*
Frederick II endeavoured to inspire the new body of officials with something akin to the esprit de corps of the Orders. The Justiciars were to know no other ties than those that bound them to the Emperor and the service of Justitia, they must have no private interests in their own province. They were most sternly forbidden therefore to possess money or land within their official district, to take part in any sale or purchase, exchange or presentation. Even a son might not possess property in his father’s province. The justiciars must be “clean handed,” they must not seek to enrich themselves, by venality or bribery, oppression or any other variety of corruption, but must be content with the salary allotted to them by the Emperor’s grace. When they were holding courts in remote corners of their province they must accept no hospitality except purely official hospitality. For the duration of their office they must enter into no contract in their province, nor betrothal, nor marriage, nor any other. Inasmuch as most of the Justiciars were also fief-holders they could not, in any case, marry without the Emperor’s permission. They were not even permitted—certainly not in later times—to bring their wives with them into their official districts.
The principle that the official must be free from all private obligations is emphatically stressed. The justiciar must not be a native of the province under his jurisdiction, after his appointment he must draw no servant from his province, and, in order to prevent any kind of settling down, the offices must be yearly interchanged. Later it was generally laid down—in accordance with ancient Roman custom and the practice of the Lombard towns—that all officials held office for one year only, at the end of which they had to render an account, after which it was in the Emperor’s competence to reappoint these pro-consuls and propraetors for a further term of office.
This had many advantages: on the one hand the authority of the official was enhanced and his position magnified by this aloofness. He became the reflection of the Emperor. On the other hand every possibility of treachery or venality was eliminated by the “wholesome forethought” of the Emperor. Arrangements were made in such a way that the officials constituted a mutual check on each other, and this reciprocal vigilance extended down to the humblest grades. Frederick II almost always took further guarantees of various kinds for the good faith of his officials—who were in their degree omnipotent. They almost all had landed possessions or relations in other provinces, whom the Emperor could lay hands on if they played him false.
Except on Sundays and holidays, the justiciars had to sit daily—courts had previously been held only once a month. They had no permanent headquarters, for their main duty was continuously to tour their provinces, to hold courts, to oversee the land, to keep a lookout for suspicious characters, to pursue traitors or secret rebels. It was no light task to be an imperial official. All private life ceased for the duration of the office. In addition to the current work of their circuits, the speedy despatch of which was their first duty—no case was allowed to extend over more than two months—almost every justiciar constantly, at times almost daily, received a mass of special orders and special instructions from the Emperor relating to every department of life: law, finance, army, administration, university, agriculture, building, punishment, investigation, feudal affairs, marriage negotiations, and finally purely personal affairs of the Emperor’s, to do with his hunting, his falcons, his horses, the game, the extermination of wolves and vermin, and the like. There were no sinecures in Frederick’s service: Frederick II kept the whole State breathlessly on the run even when he himself was at a distance. The omnipotence of the officials and their very considerable independence was to a certain extent limited and bridled by these direct interventions of the Emperor; they were responsible moreover with life and property for any injury to the State. In addition to the check exercised by the one official on the other, the subjects had, twice a year, the right to present complaints and each official was under the supervision of his superior. The functions of each were clearly defined and strict subordination enforced.
The Emperor strove in every conceivable manner to forestall any official arrogance. It is doubtful whether he was always successful, especially in the later times, and people have sought to make despotism responsible for the corruptness of the officials. The critics forget that the existence of a depotism and the need of it presuppose a corrupt and undisciplined people. If dishonesty and bribery took place in spite of all Frederick II’s precautions, that proves nothing in a country that had been for thirty years without any ruler or any government. This exacting service was no longer the quid pro quo of the vassal in enjoyment of his fief (feudal duties and even direct taxes rested on the officials’ shoulders in addition) and the salaries were extremely modest. Some other attraction than gain must have been offered to these Sicilian officials to tempt them to take service: the honour it may be of serving the King; the opportunity of exercising power; the prospect of fame and the special favour of the Emperor expressed in praise and at times no doubt in rewards: above all the privilege of belonging to the entourage of the Ruler: for the most part immaterial benefits. And this in a country where the aristocracy was radically corrupt and the populace of unreliable hybrid stock! Frederick had first to awaken an appreciation of such imponderable advantages and create the conditions essential to every Service: official honour and official discipline. It is remarkable how all the well-known phenomena of bureaucracy suddenly make their appearance here though still rooted in primitive conditions and sanctities. “Contempt of court” was based on the theory that the official was the mirror of the Emperor, consequently any insult to an official was an insult to the Emperor and punishable as such. The general theory held that any crime against a person in the Emperor’s employment—whether serving as soldier or official or in whatever capacity—was to be twice as severely punished as the same crime against a private individual. Underlying this was the principle of Roman law, that an officer of the Emperor was more worthy than a private person. The official was further protected by the edict which affirmed: “It is sacrilege to debate whether that man is worthy whom the Emperor has chosen.” An intangible something was incorporate in the official, with which he was endowed by the Emperor.
