[1] Gaines Post 'Legal Thought'
Part of a series: Interpreting the interpreters of medieval governance
Social Science Files research exhibit.
Category type 7 rank over status society.
A book exhibit ..
Gaines Post, Studies in Medieval Legal Thought: Public Law and the State, 1100-1322, Princeton University Press 1964
Preface
In the period under investigation, what we call "State" was called Imperium, Regnum, Respublica, and Civitas. But since a Regnum, for example, was often treated as an abstract entity or body, even a corporate body, that was superior to king or government and all the members, and was in many respects the supreme subject of public law, it is surely no distortion to use our own term, "State", instead of the medieval term.
The word "State", therefore, is capitalized in order to distinguish it from "state" in such a context as "state of the Realm" or "state of the Republic”. This is because the "state" is the status, or public welfare, or even government, of the Regnum as State.
… every man in the Middle Ages was given a status related to his position in society, and every man who held rights in property had a status, an estate. … these and similar terms will be considered in this work only in the context of public law.
… I wish to make it clear that the influence of the Roman law on medieval institutions and on the development of public law and the State is not something to be dismissed as superficial; partly because status and utilitas publica, for example, have a bearing on nearly every topic presented …
Introduction
… Whether or not it was a renaissance, the twelfth century was in fact a period of great creative activity … the beginnings, in the West, of modern European civilization. In the thirteenth century what had begun in the twelfth arrived at such maturity that it is safe to say that early modern Europe was coming into being.
Among the institutions and fields of knowledge created by medieval men, the university and the State and the legal science that aided in the creation of both were, as much as the rise of an active economy and the organization of towns, important manifestations of the new age. While accepting and respecting tradition … kings, statesmen, and men of learning confidently applied reason and skill to the work of introducing order into society …
Long before the recovery of Aristotle's Politics, the naturalness of living in politically and legally organised communities of corporate guilds, chapters, towns, and States was recognised both in practice and in legal thought. …
At the very time when merchants, artisans, townsmen, and schoolmen were forming their associations for mutual aid and protection, the study of the Roman and Canon law at Bologna introduced lawyers, jurists, and secular and ecclesiastical authorities to the legal thought of Rome on corporations. When kings were trying to overcome the anarchy of feudalism, the new legal science furnished those principles of public law that helped them convert their realms into States. And when the problem of the relations between corporations and corporate communities on the one side and the authority of the heads of Church and State on the other needed to be solved, the Roman law offered much of the solution. It provided for the legal capacity of a corporation to act as a private person and to defend the rights of both the individual members and the corporate body as a whole.
By means of the Roman law on agency these rights could be represented in secular and ecclesiastical courts. The Roman law, moreover, furnished a theory of consent according to which the representatives of corporate communities could appear in royal courts and councils and defend the rights of their constituents before consenting to the superior right of the prince, the supreme judge, to make the final decision.
FOOTNOTE: … As for the question of what the representatives understood, no doubt most of them were ignorant of the meaning of the legal terms in their mandates, as they were of the problems of public law and the State. But what they understood is not so important as what members of the royal government understood. The fact is that it was the royal courts and councils which had to understand the law and interpret it and make the final decisions. But royal justices and counsellors had some knowledge, even in England, of principles of the Roman law, and they advised the king. Decisions were of course influenced by political and economic situations, but they were made by men who appreciated and knew legal procedures and the theories of public law. To use an analogy: if I go to court in a lawsuit it is presumed that I have no understanding of the law; I must submit to the law as interpreted by the court. It hardly matters that English knights or their representatives knew nothing about plena potestas and quod omnes tangit (yet they probably learned something about them in meetings of shire courts); what matters is that the royal government ordered them to bring full powers to consent to what would be done by the king in his court in his council in his Parliament. The king, by consulting his counsellors and judges who were expert in the law, knew the law; he had "omnia iura in scrinio pectoris sui”.
As a result, the development of corporations and agency speeded the binding of communities to the central government at the same time it extended the king's authority more effectively into all parts of the realm.
