According to the graduated constitution of the medieval world, the Emperor was quite particularly called to exercise this preservative function. The correct phrase was “What God is in Heaven that is the Emperor on Earth.” From the days of Charlemagne the Roman Emperors were the image of God the Father; the summit of earthly authority, an image of the Ruler of the Hierarchy of Heaven, and as protectors and preservers of earthly law an image of the God who sustains the eternal, immutable Law of Nature.
The Christian Emperor of the Middle Ages appeared therefore as the image of God the Father, Ruler and Preserver of the World. What was to be done when suddenly into this serene and image-like repose, there burst a new, young, stirring force? When a spark from Heaven suddenly leaped out upon the Emperor enthroned in clouds, and he who had been an image of God the Father suddenly became an image also of the Divine Son, the Mediator and Judge, yea the Redeemer! No longer guardian and preserver only, but bringer and intermediary, source of divine and natural law, the Emperor brought God’s Law into his State, brought Heaven down to earth as Holy Law, as Justitia. It remained the Church’s service to dispense the Holy Spirit.
An old Germanic proverb had it that God is the beginning of all law, and St. Augustine taught that “God is the fount of Justice.” If the theorists of the days that followed the last Hohenstaufen had substituted the “Emperor” in these two sayings that would exactly describe the actual teaching of Frederick’s Liber Augustalis. The Ruler, in virtue of Justitia, as the Priest in virtue of Grace, is mediator between God and Man. Or, to express it differently, Justitia is the link between God and the Emperor as between Emperor and people, for “earthly law lies below the ruler, as divine law lies above him.” This expresses more cumbrously what is concisely implied in the illuminating phrases of the “Constitutions” with which Kaiser Frederick introduced some seventy laws concerning the new order of things: “The Emperor must therefore be at once FATHER AND SON, LORD AND SERVANT OF Justitia.” This can bear no other interpretation—in the light of the whole doctrine of the Logos—than that the Emperor had comprehended and represented the living God as Right and Law, as Justitia. According to the revived Roman Law the Emperor was indubitably the “lex animata in terris.” Nothing less than this mystic identity of the Emperor with the living God, the fountain of Justitia, qualifies him to propound law and so expound right. The learned Roffredo of Benevento, Frederick II’s legal authority, formulated it thus: “the Emperor bases his right on a gift of grace bestowed by heaven,” and the Emperor himself, following the Codices of Justinian, frequently proclaims that he “receives his impulse (motus) from heavenly reflection.” The Emperor thus becomes himself the fountain of Justitia in the State: through God and like unto God; he is the creator of law, not only the preserver of law; he is the “Founder of a new Law,” for he declares that new law is begotten of him daily, and requires that in all directions throughout the kingdom the standard of law shall flow from the Emperor’s court as streams flow from a spring. He is the proclaimer of laws, whose tongue is unloosed. The concluding words of the whole collection run: “Posterity must believe of us in centuries to come that we collected this Book of Laws not merely to serve our own renown, but rather to wipe out in our day, the injustice of earlier times during which the voice of justice has been silent.” Frederick here referred not merely to the injustice of earlier times but to the actual “dumbness” of justice, the lack of law-creation, as is clear from the introductory words which, as in other works of art, constitute a dedication to God and an appeal: “We hope therefore to render to God from whom we hold all that we possess, the talent he hath entrusted to us increased an hundredfold, and finally we render homage to Jesus Christ and we bring him a sacrifice of our lips by the statutes of law and the cult of justice.”
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That Frederick II felt his life and tongue set free to proclaim the law is thus almost an act of personal grace. Frederick certainly possessed a peculiar personal aptitude for law-giving. His enormous knowledge and his untiring research into the eternal laws of nature lent him a unique qualification for taking the mean position between the divine law, the law of nature, and the positive law, the law of man. The Emperor frequently boasts that he—in contrast to those who judge “without glancing at the facts of Nature”—has himself “studied the true science of Nature’s laws.” His knowledge of natural law now reinforces his unity with God and further established his infallibility; for he goes on to say “therefore we scorn to err.” The Pope under the inspiration of the Holy Ghost may be infallible in matters of faith, similarly the Emperor “overfilled by Justitia” is infallible in matters of law. In accordance with this imperial infallibility, Frederick adopted, as the Norman Kings before him had done, the sentence of Roman Law: “to discuss the Emperor’s judgments, decrees, and statutes is sacrilege,” a sentence that was so vital to the constitution of the whole state that Frederick boldly quoted it to the Pope when he ventured to criticise some measure of the Emperor’s.
