"The Birth of the Ius commune: King Roger II’s Legislation," Rivista internazionale del diritto comune 17 (2006)
The Birth of the Ius commune: King Roger II’s Legislation
Charles Homer Haskins
wrote about the
The scattered artifacts and architectural monuments that
remain of Roger’s capital city,
Roger II produced a body of legislation that scholars
have dubbed the Assizes of Ariano.
His legislation was important for several reasons: no other secular European
prince promulgated such a sophisticated body of laws in the first half of the
twelfth century; no other ruler ordered his legislation compiled into a
systematically organized collection; his
legislation reveals a close connection to the teaching and study of Roman law
in Northern Italy; his constitutions may
be the earliest example that we have of the nascent Ius commune’s influence on secular law; and, finally the Emperor
Frederick II’s commission of jurists incorporated more than half of his
legislation into the Constitutions of Frederick II in 1231
(also called The Liber Augustalis or The Constitutions of Melfi in the older
literature<![if !supportFootnotes]><![endif]>) that remained the law
of the land in Southern Italy until the early nineteenth century.<![if !supportFootnotes]><![endif]> If one wished to join Haskins in signaling
the importance of the
Roger’s Legislation, its Transmission, and Sources
The early years of
Roger’s reign were turbulent. He was
born in December 1095. Although he ruled
in his own name from 1112 as count of
Two passages from the chronicles have led scholars to
believe that 1140 was a key date for Roger’s legislation. Romuald of Salerno wrote that around 1140 King
Roger ruled over a tranquil kingdom in which chamberlains and justiciars
maintained peace. The king promulgated
new laws and abolished bad customs.<![if !supportFootnotes]><![endif]> Historians have argued that an even more important
piece of information is contained in the chronicle of Falco of Benevento. He described a council in the city of
Montecassino, Biblioteca dell’Abbazia, 468, on the other hand, is a composite
manuscript consisting of three parts.
The last two sections clearly date to the early thirteenth-century. The second part of the manuscript contains
works from the late twelfth and early thirteenth centuries and the legislation
of Roger II.<![if !supportFootnotes]><![endif]> Furthermore, the texts of Roger’s
constitutions are shortened and altered in the manuscript; the textual tradition is almost always much
inferior to the
A significant piece of evidence for understanding the
transmission of his legislation is the text that we have in the
Caspar and other older scholars have all concurred that
Roger promulgated a code at Ariano in 1140.<![if !supportFootnotes]><![endif]> Recent scholarship has assumed that the
collection was privately made; that is Roger II did not order that his statutes be gathered together.<![if !supportFootnotes]><![endif]> An argument for that conclusion might be that
we do not have a single example of a ruler ordering his laws to be compiled
officially in the twelfth century.<![if !supportFootnotes]><![endif]> If Roger had ordered his legislation to be
compiled and officially published his act would have preempted Frederick II’s Constitutions as the first code of laws
promulgated by a secular ruler in
Any conclusions about the role that Roger may have had in
producing the compilation of laws in the
It is proper and necessary, O barons, that we not presume concerning ourselves, the state of our entire kingdom, and its riches.<![if !supportFootnotes]><![endif]> We have received it from the abundance of divine grace. We may render our thanks for the divine gifts from which we have our power with obedience , in order that we may not seem completely ungrateful for so much grace.
The anonymous author(s)
of the prologue who has given a voice to Roger II must have been an official(s)
of the royal chancellery.<![if !supportFootnotes]><![endif]> The text has clues to his background and
training. The phrase ‘Dignum et
necessarium’ has legal resonances. The
statute Digna vox (Cod. 1.14(17).4)
was one of the classic statements in Justinian’s Codex defining the authority of the prince.<![if !supportFootnotes]><![endif]> ‘Necessitas’
was, by the twelfth century, a key norm in law.<![if !supportFootnotes]><![endif]> The prologue’s description of the king’s debt
to God and of his obligations is pictorially represented in a remarkable mosaic
of Christ’s bestowing a crown on Roger in the
This thing that he says, we are inspired by the gift of The Bestower, His having said ‘Through me kings reign and law-givers render justice (Proverbs 8.15-16)’. We consider that nothing is more pleasing to God than if we simply offer him that which we have known him to be, namely Mercy and Justice.
The author of the prologue made an important change in the biblical citation by changing the Vulgate’s ‘iusta’ to ‘iustitiam’. The passage from Proverbs 8.15-16 was compressed to emphasize the king’s duty to render justice.<![if !supportFootnotes]><![endif]> The connection of mercy and justice had a long tradition in Christian theology and in the legal tradition, but, as this prologue was written, jurists began to understand that ‘misericordia’ was flawed as a legal concept. During the twelfth century ‘misericordia’ was replaced by a much more rigorous concept, ‘aequitas’ in the jurisprudence of the jurists.<![if !supportFootnotes]><![endif]> The author of the prologue then switched from theology to law:<![if !supportFootnotes]><![endif]>
A certain judicious man who was learned in law calls the interpreter of law priests (Dig. 1.1.1).<![if !supportFootnotes]><![endif]> And rightly so we who have been granted the authority of right and law through His grace ought partly to re-establish and partly to reform laws<![if !supportFootnotes]><![endif]> to bring them into a better state. We who have known mercy should treat laws more mercifully in all things and interpret them favorably (Dig. 1.3.18),<![if !supportFootnotes]><![endif]> especially when their severity leads to inhumanity (Dig. 1.3.25).<![if !supportFootnotes]><![endif]> We do not do this from arrogance as if to say that we are more just or <more> moderate in promulgating and interpreting laws than our predecessors because of our watchfulness (Inst. Proemium).<![if !supportFootnotes]><![endif]>
This section of the
prologue outlines a clear conception of legislative authority based primarily
on the first titles of Justinian’s Digest.
The author’s knowledge of Roman law was deep enough to adapt language of Roman law and allude to key words
that he took from the Digest and the Institutes, incorporating them into the
prologue without simply repeating the exact language of Justinian, but he did
so with unmistakable references to it.
The legal language of the prologue also establishes Roger’s status as a
‘princeps’, the prince of Justinian’s compilation, whose authority to
promulgate, abrogate, and derogate law was unlimited. The same symbolism emerges from the disparate
objects that still survive from his reign.
In the 1130's Roger had ordered the construction of the Cathedral in
Cefalù and at the same time commissioned two porphyry tombs for his corpse.<![if !supportFootnotes]><![endif]> Porphyry had long been connected with the
symbols of imperial rule and had been incorporated into papal and
ecclesiastical monuments.<![if !supportFootnotes]><![endif]> The lions that supported one of the tombs are
also traditional symbols of the prince’s
power. At the same time in which the
tombs were sculpted, Roger commissioned
the royal mantle now in
The author of the prologue then returned to his biblical allusions to reflect on Christian mercy, a theme that was especially important in canonistic thought of the early twelfth century:
But because we sin in many things (James 3.2)<![if !supportFootnotes]><![endif]> and are more prone to sin, we think that it is proper for us in our time to have mercy on sinners with the appropriate moderation. Just as Christ has instructed us saying: ‘Be merciful then as your Father is merciful (Luke 6.36)’.<![if !supportFootnotes]><![endif]> And the king and prophet: ‘All the paths of the Lord are mercy and truth (Psalm 24.10)’.<![if !supportFootnotes]><![endif]> Without a doubt we shall be judged because a sentence without mercy will be rendered on him who rendered judgments without mercy (James 2.13).<![if !supportFootnotes]><![endif]>
Ivo of Chartres in his
Prologue and Alger of Liège were two early twelfth-century canonists who wrote
extensively on the concept of mercy.<![if !supportFootnotes]><![endif]> Luke 6.36, James 2.13 and James 3.2 appear in their works when they discussed
mercy and later in the dicta and chapters of Gratian’s Decretum. Psalm 24.10 was
also commonly cited in canonical literature.<![if !supportFootnotes]><![endif]> This evidence does not mean, I think, that the author of the prologue was a
canonist. He flaunted his knowledge of
Roman law and did not cite any canonistic texts. His biblical citations prove, however, that
he knew the canonical and theological literature in some detail, and, more
importantly, how to incorporate theological and biblical concepts into his thought. His knowledge of Roman law and his use of
biblical texts that circulated in canonical collections probably indicate a
general legal background that was most likely formed in
The prologue concluded with a statement of purpose and law:<![if !supportFootnotes]><![endif]>
We want therefore and we command that you faithfully and quickly receive the laws in the present body that we have made public whether they were promulgated or compiled by us (Inst. Proemium).<![if !supportFootnotes]><![endif]>
The first and most
important point that we can conclude from this final command is that Roger promulgated a body (corpus) of laws, which is
the standard terminology for body of law dating back to Justinian’s Institutes.<![if !supportFootnotes]><![endif]> He called his laws ‘sanctiones’, which is
exactly the same language used a century later when Emperor Frederick II
promulgated his Constitutiones.<![if !supportFootnotes]><![endif]> Unless we wish to dismiss the evidence of the
prologue, the ‘sanctiones’ in the
We will never know whether Roger promulgated this code in Ariano or somewhere else. An assembly at Silva Marca in 1142 has also been suggested.<![if !supportFootnotes]><![endif]> There is evidence that Roger issued ‘sanctiones’ throughout his reign, but none of the laws in the Vatican manuscript can be dated.<![if !supportFootnotes]><![endif]> The evidence from the prologue would indicate that it was written in the late 1130's or early 1140's. The primary evidence for that dating is the author’s focus on mercy in the prologue. That theme is much more compatible with the first half of the twelfth century than later.