A further consequence of the process was, by the late thirteenth century, the early, in some respects premature, triumph of those Roman principles of public law and the State which prevented Roman corporatism from becoming a new kind of localism. …
[REPRESENTATION]
… [The] representation of towns and other communities, some of which were not true corporations but which acquired the right to elect agents to act in their name, began to reflect the Roman law on corporations and naturally appeared first in Italy rather than in Spain; and … representation by agents given "full powers of attorney" in Parliament, Cortes, and (a little later) Estates General, was not a democratic but a royal institution in which the judicial, administrative, and legislative prerogative of the king was superior to all the private rights represented and defended. [The] history of the legal recognition of a guild, the corporation of the University of Paris, illustrates not only the use of the two laws in favor of the members of a rising community of students and professors, but also the necessary dependence of the corporate body on the highest authority. His interest in the law of corporations and agency thus aroused, thereafter the author [Gaines Post] began to consider the problem of the rise of other corporate communities and when they were first represented, in the new Roman style, by specially chosen agents in the feudal assemblies summoned by kings and popes in Italy and Spain. But it was necessary also to study the legal nature of representation and of the powers of the representatives in relation to the public right of the prince to summon them and in relation to the law on the right of consent. At once it became evident that the nature of consent in assemblies could be interpreted only in the context of the theory and practice of the royal authority. …
… representative assemblies were summoned because, as the royal documents abundantly reveal, the monarch intended to deal with a weighty business (ardua negotia) that was common to the "state of the king" and the "state of the realm" and was vital to the public welfare and safety.
But the concepts of the status regis and the status regni, it developed, belonged not to feudal law and custom but to the public law, and the public law was the law of the State.
Magna Carta and feudal contract could not by themselves explain representation and consent in Parliament. The public interest which it was the king's duty and right to maintain subordinated private rights and consent to the "right of State".
What was the public interest? What constituted the public authority? Did cases of public emergency or necessity enhance the powers that belonged to king and crown? And were these powers the "estate royal"? What was the status or "state" of the realm? Finally, what was the public law, and what was the nature of the State with which it was concerned?
Again the author [Gaines Post] turned to the Roman law, as interpreted by the legists [experts in law] and canonists [experts in church law] of the twelfth and thirteenth centuries, in order to find answers to such questions and in order to learn whether the public law of Rome affected England, the land of the common law, as well as monarchies on the Continent.
Inevitably, then, to understand medieval assemblies, to understand the nature of the consent of representatives, we always return to the problems of the public authority and public law, to the relation between individual rights and the "right of State", between communities and the community of the realm. …
… [The] expressions—"public" or "common utility" or "welfare," "emergency," "necessity", "necessity knows no law", and "reason of the status or public welfare"—are to be found in the twelfth and thirteenth centuries.
The purpose of this study is to point to their origin in the Roman law, to show how the legists and canonists used them to develop the early modern theory of public law and the State; and to observe how kings, emperors, and popes were employing the new terminology to justify their claim to an authority that represented the public and common welfare and the status (state) of Realm or Church and was therefore above human if not natural law. …
FOOTNOTE: … To be sure, the idea that the king should rule for the public and common welfare by protecting people and churches was well known in the [Germanic] kingdoms. But it was already ancient— indeed, it is an ageless ideal of every kind of government, whatever the practice; and theocracy has nothing to do with it except to indicate that the king may assert that his power comes from God and that he has the right, for the sake of the public welfare, to govern the clergy as well as the laity. But in the terms and concepts used in the [Germanic] kingdoms, publica utilitas and status regni were a survival of the tradition of the imperial authority in the Roman Empire. … In any case, the Roman law, not to mention Cicero, abundantly expressed the concept that the principal duty of the government was the achievement of the public utility of the State. Naturally the revival of the Latin classics and of the Roman law in the twelfth century resulted in a new emphasis on the utilitas publica or status of the Republic or Regnum. …
… As for the State, except possibly in the case of the Empire, there was no medieval concept of it until the time of Bartolus. [Bartolus de Saxoferrato, Italian law professor 1313-1357]. …
[But] Even when Bartolus in the fourteenth century declared that not only the Empire but kingdoms and Italian city-states were true republics and independent of the Empire, these communities were not true States, for they were still controlled by Christian moral principles. …
[DEBATES]
… I sometimes think that one of the principal errors of modern scholarship on medieval law and institutions has been that of interpreting in accordance with contemporary notions. I prefer rather to find out if there was a medieval conception of the State, just as I prefer to believe that there is a State of the United States even if it is not completely above and outside the citizens, the law, and some morality. …
… [Fritz] Kern [Kingship and Law in the Middle Ages, Oxford, 1939] … a great authority on medieval kingship, refuses to recognize any kind of State or public law in the modern sense. The objective law, he says, was simply the sum of all the subjective rights of the people, and it was prior to and above the State. The State was "muzzled" by private rights; it could not adapt the law of the community and private rights to meet its necessities; it could not interfere with private rights for the benefit of the community as a whole. Private rights, especially property rights, were sacred, and the government could not set them aside by new law. Since taxation was sequestration of property, the State could not raise taxes without the free consent of all concerned. (He forgets that in the United States the State is assumed to exist and yet in theory it can tax only with the free consent of the people.) "The State itself had no rights sui generis". There was, in short, no public law and no State.
