híur. 15. aig, rslth himself: g 15,5, 438f', jurisdiction a1d peace survive che Prr. 317, goof. 41711. 428; mafor singults. mitrar lnliueois: 23q n(aritus reipu,?irae: see Marriage; realnr the bode of ir.: 215, 216 n.66; realnr in the k., and k. in the realnr: 214ff, 223, 438ff , 440 n.409, 481; selfsacrificc: 261; Pr, the sutil of the respublica: 215 n.65, 439 0.405, 505

Priscian ( see Progress ): 214 1 1,59, 254 n.187, 2,92 15.39 Probos, Roman judge: 334 n.67 Procopius of Gaza: 53 ns3 Progress, Idea of: 254 n.187 (Priscian: quo iuniores , co perspirnciores), 2741, 277 n.7, 292 15.39 Propaganda: 249ff Prussia, army : 259 1.204 Pseudo-Amalar: sea Amalar Pseudo-Aristotle : 263 (De mundo) Pseudo-Chrysostomus: Opus imperfactum in Maltheum : 84 n.1o5, 141 n.165, 150 0.182, 459 n.24; In Pascha: 70 n64 Pseudo-Clementine Recognitiones: 56 15.30 Pseudo-D ionysius: 279 Pseudo-Isidorian Decretals : 51, 58, 64 15.48 Pseudo-Plutarch, see Plutarch Pseudo-Turpin: 238 15.135

(taxes for public titility and necossitc), 288 l udges' salary de publico), 4138 pass (and Crmsn) 362 (Crown u pubhC 3t 4 15.182 (status ,gis, coronar), and passim Purgator) (ser Durare): 278 0.„ (finito), 28, 1.15

Raiuus: ,8 Pus, bishopric of: 35,2 Quaastio in uhengoe partem 252 15.584 Qunrstiones de auras subti(itatibtrs (see Placcntinus): 98 1135, lo» 1154, 1117 11.57, io8f, no nt15, 111

Quaestiones Parsavjenses: 51 15.19, 24 11.39 Quintilian: 120 n.g6 Quirinus, P. Sculpicius, Roman legare: 156 0.205 Quoniam abbas (see Decretales, 1, 29, 14; Dignitas): 14 0.14, 385, 386 nos. 235239, 387, 388 0.242, 389, 393 15.266, 396, 397 15.282, 402, 4o7ff Rahcwin: 285 n.23 Ralph Niger: 124 11.10

Ramses 11, k. of Egypt: 497 n.6 Rangerius of Lucen: 50 15.19 Ratramtms: 195

Ravenna (see Art): archbishopric: 349, 352: abp. Wiberu 349; abp. William:

350 Reason, also natural reason, reason of state: 105 (aboye kings), to6 15.54 (mother el all laws), n55 (aboye the Prince and one with him, regulating volun tas), 107 15.56 (advises Princes), io8f (and Justice), uo (identical with natural law), 112 (with sapiencia), 114 Public (non-prívate) things, institution_s(and Dove of che Spirit), 136 (vis dietc.: 58 n.34 (imperial palace), 95 0.23 rectiva), 139E 15.163 (presides in che (Prince geril personam pubticam), 96, mjnd of the judge), 142 n.i66 (sine ,o6 (p. utility), 164, 165 (prescription), persona nihil agjt), 147, 163 (direc166 (inalienable), 167 (ancient detjve power), 255 15.193 (natural r. in mesne, bona publica), 168 (res quasi legal language), 256 15.194 (in organosacrae), 1(39 n.241 (Demanja [fiscalía] logical concepts), 257 0.196 (ratio stasunt publica), 170 (public benefit), tus), 464, 471, 485, 489 passim (see 172 (demesne: its continuity 'mulles Dante) all"), 173 (faxes for public welfare), Receared, k. of Visigoths: 68 15.57 174 n,2r3, 178E (fisc), 180 (distinction between public and prívate), 183 15.283 Receesvinth, k. of Visigoths: 57f Regalia, regalian rights (see Feudalism): (leuda de publico sunt), 186E (res nulljus and quasi sacrac), sSS (and res 92 0.16, 124 n.n1, 170 passim, 185 divinae), 187 (beyond time), 190 (res nos.sg3f (regnlia S. Petri) p. and rex regnans), 171 (Prince, che Registeis, adral inistra tire: 291 continuguardian of che res publicae). 287 jty)

