Was Baldus an Absolutist? The Evidence of his Consilia

Kenneth Pennington

For Jürgen Mietke

            Baldus’ consilia in the Vatican Library are from his personal library. They will change forever the static view that we have had of his work. Up until now, when we have looked at his consilia we have seen the neat and finished product produced by editors and printers almost 100 years after his death. What the Barberini manuscripts reveal is a rich lode of evidence that offers glimpses of a working jurist and the evolution of his thought. In this essay I would like to demonstrate how these manuscripts can help us to understand Baldus’ political theory and, in particular, his views on the authority of the secular prince.

            Baldus did not write much about the power, jurisdiction, and authority of the princeps until he began teaching at Pavia in 1390. Giangaleazzo Visconti, duke of Milan, had summoned him to Pavia. Baldus remained there until his death in 1400. Earlier Baldus had taught at the law schools of Perugia, Florence, and Padua.

            On April 28, 1400 Baldus died in Pavia while writing a consilium that treated a problem of feudal law. The case reflected Baldus’ working life during his last ten years. After he moved to Pavia in 1390 and became the ‘court jurist’ of Giangaleazzo, Baldus occupied himself with many questions of feudal law. He wrote an extensive commentary on the Liber feudorum. Giangaleazzo needed a brilliant jurist to provide legal arguments for the constitutional structure of his new territorial state. Baldus defended the his legal claims and pretensions in a number of consilia. Most of them deal with issues of feudal law that Baldus had probably not confronted during his years in Republican Perugia.

            After Baldus arrived in Pavia, Giangaleazzo presented his loyal court jurist with a problem of feudal law that tired his aging soul. Some of Giangaleazzo’s vassals had objected to their lord’s interpretation of the privileges that the Holy Roman Emperor Wenceslaus had bestowed upon him. Giangaleazzo claimed far more jurisdiction over his feudal vassals than they thought was justified by the imperial privileges.

            Giangaleazzo’s question posed a difficult problem for Baldus. He was dependent upon his lord for his salary and his position at the university. There was also a personal relationship between the prince and the jurist. Giangaleazzo was the godfather of Baldus’ children. Giangaleazzo wrote letters to Baldus that bestowed extravagant, fulsome praise upon his distinguished jurist. In the end, however, Baldus could not completely bend his principles and the principles of the Ius commune to his lord’s will. His remarks in rubrics later deleted and missing from the printed editions reveal that he regretted that he could not support Visconti’s case completely. They are an important part of the evidence for Baldus’ state of mind and intentions when he wrote about the authority of the prince. They clearly indicate that Baldus had many dubitationes about his lord’s claims.

            The order of the consilia in Barberini lat. 1408 is very good evidence that Baldus began his exploration of Giangaleazzo’s prerogatives with a consilium that began with the words “Rex Romanorum.” He answered objections of some Italians to the German Emperor Wenceslaus’ bestowal of Lombardy on Giangaleazzo as general imperial vicar in 1395. Giangaleazzo had claimed a ducal title for himself and argued that all cities and lordships formerly subject to the Visconti vicariate were now subject to him as their feudal lord. Wenceslaus had granted Giangaleazzo all imperial rights and lordships in Lombardy. He declared that he made this grant with certain knowledge and from his fullness of power, notwithstanding any concessions, constitutions, immunities, liberties, and privileges that anyone might possess.

            Since it encroached upon the rights of imperial vassals in Lombardy and broke longstanding diplomatic ties between the emperor and local authorities, the privilege raised several legal problems for the practical feudal lawyer. Some German princes claimed that the emperor did not have the authority to grant such a privilege because it injured the imperial patrimony and alienated imperial rights. It had long been a norm of the Ius commune that the prince could not alienate the rights of the crown.

            Baldus posed two questions in the beginning of the first version of “Rex Romanorum”. First, he asked whether a nobleman, who held a city not mentioned in the privilege, but whose city held a part of a diocesis that Wenceslaus had bestowed upon Giangaleazzo, must acknowledge Giangaleazzo’s lordship. The second question was simpler but went to the heart of the prince’s authority: Whether Wenceslaus had granted all jurisdiction and power to Giangaleazzo and whether vassals must recognize or relinquish feudal rights depending upon the duke’s wishes and pleasure.