The only textual evidence for calling Roger’s collection
or the statutes themselves ‘assizes’ is the thirteenth-century rubric attached
to the statutes in the Montecassino manuscript.<![if !supportFootnotes]><![endif]> If we stick to the evidence of the early twelfth
century, the titles ‘Assizes of Ariano’ or ‘Assizes of Roger II’ should no
longer be used to describe Roger’s legislation because the term was not used
during Roger’s reign.<![if !supportFootnotes]><![endif]> A better title would be Roger II’s Constitutions, which I will use for the
rest of this essay. I think that the
prologue provides quite good evidence that at sometime during his reign Roger
had a trained jurist or jurists compile a collection of his laws. The result was a precocious example of
legislation, and another piece of evidence for the
In the next section of this essay I will demonstrate that only a trained jurist could have drafted Roger’s constitutions. If I am right, then the author or authors of the prologue were probably responsible for the compilation and the drafting of the Constitutions as well — although they might not have been the same person(s).
One final point should be made about the prologue. It is similar to the oration that Otto of Freising
reports that the Emperor Frederick I gave at the Diet of Roncaglia in November
Roger’s Constitutions and the Emerging Jurisprudence of Roman Law
The fundamental question that I wish to address in this
section is the state of legal learning and expertise at Roger’s court. Ennio Cortese has written that the traces of
Justinian in Roger’s constitutions leaves one rather perplexed. During the reign of Roger II there was
no southern school of law that might
have spread the learning of Justinian’s codification in his kingdom.<![if !supportFootnotes]><![endif]> When,
however, we consider the architectural and artistic remains from his reign
we can see that he exploited local
artisans and materials and also imported other craftsmen from as far away as
Scholars have been divided in their judgments about his
legislation. Erich Casper waxed
However, other scholars have diminished the Sicilian
Norman juridical achievements for various reasons. Since it has been generally assumed that the
The texts were cobbled together unsystematically from a variety of sources . . . two-thirds of them are in substance not original at all, since they are derived from either Books 1 and 9 of Justinian’s Codes or from Book 48 . . . of the Digest . . . The most plausible explanation for the two manuscripts <of the constitutions> is that in the second half of the twelfth century, an ecclesiastical institution with legal jurisdiction, such as Cassino or the archbishopric of Salerno, itself made a collection of <Norman> legal rulings.
I have already tried to
demonstrate that the
Roger’s Constitutions have been described as ‘not being an organic whole’ and as having ‘imperfections’.<![if !supportFootnotes]><![endif]> This conclusion asks not only the wrong question but also gives an anachronistic answer. Roger’s was not comprehensive like Justinian’s codification, but no twelfth-century jurist would have thought to compile such a code. When Frederick II promulgated his Constitutions a century later, it too was far from comprehensive. Secular codifications would remain disjointed segments of mosaics that only partially pictured the legal systems for which they were designed. Comprehensive codes belong to the modern world and the jurisprudence of Austinian sovereignty. Modern civil law codes do attempt to cover all parts of the legal system, but law in the Middle Ages could be found in many cupboards, not just in the legislative authority of the state. In a society in which customary law still played such an enormous role, in which x-large areas of the law were in the hands of ecclesiastical courts, and in which whole areas of the law such as procedure and law merchant were not thought of as being within the purview of the legislator, no jurist would ever have attempted to compile a code that incorporated every jot and tittle of the law of the land.<![if !supportFootnotes]><![endif]>
do look strange to modern eyes. The last
sentence of the prologue declared that the Constitutions
contained statutes promulgated and compiled by him. What appears unusual to us is the number of
constitutions that were taken from Justinian’s Codex, reworked, and promulgated by Roger as law in the
This point is particularly important for understanding the sources for Roger’s legislation. Scholars have conjectured that various existing collections or other unknown epitomes of Roman law must have been Roger’s jurists’ sources. This conjecture assumes that no one at Roger’s court could navigate Justinian’s complex codification. That might have been a reasonable conjecture if his jurists had only used the Codex. However, they used the Digest intensively. That book was not for amateurs or dilettantes. A person needed extensive legal training to exploit the Digest. In any case, the Digest never circulated as an epitome in the West.
Consequently, the general assumption that has pervaded the literature until now that Roger’s jurists used abbreviated versions of the Codex or excerpta from the Codex and Digest cannot be sustained. Until now no link has been shown between any earlier abbreviated Codex.<![if !supportFootnotes]><![endif]> More importantly, if one consults Gero Dolezalek’s comprehensive survey of Roman law manuscripts one finds that there are no collections of excerpts or florilegia from which a non-jurist might have drawn his material.<![if !supportFootnotes]><![endif]> It is time, I think, to stop citing mythical and improbable sources that Roger’s jurists might have used.
The evidence of Roger’s legislation clearly shows that his jurists had access to and used the entire Codex and Digest. They incorporated the last section of the Digest to have been rediscovered, the Digestum novum, into his legislation; this part of the Digest was used and cited as early as the 1110's in canonistic sources.<![if !supportFootnotes]><![endif]> Roger’s jurists borrowed from Justinian’s codification extensively; that was common practice in the first half of the twelfth century. Gratian’s Decretum, which was finished in its final form ca. 1140, incorporated a x-large number of texts word for word from Justinian’s Codex and Digest.<![if !supportFootnotes]><![endif]> However, like Roger’s jurists, Gratian also adapted and edited the Roman law texts in creative ways. In part he was simply following a long tradition of incorporating Roman law into canonical texts, but like Roger’s jurists Gratian shaped Roman jurisprudence to fit his needs. From this perspective Roger’s jurists were not doing something unusual when they shaped Roger’s legislation with Roman texts and norms; they were doing what compilers of legal collections commonly did in the first half of the twelfth century.
In order to justify some of the statements that I have made in the last two paragraphs, let us look at several constitutions in Roger’s codification and compare them to their Roman law sources. One point should be made clear at the beginning. We have to distinguish between the jurist(s) who compiled Roger’s legislation and his learning, and the jurist(s) who drafted his legislation (although he [they] might have been the same in some or in all cases). We are evaluating the level of legal learning of the people who drafted his legislation and the competence of those who compiled his code. From now on I shall refer to Roger’s jurists in the singular, but we should remember that we may be speaking about a group of them, not a single person.
(=RC) are organized almost exactly according to the arrangement of topics in
Justinian’s Codex. The jurist who arranged RC in the
Entertainers and others who earn money using their bodies in public performances shall not wear the habits of those virgins who are dedicated to God. They may also not wear the monastic or clerical clothing. If they do, they will be beaten publicly.
The Latin texts are:
Vat. Lat. 8782, fol. 92rb RC 14.1
<1.> Mimi et qui ludibrio corporis sui questum faciunt, publico habitu earum uirginum, que deo dicate sunt, uel ueste monachica non utantur, nec clericali; si fecerint uerberibus publice afficiantur.
Mimae et quae ludibrio corporis sui quaestum faciunt publice habitu earum virginum, quae deo dicatae sunt, non utantur.
‘Mimi’ first appear in
Roman sources during the time of
The inspiration for the punishment may have come from canon law. There is no punishment in Justinian’s codification that calls for a public beating — the Romans loved beatings — but never prescribed public beatings. However, Pope Gregory the Great declared that crimes against clerics should be punished with public beatings and exile.<![if !supportFootnotes]><![endif]> It seems likely that the jurist knew this letter of Gregory that is found in 15 extant canonical collections and decided that a public beating was just what fitted those who publicly demeaned the clerical habit.<![if !supportFootnotes]><![endif]> Even this fairly uncomplicated example illustrates the skill and considerable learning of whoever drafted this constitution in Roger’s chancellery.
Another example. RC 17.1 was a constitution on sacrilege and royal prerogatives. It may seem at first to be similar to RC 14.1. However, Roger’s jurist significantly altered the Roman law text on which it was based. RC 17.1 mandated that:
No one may dispute a judgment, legal opinions, laws, or deeds of the king; it is similar to a sacrilege to dispute his judgments, laws, deeds and legal opinions, and whether anyone he has chosen is worthy or judges <worthy>.
Like RC 14.1 from the first few words the statute looks as if it had been taken almost directly from Justinian’s Codex:
Vat. lat. fol. 92va, RC 17.1 (Fred. II 1.4) Cod. 9.29.2<![if !supportFootnotes]><![endif]>
Disputari de regis iudicio, consiliis, institutionibus, factis non oportet. Est enim par sacrilegio disputare de eius iudiciis, institutionibus, factis atque consiliis et an is dignus sit quem rex elegerit, aut decernit.
Disputari de principali iudicio non oportet: sacrilegii enim instar est dubitare, an is dignus sit, quem elegerit imperator.
