Frederick the Second

by Ernst Kantorowicz

  This new alertness, this conception of God as a constant force independent of the Church, links the new State with the Renaissance. Here we are again compelled to think of St. Francis—at every turn the Emperor’s counterpart—who in exactly similar fashion, without the Church’s aid, proclaimed God as power. The simple-minded saint saw this power as ever-active Love, a divine pneuma which breathed in man and beast and herb; the learned, almost over-intellectual, monarch recognised the divine power in the laws of nature and of science; the one perceiving the earthly manifestations of the Deity by the mind, the other by the soul—each after his kind.

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  Two important innovations of the Emperor’s will show the practical application of all this to statecraft. A remarkable law which the commentators term “a new law” expounds the Emperor’s omnipresence in the State: the Emperor is present everywhere to help the weak, who are often unjustly oppressed by the stronger. By a protective law, the Emperor empowered every innocent subject if attacked to “defend himself against the aggressor by the INVOCATION of our name” and in the Emperor’s name forbids the aggressor to continue his attack. Any man who fails to respect this invocation of the imperial name will be summoned direct before the highest court, from which there is no appeal. The command was valid: thou shalt not take the name of God in vain; anyone who abused the invocation of the Emperor’s name, using it perhaps solely to his own advantage, was most severely punished. What a mentality is thus revealed! In the last extremity a man must call, not on God, but on the more direct and potent power of the Emperor, the incarnate Justice, the Helper and Avenger. No precedent for this law is known.

  An innovation which Frederick II was the first to introduce into secular law revolutionised the whole legal procedure of the West and shows the active, nay the aggressive nature of the imperial Justice: the Inquisition-prosecution. The general view prevailed in the Middle Ages that a criminal prosecution implied a plaintiff: where none accused, none judged. For certain capital offences Frederick II definitely abolished this principle. Where the crime in question was the gravest one, high treason, an investigation could be set in motion on behalf of the State, without any plaintiff, without delay, without special imperial authorisation, simply by the proper authorities on the spot. For other serious crimes an official prosecution without plaintiff required the Emperor’s authorisation. In the case of capital crimes therefore it no longer depended on the caprice of a potential plaintiff to drop the accusation or come to terms: serious crime was taken out of the hands of the accuser and—it might be against his will—investigated and pursued officially by the State. Here is the first embryonic appearance of a “Crown Prosecution,” a thing at variance with all medieval modes of thought, so that the commentator remarks on the edicts in question: “this provision may be said to embody a new law.” He styles the Emperor a “tyrant,” and it must have borne an appearance of tyranny: imperial justice put into action not in order to secure his rights to an injured party, but as vengeance, as an end in itself—to propitiate the State-God, to secure satisfaction for the transgression of state ordinances. It is worthy of remark that Pope Innocent III, not Frederick II, was the inventor of this procedure. It was he who first, with his Inquisition, introduced spiritual disciplinary courts, independent of plaintiffs, to avenge every insult or injury offered by heresy to the sacred mysteries. The matter, however, assumed a totally different complexion when this extra-ordinary procedure, designed to protect the sacred mysteries against blasphemers and unbelievers, was unreservedly applied to the secular law of the secular State. We are entitled to consider this either as a mere secularisation of a spiritual procedure or as the recognition of the existence of State mysteries no less sacred than the spiritual ones, and demanding similar protection. Quite logically, the State-Inquisition was primarily directed against traitors who were the “unbelievers” of the state, exactly corresponding to the “heretics” of the Church. The “High Court” prosecution was carried through with a special, solemn ceremonial. This “Crown-Prosecution” indicates a feeling that the worldly state upheld a sacred, spiritual order, not less divine than the Civitas Dei, the Church.