            Since he devoted only a few lines in “Rex Romanorum” to the first question, the second was of far greater importance to Baldus and Giangaleazzo. It was also an important issue in the jurisprudence of the Ius commune. Feudal rights were equated with private property rights. Jurists had long asked the question whether the prince could take private rights away without any cause. Most (Petrus de Bellapertica, Cynus, and Bartolus) argued that the prince could not deprive his subjects of their property and rights unless he had a reason (causa) that was based on reason or necessity. A few (Jacobus Butrigarius and Albericus de Rosate) claimed that the prince could confiscate property without a reason. Baldus had to reconcile these two traditions in the jurisprudence of the Ius commune. He also had to please his lord. In his commentaries on Justinian’s Digest and Code that probably antedate his move to Pavia, Baldus put forward arguments for limited monarchical authority.

            When he was confronted with the same question by Giangaleazzo, the manuscripts reveal that Baldus struggled. If the duke had seen this early version of the consilium, he might not have been pleased. In the earliest drafts of his consilia, Baldus had restricted Wenceslaus’ privilege considerably. Could the emperor order a vassal who holds him as his liege lord to swear allegiance to another lord? Baldus concluded that it would be dangerous to believe the emperor had this authority. Further, if one thought that Wenceslaus could revoke previous privileges, then his imperial successors might do exactly the same thing. Giangaleazzo and his children might lose everything that Wenceslaus had granted them. Echoing the constitutional provisions of Magna Carta, he noted that if a feudal lord wronged his vassal, he should appeal to his peers at the lord’s court. If this failed, he could wage war against his lord. Baldus concluded his argument with a hope and a proverb. His hope was one that he would repeat several times later on in the consilium: that Giangaleazzo would listen to opinions that might not please him. In his proverb, Baldus quoted a King who wished that he would not bestow a larger but a more stable kingdom upon his son. Baldus’ message to Giangaleazzo at this point was clear: treat the rights of imperial vassals in Lombardy with respect. He ended this draft of his consilium with “Allegationes Baldi de Perusio.”

             Baldus wrote three consilia and a short essay after “Rex Romanorum” to support Giangaleazzo’s claims of sovereignty. His second consilium was joined to “Rex Romanorum” in the earliest printed editions. It begins “Pridie enim consului.” In “Rex Romanorun,” Baldus dealt with the emperor’s authority to derogate or abrogate privileges: the heart of the matter revolved around the question whether the emperor could abrogate or derogate imperial privileges that his predecessors had bestowed upon the princes of Lombardy. Since then he read consilia of Christophorus and Paulus de Artionibus in which they argued that the pope could not revoke a fief nor change its terms to a vassal’s detriment. I have not located these consilia in any manuscript or printed sources. The issue was crucial. Baldus returned to this key problem in the third consilium that he wrote for Giangaleazzo, “Ad intelligentiam sequendorum premittendum quoddam indubitatum.” Baldus wrote much to defend Giangaleazzo’s feudal rights. The rubric that he added to “Pridie enim consului” and then later deleted C which does not appear in the printed editions C is a striking example of a his doubts about Visconti’s claims. His reluctance to concede that the prince could act without cause is palpable: “Inclite princeps, in istis multum dubito, et maxime quia super ista materia scripsi et consului ignorans hunc uenturum casum (O, illustrious Prince, in these matters I have many doubts, primarily because I wrote and consulted while not knowing this case).”

            Baldus was pulled in two directions when he dealt with the issue of a feudal lord’s revoking fiefs and feudal rights without a hearing in court: His own experience and his obligations to Giangaleazzo. Baldus knew the pain of a wronged vassal. Paulus de Castro reported that Pope Urban VI had granted Baldus a castle near Gubbio that the pope later took away. Although he pursued his right to the fief in the courts, Baldus never recovered it. He wrote about the issue in a short, incomplete consilium that he later crossed out in Barberini 1408 and that, consequently, was not included in the printed editions. Although he did not finish the text of the consilium, Baldus wrote enough to fashion an unambiguous defense of the rights of vassals. He concluded that the pope could not take a fief away without a hearing in court. “Even God,” Baldus proclaimed, “is bound by the law of a promise.” He cited a text of the Libri feudorum (L.F. 1.7.1) that had become the standard place where the jurists dsicussed the rights of vassals.