562

324f, 336f (imperial erawns), 35o-35í (episcopal oarhs in R ) . 360, 3(i2 (Eng lish tributes tu), 428 (mol efl,gies), 462ff passim (ser l)nnte, 492 (tran'eendentalb(d ), 497 1ulnph). 5ni

reguli: 63, 66, 75 Reichenau, abhey of (ser Art. Ortonian: Aachen Gospels): 6,'78 passim Reuns: 3381. 3411E ah), id: 251 1.179 Reno, St. (ser Rciuls): 338f Remigio de' Girolami: 478 11.73, 479E Remos: 187 15.302

Religieatx de Sajn t-De,sis, Chronjque du: 411 15.324 Rex est imperator in regno s00: 51 11.20 (Norman Anon., Visigoths), 66 11.52 (tema nlarique dominus), 92 15.16 (numen divinum), 97 11.29 (emperor ¡ti kingdom of Sicily), 132f 15.139 (rex [civitas] in terra son (ex animata), 153 15.593 (omnja jura in pectore regis), 179 15275 (populus liber sibimet fiseus), 182 n.28o (praescriptio centenaria runs against the Signoria of Venice), 203 11 .29 (papa quasi rex in regno), 220 15 .77 (exercitus facit regem), 246E communis patria), 248 11.170 (rex in patria sua imperator), 288 0.28 (01dradus de Ponte), 298 (populus sibi princeps, having maiestas), 325 (nncrowned emperor is "king in his empire"), 326 n.36 (emperor and king walk parí passu), 346 (England), 398 (Dignity) Rhabanus Maurus: 50 Rhense, Diet of (1338): 327, 329 Richier (French poet): 238 n.138, 338f Rigaud, H., painter: 423 Ring: see Insignia , Marriage Roffred of Benevento: ,5o n.181, 305 15.75. 477 n.68 Roger II, k. of Sicily: 65 (Martorana), 118, 121 (Prologue of Assizes), 124 n.i,t, 158 n.2og Roland, Song of: 23gff Rome, Reinan, Romans: 45 n.6 (St. Peteís, canon of), 79 (aeterna), 82 11.99 (Roma-Amor), 1115E 0.54 (ad(1ressed by Frederick 11), 113 (founds Siena), 120 (Symmachus), 125 15.115 (pontifex ancient and mediaeval), 126 15.118 (sane; Budé), 182 x283 (prescription), iB8f (res nullius), 193 (processions), 214 (Cato, husband of che city), 226 (Tolomeo of Luces), 227 (and England), 241 15.146 (piezas et patria), 242 15.151 (authoritative mudel), 254 n.187 (migration of studiurn), 290 (proctors in Rome), 292 0.38 (eternity, sempi' ternity of), 321ff (imperial coronation),

(imperial cultas) Romo, communis patria: 79 n.8g, 205 15 . 75, 233 1 . 120, 24611, 248 . transferablc Ss ( New Rome , 83 (other reincarnalions ; Third Rome), 2514 n.35 (wllere emperor ls; where pope is), 247 (Paras, France'a Rotte; Avignou, the Romo of the Church), 267 (transfer of Romo ideology), 2,98 ((ex regia not restricted to Rome ), 298 (model to regna)

Roncaglia, Diet of ( 1158): 127, 285 15 .23, 495 15.125 Rudolf, k. of Burgundy: 335 Roucn: 410 Rufinus: 327 Russia, polit . theory: 499 15.14 Russel, John, b. of Lincoln: 275 7 15.203 (respublica a minar) Saba Malaspina: 285 15.23 Sabellianism: t8, loo 140 419, 421, 431 Saint-Gelais, jean de: 412 15.328 Saints Innocents, Cloisters of (Paris): 432 Saladin: 465 Salutati, Coluccjo: 245 0.162, 246 n.163, 248, 249 n.t75 Sampson, Richard: 229 15.1119 Sanders, Nicolas: 427 n.371 (images) Sauqueville, William of: 238 nos.185 and 138, 250 x176, 252 15.183, 253 1.184, 255 15.191 Saxons: 240 Scotland, Sc0ts: 240, 446 11425 Scribonius Largos, physiciam 498 n.g Scythians: 471 Seiden, John: 174, 15.253 Self-destruction, political: see suicide Seneca, L. Annaeus: 92 n.6 (De clernentia,I,1,2: Lib.aug., Marinos de Caramanico): 116 n.85 (¡bid.: Lib.aug.); 215 n.65 (ibid.I,5,1: Andr.lsern., Lu-

