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Here was the opportunity for the Hohenstaufen Emperor to equate himself for the first time, not in dignity and office alone, as Law Giver with the Roman Caesars. He could frankly not compete in deeds of war. But the Caesars had excelled also in intellectual deeds and acts—their activity is summed up in the formula arma et leges—and in this he could approach them as no western Christian potentate had done.
From the beginning Frederick’s position had been unique in linking the Roman Empire with Sicily. Both the Hohenstaufens and the Norman Kings were far in advance of other European princes in emulating the Roman and Byzantine Emperors. But however much Guiscard’s heirs, as kings and despots of Sicily, might deck themselves with Justinian’s imperial formulas, the plumes were obviously borrowed, the splendid mantle was a size too large; till the day came when no mere Norman kinglet but a Roman Emperor sat upon the throne of Sicily. On the other hand: however vigorously Barbarossa might assert the absolute validity of Roman Law, however effectively Henry VI might impose the feudal system throughout the Roman world, however these two Emperors might reach the highest summits, upborne by the glamour of the imperial name, neither had its root in earth. In all their gigantic Imperium there was not the tiniest province in which they could rule with the unconditional authority of a Norman King. Barbarossa deduced the theory of unconditional imperial authority from Roman law and no one questioned his abstract idea—but in the length and breadth of Germany there was no single village in which he could have put his theory into practice.
Frederick II had never laid such emphasis on the pronouncements of Roman law and their recognition. The Normans had made their validity in Sicily a matter of course, and the Emperor’s availing himself of them attracted no comment. The unique and fortunate coincidence that the heir of Norman despots was at the same time Roman Emperor, and that a medieval Christian Imperator not only claimed but exercised the intimate despotic power of an absolute monarch over a real land and real people, enabled Frederick II to employ Roman imperial titles, formulas and gestures with unaffected freedom and sangfroid. He differed from his predecessors not so much by a greater mass of knowledge or a more exact acquaintance with the writers of antiquity, as by the fact that in his case the premisses fitted the facts. It is by no means accidental that Frederick’s first really close approximation to the Caesars occurred in Sicily. There were three Roman Emperors whom he explicitly took as his models: Justinian, Augustus, and Julius Caesar.
The Middle Ages took Justinian—with Scipio perhaps, and Cato and Trajan—as the symbol of Justice, the minister Domini who codified Roman Law; Dante treats him as a sacred figure, and he was the inevitable pattern for Frederick the Law-Giver. Immediately after concluding peace with the Pope the Emperor set himself to unify the laws of Sicily. In August 1231, at Melfi, he published his famous Constitutions—the fruit of strenuous and prolonged activity on the part of the Imperial High Courts. This collection, representing a sort of State Law and Constitutional Law, was based first on ancient Norman ordinances, some of which had been collected orally from the lips of aged inhabitants, secondly on earlier legislation of Frederick’s, and finally on a large body of new laws (further increased at a later date), all blended into one coherent whole by the Emperor and his colleagues. The great codification of a state’s constitutional law—the first of the Middle Ages; indeed, the first since Justinian—was deservedly admired by the world, and annotated by scholars as a work that would be authoritative for centuries. Its influence on the later legislation of the absolute monarchies of Europe can by no means be ignored. The emulation of Justinian was of course obvious in the mere fact of collecting laws, but it was even more potent in the whole conception and arrangement of this amazing work. The spirit of Justinian informed the whole and communicated itself to his Hohenstaufen successor. The Late-Roman had still a vivid feeling for firm construction and chastened form, side by side with an intensified Byzantine-Christian pomp, which betrayed itself in the details as well as in the whole. Justinian opened his digest with a rehearsal of his titles as Triumphator, “Alanicus, Goticus, Vandalicus”—which the Middle Ages speciously took to mean a recounting of conquered races. Similarly the Frederick’s Book of Laws bore the magnificent and haughty title:
IMPERATOR FRIDERICUS SECUNDUS.