The Emperor was the pinnacle of the world’s structure, who received directly unto himself the rays of “Justitia looking down from Heaven” and radiated them forth again on judges and jurists—hence he issued Sicilian laws as Emperor, not as Sicilian king—and by his knowledge of Nature’s laws he was able to interpret the divine and natural law: yet, the relation of God to Emperor created no circuit. In the electric relation of creditor and debtor the surety is a necessary third if power is to be transmitted. Frederick II now sought his third source—beside God and Nature—in the earth-born right of the people, which he focussed in his own person by the Roman lex regia. In such majestic Latin as had not for centuries been heard, in which the deep Christian rhythm blended with the lofty dignity of the Roman Caesar he wrote the almost untranslatable words: “Non sine grandi consilio et deliberatione perpensa condendae legis jus et imperium in Romanum Principem lege regia transtulere Quirites.”
Contemporaries and commentators did not fail to be impressed by the grandiose diction of these words in which the Emperor recalled that according to Roman royal law the Roman people, the Quirites, handed over to the Princeps the entire power and the right of making laws. Reverting thus to the critical procedure at the establishment of the Roman empire, Frederick II—the last Caesar in this akin to the first—obliterates the people’s own authority and lawgiving power or, more exactly, absorbs it into himself; himself the divine source of Justitia. All dignities and powers and mights: God’s, Nature’s and the People’s, Frederick thus accumulated in his own person mid united in himself. God, People, and Emperor were the origins of Law which united in Frederick and informed him.
God; the Emperor as emanation, as Son of God; Justitia; this was the new secular trinity which dominated the state of Frederick, without prejudice to the Church—and which found in the Emperor its living representative, “Law incarnate upon earth.” The whole juristic official-state of Frederick II was based on the cult of this trinity and here we begin to gain a preliminary glimpse of the Hohenstaufen’s great achievement. God, who for over ten centuries had manifested himself only in miracles, and as spirit had permeated space, was now captive to this Emperor, and as far as the state was concerned was converted from an intangible omnipotent Benevolence into a tangible, comprehensible state law, Justitia… had become a “State God,” much as, in the time of Constantine Christ had been elevated into the State God in succession to Mithra. Frederick II had wedded the God of the other world to the Justitia of this: Deus et Justitia is the recurrent formula; and thus, and thus alone, was it possible to comprehend the one universal God as a particular God of the state—to represent him, appeal to him, worship him—without the Church’s aid. God had been forcefully brought down into the state, not merely the state exalted to a world-shunning universal Deity.
Now that God as Justice had become a state Godhead in the narrowest sense, it behoved the Emperor to transform the state judicial service into worship. Pope Innocent had averred: “God is honoured in us, when we
are honoured”; Kaiser Frederick countered this with: “our subjects serve and please God and the Emperor when they serve Justice”; almost exactly as Roman law had formulated it: “He who honours Justitia, does homage to the holy things of God.” This dictated certain observances of outward service. The law entitled Cultus Justitiae begins: “The Cult of Justice demands Silence.” While popes and priests dispensed God as Grace to the people in wonder and magic, the Emperor and his judges were to the faithful the channels of God as Law, as Rule, thus actualising the theory quoted by the Normans from the Roman digests that judges and jurists were “Priests of Justice.” It was completely justified therefore when people not only spoke of the Empire as the “Temple of Justice,” but went so far as to talk of the Imperial Church, imperialis ecclesia. Down to the smallest details this imperial Justice-State mirrors the clerical God-State which Innocent III had erected with his elaborate hierarchy. Out of the Pope’s plenitudo potestatis God’s Grace is conveyed to the people through bishops and priests; even so from the Emperor God’s Justice through judges and officials. A living power of immediately divine origin thus coursed through the veins of the State.