563

cas de Penna en incorporationo: 2.16 0.164 (Andr. Isern.); 253 n,,85 (Cansol. ad Marcum, XV,i: kings di, geniti); 269 15.230 (Ep.85,3r,: duas personas habet gubernator); 278 nao ,\ndr. Isera); 305 15.75 (De clern.I,14 s; De

INDEX ira, 2,13,7: Andnlsern. en patria); 389 Suger, ahbot of St.-Denis: 34off n-47 (Ep.42,1: Baldus un Phoenix); Suicide: 15 (felony), 174 0.253 (Jeto de 440 0.405 ^De clem.,I,5,,: An(lr.Isern., se), 256 0.194 (treason), 269 n.229 Lucas de Peona); 473 5.56 (De bene(wrongs the community) pciis,Vll,3ff: Andr.Iscrn. styling S. iu- Sun: 32f n.18 (Richard II), 39 (symbol), rista aptimus); 489 11.9 (Ep.85.35), 505 83 (Helios), 101 0.42 (Sol Iustitiae), Servius, on Aeneis: 125 n.,16, 214 0.59 337 0.76 (personified), 414 (Phoenix), Sexlessness: 80 o.93, 394E 1102271 and 273 415 11336 (emblem en Efimasia of Shakespeare, William: Richard 11: 24Louis XIV), 460 (Sun-and-Moon meta4,; Macbeth: 387; and law: 24f phor), 462 (Dante's Two Suns) Sicard of Cremosa: 98193 Sosa: 263 Sicily, kingdom of, also Sicilians (see Symmachus, Q. Aurelius, Prefect of Frederick If, Liber Augustalis, Na- Rome: 120 n.98, 158 11.209 pies): 97 11.29 (Rex imperator), 98 Syria: 334 11.67 n.3, (Magna Curia), sor (judicial ceremonial), 146 (and England), 158 Tabernacle (see also Art: Iconography): 0.209 (Assizes of Roger II), 183 (pre67ff and passim (veil, pillars), 7,ff scription), 235 (defense of che realm), (flesh), 498 (flesh) 246 (and patria), 260 (Trinacria), 285 Tacitus: 389 n.247 15.23 (taxation), 326 (Trinacria); kings: Taddco da Parma: 301 0.62 Roger II (s.v.), William 1: 285 11.23 Tarragona: 241 (defense against SaraSidrach, Book of: 263 0.2,8, 264 cens) Siena: 112, 113, 284 Tartars, Khans of the: 262 Siete partidas (Alfonso X of Casrile) 137 Taxation, Laxes: 175 (tithes and fisc), 11.155 219 (Jean Gerson), 235E (defense of Siger of Brabant: 283, 451 Holy Land, rcalm, patria), 250 (of Simon of Tournai: 198 patria), 251 (and of che Crown), 251 Simony: 349. 4,54 n.179 (taxation of clergy), 257 (clergy), Sion, Mouor 204 268 (Holy Land), 284-289 (extraordiSmaragdus (Vio regia): go n.9 nary and ordinary), 284 (feudal aids Socicty of Jesus: 405 n.308 and crusading faxes), 285 (Sicilian colSocrates, Socratitas: 302 lecta, clergy), 286 (scholastic doctrines), Solanium viridarii (Songe do Vergier): 287f (uf nobility), 288 (droit de gite 296 o,52, 465 0.41, 467 0.43 [alberga]), 289 (chevauchie [cavalca. Spain: 79, 238 n.138, 240f, 246, 826 n.38 tal: annual taxes for a perpetua necesSpecies, genera (see Angels, Dignity, sitas), 311 Phoenix): 28,f Tellus (Terra): 62, 66 1.52 Speier: 178 n.274 (Charter of Sp.) Tease Rouge, Jean de: 2,9f, 220 n.77, Spiritual Franciscans: 176 11.265 230, 332 n.61, 333 n.65, 373, 393 11.265, Status, State: 136 0.154, 257 1.196 (ra449 0.429 tio status), 271 0.235 Termllian: 48 n3 1, 292 n.38, 391, 496 n.2 Stephen, Sr., protornartvr: 77 n.85 Thackeray, james M.: 423 0.363 (fig.26) Stephen, Sr., k, of Hungary: see HunThemistius, orator: 127 n.121, 128 gary Theobald, Count (oí Champagne?): loo Stephen of Marchiennes: 333 uf5 0.39 Stephen of S. Giorgio, clerk of Edward Theodoric che Great Si I: 361 n.165 Thomas Aquinas (incl, thomistic, theStephen Telnpier, b. of Paris: 276 0.5 mism): 85 n.,o5 (Lis remark on [Ps.] (list of errors), n.6 (en spafial void), Chrysostom), 106 0.55, 144, 148, 201 282 11.,6 (c.mysticum), 202 (persona rnystica), Sthenidas of Locri: 500 208 11.45, 209ff, 227 0.101 (Fortescue), Stobaeus: 332 1163, 498, 499 11.12 242f, 266f, 270, 276, 280, 282 11 .17, 306 Stoicism, Stoic: 107, 109, 246 n.164, 331 (fiction), 3o8ff (c.mysticum), 392, 393 n.6o, 332 0.266, 444 0.419. 447, 452 passim, 459, Suetonius: 501 .25 464 0.40, 468f, 474, 478 passim