Authorities on medieval England come to a like conclusion— Pollock and Maitland [Pollock, F., and Maitland, F. W. The History of English Law, 2 vols., Cambridge 1898] holding that public law was merged into private law, no line being drawn between the king's public and private capacities; Plucknett, [Plucknett, T. F. T. Statutes and Their Interpretation in the First Half of the Fourteenth Century, Cambridge 1922] that matters of public law (the prerogative of the Crown, the means of extraordinary taxation) were intimately connected with the land and were regarded from the point of view of private property law; Mcllwain [Constitutionalism Ancient and Modern, New York, 1940], that private rights and public law are so interwoven that the line is hard to draw between such libertates praescriptae as belong to the king alone as a part of the "government" over which he has plenam potestatem et liberum regimen … and, on the other hand, those prescriptive rights of tenants or subjects which are wholly outside and beyond the legitimate bounds of royal administration and fall properly under jurisdictio, not under gubernaculum.
Yet Pollock and Maitland admit, by implication, that if all law was private law, what was private could also be public. For we must not distinguish too sharply between the governmental powers of a sovereign State and the proprietary rights of a supreme landlord, between a tax and a rent. If all land was held of the king and rents were paid, it was owned as much as in the modern State in which heavy land-taxes diminish the taxpayers' ownership. Thus royal right over the land was similar to public right, "eminent domain", today. (And I would add the reflection that it is absurd to suppose that there is much more absolute private ownership of property in our own country today than in medieval feudalism; for the public utility farmers have to sell their land for the construction of a highway or an artificial lake, and, as we shall see, this theory, revived along with the Roman law, was being stated in the thirteenth century).
Mcllwain [Constitutionalism Ancient and Modern, New York, 1940], too, offers a compromise. Observing how in the Roman Empire public and private law had in theory the same ultimate source, the will of the people, he says that the public law, as stated in the Institutes, pertains to the State (status rei Romanae), that is, to the people who are the State. Since the State is no abstraction apart from the people, the rights of State are the rights of the people collectively and individually.
For public and private rights, therefore, the subject was the natural person. Roman constitutionalism consisted in the fact that the law, public and private, was binding on the government because, deriving from the people, it protected individual rights. If the public law was the law of the State, the State was not a separate entity superior to the individuals in it.
This Roman constitutionalism, containing the idea of a State and a public law, reinforced medieval constitutionalism as a result of the legal renaissance of the twelfth century. Thus, in thirteenth-century England, although private and public rights and law were closely connected, the Roman influence may be seen in the emphasis by Bracton on the consent of the people to the law, and on the obligation of the king to rule according to the law; and in his theory of public and private law, and of the power of the prince.
But McIlwain concludes that there is no State, that is, no community of the people as a whole which had a right in itself that was superior to private rights.
In short, the authorities referred to … are too absorbed in the importance of private rights, and in the cellular, corporate nature of medieval society, to appreciate how not only Roman and Canon lawyers but kings and popes frequently appealed to the "public welfare clause," the "state of the realm" (status regni), and the "state of the Church" (status Ecclesiae), and thus demanded a sacrifice of private rights and of the law that protected them; how, indeed, they were, in an earlier period than generally supposed, developing the theory and practice of public law and the State.