All the metaphors of the Book of Laws point in the same direction. The Emperor was the sole source of Justice, and on the throne of Justice he who weaves the web of Justice takes the highest seat. His Justice flows as in a flood; with the scales of Justice he weighs to each his right; he interprets the law and resolves the problems of the jurists and issues laws to end their differences. He must find new remedies daily for new vices, for amid the changes of time and circumstance the ancient laws do not suffice to pulverise the vicious with untiring hammer blows. From him Justice flows through the kingdom in rivulets and those who distribute his rule throughout the State are the imperial officials who take the helm in the Emperor’s stead, and are themselves the Emperor’s image, even as he himself is the image of God.
These officials were no longer feudal retainers of varying degree, but men selected by the Emperor’s favour from every rank, who held their posts not as a beneficium, a fief to possess, but as an officium, a service to fulfil; in Church phraseology: they discharged the service of God. Since these law-learned officials were appointed by a special act of the Emperor’s grace, which only the Emperor could exercise—the “co-knowers of our knowledge” he called them—the purchase of office in the State was forbidden as simony. The official remains an official, as long as the Emperor considers him worthy and the charisma rests on him, irrespective of his personal worthiness or unworthiness. “It is sacrilege to debate whether that man is worthy whom the Emperor has chosen and appointed.”
The choice of officials appertains to the Emperor alone and their offices are not transferable to others. There exist no hereditary offices. None may dare, without the Emperor’s permission, to appoint an official, and the severest penalties wait on any attempt to do so: the town in which such a deed occurs is destroyed for ever, the inhabitants are reduced to servitude and the office holder is beheaded. The Emperor, however, will see to it that there shall be officials enough and to spare that justice may be freely available to all and that the Emperor’s “sacred wishes” may be made known. The officials were to celebrate divine service, the cult of Justice by which they rendered service to God. The service of the Courts which officials held daily, and the Emperor himself three times a week was a sacred act and therefore commands silence, while the officials worship Justice and sacred justice is meted to petitioners. This service is rendered free of cost, as the Church renders her services of grace, for the Emperor’s generosity and graciousness supplies salaries for the officials who conduct the justitiae mysterium.
There is absolutely no justification for taking at less than its face value the awed solemnity which breathes from every line of the Book of Laws. There are ample witnesses who describe the Emperor himself when he celebrated the sacratissimum ministerium, as was his custom in later years. Every new cult evolves new rites, and so we find here forms and ceremonies and customs which have never before been seen in the West, and have never prevailed anywhere in this combination. The Sacra Majestas of the Emperor was enthroned on inaccessible heights, over his head was suspended a gigantic crown; all who approached must prostrate themselves; the whole public remained prostrate for a time before the Divus Augustus, who remained in the background like the very Godhead. His voice was seldom heard; before him stood the Logothetes, who announced the order which the Emperor confirmed by a gesture of his hand. This spokesman played the oracle to the Emperor’s sacred and inspired decision, which was, in certain circumstances, accompanied by the tinkling of a bell. Such was the “most sacred service” and mystery: the High Court—like the High Mass—of the Justice-God-Emperor.
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This is a suitable moment to recall the fore-runners of Frederick II and his remarkable Cult of Justice. King Roger II and Barbarossa contributed both to the ritual and to the conception: the Norman by the retention of Byzantine ceremonies and by his creative achievements as lawgiver in a newly-conquered country: the Hohenstaufen by his sanctification both of the Emperor and his office, deduced from Roman Law. After Barbarossa it became usual to designate the Empire as “Holy,” and “Holy” too the palaces, documents, and edicts of the Emperor; the Emperor became Sacra Majestas, Perennitas, Numen; his predecessors Divi. Frederick owed most, however, in this respect, to Pope Innocent III. For Innocent had dinned into the ears of the world that judge and priest are one; priesthood is royal, and kingship is priestly. Innocent was the first to imbue judgeship and kingship with the spirit of the High Priest, which Frederick now turned to secular account. This Pope who was himself a verus imperator had reduced the Emperor to a priestly go-between, and had obliterated the idea of the Emperor’s figure as image of God which had prevailed till Barbarossa. Finally Innocent’s emancipation of the Priest State from all secular tutelage showed the way in which a secular Law State might be erected, spiritually emancipated and independent of the Church—whereby the gulf between yawned deeper than before. The domain of the non-material, which hitherto had belonged wholly to the Church, had now been rent asunder by Frederick, and while the domain of the soul remained finally with the Church, the New State claimed the mind. Over against the Church’s Hierarchy of Grace was set the State’s Hierarchy of Law.