As with RC 14.1 the
jurist based Roger’s constitution on a text in the Codex but expanded its application and adapted it to royal Norman
These first two examples are simple ones. Most of the constitutions have a much more complicated relationship to their Roman law sources and are not close renderings of Roman law texts. RC 6.1 on the rights of those who take sanctuary in churches demonstrates the jurist’s skill in drafting a statute and in formulating points of law:
With this present law that will be valid perpetually in our kingdom, God willing, we ordain that no one of any status shall be driven or taken out of churches into which they seek sanctuary. No one may demand that which is owed by them from the venerable bishops or yconomi. Anyone who presumes to transgress this statute shall be face capital punishment or the loss of all their property. While they are in sanctuary the fugitives may not be denied food. However if a serf, or colonus, or serf who is bound to land shall have fled from his lord or has taken refuge in a church with stolen property, he may be given to his lord with the property he has taken. He may be properly punished for the type of crime that he has committed. Or if some one has interceded for him he may be returned to grace. No one can have his right (ius suum) taken away from him.
The jurist edited and redacted two sections of Justinian’s text with great care as can be seen in a comparison of the two:
Vat. lat. 8782, fol. 91vb RC 6.1
De confugio ad ecclesiam
<1.> Presente lege sanctimus per loca regni nostri omnia deo propitio in perpetuum ualitura nullos penitus, cuiuscumque condicionis de sacrosantis expelli ecclesiis, aut protrahi confugas, nec pro his uenerabiles episcopos, aut yconomos exigi, que debentur ab eis qui hoc moliri aut facere presumpserit, capitis periculo <fol. 92ra> aut bonorum omnium ammissione plectendis. Interim confugis uictualia non negentur.
Sane si seruus, aut colonus, aut seruus glebe se ipsum subtraxerit domino, uel furatus res ad loca sancta confugerit, cum rebus quas detulit, domino presentetur, ut pro qualitate commissi subeat ultionem, aut intercessione procedente restituatur et gratie. Nemini quippe ius suum est detrahendum.
Praesenti lege decernimus per omnia loca valitura . . . nullos penitus cuiuscumque condicionis de sacrosanctis ecclesiis orthodoxae fidei expelli aut tradi vel protrahi confugas nec pro his venerabiles episcopos aut religiosos oeconomos exigi, quae debeantur ab eis: qui hoc moliri aut facere aut nuda saltim cogitatione atque tractatu ausi fuerint temptare, capitali et ultima supplicii animadversione plectendi sunt . . . ita quemquam detineri atque constringi, ut ei aliquid aut victualium rerum aut vestis negetur aut requies.
Sane si servus aut colonus vel adscripticius, familiaris sive libertus et huiusmodi . . . rebus certis atque substractis aut se ipsum furatus ad sacrosancta se contulerit loca . . . per eos videlicet ad quos pertinent, ipsis praesentibus pro ecclesiastica disciplina et qualitate commissi aut ultione competenti aut intercessione humanissima procedente, remissione veniae et sacramenti interveniente secure ad locum statumque proprium revertantur, rebus, quas secum habuerint.
In spite of the extensive editing the contents of both statutes are very similar: Sanctuary is a right that anyone can claim; a person in sanctuary cannot be denied food in order to force him out of the church; and the penalties for violating these rules are the same: death or confiscation of property. Servile thieves are to be treated humanely if they seek sanctuary, but, in the end, when they leave the sanctuary they and their stolen property must be returned to their owners, and they are subject to the appropriate punishment.
The classification of servile sanctuary seekers in Justinian’s Codex is brought into conformity with Sicilian social and legal practices in Roger’s statute. Roger’s jurist distinguished a ‘servus’ from a ‘servus glebe,’ which seems to correspond to an ‘adscripticius’ in the Codex. In RC 6, which was not included in Frederick II’s Constitutiones, Roger’s jurist thought that ‘servus glebe’ better described a villein than ‘adscriptitius’. I am not sure that we can know exactly what difference in servile obligations he wished to define. Years later King William II promulgated a constitution that also made a similar distinction.<![if !supportFootnotes]><![endif]> Thirteenth-century Southern Italian jurists considered ‘adscriptitius’ to be a general term. They subdivided serfs into ‘adscriptitii’ who were personally bound to their lords and those who were bound because of rights attached to property.<![if !supportFootnotes]><![endif]> We may not, however, be able to read their understanding of the terms back into Roger’s Constitution. However, Jeremy Johns has pointed out that one finds similar legal distinctions incorporated into Arabic legal documents describing villeins. He suggests that Roman law terminology may have penetrated Arabic documents as early as the 1140’s and was further refined during the reign of William II (1183).<![if !supportFootnotes]><![endif]> He has noted that this distinction cannot be found in Islamic law. It was also not found in Justinian’s codification.<![if !supportFootnotes]><![endif]>
Besides ‘servus glebe’ the last sentence of Roger’s constitution cannot be found in the text of the Codex: ‘Nemini quippe ius suum est detrahendum (No one can have his right taken from him)’. This maxim provides conclusive evidence of the jurist’s legal learning. The jurist created a pithy legal maxim to summarize a more general point in Roger’s legislation and in Justinian’s text: no one can be deprived of their rights, neither the supplicant for sanctuary nor the owners of serfs. Roger’s jurist could have gotten the wording and concept from only two places in Justinian’s codification, in the Digest or in the Institutes, which both contain exactly the same quotation of Aelius Marcianus.<![if !supportFootnotes]><![endif]> Roger’s jurist did not, however, simply pick the maxim out of Roman law fully formed. He refashioned the phrase, ‘nec cuiquam hominum ius suum detrahi’, into a general rule of law.<![if !supportFootnotes]><![endif]> Further, the passages in both the Digest and the Institutes were closely connected to the subject of Roger’s statute. They protected a slave-owner’s rights but only if the slave had been treated justly. The message that Roger’s jurist wished to convey with his maxim was clear to anyone who knew law: whether the slave’s owner selected punishment or forgiveness, his choice had to be based on just cause and not on his arbitrary will. This elegant maxim or ‘regula iuris’ could have been formulated only by someone who had a substantial understanding of the legal issues raised by Roger’s statute and a very good knowledge of the jurisprudence of Roman law. Even more importantly he had to understand the importance that legal rules were beginning to play in medieval jurisprudence.<![if !supportFootnotes]><![endif]>
RC 6.1 demonstrates that Roger’s jurist had a substantial knowledge of Roman law. The best and most convincing evidence that he possessed the fine hand of a Bolognese-trained jurist is found at the very end of the compilation. Roger had promulgated two statutes that established rules for judicial malfeasance (RC 43.1-2):
<43> If a judge is guilty of malfeasance
<1> If a judge has accepted money and renders a judgment of guilty in a criminal case or renders a death sentence, then he shall be subject to capital punishment.
<2> If a judge fraudulently and with wrongful intent rendered a judgment contrary to the laws, he irrevocably loses his power to preside over a court. He will be made infamous, and all his property will be confiscated. However if a judge renders an erroneous judgment because of ignorance of the law or because he was not learned in law, he shall be thrown upon our royal mercy and judgment.
Both of these
constitutions were incorporated into Frederick II’s Constitutions (Book 2.50.1 and 2.50.2), although in reverse
The compiler of Roger’s Constitutions could have lifted the title from four places in Justinian’s codification.<![if !supportFootnotes]><![endif]> From whichever place in the Digest or Institutes he took the phrase his use of it demonstrates again a good knowledge of Roman law. A comparison of the most relevant texts in Justinian that deal with judicial malfeasance with Roger’s statutes show not a trace of direct influence of Roman law on Roger’s legislation:
43. Si iudex litem suam fecerit
(Fred. II 2.50.2)
<1.> Iudex si accepta pecunia reum quem criminis et mortis fecerit, capitis periculo subiacebit.
(Fred. II 2.50.1)
<2.> Si iudex fraudulenter atque dolose sententiam contra leges protulerit, auctoritate iudiciaria inrecuperabiliter cadat, notetur infamia, rebus eius omnibus publicatis. Quod si ignorantia a iuris sententia oberrauerit, ferens iudicium pro simplicitate animi manifesta, regie misericordie et prouidentie subiacebit.
De eo, qui pretio depravatus aut gratia perperam iudicaverit, ei vindicata quem laeserit non solum existimationis dispendiis, sed etiam litis discrimine praebeatur.
Si iudex litem suam fecerit, non proprie ex maleficio obligatus videtur: sed quia neque ex contractu obligatus est et utique peccasse aliquid intellegitur, licet per imprudentiam, ideo videtur quasi ex maleficio teneri in factum actione, et in quantum de ea re aequum religioni iudicantis visum fuerit, poenam sustinebit. .
Roger’s legislation was much more harsh than Justinian’s. The death penalty and infamy were not part of the Roman tradition for judicial misbehavior. Those were Norman innovations. Confiscation of property for judicial malfeasance had been a Roman norm.<![if !supportFootnotes]><![endif]>
If Roger’s constitutions did not borrow directly from
Roman law (although indirectly, perhaps, because Roman law did treat judicial
malfeasance), the compiler of Roger’s code arranged these two statutes by following the
organization of Bulgarus’ tract on procedure that is contained in the same
Bulgarus De arbitris
Vat. lat. 8782, fol. 94v-95r
Iudex si depravatus pretio uel gratia perperam iudicauit uindictam non modo existimationis et fame, uerum etiam litis dispendium sustinebit.
Si per inscientiam et inprudentiam male iudicauit condempnabitur quatinus uidebitur equum religioni iudicis iudicantis de ea re.
RC 43. Si iudex litem suam fecerit
<1.> Iudex si accepta pecunia reum quem criminis et mortis fecerit, capitis periculo subiacebit.