The legists started building their theories, naturally, on the foundation of Roman law, although Aristotle was of some influence by the end of the thirteenth century.
They started with Ulpian's famous statement: "Public law pertains to the status rei Romanae; private, to the utility of individuals. Public law relates to religion, priests, and magistrates". [Domitius Ulpianus, died c.228, Roman jurist. His legal writings provided one of the chief sources for Justinian's Digest of 533.]
On this, as early as 1228, a glossator [a commentator on ancient law texts] even seemed to personify status, saying that public law exists "to preserve the state, lest it perish". But probably, like others, he meant the public welfare of the Empire.
For Odofredo [died 1265, Italian jurist] a little later asserted that the public law pertains chiefly to the status of the whole Empire, and the glossators in Accursius' [died 1263, Italian jurist] Glossa ordinaria related status to the public utility.
Like Azo [Azo of Bologna 1150–1230, more about him later], they held that if private law pertains primarily to the utility of individuals, it pertains secondarily to the public utility, since it interests the Respublica (the State) that no one should misuse his property. Contrariwise, what is primarily public, secondarily pertains to the utility of individuals. Accursius added that it is for the utility or welfare of individuals that the Republic be preserved unharmed— an approach to the frequently expressed idea that the common utility is essentially the safety of all collectively and individually. …
The public law, then, dealt with the public or common utility and safety, with the status of the State. In the sense that the public utility was generally a higher good than private … the State, the true bearer of the public utility, was superior to its subjects considered individually and collectively.
It follows that public law must deal more specifically with the means of assuring the status of the Respublica. The concept of public law was attached to the public authority, the government, which existed to administer the State for the common utility, good, and safety of all, which interpreted the public law and the common welfare, and which therefore had a certain prerogative that made it superior, in an emergency or necessity, to the private law and private rights. Therefore, as Odofredo put it, summing up Azo [above] and the glossators, it was of public interest to have sacra, churches and priests to save people from their sins, and to protect priests from injury; and to have magistrates, for laws would be of no value without men to administer justice. Public law, then, dealt with the Church and the clergy, and with the office of magistrates. The Glossa ordinaria added the fiscus and fiscal law to the realm of public law.
[Wiki: Fiscus … was the name of the personal chest of the emperors of Rome. The word is literally translated as "basket" or "purse" and was used to describe those forms of revenue collected from the provinces (specifically the imperial provinces), which were then granted to the emperor. Its existence pointed to the division of power in the early era of the Empire between the imperial court and the Senate.]
Since national representation arose particularly in connection with taxation, it is interesting that fiscal matters pertaining to the Empire and the emperor were treated as a part of public law. The glossators … observed how the public law dealt with the repression of crime and the preservation of the law of the Republic, and at the same time protected the rights of the prince, one of whose rights was that of the fiscus. The ruler's jurisdiction belonged to public law; but so did the fiscus, even though it was the emperor's right and was of less public concern than criminal jurisdiction. This was true in part because the fiscus was public as a result of being enriched by penalties imposed for crimes, and because jurisdiction belonged to the public authority. Yet the fiscus was also a private right of the emperor as a private person.
Accursius, however, clearly made the fiscus public; it was the treasury of the Empire, not the patrimony of the emperor; and while it kept the accounts of the emperor and empress, it succeeded to the old public treasury (res Romana) and thus belonged to public law. Criminal jurisdiction and the fines and confiscations of property imposed by the fiscus were therefore regulated by public law. For these aspects of government pertained to the public welfare, to the status of the Empire, the Respublica.
But if the fiscus was public, was taxation? Placentinus and other legists, [references] asserted that when the prince went on a campaign, all, even the clergy and monks, should help him with their property; and that when it was for the public utility, e.g., the transport of supplies by ship, the emperor might exact extraordinary services from churches with the consent of the prelates. Moreover a provincial governor might raise new taxes if the consent of the emperor and the common utility and necessity or poverty of the province were concomitant. They all held that extraordinary taxation belonged to public law since it was for the common utility and necessity of defence.
