The beginnings of modern Europe, 1250-1450

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I. The Principle of the Modern State .... i

II. The New Empire 47

Chapter I The Principle Of The Modern State

The principle of the mediaeval, feudal state is to be found in the division of what we call " sovereign powers” among a great number Sovereign' Persons- These powers are chiefly the military, the Powers in the judicial, and the financial. The military power includes Middle Ages nQt mere}y the defence of the country against a foreign enemy, but also the maintenance of order within the country or, in our modern usage, " police.” The judicial power means the right and the corresponding duty to administer justice in all " civil ” cases, — that is, cases involving questions of right as between one man and another, — and also to punish offences against the welfare of society, or, to speak technically, " crimes.” The possession of judicial power implies also the existence of a sufficient military force to carry out the decisions of the court, whether this force be in the hands of the court itself or of some power on which it can depend to work in harmony with it.

The financial power means the right to tax the people for public Titv purposes, and the variety of ways in which this can be done is infinite. In practice, of course, this power also cannot be applied without a sufficient working force to carry it into effect. It is by far the most difficult to regulate of the three attributes of sovereignty because it is never quite easy to define just what are public purposes or how far the financial superior may go in his demands.

Under the feudal system of the Middle Ages these rights were generally combined in one hand. The same person was military

leader, judge, and tax gatherer, and there was a vast The Mediae- jo 0

val King and number of such persons, separated one from the other

the Sover- by divisions of territory or by the gradations of rank, eign Rights _ . _ J J '

It is true that these scattered territories were held

together in larger groups, the great principalities or kingdoms, and that the different ranks within such a larger territorial unit were bound to each other by a chain of allegiance to the prince or king at the head. In^theory the king had the supreme military, judicial, and financial control of the kingdom. He appears as the head of the national army, he is the " fountain of justice ” for all the people, and he has a right to demand from the people a contribution of their wealth to carry on the business of government. Or, to begin at the other end, in theory the people paid taxes to support persons who should see that justice was done them and who should defend them against their enemies or lead them out to war for their advantage. All this in theory ; in practice the society of the Middle Ages felt but slightly the bonds of this larger association in what we call the " State.” It felt very strongly the bonds which held individuals together in the smaller territorial groups or in the grades of social rank. It was a matter of comparative indifference to the mediaeval man whether he were called a Frenchman, a German, or an Englishman. He might as well pay his taxes or serve in the army or get his justice under one of these names as the other; but it was a matter of great moment to him whether he were a Gascon, a Norman, a Picard, a Burgundian, a Swabian, or a Saxon. So, again, he was keenly conscious whether he was a freeman or a serf, a " villain ” or a knight, a crown vassal or a vassal of the Church, and he felt a certain community of interest with all his brethren in rank, no matter under what ultimate sovereignty they might be living.

The story of Roger Bigod, Earl of Norfolk and Marshal of England, told in the quaint language of Walter of Hemingburgh, shows

STORY OF ROGER BIGOD the temper of feudal independence. Called by King Edward I to serve in Gascony while the king was fighting in Flanders, he refused.

"At the feast of St. Matthew the Apostle, in the year 1297 the itfl king summoned the lay chiefs of the realm to a parliament at Salisbury and called upon certain of the barons to go to Gascony; but they began, one by one, to excuse themselves. Then the king was wroth and threatened some of them that if they refused to go he would give their lands to others who would go. At this many were scandalized, and a division began among them. For the Earl of Hereford and the Earl Marshal made their excuse, saying that they would gladly pay the service to which they were bound by hereditary obligation and would go with the king’s person. And a second time the demand was made of the Earl Marshal that he should go. Then he said : * Freely will I go with you, O King ! as my hereditary duty requires.’ And the king said : ' Without me too you shall go with the rest.’ He replied : ' To this I am not bound, and it is not my will to take the field without you.’

" Then the king in his wrath broke forth, it is said, in these words : ' By God, Sir Earl, you shall either go or hang ! ’ And he :

1 By the same oath, Sir King, I will neither go nor hang ! ’”

When the emperor Frederic Barbarossa was gathering his forces for his great struggle with the cities of Lombardy, he ordered, begged, entreated, even went on his knees to his subject, Henry the Lion, duke of Bavaria and Saxony, to persuade him to join his army, but Henry refused, and there was no process by which either he or his fighting men could be compelled to obedience.