This carried the converse obligation on the officials’ side to protect his special endowment by worthy behaviour. No gambler might hold office. No one might permit another to officiate for him: the penalty for both was death. The protection of the official against injury was only extended to him by the Emperor while he was in discharge of his duties, it was not valid in private quarrels. On the other hand if an official “under cloak of his office commits injustice” he is to be driven from it cum perpetua infamia, because he has placed the Emperor’s person in a false light in order to mask his own wrong doing. The idea of perpetua infamia was borrowed from Roman Law: it was the regular Roman penalty for unfaithfulness in office and carried with it confiscation of property. Here official honour is clearly outlined. Each official is instructed by the Emperor in the duties of his office.
*
“The justiciar’s name and title are compounded of Jus and Justitia, and the closer the justiciar’s relation to these the more truly and zealously he will honour them.” Similarly with respect to the highest officer of all, the Grand Master Justiciar: let him be the “mirror of Justice” and let him be not merely in name the Master of the other justiciars, but also their model “that the lower ranks may see in him what standards they should themselves observe.” Here is a hint of the importance of official precedence which is expounded elsewhere in terms of the stars: “To preserve the special honour due to our High Court we have commanded: ‘when at any time the Grand Master Justiciar visits any town there to sit with our Court Judges, the justiciars of the provinces who may happen at the same time to be there, shall maintain silence as the lesser light is dimmed when it is overtaken by the greater.’” This was indeed a new departure and the commentator remarks of this law that it offends against common law, because a lower
officer is by no means bound to silence by the presence of a higher.
The justiciars, as the King’s commissioners and plenipotentiaries, and indeed his viceroys, in the provinces, united not only the administrative and judicial functions, but also the military: they had to summon the feudal knights, to recruit the mercenary knights, and in Frederick II’s last decade when a permanent state of siege had resulted from the great war, they were army commanders in their own province. It is no cause for surprise that these branches of the service were not differentiated; that the justiciars even on occasion led troops to battle. Apart from the fact that in those days there was no recognised “art of war,” provincial governors must always be in supreme command. It was so in ancient Rome and with Napoleon’s Marshals, and is always found where State discipline is highly developed. The merum imperium, power to command, cannot be separated from the gladii potestas, the executive power, or can only so be separated in peaceful bourgeois times.
The justiciars had also to exercise the highest powers of police. Their police subordinates were presumably the comestabuli. Special attention to political police, such as Frederick displayed, is a phenomenon observable under every dictatorship. The detective service was, of course, developed to the minutest detail, so that even when Frederick was far from Sicily on a campaign, he was often better informed about events in the provinces than the justiciars themselves. He required the aura of omniscience as urgently as that of omnipresence. In order to keep political suspects under constant state surveillance, the Emperor introduced a unique system which had the merit of publicity, but for that very reason was unquestionably far more cruel than the most suspicious secret surveillance. Every person on whom suspicion fell—of intrigues with the Roman curia, with exiles, with heretics, or with rebels—received from the authorities, a small notebook in which the details of the accusation were entered, and also the name of the denouncer. This procedure no doubt simplified the supervision of suspects, the accused was left in the dark about nothing; but we can well believe the chronicler who tells us that this publicity led to acute discord and mutual hate between accuser and accused.
As regards legal matters, the justiciars represented the royal jurisdiction and were presidents of the law courts. There was no room left for feudal courts—except for a few insignificant survivals. Now though the justiciars must frequently have acquired considerable legal knowledge, it was rare that they were jurists by education—any more than a military governor to be the highest legal authority, needs to be a professional lawyer. They were empowered to maintain order and preside in the courts. Legal experts, professional lawyers, were associated with them who formed the curia of the justiciar, the real law court. There thus existed a second service side by side with the justiciar service, composed of a very large number of judges and counsel, as well as notaries and chancery clerks. In this the lower courts were small-scale models of the High Court. The Emperor himself was always surrounded by a large number of law scholars who acted as his permanent chancellors, his consiliarii and were employed in all kinds of State work: professional lawyers instead of feudal retainers!
The Grand Master Justiciar as President of the High Court had four High Court judges assigned to him, the Master Justiciars had two judges, each justiciar had one judge. Other assistant judges were to be found wherever there was a court, since every town had three town judges and six notaries: big towns like Messina, Naples, Capua had more. Notaries existed in great numbers down to the humblest posts in the departments of finance, army, fortifications, domains, forestry and harbours, and had to perform all the clerical work of an administration entirely based on written documents. Each official had to keep a considerable number of account books, registers, diaries, many of them in duplicate, for they had to be submitted at stated intervals for examination by the later-instituted Chief Auditor’s Department. Every judgment had to be recorded in clear legible handwriting, not in signs or symbols of any special script which were most explicitly forbidden. As the judgments were filed, only parchment was used for them, though paper was permitted for everyday vouchers.