564

INDEX Su'm' theologica: 53 0.24, 135 ni), 299 (empire ), 303 (Bononitas, unin.151, 136 0.153, 195 11.5, 200 11.21, 202 versitas), 308 (c. mystieum), 3og n.8g 11.24, 203 11.29, 206 1139, 210 11.50, 217 (students and university), 3ioff (by 0.71, 241 0.146. 244 11.156. 266 0.221, means of substitution), 312E (head of 267 11.224, 276 0.4, 295 0.49, 306 11-80, universitas), 310 passim , 330-336 308 n.85, 332 11.61. 443 nOs. 415-418, (elimination of interregna; dynasty), 465 141, 469 0.46, 478 o-72, 491 0.120 337 (Crown), 338 (inheritance), 342 In Sentencias: 469 11.45; Quodlibeta: (Crown), 363 (universitas and Crown), 28, 0.15 383 (succession and collectives), 386 De regimine principurn: 28 0.15, 113 (Dignitas; Holy Sea), 387 (corporan.78, 226, 242 0.151, 293 0.40, 4900.114 tinos by succession), 388ff (Phoenix), On Aristotle's De caelo et mundo: 397 (Church; enipire), 397 0.280 (per299 0.57: Ethics: 108 11.6,, 132, 269 petuily of insignia), 436 (terrestrial '1.229, 459 1126; Metaphysics: 266 nos. aevum), 472 (actuation of potencies 222f; Politics, 13,3 0.143, 135 0.152, 211 senrp,r el sirnul), 476 051, 217 n.72, 226 0.100, 271 11.235, Tiraqueau (Tiraquella), André: 394 (Le 442 n-413, 459 0.26, 479 n.76, 481 n.8o nlart saisit le vif) Thomas of Capua, Cardinal: 98 0.31, Tocco: see Karolus 160 0.2 13 Tolomeo of Lucaa: 28 0.15 (continuator Thomas of Pouilly: 153 n.193 of Aquinas' De reg. Princ.), 113 11.78, Throne: s6of 0.213, 162, 267 (sharing of), 226f n.1o, (and Furtescue), 242f (amor 415 0.33) (Etimasia) patriae and charitas), 293 n.40 (Five Tihur (Tivoli): 350 2.130 World Monarchies), 320 11.17 (emperor Time, problem of (aeternitas, tempus, not vicar of Christ), 335 n.72 (eschatolaevurn [continuity, perpemity, sempi. ogy and empire) ternity]; see also Immortality, Inalien- 'I'ombs: 431-436 ability) torques coronation: 337 Aeler0itas (of God): 49, 83f, ,6, Tours, parliament of 0.217, 191, 271 (Christ), 272, 275 Trai'son, Chronique (timelessness), 279f, 281 0.15 Transubstantiation:

0.76 (1308): 259 11.202 de la: 38 0.24 196, 206 Tempns (of man): 49, 79, 8,ff, 84, Treason (see suicide, felony): 15,38n.24, 71f, 18o 0.277 (te-pus rnernoratum), 39, 16g 0.240, 258 (lese mafesty), 317 181, 183f, ,88f, 271ff, 274 0.2 (pre- Tree, Inverted: 200 0.20

ciousness), 275 (finita), 276, 277 n.,8 'Tribonian: 1og (Truth daughter of Time), 278ff, 281 Triumph, trionp: 423, 425f (funerary), (cyclical), 283f, 286, 290f, 299, 309 431, 496 0.2 n.8g (Bartolus), 31off, 375, 387 11.240 Troyes, Treaty of (1420): 410 Aevum (of angels and fictitious per- Tm@1: 277 (daughter of Time) sons): 7981 (halo), 84, 164 (Time Tunis: 328 runneth not against the King), 171E Turpin, abp. of Reims: 239 (song of Ro(king within and aboye Time), 177 land), 241 (prescription), 178 0.271 (obstruction Tuscany, vicar general of: 121 11.102 of secular perpetuity), 18o 0.276 (Use), Twelve Gods: 501 184 (fise), 185 (flctions), igof (fise), Two Swords: 293 11.41. 322f, 456, 460 192 (puhlie sphere), 207 (res publica), Tyche: So (and halo), 127 (Nov.1o5), 231 (corpus mysticum of state), 245 501E (oath by emperor's T.) (fame), 265 (dynastic continuity), 272 (universitas and king), 273ff passim, Ubi-ibi: 180 11276 (ubi fiscus, ibi ¡m27f (infinite continumn), 279 (aevum), perium), so4 002.33-35 (ubi papa, ibi 280E (angelic habitar), 281 0.15 (Hell Ronma, etc.), 225 agá, 229

and aeoum, Purgatory and tempus, Ubiquity, see also rex' exsomnis (5.v. Paradise and aeternitas), 282E (angels Prince): 5 (k. present in al1 1aw and fictitious persons), 284-292 (puhlic courrs), 131 0.131, 142 11.167 (lex aniinstitulions; perpetua necessitas), 296ff mata), 184 nos,289-290 (Fiscus ubique (People), 298 (maiestas populi Rornapraesens), 11.291 (in hoc [fiscos] deo

565

INDEX INDEX 89 11,7 ( king: A m brosiastcr), 91 11.12 (king and man ), 1111 (Frederick lI), 150 (k i ng: II rad en ) 1^5 (Ilnacton),

similis; Romana ercIesia ubique), 2('3 271, 283 1217 (Ps 1nst. Iza rrnrnd (corporate bodies and v els), 427 (rosal imago iu courI',

,56ff, 1 9, 162, 444 1.419. Vicarios Clvirú: } n.2 (pope), 48 n.12 (king . Nornian Anon ). 77 1184 (bishop Catlnvulf), 87 0.1 (emp.: Wipo), 88f. go ( monopolized br pope), 91 (extended 1o erery pricse Huguccio); 91t 11 . 16 (negativa influe te of drillans). 156ff (and Bracton). 159, Gol (judges : llracto u ), 1g1 (king), 194 (pope), 203 (pope ), 208 (king : Gilbert oí Tournai ), 266 (pope ), 293 (Octavianus Augustos ), 314 (Pope ), 320 n.17

Ugolino of Celle, l)r. of 1.,w: 326 11.4 124L 121 Ulpian: lo n.8, 120 , 11.101. 126 n.,,8, 133 , 139L 15'f Ulrlch oí Strasbourg: 248 n. 169 Ulysses: 453 (Dante) (Amor sandam (Bull): 194 _116 n-39, 21n 310 n.92

Uniform, gods in (sec Godhcad: Chrisll'. 72f 11.71

United Surtes oí America: 405 Unity oí Intellece 301 1 .62, 472ff (Dante), 475f, 477 passim Universals: 304

([irle denied to emp. ), 335 (POPe), 454 (pope), 465 11.41 (pope), and passim

Vicarius papae : 456 0 . 15 (emp.);. Patri: 91 ( pope); v. imperii: 335E (pope), 336 (Edward III oí England) Victorinus oí Pettau: 71 o.65 Victmy, altar oí: 120 11.98 Vieilleville, Marquis de: 417 n.343 129 n.376

Universitas : 2ogf (a corpus mrysticum), 272 (never dios), 299 (has no heir), 303, 304 ( angelo-nlorphic ), 305E (exeommunication ), 308 (dclinquencv), sch olariu m), 310 309 (universitas (identity with itself in Time), 311, 314, 316 ( never dies), 336 (dynasty), ), 463 (generis hn374, 376 ( a min(r mani), 465ff (humana), 471 (its terrestrial beatitude ), 474 (always actor

Water oí Charillon : 233 0.121 War, )ust ( be(lu rn iuslu m): 236,

William of Ockhatn: 203 11 .28, 205 11,37.