The crushing defeat of Barbarossa in the fatal day of Legnano ) // • - (1176) was largely owing to this refusal.

It is evident that under such a system of government great national undertakings were impossible, and in fact the chief military, achievements of the Middle Ages were either feats of arms Aunder single princes, like the conquest of England by William of Normandy and that of Southern Italy by other Normans, or else they were great schemes having a universal character, such as the Crusades in the East and the overrunning of Languedoc in Beginnings earty thirteenth century in the name of orthodox

of a National Christianity. The system could survive only so long Sentiment ag ^ sen^ment; 0f nationality remained weak. As soon as national limits became fairly well determined and men were beginning to feel themselves as belonging primarily within these territories rather than primarily as members of a race, then the instinct to express this territorial allegiance by service began to assert itself. That is what we mean by Nationality, and it is a sign of the coming of the modern world in distinction from the world of the Middle Ages. It takes a long time for this sentiment to become practical and to work itself out into institutions, but the thing itself is unmistakable from the first, and the growth of the institutions that embody it can be traced with entire distinctness.

Let us go back to one of our illustrations. After the return of Frederic Barbarossa from his defeat in Italy, he proceeded to Insufficiency Pun^s^ Henry the Lion for his disobedience. He first of the Feudal called an assembly of the German princes, many of Principle whom he had bought by great concessions of land and power, and gained from them as a court of peers a judgment against Henry for violating his feudal obligation. Then acting upon this as his authority he declared Henry to have forfeited his feudal estates. Finally, with the help of other princes who expected to share the spoil, he drove him from his dukedoms and divided these among his own fideles. That was the mediaeval method. Henry was „.a traitor, not to Germany but to his feudal superior. He had violated the contract by which he held his principalities, and the penalty was the loss of these and their redistribution to more faithful vassals. But the price of victory for the crown was one that it could not often afford to pay. There could not be an unlimited supply of crown fiefs with which to buy the support of one vassal against another, and a crown dependent upon this kind of support would not be worth the having.

THE EARLIEST MODERN STATE

The system worked only so long as there was not much for kings to do, and while society was constituted on this basis, it produced some very splendid results. The moment, however, that governments, royal or not, began to be conscious of their rights and duties, the weakness of it became unendurable.

It is obviously impossible to fix upon any point of time as marking the beginnings of modern government. They go well Earliest back *nt0 Per*°d commonly described as " medi- " Modern ” aeval,” but wherever they appear, we may be quite State, 1231 sure tjie mediaeval character is disappearing from the society that produces them. One of the earliest attempts at creating a modern out of a mediaeval government is that made by the emperor Frederic II in his hereditary kingdom in southern Italy and Sicily. Frederic was the grandson of Barbarossa and the son of that emperor Henry VI who had married Constance, the heiress of the Norman kingdom. He had had ample opportunity in the years between his accession to the Empire in 1215 and the year 1231 to learn all the weaknesses of the mediaeval system.

He was an ambitious, energetic young prince, filled with the vast schemes of his Hohenstaufen ancestors for building up a real monarchy in Germany and Italy. Like his father and his grandfather he had found himself checked at every point by .the ^ Church. The Papacy had made itself the champion of local, especially of municipal, rights, and had fostered every combination against the Hohenstaufen policy. In 1230 the peace, or rather truce, of San Germano, had been patched up between the pope and the emperor, and Frederic improved the opportunity to carry out his idea of what a state ought to be in the only part of his dominion where he could have free hand, in his own southern lands.

It was a singular region in which this earliest modern constitution was put forth. The main element of its population was a graft of the Greek upon the more ancient Italic stock. During the whole Roman period the Italian portion had been known as Magna Graecia . When the center of gravity of the Roman Empire

