By September 1158 Barbarossa had completed one of the shortest and most efficient Italian campaigns of the medieval period. He had set off from Augsburg in mid-July and by early September Milan had capitulated. By October, most troop contingents both those from north of the Alps and those of the communes were on their way home and all of Italy was his.

Barbarossa meanwhile is not going home. He takes a tour of Lombardy, visits Monza where his uncle had been crowned king of Italy and then calls an Imperial Assembly on the fields of Roncaglia for November 11th.

For the Italians this whole thing starts to look a little bit odd. Why is he still here? Milan has fallen, imperial honor has been restored and the army has returned home, so surely the emperor is going home too. There must be some domestic issue or feud or something that requires his presence up north. But it can’t be helped; they show up as requested, hoping that all he wants is a last knees-up before going home.

They are in for a shock. Barbarossa is going to unleash on them a new and unexpected weapon, more devastating than a trebuchet and more cunning than a Bohemian king, I talk of course of the professional lawyer and the Roman Law.

The music for the show is Flute Sonata in E-flat major, H.545 by Carl Phillip Emmanuel Bach (or some claim it as BWV 1031 Johann Sebastian Bach) performed and arranged by Michel Rondeau under Common Creative Licence 3.0.

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To make it easier for you to share the podcast, I have created separate playlists for some of the seasons that are set up as individual podcasts. they have the exact same episodes as in the History of the Germans, but they may be a helpful device for those who want to concentrate on only one season.

So far I have:

The Ottonians

Salian Emperors and Investiture Controversy

Fredrick Barbarossa and Early Hohenstaufen

Frederick II Stupor Mundi

Saxony and Eastward Expansion

The Hanseatic League

The Teutonic Knights

The Holy Roman Empire 1250-1356

Hello and welcome to the History of the Germans – Episode 55 – The Laws of Roncaglia

Today we will talk about part two of Barbarossa’s plan to take control of the kingdom of Italy. Part one was the subjugation of Milan and the softening up of the Communes. Now comes part two – the establishment of a new system of government for Northern Italy.

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Barbarossa meanwhile is not going home. He takes a tour of Lombardy, visits Monza where his uncle had been crowned king of Italy and then calls an Imperial Assembly on the fields of Roncaglia for November 11th.

For the Italians this whole thing starts to look a little bit odd. Why is he still here? Milan has fallen, imperial honor has been restored and the army has returned home, so surely the emperor is going home too. There must be some domestic issue or feud or something that requires his presence up north. But it can’t be helped; they show up as requested, hoping that all he wants is a last knees-up before going home.

They are in for a shock. Barbarossa is going to unleash on them a new and unexpected weapon, more devastating than a trebuchet and more cunning than a Bohemian king, I talk of course of the professional lawyer and the Roman Law.

Roman law wasn’t new nor was the professional lawyer. Both flourished over in Constantinople. It was just in Western Europe where it had not existed for centuries.

Judgements were provided either by a jury of peers or by the ruler alone. None of them had any legal training, making again the outcome of cases unpredictable. And finally access to justice was limited. Part of the privileges aristocrats believed they had was to bring cases to the emperor, meaning a plaintiff needed an aristocratic sponsor to get a hearing. Court procedures were also unregulated, and decision were often taken without detailed investigation or without the other party even given a chance to respond. One such case was Barbarossa’s decision to support the Lodi against Milan in 1154, without hearing the Milanese and in fact without even hearing the city leadership of Lodi either.

This state of affairs was unsatisfactory but acceptable for a largely rural society with limited monetary exchange dominated by personal obligations rooted in status as serf, free man, noble or prince. It was utterly unsuitable for the urban world of Italian communes. Merchants relationships were ruled by contracts. They needed clarity on their legal position in order to properly assess the risks of transactions. Is

Attempts had been made to codify the existing laws into a coherent structure for example under King Henry I in England, but even there in the most advanced governmental system in Europe the task was unmanageable.