<2.> Si iudex fraudulenter atque dolose sententiam contra leges protulerit, auctoritate iudiciaria inrecuperabiliter cadat, notetur infamia, rebus eius omnibus publicatis. Quod si ignorantia a iuris sententia oberrauerit, ferens iudicium pro simplicitate animi manifesta, regie misericordie et prouidentie subiacebit.
As I have mentioned
above in my description of the
The compiler’s use of Bulgarus’ treatise on procedure
written to Haimeric helps us to determine when Roger probably promulgated the
compilation of his Constitutions. Bulgarus
wrote his treatise between 1123 and 1141, which was Haimeric’s term as papal chancellor. Haimeric was a Frenchman, had been a canon in
It can lead us to a further conclusion about the use of
Roman law in Roger’s Constitutions. The complexity, careful editing, and drafting
of Roger’s statutes must preclude the
assumption widespread in the literature that they were drafted and promulgated
at one time.<![if !supportFootnotes]><![endif]> Furthermore, I think it is clear from the
examples I have discussed that whoever drafted Roger’s constitutions did not
just pluck them out of excerpts, Latin or Greek epitomes or florilegia. Roman law was an important source but was not
consistently used in Roger’s legislation.
Some statutes drew heavily on Roman law for their wording and text; many
others have no trace of Roman law terminology, even when Roman law texts could
have provided models (as RC 43). In a
rough way, one might be tempted to date Roger’s Constitutions according each statute’s use of Roman law. One could cautiously conclude that statutes
without any trace of Roman law were promulgated earlier than those that have
clear connections to Roman jurisprudence.
From the evidence of his legislation one can, I think, assume that after Roger became king he recruited jurists
from the law school in
The Reception of Roger’s Constitutions in the Constitutions of Frederick II
I have made the argument in this essay that Roger’s
legislation and the compilation of his Constitutions
must have been drafted and compiled by a trained jurist. The jurist must have come from
One last example from Roger’s legislation throws light on his purpose, the sources of his constitutions, and also on their influence. In RC 26 Roger outlined his legislative duties and authority and described a bad marriage custom that resulted in clandestine marriages in his kingdom. Roger declared that henceforth marriages should be contracted publicly in a church through the ministry of priests:<![if !supportFootnotes]><![endif]>
Because the promulgation of laws, the governance of the people, the guidance to long standing customs (mores), and the abrogation of bad customs (consuetudines) is the duty and care of the king , we deem it proper and equitable to thwart pullulating vices that might otherwise take root with the strict judgment of our edict. A bad custom (consuetudo) has presently penetrated the usages of a part of our people like a pestilence and disaster. It is absurd, therefore, repugnant to the long standing customs (mores) established by the sacred canons, and a practice never before heard by Christians that those who wish to marry, to procreate legitimate children, and to bind together in an indivisible life-time of companionship [Institutes 1.9.1 and Dig. 23.2.1] would not seek the favor and grace of God in His house. This sacrament should only be forged, in Christ and in the church, as the Apostle says [Ephesians 5.32], through the ministry of priests.
The arenga to this
constitution is extraordinary for the first half of the twelfth century. Its author displays a remarkable
understanding of the king’s law-making authority and employs language that echoes
the prologue to the Constitutions in
The careful distinction that the jurist makes between ‘mos’ and ‘consuetudo’ also reflects his legal training. In his Decretum Gratian employed Isidore of Seville’s definition of ‘mos’ as a ‘long-standing, repeated custom’.<![if !supportFootnotes]><![endif]> Roman jurists had always maintained a clear distinction between ‘mos’ and ‘consuetudo’. ‘Mos’ was founded on reason, antiquity, and could be considered as the equal of law. In Justinian’s Digest Gaius held ‘mos’ not ‘consuetudo’ to be the equivalent of ‘lex’.<![if !supportFootnotes]><![endif]> Justinian’s Institutes further specified that ‘Diuturni mores’ (long standing usages), which have been approved by the consent of those who conform to them, ‘resemble law’.<![if !supportFootnotes]><![endif]> The author of the RC 26 could have been drawing upon Justinian, Gratian, or both.<![if !supportFootnotes]><![endif]>
Not only the language but also the content of RC 26's
arenga is similar to the prologue. The
text begins with a reference to proper and equitable authority of the king’s
legislative power and reiterates the prologue’s assertion that the king ought
to change and reform laws in his kingdom.<![if !supportFootnotes]><![endif]> As in the prologue the author cites the Bible
and Roman law. The citations were not,
however, traditional. Medieval biblical
exegetical traditions had used Ephesians 5.32 to make the point that Christ’s
marriage to the Church was a model for human Christian marriage. The text had a long tradition in the
theological discussions of marriage.<![if !supportFootnotes]><![endif]> However, the author added a clause that had
no precedent in the Western theological tradition: the sacrament of marriage
should be made legitimate by the ministry of priests.<![if !supportFootnotes]><![endif]> The term, ‘ministerium sacerdotum’ had been
commonly used to describe the necessity of the priest’s role in the Eucharist
but not in marriage. A source for the
necessity of the priest’s benediction and participation in a marriage (but not
a mandate for the priest’s ministry) can be found in Greek canon law. Emperor Leo VI introduced the requirement
that a valid marriage had to receive the blessing of a priest ca. 907 A.D. It has been suggested that Leo’s legislation
sanctioned customary practices that were already widespread in Greek Christian
populations.<![if !supportFootnotes]><![endif]> The requirement that a priest should give
his blessing to a marriage was an important reform initiative in the West
during the Carolingian period but did not become standard practice and did not
shape customs in the
The author’s adaptation of the definitions of marriage that he found in Justinian’s Institutes and Digest illustrates what we have already seen: Roger’s jurist did not slavishly accept Roman law. Justinian’s Institutes had defined marriage as ‘Viri et mulieris coniunctio, individuam consuetudinem vitae continens (the joining of a husband and wife that embodies the indivisible custom of life)’, while the Roman jurist Modestinus defined it as ‘Coniunctio maris et feminae et consortium omnis vitae (the joining of a husband and wife and resulting in life-time companionship)’, a text that Justinian’s jurists put in the Digest.<![if !supportFootnotes]><![endif]> The definition of marriage in the Institutes became generally accepted in canon law during the twelfth century. Anselm of Lucca, Ivo of Chartres, Gratian and many others included the Institutes’ definition in their collections of canon law.<![if !supportFootnotes]><![endif]> ‘Individua consuetudo vitae (indivisible custom of life)’ was not, however, an easy concept.<![if !supportFootnotes]><![endif]> Demonstrating again his remarkable familiarity with Roman law (for the first half of the twelfth century), Roger’s jurist melded the texts of the Institutes and the Digest to create a much more transparent definition of marriage. His formulation ‘indiuisibile uite consortium alligare (to bind together into an indivisible life-time of companionship)’ combined both definitions that he found in Roman law in a clear and elegant way.
The dispositive section (dispositio) of the statute laid down stringent rules for marriage and draconian punishments:<![if !supportFootnotes]><![endif]>
We ordain by the present law, which God being favorable will have perpetual validity, that we impose on everyone wanting to contract a valid marriage the necessity to have the marriage ceremony solemnly celebrated after they have been betrothed if they wish to bequeath their patrimony to future heirs. They may ask for the benediction of the priests in the church and after a scrutiny bestow the ring and submit to the sacerdotal prayers at a time and a place that is suitable and convenient. Otherwise they know that they are violating our royal statute and that from our statute <it is established> that they will not have legitimate heirs either testate or intestate (with or without a will) if their heirs are born from an illicit marriage. Wives will not have their dowries or other rights due to them.
The statute concluded with two exceptions to the general mandate:<![if !supportFootnotes]><![endif]>
We derogate this statute for all those who have already contracted marriage at the time it was promulgated. We also depart from the obligation of necessity <to observe these rules> for those who wish to marry widows.
The statute provided a period of time for the couple to comply (quisque pro suo modulo seu commodo) with the rules. Greek canon law provided for cases in which the ordinary forms and ceremonies could not be fulfilled immediately for cause.<![if !supportFootnotes]><![endif]>
Roger’s constitution was incorporated into Frederick II’s
Constitutiones with significant
changes. The arenga was entirely
omitted. The provisions were imposed on
all men of the realm, but ‘especially for the nobility’.<![if !supportFootnotes]><![endif]>
James A. Brundage has remarked that Roger’s and Frederick’s legislation was ‘in marked contrast to the usual rules
Roger II’s Constitutions
are another piece of evidence that
<![if !supportFootnotes]> <![endif]> (Boston-New York 1915) 233.
<![if !supportFootnotes]> <![endif]> Ibid. 234.
<![if !supportFootnotes]> <![endif]> Ibid. 235
<![endif]> To justify this generalization would require
many pages of text, illustrations, and numerous footnotes; I shall cite just a
few works to give an entrée into the literature: Ernst Kitzinger, The
Mosaics of St. Mary's of the Admiral in Palermo (Dumbarton Oaks Studies 27;
Washington, D.C. 1990); William Tronzo, The Cultures of his Kingdom: Roger II and the Capella Palatina in Palermo
(Princeton 1997); the superb exhibition catalogue Nobiles officinae: Die
königlichen Hofwerkstätten zu Palermo zur Zeit der Normannen und Staufer im 12.
und 13. Jh. (Vienna 2004); Josef
Deér, The Dynastic Porphyry Tombs of the Norman Period in Sicily,
translated by G. A. Gillhoff (Dumbarton Oaks Studies, 5.