The Land and the People of Southern Italy and Sicily was transferred from Rome to Constantinople this country remained for centuries as an outpost in the West from which frequent attempts were made to recover imperial control. Byzantine culture dominated throughout Apulia and Calabria, and exerted important influence upon the learning and the arts of Europe. Sicily was repeatedly raided and conquered by the African Moors, who had left here permanent traces of their blood, their religion, and their civilization. Jews driven from other lands had found here a hospitable welcome. The great northern Germanic migrations had swept down into these far southern lands many a wandering fragment of Teutonic life. Lombard princes had occupied and governed the greater part from the sixth century onward. The armies of the Holy Roman Empire from Otto I (936-973) had ventured well down into the region southward from Salerno. Finally the Normans of Robert Guiscard (d. 1085) had come thither in force, had settled and conquered both the mainland and the island of Sicily, and had brought the country under an orderly administration. Here, more perhaps than in any other quarter of Europe, had been displayed that curious principle known as the " personality of law.” According to Germanic traditions, represented here by the governing Normans, each of these widely differing populations, Greek, Arab, Jew, and Teuton, had a native right to be judged, as far as possible, by its own law. It was the duty of the government to see to it that this principle was respected so far as was consistent with safety to the state ; but it is evident that it was a principle totally at variance with the whole idea of a powerful and united government. It was as if, in New York for example, Germans should claim the right to do business under German law, Italians under Italian law, and so on, while the government of the state should undertake to administer this medley of foreign laws through officers more or less under its own control. Such a system seems to us of the modern world

THE LAND AND THE PEOPLE 7

very like organized anarchy and not very well organized at that. The only important remnant of it is seen in the "extra-territoriality ” of certain districts lying outside the group of so-called civilized nations ; as, for example, the territory under the direct control of European embassies in oriental countries. Within such districts the subjects of the European state are amenable only to the law of that state. The excuse for such an irregularity is the fear, justified or not, that such foreign subjects could not be sufficiently protected by the law of the land. So long as feudalism with its wide divisions of power went on, personality of law seemed quite in harmony with its spirit ; but when feudalism began to give way before the growing sentiment of national unity, then the new idea of one law for all the inhabitants of a territory under one general government began to make its way. The " territoriality ” of law was to take the place of its personality. Especially in a territory like this, where the variety of population was so great, the need of unity was sure to be felt earlier and more keenly.

The Norman predecessors of Frederic had already done much in the way of unifying legislation, and Frederic was careful to reenact such of their laws as seemed to work in his

The Basis of

Frederic’s direction. In addition he published in the form of a Legislation, revised code what amounted to a complete re-casting of the form of government. The spirit of this legislation is well indicated in the preamble. Here the king sets forth his conception of the royal function. Man, he says, was originally created pure and free from selfishness, but by the fall of Adam he became greedy for gain and hence arose contentions, and so, " by the very necessity of things and by the impulse of the divine foreordination the princes of the nations were created, through whom tfie licence of the wicked might be controlled ; who, as arbiters of life and. death for the people, should establish what fortune, what portion, and what station each one should hold, executors, as it were, of divine Providence.” This is a declaration of the divine right, but also of the absolute responsibility of kings. To carry out such a proclamation it was necessary above all things that the king should have no rivals. The execution of justice by every mediaeval king was always hampered by two competing jurisdictions : that of the clergy and that of the feudal lords. Frederic cleared the way for himself by limiting both these jurisdictions as far as the conditions of the place and the age would bear.

The abuses of clerical jurisdiction had come to be a danger to any self-respecting state. Beginning with the theory that good Limitation Christians ought to keep out of the public law-courts of Clerical and submit their differences to the arbitration of their Jurisdiction cjergymenj the Church had supported the clergy in building up a widespread system of courts. The states, with their feebly defined notions of their own rights, had allowed this to go on. The people in times of confusion had been more than willing to submit to a jurisdiction that was at least as likely to be equitable as was that of their lay lords, and so it had grown. In Frederic’s time ecclesiastical courts claimed exclusive jurisdiction over the persons of clergymen. Over laymen they claimed control in so far as the case in hand could in any way be described as involving religion. In a day when most human actions had a more or less religious character there was serious danger that the rights of lay courts would be so far diminished as to lose all influence. Frederic met this danger with great fairness. He did not attempt to j abolish the clerical courts, but rather to restrict them to purely religious matters and to clerical persons. He renewed a law of King William II (1166-1189) that a clergyman accused of a crime for which his person was in danger should be tried by the Church and according to the canon-law, excepting, however, cases involving treason or any crimes affecting the king’s majesty, for which the clergyman must appear in the king’s court. On the other hand, a clergyman sued on account of landed property not held of the Church must answer in the court of the lord in whose

LIMITS OF CLERICAL JURISDICTION

Laws of Mortmain territory the lands in dispute lay ; but his person could not be taken or imprisoned on this account. If any person, cleric or layman, should bring before any other court matters belonging to the king’s court, he was to be punished with confiscation of his property, real or personal, feudal or hereditary.