ROMANORUM CAESAR SEMPER AUGUSTUS.
ITALICUS SICULUS HIEROSOLYMITANUS ARELATENSIS.
FELIX VICTOR AC TRIUMPHATOR.
This had weight as well as style. It indicated not alone a claim to equality with Justinian but also the immense importance which Frederick attached to his work and to himself, though his Lawbook was to serve the Sicilian kingdom only, not the Empire. The imitation of Justinian was evident too in the solemn Proœmium with which the book was prefaced; in the rehearsal of the origin of rulers’ and judges’ powers; in the dedication of it as a sacrifice to the God of the State; in the devotion of the first laws to heretics and Church protection; and in many other details on the Justinian model.
After Justinian, the Emperor of Law, Frederick II’s next hero was Augustus, renowned as Emperor of Peace. The Augustan age was the scriptural “fulness of time” and the only aurea aetas of peace since Paradise. For the Son of God had desired to be born under the rule of Augustus, Prince of Peace, to live as man under his laws, to die under his decree as Roman Emperor. In the days of this great Emperor, the contemporary of Christ, himself celebrated as the Saviour, the Redeemer, the SOTER, the constitution of the world had been perfect, because Augustus had rendered to every man his own, and Peace had therefore reigned.
Frederick II conceived it his peculiar mission to bring again this Augustan peace-epoch and the divine organisation of the world. If this order could once more be restored his own day would again be the “fulness of time,” in which pax et justitia, the only end of earthly rule, would reign over the whole earth as in the days of Augustus. This faith was not unnatural. The thirteenth century awaited daily, as no other had ever done, the end of the world, and the prophecies foretold: the end of the world should be middle and beginning, should be alike redemption and creation. People hoped therefore that the Golden Age was at hand and the peace-era of Augustus, and Frederick II exerted himself therefore that his hereditary kingdom “might be graced with peace and might flourish in the days of Caesar Augustus.”
Frederick felt another bond with Augustus apart from world peace. Once, and once only, the Saviour himself had recognised the Roman Empire as rightfully existing, when he said “Render to Caesar the things that are Caesar’s.” Solemnly Frederick pointed therefore to that moment as the justification of his imperial office, when our Lord “looking on the portrait of the coin for the payment of tribute indicated in sight of all other kings the lofty height of the imperial destiny.” According to the interpretation of the day the coin most probably bore the image of Caesar Augustus, the Saviour Emperor. Augustus coins were also in fact struck under Tiberius, bearing the Roman eagle on the reverse. When Frederick II, therefore, now reorganised the Sicilian currency he minted gold coins which he not only termed “Augustales,” but in which he deliberately imitated the coins of Augustus. The obverse shows Frederick’s head and shoulders, wearing the imperial mantle, a diadem of laurel or of rays crowning his head, and the circular legend IMP / ROM / CESAR / AUG. On the reverse the Roman Eagle, a perfect replica it seems of that on the Augustan coins, and round it the name: FRIDERICUS. Frederick was following Augustus in the smallest details, and the name Augustus was repeated on the eagle-side. Frederick’s love of form no doubt prompted him for purely aesthetic reasons to revert to the antique, but a far stronger motive was his sober practical sense, so strangely wedded to his love of speculative thought: if his was the “fulness of time” then everything must be as far as possible identically as it was at the time of the redemption. This renewal of the antique was for Frederick, as also for the Renaissance, the practical expression of a sincere conviction: namely, that the age of Christ, and with it the age of Augustus, had
come again.