<![endif]> For an introduction see Hubert Houben, Roger II of Sicily: A Ruler between East and West (Cambridge Medieval Textbooks;
Cambridge-New York 2002; translated from the German by Graham A. Loud and Diane
Milburn, from Roger II. von Sizilien
Darmstadt 1997) especially 99-165.
Manlio Bellomo sketches the administrative and legal institutions of
Roger’s kingdom in Società e diritto
nell’Italia medievale e moderna
(Libri di Erice 30; 2nd ed.
Roma 2003) 195-242
<![if !supportFootnotes]> <![endif]> There is a growing scholarly consensus that the titles that scholars have given to Roger’s and Frederick’s legislation are misleading and inaccurate. I will address the question of the titles at several points in this essay.
<![endif]> The appearance of Wolfgang Stürner’s
magnificent edition of the Constitutions
has made work on Norman legislation much easier. In his introduction he has dealt with many of
the contentious problems surrounding Roger’s and William II’s laws; on the
question of the title of
<![endif]> Norman legislation in
<![if !supportFootnotes]> <![endif]> Romuald of Salerno, Chronicon, ed. C.A. Garufi, Rerum Italicarum Scriptores (Bologna 1928, also Città di Castello 1935) 226: ‘Rex autem Rogerius in regno suo perfecte pacis tranquillitate positus, pro conservanda pace camerarios et iustitiarios per totam terram instituit, leges a se noviter conditas promulgavit, malas consuetudines de medio abstulit’. For a good treatment of custom in medieval law see André Gouron, ‘Coutume contre loi chez les premiers glossateurs’, Publications de la Société d'histoire du droit et des institutions des anciens pays de droit écrit, III: Renaissance du pouvoir législatif et genèse de l'état, ed. André Gouron et Albert Rigaudière (Montpellier 1988) 117-130 and Kees Bezemer, ‘French Customs in the Commentaries of Jacques de Revigny’, TRG 62 (1994) 81‑112, with a detailed bibliography.
<![endif]> Falco of Benevento, ed. Giuseppe Del Re, Cronisti e scrittori sincroni della
dominazione normanna nel regno di
<![if !supportFootnotes]> <![endif]> Houben, Roger II 159-165, discusses an alternative interpretation of ‘romesina’.
<![endif]> The literature on Roger’s legislation is
rich. The most important are: Hans
Niese, Die Gesetzgebung der normannischen
Dynastie im Regnum Siciliae (
<![if !supportFootnotes]> <![endif]> E.g. most recently Stürner, Konstitutionen 69 and Houden, Roger II 137.
langobardorum, ed. W. Bluhme (Monumenta Germaniae Historica, Leges 4; Hannover 1868); Die
Gesetze der Langobarden, Germanenrechte, ed. Franz Beyerle (NF 9; Göttingen
1962); Le leggi dei Longobardi: Storia,
memoria e diritto di un popolo germanico, ed. Stefano Gasparri and Claudio
Azzara (Milano 1992). The text of the
Lombard laws can be found at http://www.oeaw.ac.at/gema/lango_leges.htm; see
Charles Radding, The Origins of Medieval
<![endif]> First noted by Gero Dolezalek, Verzeichnis der Handschriften zum römischen
Recht bis 1600: Materialsammlung, System und Program für elektronische
Datenverarbeitung (4 volumes; Frankfurt am Main 1972) in his description of
<![if !supportFootnotes]> <![endif]> Some of the glosses are edited by Severino Caprioli, et al. Glosse preaccursiane alle Istituzioni: Strato azzoniano libro primo and secundo (2 vols. Istituto Storico Italiano per il Medio Evo, Fonti per la Storia d’Italia, 107; Roma1984 and Fonti per la Storia dell’Italia medievale, Antiquitates, 14; Roma 2004). The manuscript contains a x-large number of glosses by an unknown jurist with the siglum ‘Φ’ that looks like a capital O with a capital J superimposed on it. If the siglum is meant to be a Greek letter, one might think of a jurist named Philippus. However, we know of no such jurist in the twelfth century. These glosses would be well worth further investigation.
<![if !supportFootnotes]> <![endif]> On Bulgarus see Peter Weimar, ‘Bulgarus’, Lexikon des Mittelalters (Munich 1977-1999) 2.931.
<![if !supportFootnotes]> <![endif]> On this text see Linda Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius: Begriff und Literaturgattung (Ius commune, Texte und Monographien, 19; Repertorien zur Frühzeit der gelehrten Rechte; Frankfurt am Main 1984) 35-40.
Ordo iudiciorum 165-167. André Gouron has attributed the tract to a
<![if !supportFootnotes]> <![endif]> With the possible exception of some of the glosses to Justinian’s Institutes, whose origins have not been explored.
<![endif]> The abbreviations to the Digest in the
<![if !supportFootnotes]> <![endif]> See Antonio García y García, Constitutiones Concilii quarti Lateranensis una cum Commentariis glossatorum (Monumenta iuris canonici, Series A, 2; Vatican City 1981) 130. Pages 83‑86 contain the constitutions of Roger II with the rubric: ‘Assise regum regni Siculi;’ pages 87‑203: Bernard of Pavia's Brevarium (Compilatio prima) (dated 1191); pages 205‑222: Acta of the Fourth Lateran Council with several papal letters of Pope Honorius III. Pages 1‑82 contains the Lombarda.
<![if !supportFootnotes]> <![endif]> The first page of the Montecassino manuscript can be viewed at http://faculty.cua.edu/pennington/Haskins%20Lecture/AssizeArianoProblem.htm
<![endif]> The compilation of
<![endif]> The texts in the
<![if !supportFootnotes]> <![endif]> See images of the compilation at:
http://faculty.cua.edu/pennington/Haskins%20Lecture/RomanLawAssizes2.htm Clicking on the images will show all of them.
<![if !supportFootnotes]> <![endif]> See the summary of opinions by Gennaro M. Monti, Lo stato normanno svevo: Lineamenti e ricerche (Società di Storia Patria per La Puglia, Documenti e mongrafie, 26; Cassano Murge 1985 [reprint of the 1945 edition]) 96-97.
<![if !supportFootnotes]> <![endif]> Caspar, Ruggero II 221-265.
<![if !supportFootnotes]> <![endif]> Zecchino, Assise di Ruggiero 14; Houden, Roger II 137; David Matthew, The Norman Kingdom of Sicily (Cambridge‑New York 1992) 187.
<![if !supportFootnotes]> <![endif]> Although a number of Italian city states ‘officially’ issued compilations of their statutes and customs, see Armin Wolf, ‘Die Gesetzgebung der entstehenden Territorialstaaten’, Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte: 1, Mittelalter (1100-1500): Die gelehrten Rechte und die Gesetzgebung (München 1973) 573-586; Wolf lists Genoa, Piacenza, and Pisa as having promulgated compilations of their customs and statutes before 1162, that were ‘Noch nicht um Gesetzgebung im strengen Sinn’. (p. 573).
<![if !supportFootnotes]> <![endif]> Zecchino, Assise di Ariano 14 and Zecchino, Assise di Ruggiero II 81-104, who discusses the many divergent opinions put forward by Italian, German, and French scholars.
<![if !supportFootnotes]> <![endif]> Vat. lat. 8782, fol. 91rb: Dignum et necessarium est o proceres si quod de nobis et uinuersi regni nostri statu meritis non presumimus; a largitate diuina gratia consecuta recepimus; diuinis beneficiis quibus ualemus obsequis respondeamus, ne tante gratie penitus ingrati simus.
<![if !supportFootnotes]> <![endif]> Cf. the prologue as translated in Houden, Roger II 141: ‘meritis’ is translated as deserts! The prologue is translated into Italian by Zecchino, Assise di Ariano 24-27.
<![endif]> Giovanni Santini, ‘Problemi relativi alle
Assise di Ariano: Gli uomini di legge’, Alle
origini del costituzionalismo Europeo 81-113, lists all the men we know
about who had legal training and were in Sicily during Roger’s reign (pp.
90-105). None of them, however, can be
linked to Roger’s legislation. His main
point is that the legal learning fostered in
<![if !supportFootnotes]> <![endif]> Kenneth Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley-Los Angeles-London 1993) 29, 78-79, 126-129, and 206-207.
Cortese, La norma giuridica: Spunti teorici nel diritto comune classico (2
Volumes, Ius nostrum: Studi e testi pubblicati dall'Istituto di Storia
<![if !supportFootnotes]> <![endif]> The image can be viewed at:
Ernst Kantorowicz wrote that the ‘Mosaic in the Martorana at Palermo, representing the coronation of King Roger II at the hands of Christ, where the desired effect of making the God manifest in the king was achieved by a striking facial resemblance between Roger and Christ’, The King's Two Bodies: A Study in Mediaeval Political Theology (Princeton 1957) 65
<![endif]> Vat. lat. 8782, fol. 91rb: ‘Hoc enim ipsum
quod ait, inspiramur de munere ipsius
largitoris, accepimus sciente ipso ‘Per
me reges regnant et conditores legum decernunt iustitiam’. Nichil enim gratius deo esse putamus quam si
id simpliciter offerimus quod eum esse cognouimus misericordiam scilicet atque
iustitiam’. Previous editions have read:
‘inspiramentum’. The abbreviation is
‘inspiram’ with a backward ‘c’ over the ‘m’, which would be normally solved by
<![if !supportFootnotes]> <![endif]> Proverbs 8.15-16: ‘Per me reges regnant et legum conditores iusta decernunt; per me principes imperant et potentes decernunt iustitiam’.