            In his penultimate consilium in which he dealt with Giangaleazzo’s prerogatives, “Queritur si rex Romanorum,” Baldus repeated his “allegationes” from “Rex Romanorum” but concentrated on the issue of whether the emperor could delegate his jurisdiction and authority. He also argued that a vicar was a revocable office. Baldus concluded the section of the consilium on the authority of a vicar with a striking passage that, on further thought, he decided to delete: The emperor should be consulted. He had doubts about the justice and morality of the question. Especially since, he lamented, “I have one foot in the grave and had never been the cause or the author of a war which I foresee if peace is not made.” These are not the words of a man who was convinced of the righteousness of his lord’s claims.

            In the last consilium, “Ad intelligentiam sequendorum premittendum quoddam,” Baldus posed the question whether the emperor can place the fiefs of his vassals under another lord, in this case under Giangaleazzo, and whether such a grant would injure the rights of imperial vassals. Baldus dealt with the prince’s authority and power in the last part of the consilium. Here the printed edition is particularly misleading for understanding his thought. Baldus seems to conclude by stating that imperial vassals may swear allegiance to Giangaleazzo without derogating their dignity. The vassals should swear by incorporating the words of the privilege and excepting those rights that ought to be preserved.

            In the orginal text, however, Baldus crossed out his first attempt at closure. In the deleted section Baldus asserted that Giangaleazzo should lose his privilege if he abused his authority. He cited the famous chapter that discussed the feudal oath in Gratian’s Decretum and quoted the common juristic opinion: If a lord does not fulfill his obligations to his vassal, he can be judged faithless. “Modern <lords> transgress the order of reason and keep <faith> poorly to the danger of their souls.” Baldus deleted this last passage, to which Giangaleazzo might have taken umbrage, from his first draft.

            These consilia clarify Baldus’ views on the authority of the prince to act arbitrarily in the last years of his life. Baldus pushed the limits that the norms of the Ius commune placed on the prince as far as he could. But he was capable of only bending, not breaking them. “Ad intelligentiam sequendorum premittendum quoddam indubitatum” was probably his last attempt to define the relationship between the authority of a feudal lord and the rights of his vassals. Here Baldus came closer to declaring that the prince could act arbitrarily and without cause than anywhere else in his writings:

Although the Libri feudorum 1.7.1 states that the lord may not take a fief away without cause because fides [keeping promises and performing duties] is a part of natural law, nevertheless if aliquod motivum [any reason], even a minor one, informs the prince’s action, he can do it from his fullness of power. As the ancient legal maxim states: “If it pleases [the prince], it is licet.”

When he returned recently to the issue of whether Baldus was an absolutist or not, Joseph Canning cited this passage as further proof to justify the argument that he had made earlier in his fine book on Baldus. He translates the passage differently and the differences reveal a very different interpretation:

[Libri feud. 1.7.1] where it says that he [the emperor] cannot deprive without cause, because fealty is from natural law. If, however, some motive, even a slight one, moves the prince, he can do so by his plenitude of power, because it pleases him, according to the anicent saying, “if he likes, he can.”

Canning concludes that “This shows that Baldus was willing to accept any motivation on the part of the emperor as sufficient cause for infringing a requirement of the natural law.”

            I believe that the manuscript evidence of Baldus’ consilia on feudal law and on the authority of the prince might give pause to anyone who would claim that Baldus was an absolutist. But even if we take Baldus’ statement out of context, we cannot make him an absolutist.

            The key phrase is “motivum leve.” From the thirteenth century on “motivum” in Latin normally meant “reason.” In modern and early Italian, “motivo” means “reason, cause, grounds.” “Levis” has a juridical pedigree. In Roman law its most famous use is with the word “culpa” in the Lex Aquilia. Every student of Roman law learns that “culpa levissima” still obligates a person who has committed a delict. The jurists also used the adjective to describe mild or minor crimes and punishments. To the jurists it never meant no fault, crime, or punishment; it meant a lesser fault, crime, or punishment. When Baldus wrote that the prince acts with “aliquod motivum [any reason], even a minor reason, informing the prince’s action, he can do it from his fullness of power” he does not mean no reason, he means a less compelling reason. But he does not eliminate reason. A few years after Baldus’ death the canonist Panormitanus defined “culpa levissima” as those actions from which a most reasonable man knows to take precautions. Baldus expected his prince to exercise his authority with reason even when he employed his fullness of power.