  This self-sufficiency of the State is implicit in another pregnant act of Frederick II. If God is present on earth, not only within the Church’s realm of grace, but has condescended to reveal himself as Justice in unconsecrated precincts, the State can no longer be conceived as “sinful”; a relative good amid the total evil of the world; but becomes forthwith an absolute good in its own right, for God has entered in. The need for redemption is not at an end, for redemption deals with the future life of the individual soul in another world: a matter of little moment to the Emperor. His sphere of action was the Here and Now, and so large bulked the present in his eyes that men whispered—not perhaps without good cause—that he completely denied a future life. His new Divine State raised another question to at least equal importance with redemption: salvation after death was a divine and holy thing—not less divine and holy; the fulfilling of God’s will in this life here on earth.

  Frederick evolves the importance of the State as an end in itself, attributes to the State a divine power of healing fully equal to the healing power of the Church. In the Preface to the Liber Augustalis, Frederick relates the story of the creation beginning with his own cosmology (which we shall expound later) and repeats it again later in certain warrant-diplomas of his officers. For the most part he sums up the current belief of the day in a few sentences, till he comes to the most important point—the Fall. In the days of innocence and immortality when natural law prevailed and man rejoiced in perfect freedom, in the golden age of Paradise, Kings and States were superfluous. Only the Fall imposed the “yoke” of government on man. The Middle Ages derived the whole theory of the State from the Fall. Perhaps that is why Dante symbolised the Roman Empire as the Tree of Knowledge in the Earthly Paradise. That is highly suggestive: for Dante held it to be the Emperor’s noblest task to lead man back to the highest wisdom, to the Tree of Knowledge growing at the entrance to Paradise, back to the moment when man still was innocent. After this point the Church took up the task, reintroduced man into Paradise, into eternal bliss, and redeemed him from the curse of mortality. From the Fall onwards Frederick slightly modified myth, legend and dogma for his own purposes. From the Fall the Church deduced Original Sin which imposed on men the yoke of princes and kings as a penalty for the sin of their primeval ancestor. The Emperor brushed these moralisings aside. For him the first men were simply transgressors of a law, of a commandment, according to the Bible; as a punishment for which they were driven from Paradise and forfeited their immortality. That was the Fall. Mortal man retained the tendency to lawbreaking of his God-created first father, and mutual hate had sprung up amongst the people who in such great numbers now populated the earth. For this there was one remedy—the Ruler, the State, Justice. Following classical lines of thought, Frederick deduced from the Fall, a perfectly practical, non-moralising, conclusion, which took cognisance of actual human nature and of “things which are, as they are,” namely that Paradise being a thing of the past, and men being now inclined to crime and hate, they would destroy and annihilate each other but for the restraining hand of a Ruler.

  Princes are therefore established, we observe, not as a moral punishment for sin, but as a practical expedient to prevent mutual annihilation. The Emperor’s deduction continues… if the human race had perished, then, the subordinate lacking the superior to which it was subordinated, “everything else would have perished also, for it would have served no further need of anyone.” Nature having been designed to serve man, would have had no further raison d’être and would have passed away—a current conception that may perhaps be traced back to Aristotle—a truly imperial picture of the world. For logically pursued the implication is, that without the Emperor, the highest superior, the whole human race and the whole realm of Nature would perish. This gives some conception of the almost inconceivably dizzy heights of re
sponsibility on which an Emperor was enthroned. Hence the stern punishment of treason: the Emperor was frequently heard to say “the bodies of others were dependent on his life—the traitor imperilled the fabric of the world.”

  Without rulers men would have destroyed themselves, and therefore: to rescue the human race and to avert the danger of world catastrophe, “compelling Necessity, no less than the inspiration of Divine Providence, created the rulers of the peoples,” or as it is later more briefly expressed: “Necessity created kings”; that is: they were evolved to meet a natural need, not imposed as a punishment for sin. Frederick’s great art, of turning negatives into affirmatives is manifest here: rulers and states are not a disciplinary scourge for sinful men, but the upholders of a world-preserving principle, they have become “an article of salvation as were Church and priests for the salvation of souls.” Christ himself had, of course, redeemed souls, but “neither the waters of the Flood nor the waters of baptism have washed away the practical effects of our first father’s imprudent transgression of the Law,” said Frederick once, not denying the scheme of salvation but relegating it to its proper sphere of souls in a future world. Man on earth was still unsaved and could only be redeemed by the ruler and the state, and brought back to a condition of innocence, or more exactly of “correctiveness” by the power of Justice, “the regulator of human life.” Justice thus becomes a world-saving force.