<![endif]> See Peter Landau, ‘ “Aequitas” in the “Corpus
<![if !supportFootnotes]> <![endif]> Vat. lat. 8782, fol. 91rb: ‘Unde quidam sapiens legisque peritus iuris interpres iuris sacerdotes appellat. Iure itaque qui iuris et legum auctoritatem per ipsius gratiam optinemus, eas in meliorem statum partim erigere partim reformare, debemus et qui misericordiam consecuti sumus in omnibus eas tractare misericordius, interpretari benignus, presertim ubi seueritas earum quandam inhumanitatem inducit. Neque hoc ex supercilio quasi iustiores aut moderatores (moderatiores?) nostris predecessoribus in condendis legibus interpretandisve nostris vigiliis arrogamus’.
<![if !supportFootnotes]> <![endif]> Dig. 1.1.1 ‘Cuius merito quis nos sacerdotes appellet: iustitiam namque colimus et boni et aequi notitiam profitemur’.
<![if !supportFootnotes]> <![endif]> This language ‘in meliorem statum partim erigere partim reformare’ is not found in legal texts but in twelfth century monastic texts that speak of monastic reform; e.g. Ivo of Chartres, Letter, PL 162.276 (erigere) and Stephen of Tournai, Letter, PL 211.320 (reformare). The sentence in Justinian’s Proemium to the Institutes uses ‘erigere’ and provides only a slight resonance: ‘Et cum sacratissimas constitutiones antea confusas in luculentam ereximus consonantiam’.
<![if !supportFootnotes]> <![endif]> Dig.1.3.18: ‘Benignius leges interpraetandae sunt, quo voluntas earum conservetur’.
<![if !supportFootnotes]> <![endif]> Dig. 1.3.25: ‘Nulla iuris ratio aut aequitatis benignitas patitur, ut quae salubriter pro utilitate hominum introducuntur, ea nos duriore interpretatione contra ipsorum commodum producamus ad severitatem.’
<![if !supportFootnotes]> <![endif]> Institutes, Proemium § 1 in principio: ‘Quorum utramque viam cum summis vigiliis et summa providentia adnuente Deo perfecimus.’
<![if !supportFootnotes]> <![endif]> Josef Deér, The Dynastic Porphyry Tombs of the Norman Period and Il sarcofago dell’imperatore: Studi, ricerche e indagni sulla tomba di Federico II nella Cattedrale di Palermo, 1994‑1999 (Palermo 2002). The tomb can be viewed at:
<![if !supportFootnotes]> <![endif]> Deér, Dynastic Porphyry Tombs 42-69 and 126-153.
<![endif]> See Rotraud Bauer, ‘Der Mantel Rogers II. und
die siculo-normannischen Gewänder aus den königlichen Hofwekstätten in
<![endif]> James 3.2: ‘in multis enim offendimus
omnes’. The Vugate text must have had an
alternative but not common reading of
‘in multis enim delinquimus omnes’, e.g.
Egbert of Schönau,
<![if !supportFootnotes]> <![endif]> Luke 6.36: ‘estote ergo misericordes sicut et Pater vester misericors est’.
<![if !supportFootnotes]> <![endif]> Psalm 24.10: ‘universae viae Domini misericordia et veritas’.
<![if !supportFootnotes]> <![endif]> James 2.13: ‘iudicium enim sine misericordia illi qui non fecit misericordiam.’
<![if !supportFootnotes]> <![endif]> See Bruce C. Brasington, Ways of Mercy: The Prologue of Ivo of Chartres: Edition and Analysis (Münster 2004) and Alger of Liège, Alger von Lüttichs Traktat ‘De misericordia et iustitia’: Ein kanonistischer Konkordanzversuch zus der Zeit des Investiturstreits: Untersuchungen und Edition, ed. Robert Kretzschmar (Quellen und Forschungen zum Recht im Mittelalter, 2; Sigmaringen 1985).
<![if !supportFootnotes]> <![endif]> Luke 6.36: C.23 q.4 d.p.c.15; James 2.13: C.2 q.7 d.p.c. 27 and C.23 q.4 d.p.c.32; James 3.2: De pen. D.3 c.32. Ivo of Chartres cited Psalm 24.10 in PL 161.47; Alger of Liège cited Luke 6.36, James 2.13, and Psalm 24.10 in his discussion of mercy; see Traktat ‘De misericordia et iustitia’ 194, 390.
<![if !supportFootnotes]> <![endif]> Vat. lat. 8782, fol. 91va: ‘Volumus igitur et iubemus ut sanctiones quas in presenti corpore sive promulgatas a nobis, sive compositas nobis facimus exhiberi, fideliter et alacriter recipiatis’.
<![if !supportFootnotes]> <![endif]> Institutes, Proemium § 1 in fine: ‘Omnes vero populi legibus iam a nobis vel promulgatis vel compositis reguntur.’
<![if !supportFootnotes]> <![endif]> Cod. 5.13.1 in principio: ‘omne corpus iuris.’ Justinian did not give the title Corpus iuris civilis to his codification. This title first appears in the printed editions of the sixteenth century.
<![if !supportFootnotes]> <![endif]> Stürner, Konstitutionen 148: ‘Presentes igitur nostri nominis sanctiones in regno tantum Sicilie volumus obtinere . . . in quas precedentes omnes regum Sicilie sanctiones . . . que in presenti constitutionum nostrarum corpore minime continentur.’
Assise di Ruggiero II 63-72;
also see his discussions of Roger’s assemblies in ‘I ‘parlamenti’ nel Regno di
Ruggero II’, Alle origini
<![if !supportFootnotes]> <![endif]> Ibid. 47-51, who discusses a Greek Novel and other traces of Roger’s legislation.
<![if !supportFootnotes]> <![endif]> The rubrics are contemporary with the main text of the laws; cf. Matthew, Norman Kingdom 185.
<![endif]> Ménager, ‘Le legislation sud-italienne’ 484,
n. 110, has pointed out that the earliest usage of ‘assise’ in
<![if !supportFootnotes]> <![endif]> See Pennington, Prince and the Law 9-12.
<![if !supportFootnotes]> <![endif]> Caspar, Ruggero II; I am summarizing his comments on pp. 222-224.
<![if !supportFootnotes]> <![endif]> Zecchino, Assise di Ruggiero II 92; cf. Santini, ‘Problemi’ 90-95.
<![if !supportFootnotes]> <![endif]> Zecchino, Assise di Ruggiero II 81-124; A short summary in Houden, Roger II 138-139.
<![if !supportFootnotes]> <![endif]> See Houden, Roger II 142-143.
<![if !supportFootnotes]> <![endif]> See the general remarks of Wolf on legislation and codification in ‘Die Gesetzgebung der entstehenden Territorialstaaten’ 517-565, especially 552-555; also consult the still classic study of European codification, Sten Gagnér, Studien zur Ideengeschichte der Gesetzgebung (Acta Universitatis Upsaliensis, Studia Iuridica Upsaliensia 1; Stockholm-Uppsala-Göteborg 1960) 288-366.
<![if !supportFootnotes]> <![endif]> Houden, Roger II 142: ‘The precepts derived from Roman law which provided the core of the legislative work were not directly taken from the corpus of Justinian but from a collection of extracts.’ Cf. Santini, ‘Problemi’ 81-113. A set of extracts from the Codex is contained in Vat. lat. 8782, fol. 47r-48v, but there is no connection between those texts and Roger’s Constitutions.
<![if !supportFootnotes]> <![endif]> Roger’s Constitutions 9.1 = Cod. 1.3.15; 11.1 = Cod. 1.3.5; 14.1 = Cod. 1.4.4; 17.1 = Cod. 9.29.2; 18.1 = Cod. 9.8.5; 18.2 = Cod. 9.8.6; 21.3 = Cod. 9.22.22; 23.2 = Dig. 48.10.26; 31.1 = Cod. 9.9.2; 32.1 = Dig. 5.41.1; 37.1 = Cod. 9.16.2; 38.1 = Dig. 48.8.12; 39.1 = Dig. 48.8.9; 40.2 = Dig. 48.8.15 and 15; 41.1 = Dig. 48.8.7.
<![endif]> Andrea Romano, ‘Diritto romano e diritto
longobardo’, Alle origini
Verzeichnis der Handschriften zum
römischen Recht lists only three manuscripts that might be considered, and
they do not contain the texts used by Roger’s jurists: Vat. lat. 8782, which we
have already discussed, and Admont, Stiftsbibliothek 48 or
<![if !supportFootnotes]> <![endif]> Wolfgang P. Müller, ‘The Recovery of Justinian’s Digest in the Middle Ages’, Bulletin of Medieval Canon Law 20 (1990) 1-30 at 5 and passim.
<![if !supportFootnotes]> <![endif]> In general, Anders Winroth, The Making of Gratian’s Decretum (Cambridge Studies in Medieval Life and Thought, 4th Series, 49; Cambridge 2000) especially 146-174.
<![if !supportFootnotes]> <![endif]> Plato, Republic Book III.