*
There were corresponding ranks and degrees in the legal profession, from the High Court Judges and Counsellors of the King down to the humblest local judges, but all were appointed and sworn in directly by the Emperor or his representative. No one might independently set up as a judge, notary or advocate. The judges had to be men of culture and education, and the Emperor kept careful watch that no unsuitable person was entrusted with the post of judge.
Lists of personnel were kept in every department, and the Emperor kept himself informed at all times of the personalities of his staffs and could usually avoid unfortunate appointments. He wrote to Sicily, for instance, from his camp before Lodi:
“To Thomas of Montenero
Justiciar of the Principato and of Benevento—
An amazing rumour has recently reached our illustrious ears which makes a severe accusation of slackness against you and justly challenges our attention. We learn namely that our last edict about the appointment of the annual judges has not borne fruit in our town of Salerno, where thou hast permitted the appointment of one, Matthew Curialis, as judge, who is an illiterate merchant and wholly unsuited to the position. And this though amongst the population of such a town which chiefly produces cultured people there must assuredly be, we are certain, an educated man to be found to exercise the office. This displeases us all the more because firstly mischief to the town may arise therefrom, and further our command has not been obeyed as it was fitting that it should be. As we do not wish that the legal affairs of our faithful subjects should be bought and sold for a price by any of thy merchants, whose fingers are deft for money making, we hereby command thee to remove the above named Matthew from his office and to instal in his place another man competent, trusty, sufficiently educated…”
In the whole Sicilian State, there was no department of life in which the Government did not directly intervene to establish order. Minor authorities lost all their independence, not only the feudal ranks but the towns and—after the second breach with the Pope—also the churches and monasteries. The headmen of the towns were appointed annually by the Emperor, and since Frederick II had a hard fight against the independence of the Lombard towns, it was most natural that he strictly forbade the Sicilian towns to appoint their own heads: the penalty was the destruction of the offending town. He did not hesitate to give effect to this law, as he shortly proved. A year after the publication of the Constitutions some Sicilian towns rebelled; the Emperor suppressed the rebellion with the utmost rigour. The ringleaders whom he captured—having promised them immunity—were hanged or burned as heretic rebels. This took place in Messina, Syracuse, and Nicosia, while the smaller towns which had taken part in the insurrection, Centorbi, Traina, Capizzi, and Monte Albona, were completely destroyed. The inhabitants were reduced to slavery and deported to a newly-founded town, which the Emperor called Augusta, for the site of which rebellious Syracuse was compelled to cede some of her territory. This method was so successful that during the lifetime of Kaiser Frederick the Sicilian towns made no second attempt to achieve municipal independence.
*
The entire kingdom was to be uniformly administered by imperial officials. The necessity for this ruthless clearing up can only be appreciated by the student who bears in mind the usual type of government prevailing in the Middle Ages: the confused tangle of legal and economic relations; the innumerable petty and pettiest authorities; feudal lords, bishops, monasteries, towns whose rights and claims endlessly crisscrossed each other and in every department of life cut in between the ruler and his people, and who remembers further the kaleidoscopic welter of privileges, immunities, special rights peculiar to each grade of society, to each calling, to each town, to each hamlet, causing obstruction and hesitation a thousandfold on every side.
The measures by which Frederick II extended one unified system of administration throughout his whole kin
gdom, ultimately throughout the whole of Italy, making Sicily in very truth, the “pattern of states,” were often cruel enough, but they brought in their train a most admirable simplification of the whole machinery of government. His influence on the legal situation was exerted externally. He embraced the whole tangle in one uniform system of law, but he left unmolested the private and civil rights of his subjects in their mutual relations. He was supremely indifferent whether their private affairs were to be decided according to Frankish, Lombard, Roman, Jewish, or Saracen codes, provided these did not run counter to the state laws.
This imperial administration was the first that had ever achieved uniformitas over an area so large, hitherto it had been possible only in the tiniest territories. The geographical conformation of his hereditary kingdom was a factor highly favourable to Frederick. Nature had provided the kingdom with a defined outline, with only one land boundary which he had strengthened by every known device. He had got possession of almost all border fortresses—often by very shady means. A certain abbot, for instance, owned a fort; he was hospitably invited and then detained while his castle was annexed. Frederick next founded several towns himself in the North, Flagella for instance, and Aquila, which he equipped as arsenals. The method of foundation was simplicity itself: a certain piece of land was marked out; the scattered inhabitants of this area were gathered into the new arsenal, they were released from all obligations to their previous lords, and in return for their freedom were compelled to work on building the fortifications.
Frederick the Second Page 33