Similarly the Glossa ordinaria reflected this relationship between the fiscus, new taxation, public law, and common utility and necessity. For example … the Em- perors Honorius and Theodosius declared that all, rich and poor alike, with no exception by special privilege, must aid in the provision and transportation of supplies for the war in Illyricum (ad necessitates Illyricanas), a gloss stated that even the emperor and empress were not exempt from the burden. This anticipated Baldus [died 1400, Italian jurist], who in the fourteenth century … said that a tax imposed for the public utility, i.e., the necessity of defending a province, touched all equally, but in proportion to their wealth in immovables, livestock, or money.
Taxation in a case of necessity, for the defense of province or Empire, for the common safety of all and the protection of all property (as Baldus said in the comment just referred to), and thus for the common utility, clearly belonged to the realm of public law. So also did the fiscus as the public treasury which controlled taxation levied publicly for the common welfare. Such taxation for the defense of the whole community was levied likewise in order to preserve the status of the community, be it province or Empire—or kingdom, since in a kingdom, some lawyers of the thirteenth century held, the king had all the public authority that the emperor had in the Empire: "Rex est imperator in regno suo". The king thus had the right to demand extraordinary taxes for the defense of the land in a case of necessity and public utility, for the prince administered and judged, if according to the law, for the common good of all.
[CONSENT]
But the consent of all was required [MGH: not quite ‘all’, see next paragraph] because all were touched by the necessity of a general tax for the common safety. Hence, at this point quod omnes tangit, a famous Romano-canonical maxim, became a principle of public law while remaining at the same time one of private law. Thus, public law was recognized in the kingdom—and in the Church—as well as in the Empire.
In their treatment of public law, therefore, the legists included the right of the public authority to tax for the status or public utility of the community. This power of taxation was not an outgrowth of the right of expropriation by the public authority, because it was not confiscation, and the consent of those taxed was more clearly involved. If the power to tax came under the scope of public law, so the power to legislate. This is not the place to discuss the medieval theory of legislation as law-finding rather than law-making. But in the thirteenth century the legists certainly held that the right to make statutes, general laws for the common utility, belonged to the public authority by public law, even though the consent of prelates and nobles (or, in the Italian republic, the consent of the leading citizens) was necessary.
The power to legislate belonged to the ruler as the public authority, and general laws were made for the status or public utility of empire, kingdom, or city state. Moreover, the power of jurisdiction, as we have seen, was a part of the public law on magistracy, and jurisdiction in the Middle Ages was not clearly distinguished from legislation as law-finding. But all the same, there was a theory of law-making in the antique-modern sense. This theory derived in part from passages in [Justinian] Code and Digest on legislation by the Roman emperor for emergencies not covered by the old body of law, and on the making of new laws for new matters not decided by the old law, if "evident utility" exists.
The legists interpreted "evident utility" as the common utility of all subjects and as a case of necessity. By doing so they showed that the public authority existed to meet emergencies, new situations, in order to maintain the common welfare or status, in the field of legislation as in that of taxation.
Indeed, at least one famous legist, Odofredo [above], made extraordinary taxation a part of legislation. … he said that constitutiones have to be made for new cases (de rebus novis) not decided by the old law; but they should not be made for new cases decided by the old law if the result was a departure from what had long seemed equitable (equum), unless the evident utility of the people demanded them. Then he added, by way of example, that no one should impose new vectigalia on his subjects unless "evidens utilitas" was manifest; and he referred for additional authority … in which laws new vectigalia were prohibited unless the emperor decided that they were necessary. …
…[A] sufficient number of opinions has been given to show that by 1265 they had a real concept of public law. They could understand that, as Ulpian said, public law is that branch of law which deals with the public welfare, status, of the Republic and with the public authority, while private law deals primarily with the interest of individuals.
They could understand that since the status of the community can be preserved only if there is a government which has the power to administer, legislate, judge, and tax, therefore the public law is divided into constitutional, administrative, and criminal law.
In the [Justinian] Code in particular they found much public law relating to matters ecclesiastical, constitutional, fiscal, military, criminal, and municipal. They had a sufficient grasp of Roman law to appreciate the distinction between public and private.
[TO BE CONTINUED]
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