<![if !supportFootnotes]> <![endif]> Peter Abelard, Theologia Christiana (Corpus Christorum, Continuatio mediaevalis 12; Turnholt 1969) 2.129, p. 192: ‘Quid ergo episcopi et religionis Christianae doctores poetas a civitate Dei non arcent, quos a civitate saeculi Plato inhibuit? Immo quid in solemnibus magnarum festivitatum diebus, quae penitus in laudibus Dei expendi debent, ioculatores, saltatores, incantatores, cantatores turpium acciunt ad mensam, totam diem et noctem cum illis feriant, atque sabbatizant, magnis postmodum eos remunerant praemiis, quae de ecclesiasticis rapiunt beneficiis, de oblationibus pauperum, ut immolent certe daemoniis?’
<![if !supportFootnotes]> <![endif]> Cardinal Gregorius of S. Grisogono Polycarpus, 5.1.38 (ca. 1110): ‘Cum fortius punienda sint crimina, que insontibus et maxime sacratis ordinibus ingeruntur, quam sitis culpabiles omnes . . . indignus fungitur, privet offitio atque verberibus publice castigatum faciat in exilium deportari’. On this collection see Lotte Kéry, Canonical Collections of the Early Middle Ages (ca. 400-1140): A Bibliographical Guide to the Manuscripts and Literature (History of Medieval Canon Law; Washington, D.C. 1999) 266-269.
<![if !supportFootnotes]> <![endif]> Information from Linda Fowler‑Magerl, Clavis Canonum, Selected Canon Law Collections Before 1140 (CD‑ROM. 2005, published by the Monumenta Germaniae Historica).
<![if !supportFootnotes]> <![endif]> Constitution of Emperors Gratianus Valentinianus and Theodosius in 380 A.D.
<![if !supportFootnotes]> <![endif]> The idea that no one could judge the decisions of the pope was widely disseminated in canonical sources in the eleventh and twelfth century in a lapidary formulation found in a letter of Pope Nicholas I: Gratian, C.17 q.4 c.30 and 14 other canonical collections: ‘Nemini est de sedis apostolicae iudicio iudicare, aut illius sentenciam retractare permissum, uidelicet propter Romanae ecclesiae primatum, Christi munere in beato Petro apostolo diuinitus collocatum’. To dispute a decision of the pope was also a sacrilege; see C.17 q.4 c.30, where Gratian cited Cod. 9.29.2 and concluded c.30 with the comment: ‘Sacrilegii quoque reatum incurrit qui Iudeis publica offitia conmittit’. The concept was also found in the Leges Henrici primi 88, 5.11a.
<![if !supportFootnotes]> <![endif]> Dig. 7.1.4: ‘Usus fructus in multis casibus pars dominii est, et exstat, quod vel praesens vel ex die dari potest’.
<![endif]> Marinus de Caramanico, Commentary to Frederick II’s Constitutiones
<![if !supportFootnotes]> <![endif]> Andreas de Isernia, Commentary to Frederick II’s Constitutiones (Naples 1773) 15-16, s.v. disputare: ‘Sed si Rex faceret aliquid minus bene ratione communis boni posset supplicari Regi ut emendet; vel si sua hoc interesset et publicae utilitati sic possent agere . . . Solum disputare in publico prohibetur quasi velit de pari contendere cum domino suo’.
<![if !supportFootnotes]> <![endif]> Frederick II, Constitutiones 3.3 (ed. Stürner) 366 (which had been attributed to Roger in some of the manuscripts and older editions).
<![endif]> Marinus de Caramanico, Commentary to Frederick II’s Constitutiones
<![if !supportFootnotes]> <![endif]> Johns, Arabic Administration 149-151 and 313-314. If he is right Roman law not only shaped Roger’s legislation but had a broad influence on chancellery practices at the Sicilian court. My thanks to Professor Johns for bringing these texts to my attention.
<![if !supportFootnotes]> <![endif]> Hermann Dilcher, Die sizilische Gesetzgebung Kaiser Friedrichs II.: Quellen der Constitutionen von Melfi und ihrer Novellen (Studien und Quellen zur Welt Kaiser Friedrichs II. 3; Köln-Wien 1975) 562-566.
<![if !supportFootnotes]> <![endif]> Dig.1.6.2: ‘Si dominus in servos saevierit vel ad impudicitiam turpemque violationem compellat, quae sint partes praesidis, ex rescripto divi pii ad aelium marcianum proconsulem baeticae manifestabitur. cuius rescripti verba haec sunt: “dominorum quidem potestatem in suos servos illibatam esse oportet nec cuiquam hominum ius suum detrahi”.’ Institutes 1.8 in medio: ‘expedit enim rei publicae, ne quis re sua male utatur. cuius rescripti ad Aelium Marcianum emissi verba haec sunt: “Dominorum quidem potestatem in suos servos illibatam esse oportet nec cuiquam hominum ius suum detrahi”.’
<![if !supportFootnotes]> <![endif]> For other examples in which the jurists of the Ius commune borrowed phrases from Roman law to create legal maxims, see Pennington, ‘Innocent III and the Ius commune’ 349-366
<![if !supportFootnotes]> <![endif]> Kenneth Pennington, ‘Maxims, Legal’, Dictionary of the Middle Ages (New York 1987) 8.231-32; in general see Peter Stein, Regulae iuris: From Juristic Rules to Legal Maxims (Edinburgh 1966).
<![if !supportFootnotes]> <![endif]> Dilcher, Gesetzgebung 554-557, discusses various sources for these statutes. Dilcher’s work is valuable for gathering together possible sources in Roman, Lombard, Norman and other laws, but he usually does not distinguish between definite, probable, or just parallel sources that may contain similar norms or concepts. Consequently one cannot rely on his information for determining the exact source(s) of Roger’s legislation.
<![endif]> It has even tripped up a recent translator of
Justinian’s Digest. At Dig. 50.13.6: ‘If a judge has heard his
own case’, in The Digest of Justinian,
Latin text edited by Theodor Mommsen and Paul Krueger; English translation
edited by Alan Watson (4 Volumes;
<![if !supportFootnotes]> <![endif]> They took this title from Cod. 7.49.
<![endif]> Johannes Teutonicus, Apparatus to Compilatio
tertia, 5.4.1 (Vergentis), compelli
uolumus: ‘Supra xxiii. q.v.
Bartolus of Sassoferrato wrote a ‘Quaestio’ on judicial
malfeasance on account of ignorance: Consilia
<![if !supportFootnotes]> <![endif]> Dig. 50.13.6: ‘Si iudex litem suam fecerit, non proprie ex maleficio obligatus videtur’, and Dig. 5.1.15: ‘Filius familias iudex si litem suam faciat, in tantam quantitatem tenetur, quae tunc in peculio fuit, cum sententiam dicebat. Iudex tunc litem suam facere intellegitur, cum dolo malo in fraudem legis sententiam dixerit.’ Dig. 220.127.116.11: ‘Si iudex litem suam fecerit, non proprie ex maleficio obligatus videtur’. Institutes 4.5.1: ‘Si iudex litem suam fecerit, non proprie ex maleficio obligatus videtur. sed quia neque ex contractu obligatus est et utique peccasse aliquid intellegitur, licet per imprudentiam: ideo videtur quasi ex maleficio teneri, et in quantum de ea re aequum religioni iudicantis videbitur, poenam sustinebit’.
<![if !supportFootnotes]> <![endif]> Authentica post Cod. 7.49.1 (Novo iure), in which Justinian mandated confiscation of property. The medieval jurists excerpted Justinian’s Novel and inserted it into the Codex. Dilcher, Gesetzgebung 555, cites Dig. 18.104.22.168 and 22.214.171.124 as models for the punishment of infamia, but these texts deal with forgers.
<![if !supportFootnotes]> <![endif]> Cod. 7.49.2, Dig. 50.13.6, Dig. 5.1.15 and Dig. 44.7.4.
<![if !supportFootnotes]> <![endif]> Bulgarus had just completed a section on appeals; the compiler of Roger’s Constitutions placed RC 43.1-2 after a series of titles that treated criminal law: adultery, murderers, aronists etc.
<![if !supportFootnotes]> <![endif]> See Wolfgang Decker, ‘Haimerich’, Lexikon des Mittelalters (Munich 1977-1999) 4.1863-1864.
<![if !supportFootnotes]> <![endif]> See Litewski, Zivilprozeß 1.20-22, 51-52, 334-337.
<![if !supportFootnotes]> <![endif]> Houden, Roger II 46, 51; Caspar, Ruggero II 76, 86, 192, 199.
<![if !supportFootnotes]> <![endif]> I am preparing an essay to discuss Gratian’s use of Roman procedural law and his probable use of Bulgarus’ text. On the use of Bulgarus’ treatise, See Fowler-Magerl, Ordo iudiciorum passim.
<![if !supportFootnotes]> <![endif]> E.g. Stürner, Constitutiones dates all Roger’s statutes to ca. 1140.
<![if !supportFootnotes]> <![endif]> RC 26, Vat. lat. 8782, fol. 92ra-93rb: ‘Quoniam ad curam et sollecitudinem regni pertinet leges condere, populum gubernare, mores instruere, prauas consuetudines extirpare, dignum et equum uisum est nostre clementie, quandam prauam consuetudinem, que quasi clades et lues huc usque per diuturna tempora, partem nostri populi perrependo peruasit edicti nostri mucrone decidere, ne liceat uitiosas pullulas de cetero propagare. Absurdum quippe moribus repugnans sacrorum canonum institutis, Christianis auribus inauditum est, matrimonium uelle contrahere, legitimam sobolem procreare, indiuisibile uite consortium alligare, nec dei fauorem et gratiam nuptis nuptiarum in stabulis querere, et tantum in Christo et ecclesia ut dicit apostolus sacramentum confirmandum per sacerdotum ministerium creare’.