An ancient provision of the Norman kings, grown antiquated in the troublous times before Frederic and now renewed by him, provided that no person, lay or clerical, should convey landed property to the Knights of the Temple or of the Hospital or to any other religious house which was not bound to pay a definite revenue to the crown. If such property should be left by will, the religious house receiving it was bound to sell it within a year on pain of confiscation to the crown. This was a so-called " law of mortmain,” designed to prevent the Church^, or even a semireligious corporation from receiving land that was not bound to a definite service to the king. It was bitterly complained of by Pope Gregory IX, but Frederic defended it on the ground that to require taxes from clergy and laity alike, from both hereditary and feudal property, could not be called an abuse, but only a due enforcement, of law. When Gregorys complained of ^ certain confiscations of the property of Knights Templar, Frederic replied that if the Templars were to be allowed to acquire the property of citizens without restraint, it would not be long before they would own the whole kingdom of Sicily. It was, further, a distinct invasion of the clerical jurisdiction when Frederic undertook to legitimate the children of clergymen. He defends this action as justified by his supreme royal right, in order that these unfortunates may inherit the property of their parents and thus become useful servants of the state. If clergymen must have children contrary to the church law, at least they must pay for the privilege. Thus, on the one hand, clergymen were compelled in a great range of cases to seek the lay courts ; on the other hand, laymen were completely exempted from the clerical jurisdiction except in the one case of adultery.

IO

Frederic’s fairness of intention toward the Church is witnessed by an enactment relating to churches deprived of their pastors.

" Whereas it has come to our knowledge that bailiffs who formerly were placed over churches without pastors to hold and preserve the church property have not so faithfully discharged their duty as was directed by our court, but have abused their trust and kept back the goods of the Church,

" And whereas we hold all the churches of our kingdom, but especially those which lack pastors, under the protection of our own hand, and it is our will that the property of these churches shall in no wise be diminished,

"We order and decree that henceforth, whenever an archbishop or bishop of the kingdom shall die, the property of that church shall be entrusted to the care of three of the best, the wisest and 'the most trustworthy men of that church to be guarded and held for the benefit of the church until a pastor be provided. So much of the income as is reasonably necessary for the use of the clergy there shall be paid over to them for the good and reasonable service of the church ; the remainder shall be held safe and undiminished by the guardians until a pastor be appointed. When that is done whatever remains, both principal and income, shall be paid over to the pastor and a full accounting made.”

So far as the powers of the lay lords were concerned, this Norman kingdom in the South had followed largely the theory of The Feudal its sister state in England. The monarchy, because it Jurisdiction was a new one made to suit a new set of conditions, had been able to assert itself decidedly more than in countries where, as in France, it had to get on with a group of longestablished feudatories, stronger than itself and fiercely jealous of their rights. The formal rights of the Sicilian feudatories were limited by many enactments of the kings before Frederic, but since the time of the powerful King Roger (d. 1154) these great vassals had become more and more dangerous rivals of the crown.

1231] LIMITS OF FEUDAL JURISDICTION n

They were living, each according to the law of his fathers — Lombard law, Frank law, or new Norman law, as it might be. An attempt had been made by King Roger in 1140 to reduce the system to unity by making careful registers of fiefs, a work somewhat resembling Domesday Book in England, and passing measures to restrict sub-infeudation, a process whereby the rights of the crown over the land were continually endangered. Frederic had, therefore, a precedent for the much stricter measures which he had in mind. His_. aim was to take away from the barons as much jurisdiction as possible. In criminal cases he claimed absolute control for his royal courts, and in civil cases he required proof that the baron in question had a good title for his right. In every way he tried to diminish the power of resistance of the nobles, while at the same time he exacted from them the utmost service in the defence of the state. It was an act of surprising courage to require that all baronial castles built since the death of King William II (1189) should be straightway demolished. Such strongholds were, of course, the natural resort of all feudal holders who desired to bring pressure upon their immediate * subjects. Within his own domain or crown lands Frederic forbade the building of any strong places that might hinder free entrance or exit, adding, " We believe that our own defences will furnish sufficient protection to our subjects.”