Another interesting possibility suggests itself. Roman law, it is true, called the judge also a priest; but with Frederick’s most unusual knowledge of Muslim customs, in all his lengthy conversations with Fakhru’d Din, it cannot have escaped his notice, that amongst Mussulmans the holy men, the ‘ulama¯, were jurists and priests in one. An innovation in Western speech also contributed. Since about the beginning of the “juristic century” the word “layman” had come to be used not only as the opposite of priest (sacerdos); it began to mean the man who is not learned in the law and to indicate the opposite also of clerk (clericus). It was as a nursery for such law-clerks that the Emperor Frederick had founded the University of Naples.
Frederick thus gathered together in a fortunate moment many existing tendencies and evolved the triumphant solemn cult of Justice, God of the Secular State. Justice was of course not the “whole God,” but she was one emanation of God, the state manifestation of the Deity. The full importance of this is obvious if we reflect on the scholastic problem of the day—the antithesis between Faith and Knowledge. Justice becomes that manifestation of God which is comprehended by reason and by knowledge, and which is operative within the state as Living Law. Grace, on the other hand, comprehensible by faith alone, remains the Church’s manifestation of the same God. The mental revolution effected by Frederick II is self-evident. There are two possible spiritual cults of the Deity—Law or Magic. After the reign for over one thousand years of a God manifesting himself mainly in wonders and miracles, a God begins to appear in full daylight, outside and alongside the Church, a God who can only be recognised by wide-awake intelligence, as Law. Here the whole tension is expressed between Church and E
mpire, both immediately related to God, a tension which reaches its culmination in Dante.
The Deity was no longer solely dependent on the priest-wrought miracle for his appearance in the flesh in the Civitas Dei, the Church; he was also summoned into the State, and there by the Emperor rendered incarnate in the Law. The radically new element in this conception was the fact that the operation of Justice was conceived not as a rigid, written, unalterable law, but as a living, omnipresent power. “Since we cannot be present in all corners of the world to execute justice in person—though our power is present everywhere—we have chosen some from the trusty ones of our kingdom… in order that what we effectively perform through their agency may suffice for the consummation of Justice.” These are the words in which contemporaries record Frederick’s conception of the inner meaning of the State and its officials and his conception of Justice as a power to be received and handed on. They confirm what Frederick himself says elsewhere: he receives his impulse, his motus from divine reflection and passes it on as instruction and command by which he evokes in the recipient “a stirring of the inner man (motum interioris hominis) whereby the commands of the original motive-force are carried into execution.”
This unmistakeable Aristotelian doctrine: the Emperor conceived as the thought-centre and power-centre of the State was implied in the wording of every law. This penetration of the civitas terrena by an independent force immediately of God, demonstrates at once the distinction between “state” and “empire”—for the Empire was an inactive abstraction based on an idea, and received its spiritual force through the Church. The State with its finite boundaries is no abstraction based on an idea but a living principle, active and potent to its uttermost boundary. The Justice-God, conceived by the Emperor as a power working in accordance with law, is the characteristic symbol of the Sicilian State. Herein is the answer to a riddle: Kaiser Frederick, in relation to the Empire, where his rôle like that of his predecessors remained pre-eminently that of the guardian and conserver of Pax et justitia, appears “medieval,” while in relation to his Sicilian State he is felt to be “modern,” because he is a power at work. Caution, however, is necessary here. The true “modern” has nothing in his make-up of the image of God which Frederick II knew himself to be in Sicily. This dual rôle—to be, at one and the same time, the image of God and a living force—this is what makes the whole Sicilian rulership of Frederick II unique.
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