<![if !supportFootnotes]> <![endif]> Cf. RC 1, 2, 3, 27, 30, 33.
<![if !supportFootnotes]> <![endif]> Gratian, D.1 c.4: ‘Mos autem est longa consuetudo’.
<![if !supportFootnotes]> <![endif]> Dig.1.1.9: ‘Gaius 1 inst. Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum iure utuntur’. This text influenced Gratian’s dictum at the beginning of his Decretum: ‘Humanum genus duobus regitur, naturali videlicet iure et moribus’.
<![endif]> Institutes 1.2.9: ‘
<![if !supportFootnotes]> <![endif]> I think that Gratian’s Tractatus de legibus was circulating widely in the 1130’s in a pre-vulgate recension of the Decretum.
<![if !supportFootnotes]> <![endif]> RC Prologue, Vat. lat. 8782, fol. 91rb: ‘Iure itaque qui iuris et legum auctoritatem per ipsius gratiam optinemus, eas in meliorem statum partim erigere, partim reformare, debemus’.
<![endif]> James A. Brundage, Law, Sex, and Christian Society
<![if !supportFootnotes]> <![endif]> Brundage describes a series of nineteenth-century court cases in England in which the House of Lords made the bogus claim that was followed in the courts that ‘an ordained clergyman has been necessary of rthe formation of a valid marriage in England according to both common law and ecclesiastical law since earliest times’, ibid. 383 n. 288 and 616 n. 25.
<![if !supportFootnotes]> <![endif]> See Michael K. Skrocki, ‘Historical Roots of the Extraordinary Form of Marriage in the 1990 Codex Canonum Ecclesiarum Orientalium as found in the Imperial Legislation of Justinian, Constantine V and Leo VI’, (J.C.D. Dissertation, Catholic University of America, 2006) chapter 2. On the debate whether RC 26 is dependent upon Leo’s Novel, see Andrea Romano, ‘Diritto romano’ 181 n. 59.
<![endif]> Philip Lyndon Reynolds, Marriage
<![if !supportFootnotes]> <![endif]> Inst. 1.9.1 and Dig. 23.2.1; also see Dig. 126.96.36.199 and Inst. 1.2.
<![if !supportFootnotes]> <![endif]> Anselm of Lucca, Collectio canonum 10.54, Ivo of Chartres, Panormia 6.1, Gratian, C.29 in principio.
<![if !supportFootnotes]> <![endif]> E.g. see the discussion by the anonymous canonist in Summa ‘Elegantius in iure diuino seu Coloniensis’, ed. Gérard Fransen et al. (Monumenta iuris canonici, Series A, 1, Tom. 1-4; New York-Città del Vaticano 1969-1990) 1.4, p. 2: ‘ “Indiuiduam” sic accipimus ut talis uterque sit alteri qualis est ipse sibi’.
<![if !supportFootnotes]> <![endif]> RC 26, Vat. lat. 8782, fol. 93rb: ‘Sancimus itaque lege presenti deo propitio perpetuo ualitura, uolentibus omnibus legitimum contrahere matrimonium necessitatem imponi, quatinus post sponsalia nuptias celebraturi sollempniter quisque pro suo modulo seu commodo, limen petant ecclesie sacerdotum benedictionem post scrutinium consecutum anulum ponat, pretii (Montecassino: preci) postulationique sacerdotali subdantur, si uolunt futuris heredibus successionem relinquere. Alioquin nouerint ammodo molientes contra nostrum regale preceptum, neque ex testamento, neque ab intestato se habituros heredes legitimos, ex illecito per nostram sanctionem matrimonio procreatos. Mulieres etiam dotes, et aliis nubentibus legitime debitas non habere’.
<![if !supportFootnotes]> <![endif]> Ibid. ‘Rigorem cuius sanctionis, omnibus illis remittimus, qui promulgationis eius tempore, iam matrimonium contraxerunt. Viduas uero uolentibus ducere, huius necessitatis uinculum relaxamus’.
<![if !supportFootnotes]> <![endif]> Skrocki, ‘Historical Roots of the Extraordinary Form of Marriage’ passim.
<![if !supportFootnotes]> <![endif]> Frederick II, Constitutiones 3.22 (ed. Stürner) 386-387: ‘universis hominibus regni nostri et nobilibus maxime’.
<![if !supportFootnotes]> <![endif]> Justinian, Novella 74 and 117; see Skrocki, ‘Historical Roots of the Extraordinary Form of Marriage’ chapter 6.
<![endif]> Frederick II, Constitutiones 3.22 (ed. Stürner) 387: ‘post sponsalia celebrata
sollempnitate debita et sacerdotali benedictione premissis matrimonium sollempniter
et publice celebrari.’ Cf. Dilcher, Gesetzgebung 620, suggests that a canon
from the Council of Carthage that appears in over 30 eleventh- and
twelfth-century canonical collections might have been the source for this
statute’s insistence on the priestly benediction. Gratian included this canon
in his Decretum at C.30 q.5 c.5 and
D.23 c.33. But no canonist interpreted
this text as requiring benediction for a valid marriage. Rolandus called benediction of the priest a
certain custom of some churches; perhaps he knew about the customs of Southern
<![if !supportFootnotes]> <![endif]> The canonists even changed the wording of papal decretals, sometimes radically; see Kenneth Pennington, ‘The Making of a Decretal Collection: The Genesis of Compilatio tertia’, Proceedings of the Fifth International Congress of Medieval Canon Law, Salamanca 1976 (Monumenta iuris canonici, Series C, 6; Vatican City 1980) 67-92 and Stephan Kuttner, ‘Raymond of Peñafort as Editor: The ‘Decretales’ and ‘Constitutiones’ of Gregory IX’, Bulletin of Medieval Canon Law 12 (1982) 65-80.
<![if !supportFootnotes]> <![endif]> Brundage, Law and Sex 442. On the accommodation of Greek customs by the Latin Church see James A. Brundage, ‘The Decretalists and the Greek Church of South Italy’, La chiesa greca in Italia dall'VIII al XVI secolo: Atti del Convegno storico interecclesiale, Bari, 30 aprile - 4 maggio 1969 (Italia Sacra 22; Padova 1973) 3.1075-1081.
<![if !supportFootnotes]> <![endif]> Andreas de Isernia, to Frederick II, Constitutiones (ed. cit.) explained the apparent contradiction between the authority of the prince and the jurisdictional rights of the Church by arguing that Roger and Frederick imposed their law on property, which was under their jurisdiction, and not on persons, who were under the jurisdiction of the Church (pp. 343-344): ‘Rex non personis imponit legem, sed rebus . . . Sed rebus Princeps imponit poenam, ut si desiit haec solemnitas non succedant’. He admitted, however, that the most relevant decretal did not impose a church ceremony and priestly benediction: ‘Hoc autem de facie ecclesiae et sacerdotali benedictione non ponit c. Cum inhibitio (X 4.3.3)’, and in the end conceded that this legislation probably violated ecclesiastical rights: ‘Alii dicunt et verius quod saecularis Princeps nec principaliter nec accessorie statuere potest aliquid in matrimoniis’.
<![if !supportFootnotes]> <![endif]> Manlio Bellomo, Medioevo edito e inedito, 3: Profili di giuristi (Libri di Erice 20; Rome 1998) 33, notes that Roffredus Beneventanus cited Roger’s legislation in the middle of the thirteenth century.
<![endif]> Marinus de Caramanico, to Frederick II, Constitutiones (ed. cit.), s.v. Sancimus: ‘
<![if !supportFootnotes]> <![endif]> E.g. Innocent III, Die Register Innocenz' III. 8: 8. Pontifikatsjahr, 1205/1206, Texte und Indices, ed. Othmar Hageneder, Andrea Sommerlechner, with the collaboration of Christoph Egger and Rainer Murauer (Publikationen des Historischen Instituts beim Österreichischen Kulturinstitut in Rom; Wien 2001) 112(111), p. 198, incorporated into canon law by Petrus Beneventanus in Compilatio tertia 3.24.6 (Decretales Gregorii noni = X 3.31.19). See also Alexander III, X 4.16.2; X 2.27.7; Celestine III, X 3.32.11.
<![endif]> Conciliorum oecumenicorum decreta, ed. G. Alberigo, G. A. Dossetti, Claudio
Leonardi, and Paolo Prodi (3rd
<![endif]> Winroth, Making
of Gratian’s Decretum 157-174, concludes ‘I suggest that the law
<![if !supportFootnotes]> <![endif]> As Gero Dolezalek has observed legal texts became obsolete quickly. This simple fact accounts in x-large part for the lack of early twelfth-century Roman law commentaries and treatises. There would be little reason, for example, as I have argued above, to continue copying Bulgarus’ treatise on procedure much after 1150 when other, much more detailed and useful, texts were available; Dolezalek, ‘Series of Papal Decretals’ 78-79.
<![if !supportFootnotes]> <![endif]> I will discuss the importance of Bulgarus and Gratian in this development in a forthcoming essay (see n. 106 above).