That Frederick, with all this, possessed the independence to substitute his own portrait for that of the Soter-Emperor, while otherwise exactly copying the coins of Augustus, is the most amazing phenomenon of all. And from one coinage to the next it is clear and clearer that he did so, and that he modified the eagle with the retracted claws to express something of the greater restraint and tension of his own day. He dared in fact to be Roman, simply and naturally, after his own fashion. It will be a question to be answered later what significance underlay this “portrait”-likeness, and why it was indispensable. One point is obvious already: these beautifully stamped coins with their exquisite high relief—the most lovely mintage of the Middle Ages till far on into Renaissance times—instead of a symbolic impersonal head, instead of a Christ, or a Lamb, or a Cross, such as are usual on other coins of the period, bear in unmistakable lines the likeness of the reigning Caesar Augustus and the whole eagle skilfully wrought in gold (a metal which had almost ceased to be used for specie). In all ages of faith the value of a coin has been guaranteed in one way or another by the State God in whom people believed: amongst primitive folk the money bore the Totem-animal; amongst the Greeks the God of the Polis; correspondingly in Rome the Divine Emperors, and in the Middle Ages the Saviour himself, under one of many signs and symbols, stood surety for the value of the coin. On these golden Augustales of Frederick II is not the smallest Christian sign, not the tiniest of crosses on sceptre, orb, or crown; independent of the Christian God there reigns here a Divus who summons men to faith in him, like a new Caesar Augustus.
Justinian, Emperor of Law; Augustus, Emperor of Peace, were Frederick’s models; peace and law; “two sisters in close embrace”; pax et justitia, a formula which in endless variation eternally recurs, defining the purpose of a State. This Two-in-one-ness permeates the whole Sicilian Book of Laws: after the preliminary introduction the first and weightiest section is divided into two distinct parts, the first concerns internal peace: Pax; the second legal jurisdiction: Justitia. The Lawbook itself Frederick called the “Liber Augustalis” in honour of Augustan majesty; and the book, which was published in September 1231, bears on it the date of August.
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Justinian and Augustus were for Frederick embodiments and symbols of certain features and organisations of the State, but another figure hovered before him, more human than Pax or Justitia, a man and a ruler of men: Julius Caesar. In later years Frederick apostrophises “yon glorious Julius, first of Caesars.” Whether intentionally or by accident Frederick was following the example of the genial, open-hearted Julius, when he commanded that his birthday, which immediately followed the Saviour’s, should be observed as a public holiday throughout the length and breadth of the Sicilian kingdom. Julius Caesar had been the first to make his birthday a festival—the omission to observe which is said to have been punishable with death. Perhaps this was in the Hohenstaufen’s mind, perhaps he also had visions of Caesar’s legendary hospitality. Be that as it may, the Emperor will have fed tens of thousands on his birthday, for at the festivities in the little town of San Germano alone, over 500 had been entertained with bread and wine and meat in the open market-place. Bible precedents may have influenced him also. In any case the Emperor’s birthday was the first feast day common to the whole Sicilian people: to Greek and Saracen, to Christian and to Jew.
Law—Order—Humanity—typified in the three Caesar-figures, a trinity that embraces every function of a State. The Emperor’s Sicilian Lawbook, the Liber Augustalis, teaches what forces, the virtutes, are potent to produce these three. True, they are obscured by scholastic-juristic conventions of expression, but they are nevertheless undoubtedly forceful. For these basic influences went to create the first purely secular state, freed from the bonds of the Church. This was the beginning of State-making and its influence, though blunted and obscured, has come down to us to-day through autocracy and bureaucracy. Dante immortalises the picture of the Sicilian imperial State in his lofty doctrine of the monarchic unity of the world and the divine kingdom upon earth which this most spiritual of poets fought for, with a passion as great as that which inspired this most gifted of Emperors, his forerunner.
I
In the case of a document so important as the Lawbook of Melfi, which has even been styled “The Birth Certificate of Modern Bureaucracy,” the moment of birth must challenge attention. The function of all secular rule in the Middle Ages was defined in the recurrent formula Pax et Justitia. If Justice reigned there was Peace; if Peace existed it was the sign that Justice reigned. All rule was directed to the securing of justice; justice was an absolute thing, a gift of God, an end in itself. The earthly State—a product of the Fall—existed with one task before it: to preserve this gift of God. This vitally distinguishes the medieval from the later commonwealth; justice did not exist to preserve the State, but the State existed to preserve justice. To quote St. Augustine “true justice reigns only in that State whose founder and ruler is the Christ.” Such a State, whose raison d’être was justice, was now completely transcended.