One of the most precious privileges of the mediaeval gentleman had been that of righting his own wrongs. To bring a suit in a court had seemed to him, as it seems still to some semibarbarous communities, to be a dishonorable confession of weakness. Frederic positively forbade all such self-help. " Any count, baron, knight or any other person who shall openly make war within the kingdom shall be punished with death and the confiscation of all his goods. He who shall undertake to make reprisals shall forfeit the half of his goods.” All quarrels must come before the royal courts. Still more curious is the prohibition against carrying weapons. It illustrates as well as any other measure the singular mixture of mediaeval with modern notions that marks all this transitional legislation. He desires, the king says, rather to prevent evils than to remedy Prohibition them after they have happened, and therefore he forof Personal bids all men to carry weapons of offence or defence Justice which are made rather for causing injury than for serving any lawful purpose. He exempts, however, officers of the court engaged in their proper business and also knights or citizens journeying on their own affairs ; but these must lay aside their swords immediately on entering an inn or on reaching home. Strangers coming into the kingdom are to be warned of these rules and are then subject to the same penalties for violating them. If a man draw a prohibited weapon on another without injuring him, he is to pay a double fine ; if he hurt him, but not fatally, he k must lose his right hand, " for it is just that the offender be punished in that part of his body with which, in contempt of law and government, he has committed the offence. ” If the man attacked were killed, the murderer, if he were a knight, was beheaded ; if a commoner, he was hanged. The new laws, however, expressly recognize the right of self-defence and provide that a person attacked by superior force may defend himself by calling on the king’s name. This process was technically called a defensa , and it was extended to cases in which any one feared an injury to his person or his property from a superior. All royal officials were enjoined to see to it that such appeals to the royal protection were promptly answered, " so that we, since we cannot be everywhere present in person, may be held to be everywhere present by our power.” These declarations suggest at once a comparison with the numerous mediaeval proclamations of the Landfrieden , or the " king’s peace,” but the difference is a most important and as the vital one. Those earlier manifestoes of mediaeval

" Fountain of kings anci princes were hardly more than protests against a lawlessness they had no real power to control. The purpose of Frederic went far beyond any mere proclamation. It is expressed in one title as follows :

LIMITS OF FEUDAL JURISDICTION

" Not without great care and deliberation did the ancient Roman people hand over to the Roman Prince by the Lex Regia the right and power of making laws, so that the source of justice might reside in the same person from whom its defence proceeded. So it can be shown that not so much from expediency as from necessity it was provided that these two things, the source and the maintenance of justice, being in one person, force should not be lacking to justice, nor justice to force. Caesar must therefore be both the father and the son of justice, its lord and its servant ; father and lord in publishing justice and preserving it after it has been published ; but in reverencing justice its son and in administering it in its fullness its servant. Taking counsel, therefore, of these reasons, we who have received from the hand of God the sceptre of the Empire and the rule of the kingdom of Sicily, declare of our own will to all our faithful subjects of the kingdom, that we propose in our heart to deal justice to them one and all without respect of persons, with ready zeal, so that they may find justice in plenty everywhere through our own officers, to whom we have committed its administration, some in civil, others in criminal affairs.”

There could hardly be a better expression of the relation of a strong government to the whole problem of justice. A govern- Checks upon ment> to any use> must have the force to compel

the Feudal its subjects to live according to the law ; but in doing

Institutions ft must itself be subject to the higher law of

justice. That is the keynote to Frederic’s whole plan of administration. The feudal jurisdiction was restricted at every point, yet not so much by denying its legality as by keeping watch over it and controlling it by the royal courts. For example, in the very difficult subject of claims on land, injustice of a baron toward his vassal was made less easy by requiring first the approval of a royal court before action could be taken and by keeping always open a way of appeal to the king himself. As to criminal matters, here, as in the case of the Church, all jurisdiction was taken from the barons, excepting only such of them as could show a clear title to it. No crown vassal could marry or give in marriage his children or any person over whom he had nuptial rights without the royal permission. Upon the death of a vassal, his lord must at once notify the king, giving a full inventory of the vassal’s property, and the king would then direct to whom the fief was to be assigned. Thus the whole mechanism of the feudal society was to be directed by royal control. We must not, however, suppose that it lay within Frederic’s intention to abolish the feudal principle. On the contrary, he provided for its indefinite continuance by allowing succession in the female line, assuming charge of daughters in the absence of sons and seeing to it " in the sight of God” that at a suitable age they be married without diminution of their father’s goods. So also he permitted collateral succession to the third degree, a measure calculated greatly to increase the fixity of feudal landed rights. That Frederic could afford to do this in express terms shows the confidence he had that his new system in general would be strong enough to keep the barons in check.