            Baldus wrote what may have been his most important single work, his Commentary on the Libri feudorum, in 1393, when he was probably already preoccupied with Visconti’s legal issues. His Lectura enjoyed great success and was copied and used all over Europe. Printers produced over twenty editions before 1600. In the Prologue to his Commentary Baldus discussed the authority of the prince. It is a remarkable little essay that clearly must be connected with the practical problems of feudal law that he dealt with in the last years of his life.

            He began by writing that he would like to say a few words about the prince. His short essay reveals much about his conception of princely authority. It also is informed by the questions that he had treated in his feudal consilia. He started by making three points:

First, the prince is the firmness of justice if he is as he must be and is not a Tartar . . . Second that it is not fitting that the prince revokes his benefits, grants, and privileges . . . Third the prince exercises fullness of power.

The first point Baldus took from a text in the Code in which the emperors Diocletian and Maximinianus declared that the prince and his delegates should exercise their offices with the force or vigor of justice (vigor iustitiae). Baldus added that the norms of princely behavior can be measured against those of Tartar princes. The editors of the sixteenth-century printed editions changed Tartar princes to tyranical, in order, we may guess, to give a more general meaning to Baldus’ statement. His second point touches upon the key issue in his feudal consilia: when may the prince take away a fief, usurp feudal rights, or abrogate a privilege. Baldus turned to the jurisprudence of canon law to establish that it is not fitting (decet) for the prince to revoke what he has granted as Johannes Andreae noted in his Novella on “Quod dilectio.” “Decet” in the thought of the jurists was an important word that was often connected to “licet” and “expedit.” Although the literal meaning of the word might seems to give the prince latitude to exercise his authority and judgment, the jurists had long concluded that “quod nec decet, nec licet . . . nec expedit (it is not fitting, not licit, and not expedient)” to describe actions that were not congruent with princely secular and ecclesiastical power.

            In order to illustrate the prince’s fullness of power, Baldus used the pope as an example.

As Guido de Baysio had written when the pope’s intention is known, he must be obeyed. Switching back from the pope to the prince Baldus observed:

Nevertheless the prince must think about everything that he does and when he wills something, he should will it through certain knowledge. No one may say to the prince why do you do this? And one may not presume that the prince would wish to violate his own laws.

Baldus then turned again to Johannes Andreae:

Moreover I shall cite the decretals. I shall say and not otherwise express what I understand from what the Doctor has written in the Novella, which is a most noble work and worthy of all praise. These are the allegations: the Roman prince may do all things when he does them with certain knowledge. The emperor does them excepting always the majesty of his authority. The pope can do the same where he rules over a secular state.

At this point Baldus gave a remarkable list of limitations on the prince’s C the emperor’s and the pope’s C fullness of power. “There are certain things that are not fitting (decet) for the prince,” he wrote. He then gave a list of ten decretals upon which Johannes Andreae had commented. They illustrated what was fitting and permitted to the prince. I know of no other jurist who used decretals so exclusively to define the power of the secular prince. But his list also underlines an important fact about medieval law that modern scholars sometimes forget. The Ius commune was no longer, and had not been for a long time, three separate branches of learning. Each decretal that Baldus cited carried with it not only the Commentary of Johannes Andreae but the jurisprudence created by a long line of jurists from the Ordindary Glossator of the Decretals of Gregory IX, Bernardus Parmensis, who summed up the earlier decretalists, to Innocent IV, Hostiensis, and Baldus himself.

            Baldus did not make it easy for modern scholars to understand his points. The jurists commented on each decretal and created norms that defined the office of the prince. Each of the decretals that he cited carried on its back a satchel filled with juristic reflections, allegations, objections, and opinions. Modern scholars must empty this bag and examine its contents carefully if we are to understand how Baldus understood the power of the prince.

            It is not within the scope of this essay to work our way through all ten decretals. Examining a couple of them will confirm my argument that the feudal consilia are not the work of an absolutist. In the first decretal in the list, “Magnae devotionis,” Pope Innocent III had claimed the authority to commute the solemn vows of crusaders and to determine the financial amount that a reluctant crusader must pay for the privilege of staying home. The canonists had already concluded that all vows were regulated by divine not human law. Two of the decretals that Baldus cited are drawn from a set of five in the title on vows that were placed in the Decretals of Gregory IX. These decretals attracted the attention of the canonists and Baldus because the prince’s authority to commute a vow in part defined his relationship to divine law.