244,

247 251ff \Var serte on, anonymous Sr 0102): 238 11.135 2 50-258 Wee Unuurer Abbcv: 411 (burlnl of k. Henry Y) Whit, James: 499 11.14 Whltcball: 22, 496 11.1 W1do of Ferrara ) -, 8 1.271 William IL German emp: 259 11.204 }\'illlam of Anvergne: 271 0.235 (ras(1, and see, Petcr of Aovergue)

William oí Auserre: 19,9 William oí Conchas: 477 1167 (anima enund1) William oí Lyndwood, Dr. oí Law: 224 n.g 1 William of Moerbeke: ,oS n.61

206, 327 n.42 ( the .Silenr): William, Pninre of 01,111` 'e 432 n . 386 (romo, at Delft) 'd llora Diplych- 2G 1Vir dlcster, Abb r P 385, 388 4151 W mdsor, Chapee of St. Georgc. 135 Wtpo: 58 11. 34 (pala' ar Paria), 87 (emp. vicar oí Christ ), 188 n.3o6, 233 11.121 O^ntnp 318 11.10 f4boelstock, TI o as of (101111 plar): 23 nos.6 21111 8 1l'yclille, John: 61

York, House of: 13 11 . 13, 31 (Edmmud, duke ot), 33 11 .18 (Son oí York); See oC 56 (stroggle with Canterbury), 57 Zeno oí Verona : 391 n.255 ( P)loenfx)

Vinccnnes: 410, 421

Vincent of Beauvais: 208, 224, 333 n.G5 Vinea, Guillelmus de: 106 n.54 (en Lib. aug.), 146 11.175 (pupil oí Azo) Vinea, Petros de: 102 n.42 (Eulogy for Frederick II), 11.43 (and Lib.aug.), 118 n.9o (uses liturgical language), 147 o.,66 (de potentia ad astuta), 0.167 (imperial ubiquity), 154 n.tg6 (logothetes), 387 n.239 (and Canon Law)

ality), 476 (cu)pability), 477 (an in dividual), 480, 506

Urfé, Pierre d', Master of the Horsc: 4)9 Usaher, james , abp. oí Armagh: 497 0.3, 499, 500 n.1G Usucaption ( see Prescription): 165 Vacarius, magister : 51 0.19 ( de matrimonio) Vaud, Canton of: 433 Vegetius: 92 n.16, 244 Venice, Republic of: 182, 11.280, 290 Vergil: lo, (Astraea), 253 1185 (Aen., IX, 642), 467, 473 (Four(h Eclogue), 486-495 (and Dante) Vernani, Guido , of Rimini (d.ca.1344): 463E 11 .37, 466 n.43, 470 048 (1 irlues), 472 11 55, 474 0.60. 475, 48of, 482, 485 0.92 Verona: 85 11 lo,, , 362 1166 (diet of, 1244) Versailles: 263 Versus Romae: 82 Vescy, Lady de: 373 11 .199

Virgo, see Astraea, Mary, St.: los 0.41 Virtues (see also Jnstice, Dante): 68 (four animal symbols of apocalypse), 101 0.41 (surrounding a lustilia assimilated to q. Elizabeth). 1081 (templum luslitiae), ,tof, 112E (Lorenzetti), 114 (Gospels of emp. Henry It), 127 (are ale embodied in emperor), 132 n.140 (Aristotle), 137 1.156 (Justice aggregate oí ale virtues). 138 0.159 (civic virtud), 469 0.47 (trees of vio tues and vices); 468ff passim: see Dante ora v. intellectuales and v. infusae.

Visigoths: 5, 150 1,82; see kings Reccesvinth, Reccared Vivianus Toscos: 295 11.48 Poluntas: qrf (john of Salisbury)

Vicarios ( title ): Vicarios Dei: 28 (deputy

elected by the Lord), 30 (king )• 34• Wace: loO 04o VPalafrid Strabo: 72 n69 40, 53 11.24, 77 11.84 (king: Catbwulf),

566

567