  Thus the Emperor, the Divus Augustus, the visible bearer of healing power, becomes like the Roman Augustus the Soter, the World Redeemer, the World Saviour. What had been the teaching of St. Augustine? “True Justice exists only in the state whose founder and leader is Christ.” When the time came Frederick did not blench but boldly accepted the conclusion: he would appear, like unto the Son of God, not only as Judge and Mediator but also as Saviour and Fulfiller of the Law. His Empire aspired to the Justice of Heaven, nay more was founded by her, “Justice looking down from Heaven hath set up her throne amongst the peoples,” the throne of the Roman Emperor, recalling the divine saying: “Render unto Caesar the things that are Caesar’s.”

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  Frederick II issued his new Book of Laws like new tidings of great joy in which the long-silent tongue of Justice again found voice. He wished these statutes to be read as a new code of ethics and behaviour, and at the close he apostrophised the faithful: “May our people welcome, to the glory and honour of God, this work begun in the hope of Divine Favour and completed under the guidance of Divine Grace. It is adorned with the superscription and name of Augustus in reverence for the Sublime Augustus and for the honour of the Royal Dignity. Receive these laws with thankfulness, O ye peoples, make them your own both within the law courts and without… that with the victory of your new King a new rod of Justice may bourgeon and grow.” And it was in very truth tidings of joy that Frederick brought. Predecessors and contemporaries conceived state order as consisting partly in punishment, partly in unfulfilled striving towards an eternal far-off Law of God and Nature, a perfection unattainable on earth. The Emperor taught that the State herself daily begets afresh the only true and valid Law of God; that the living law of the temporal world is the Living God himself. That the Eternal and the Absolute must themselves adapt and change with time if they are to remain living. This was a decisive break with the past.

  “In no wise do we detract from the reverence due to earlier Rulers, when we beget new laws to meet the peculiar needs of the new time, and find new medicines for new ills. The imperial dignity carries this illustrious privilege as an inevitable condition of rendering service: daily to conceive new methods to reward the virtuous and to pulverise the vicious under repeated blows of punishment, when the old human laws under the changes wrought by time and circumstance no longer suffice to eradicate vice and to implant virtue.” Justice is here revealed in new activity; no longer merely a radiation of living power flowing from God over the State, but herself informed by another force and varying from day to day in accordance with the ever-changing needs of the State. As the Emperor was, at one and the same time, both “father and son of Justice,” so Justice was the founder of, and founded in, the State. The State was in itself an end, a means of salvation, the needs of the State were therefore divine and necessary to salvation. Wherewith the circuit of power was complete in the reverse direction: divine Justice begot earthly law and earthly necessity begot the divine Justice. The old far-off immutable Justitia lost her immobility; filled with life, linked with time’s changes, she could in truth represent the “Living God” of the State, and by her means the Emperor became indeed “Incarnate Law upon the earth.” The second active force, the force of Life itself, is here revealed—Necessitas.

  The “necessity of service” gave the Emperor the right to alter law and statute. The legal Machiavellianism of Frederick II rested on the fact that the form of divine Justice could be modified by the Emperor to meet the varying needs of men. He represented and he proclaimed “State Law.” Relying on the phrase of Caesar’s: “si violandum est jus, regnandi gratia violandum est. …” King Manfred came to speak of a “Violation of Law,” and finally Machiavelli defended the thesis: the needs and the necessities of the State and of the Prince over-ride every moral law (i.e. every divine and natural law). Not so Frederick. Unscrupulous as he was in his choice of means, his ruling principle was: the need of the State is the divine and natural law. For Frederick II this was true—though no longer true for the Renaissance princes. The fate of all “imperial Europe” hung on the heeding or non-heeding of the tiniest State necessity; hence each present need of the state rightly assumed an immense importance in the Emperor’s eyes till it became a cosmic need, a part of the world-plan of God and of divine Providence. The needs of the State were absolute; not opposed to the divine, but themselves divine, and hence potent to determine law and modify divine Justice.