            We could explore the entire tradition of juristic commentary on “Magnae devotionis” or we could turn to Johannes Andreae’s Novella where Baldus tells us we can find the sources of his ideas about what actions are fitting for the prince. In his Novella Johannes posed three questions. Whether the pope may do all things (licet)? Whether all things are fitting for him to do (decet)? Whether all things are expedient (expedit)? Johannes answered all three questions with a ringing endorsement of clear limitations on the prince:

Hostiensis asks although all things are permitted to the pope are all things fitting? He responds that if there is a just cause for departing from the law what is permitted to him is fitting and vice versa. . . . We may judge the cause from four factors: the importance of the affair, the person, the place, or the time. . . . If there is not a just cause or if the cause is not sufficient, it is not fitting for the pope to depart from the law at all. But if there is a cause, but the cause is less sufficient, it is less fitting. . . . Hostiensis also asks when the pope acts fittingly and in those things that are permitted, whether it is always expedient? He responds that when he acts in the judicial process it is always expedient to render justice and never to pervert the procedure.

A century later Panormitanus endorsed Hostiensis’ and Johannes’ conclusions. Baldus’ conclusions were commonly accepted by the jurists in his time and long afterwards. Further, Hostiensis’ “minus sufficiens causa” probably is very likely the ultimate source for Baldus’ “motivum leve.” As we have seen, Baldus struggled with two questions in his feudal consilia: could the prince violate natural and divine law by confiscating property rights and could the prince act without cause? Although wrapped in learning that Giangaleazzo could never understand, Baldus answered both questions in his Lectura feudorum unambiguously if not straightforwardly.

            “Pervenit” was an excerpt from a letter of Pope Gregory the Great in which the pope ordered that no one could be excused from the duty and obligation of defending the walls of a city. “All men can be compelled to perform this duty.” This text became the place where the jurists discussed the relationship of the prince and the community (universitas). Again basing his opinion and question on Hostiensis’ Commentary, Johannes Andreae asked whether a duke, count, or other lord who had granted immunity or freedom from taxes to certain subjects and not to the entire community had acted justly and licitly. There were two issues: whether the prince could lift a long-standing customary tax from an individual to which the community had long consented and whether the taxes of the exempt would then fall to those subjects who had not received privileges. Johannes distinguished between the emperor and lesser kings and princes. The emperor, he argued, could bestow any privilege that he wished on any subject that he wished. If he injured the rights of the community, it could beg him to correct the wrong. But, he added, only major injuries should be appealed. However, he distinguished between those privileges that the emperor granted “proprio motu,” at his own instigation, and those that his subjects had petitioned. When subjects had asked for privileges that injured the rights of their fellow subjects, these grants were not valid. Kings and princes, however, who held offices that were lower than the emperor’s could not grant privileges injuring the rights of a community. He pointed out that a privilege should prejudice the rights of the grantor not others. It was a norm of the Ius commune that the rights of third parties should not be violated in legal matters. Johannes’ discussion was, as Panormitanus later noted, long and a little confused, but in the end Johannes concluded that the prince must act with cause and reason. Panormitanus later concurred.

* * *

            Each of the ten decretals that Baldus cited resonated with the words “decet, licet, et expedit.” For the jurists these words described and circumscribed the authority of the prince. In the end the norms of the Ius commune shackled Baldus. Although he would have preferred to give Giangaleazzo a clear and unambiguous answer to the political problem in his feudal consilia, he could not. The political answer was easy. He should have argued that Wenceslaus’ privilege granted Giangaleazzo full feudal rights in Lombardy. The norms of the Ius commune, however, created difficulties for Baldus. They limited the authority of the prince and protected the rights of the vassals. Baldus had grave doubts about Giangaleazzo’s prerogative to ignore the rights of imperial fief holders. And, in fact, imperial fief holders maintained their rights until the eighteenth century. They could maintain their rights because the norms of the Ius commune dictated that even the prince could not take away rights based on natural law. Although Baldus obfuscated his thought by wrapping revision around revision in his feudal consilia, he gave a clear and unambiguous statement of limited princely power and authority in his Lectura feudorum. The answer that he gave was unequivocal: “I am no absolutist.”