It is necessary to bear in mind that the Hohenstaufen Emperor lived at the end of the millennium which conceived justice to be the sole object of a State—an object to which Renaissance statesmen were notoriously somewhat indifferent—in the zenith of the “century of jurisprudence,” which marked the close of that millennium, and which left its mark on Frederick, as surely as he left his on jurisprudence. We must bear in mind his visit to Bologna; Roffredo of Benevento; the foundation of the University of Naples. The designation of the hundred years that ended the Middle Ages, 1150–1250, as the “age of law” is amply justified. Since the days of Gratian and Irnerius and the memorable resumption of Roman Law by Barbarossa which was symbolic of the spirit of the time, the world has never shown such genuine interest in any intellectual sphere as then in the science of jurisprudence. It is true that this passion ultimately merged in madness. In the late thirteenth century men began to versify Justinian’s Institutes, as in our day they have rhymed Kant’s Critique of Pure Reason. Such follies at least indicate that there was little left for serious study to do. Jurisprudence by no means ceased with the century, but the material was diligently sifted by the industry of commentators who became progressively more sterile. The dawning Renaissance opened up spheres of knowledge so infinitely varied and so urgently important that secular learning was no longer almost synonymous with legal learning, as it was in Frederick’s day. Jurisprudence, the study of law, indicates the beginning of secular, non-theological, education.
The Church, on the other hand, maintained her lead even in the pursuit of jurisprudence: all the important Popes of this century—Alexander III, Honorius III, Gregory IX, Innocent IV—were jurists; a knowledge of canon law came to absorb theology, or rather: theology and law-mongering came to be dangerous rivals within the Church, and jurisprudence even became seriously harmful. Hence Dante wrathfully calls curses on the collection of Decretals, because from poring eternally over the thumbmarked manuscripts Pope and Cardinals had forgotten Nazareth. Numbers of law-collections now began to appear. A beginning had long ago been made with the small but important Assize Collection of the Norman King, Roger II. The great papal collection of Decretals which Innocent III had begun and which was published by Gregory IX in 1234—“following the example of Justinian” and “omitting the superfluous”—was almost contemporaneous with Frederick’s great codification of his first state and constitutional law.
It is a curious fact that an age which hourly expected the end of the world should have seen legal erudition the fashion everywhere, as if a knowledge of law could avert the Last Judgment. In all the welter of law-study there was only one work really outstanding and pre-eminent: Frederick’s Liber Augustalis. Certain hypotheses were here so fused that Justitia herself celebrated her apotheosis in the Sicilian Book of Laws. In virtue of his office as Emperor and Supreme Judge, Frederick II placed himself at the head of the whole Justitia movement, creatin
g by this means a purely secular State, which, while free from the spiritual authority of the Church, should present a complete whole vitalised by spiritual forces.
Corresponding to the duality of Temporal and Eternal that dominated the Middle Ages, people recognised as a matter of course two irreconcilable types of law: an eternal law of God and Nature and a positive or human law, always at variance with the former. This human law valid in earthly states, imperfect as are all earthly things, was based in part on the traditional, customary and popular law; in part on the precepts of Holy Writ, which as revelations from God approximated more nearly to Divine law; thirdly, in more recent times on Roman law which was sanctified and recognised because the Saviour had submitted to it. The princes’ business was primarily to maintain peace, and since any alteration in the law inevitably injured somebody and brought disorder, the princes as guardians of the peace had the secondary task of upholding the law. Necessary alterations of the law were therefore preferably based on a renewal of old laws that had been forgotten or misused, and princely edicts were represented rather as the restoration or enforcement of old forgotten laws; no one would have dared to claim that he himself evolved a “new law.” The medieval state was therefore “law maintaining, law-conserving, but scarcely law-creating,” and this substantially describes the ruler’s duties: above all things to maintain and conserve the laws.
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