  “Machiavellianism was born of Aristotelianism” declared Campanella later, and in so saying he does, as a matter of fact, reveal vital relationships. For it is clear that some outside influence was bound to enter into and disturb the medieval conception of the world and cause a radical revision of medieval thought. The vision of the imperial lawgiver is a vision of a philosopher formed by Arabic and Hellenistic wisdom. It is amazing to see how, with one single word, Frederick II transformed the whole medieval conception of a State and filled it with active life. While the times were discussing whether the earthly State was of God or of Satan, of Good or of Evil, Frederick II soberly announced: the Ruler’s office was born of natural necessity. Necessitas as an independent active force, as a living law of Nature belongs to Aristotle’s thought, and to the Arab disciples of Aristotle. It is the new axiom which the Emperor flung into the medieval State philosophy of the West to revolutionise the State. In the introduction to the Sicilian Book of Laws he writes: the people’s princes are created “by the imperative necessity of things, not less than by the inspiration of the Divine Providence.” In later documents even more briefly: Justitia has erected the rulers’ thrones necessitate—of necessity. In interpreting the evolution of the imperial office the Emperor, in this passage, renounces all supernatural unfathomable designs of divine Providence and points simply to the Master’s words at sight of the coin. The Emperor frequently employed “natural necessity” to make dogmas and sacred institutions intelligible to reason. As in the case of the State, so the sacrament of marriage for instance—without disparagement of its God-given sanctity—is a “necessity of nature” for the preservation of the human race. He made it clear that he rated the natural necessity of marriage higher than its sacramental sanctity, when in defiance of dogma he introduced the most thorough-going and revolutionary changes into Sicilian marriage, with the intention of improving the breed. These precedents were pregnant with consequences. By narrowing down scriptural and ecclesiastical conceptions and theories and giving scope to natural ones, the State was not driven back on mere force and the power of the sword, but was led forward to another spiritual conception, w
ith which the Church had no concern, Nature recognised as spiritual and law-abiding. Metaphysics, one might say, was supplanting Transcendentalism.

  Necessitas was indispensable to the Emperor’s new gospel, as a basis for the secular state which appealed to reason and not to faith. The emotional assertion of earlier rulers that the state was an institution of God’s, might indeed be believed, but could not compel belief. The need of the ruler could be grasped by reason—without him the human race would have destroyed itself. When Dante wished to prove that a world monarchy was indispensable he took up the Emperor Frederick’s argument in the same sense, preaching belief in the saving mission of the State. Pope Boniface taught that for his soul’s salvation every human creature must subordinate himself to the Pope. Dante—speaking almost as representative of the Hohenstaufen Caesars, in the absence of an existing Emperor—retorted with the great imperial gospel: that for the salvation of the world each human creature must subordinate himself to the Roman Emperor. Dante’s whole-hearted endorsement of the earthly State is frequently, even in its methods, a continuation of Frederick’s imperial outlook and teaching. The first book of the de Monarchia, in which he develops the peculiar divinity of the State and its divine mission of salvation, bears the title de Necessitate monarchiae. He expounded the natural necessity of monarchy for the preservation of life, and almost every chapter of the first part closes with the recurrent exclamation: “Thus Monarchy is necessary for the safety, for the advantage of the world.” Emperor and poet were in this at one: in defiance of Church and Scholasticism, they attached so much importance to the earthly State, that they declared it part of the scheme of salvation, necessary to the realisation of the “better nature” of man and of the world at large which God designed.