That is why the rediscovery of the Codex Juris Civilis of Emperor Justinian in some Italian convent was such an immediate success. The Codex Juris dates back to about 530 AD and contained a comprehensive, ordered, coherent and rational set of laws designed for the sophisticated urban society of the Roman Empire. It did not just contain the laws but also a collection of authoritative legal opinion on these laws and a textbook that helped students to learn to understand the law.

The Codex Juris is by no means short nor is it an easy read. But it is a lot shorter and a lot easier to read than Hansart. The difference between a compilation and a codex is not what is in it, but what is not in it. When the Codex Juris Civilis was created in 530 there were already several compilations of imperial legislation and of authoritative legal texts. These laws and opinions would sometimes say the diametrically opposite. The authors of the codex took all these compilations and ordered its content by subject. Then they looked at the different rules side by side and decided for one and ditched the rest. Rationality was the key driver of the decision which rules to keep. Does this rule fit with the overarching concept, does it operate in harmony with others or is it likely in tension with another part of the codex. Does it provide a fair and equitable outcome? They did the same with the authoritative legal texts from famous jurists of imperial Rome. They again ordered them by topic, matching the list of topics in the codex and stripped out the bits that were contradictory or out of synch with the overall structure.

What came out in the end was a legal system as opposed to a list of rules. A system that was logical within itself. It was also abstract. For instance, it required agreement over price and object as a requirement for anything being regarded as a contract. It does not matter whether it is a contract over a bag of grain, a journey to Constantinople or the marriage of your eldest daughter. That means the rule could still provide useful answers to issues the writers had not anticipated.

The Codex Juris was designed for an urban society that was used to import grain from Egypt, silk from China and tin from Cornwall. It was so far advanced compared to all existing law codes it was as if you had given a copy of Einstein’s theory of general relativity to an 18th century natural philosopher. The lawyers of the time could understand it after years of diligent study which propelled the application of law forward literally by centuries.

And, what the Italian merchants also preferred was the judge-centric legal system Roman law prescribed. In the German legal tradition, judgements were made by a jury of peers. And that is unsuitable when it comes to adjudicating complex contractual arrangements. A jury rarely has the time and the training to assess the content of a 100-page contract. I know that in some US states juries decide on such matters, but let’s just say it is a model rarely copied elsewhere. Professional lawyers who had spent years training in Roman law are more suitable judges on such matters, not because they are any less biased, but because their decisions are more predictable. They will by and large use the same sections of the law and the same legal commentary to derive their decisions, which means their judgements should be similar.

And the third component that contributed to the success of Roman law amongst the merchant elite of Italy was the concept of equity. Equity is the idea that if the outcome of a mechanical application of the law would result in an outcome that is apparently unjust or obviously not what the parties intended, then the learned judge can alter the outcome to a more sensible result. That reduces predictability but was extremely useful in cases where an unpredictable set of circumstance could lead to a frustration of the parties’ intents. Take the loss of a valuable cargo on a ship travelling from Constantinople. There are hundreds of things that could have caused that, a drunk captain, a storm, an incompetent pilot, pirates, fire on board from cooking, fire on bord due to lightening, spoiling of the goods due to heat, incompetent storage, incompetent storage ordered by the recipient etc,. etc,. pp.

Equity is a useful concept. I can say that because I remember a time in my dissipated youth when I spent a long night writing a force majeure clause in an English law contract – where equity does not exist in the same way – and had to think of all the things that could happen to a chocolate factory in Bulgaria. And whatever had gone wrong with that factory – and in all likelihood something had - it was not on that list. I might be biased but Equity is a much more useful way to deal with that uncertainty than letting interns slave away through the night.

So, Italian merchants were supportive of the Corpus Juris as it gave them a legal framework for their commercial existence, a judiciary that could produce predictable resolutions to disputes and a concept of equity that balances potentially unjust outcomes.

But the Codex Juris did not just contain contract law and court procedure alone, it also contained something like the constitution of the Roman empire. And that constitution in the year 530 was that of an autocratic regime. The emperor was the source of all laws and stood above the law. Law was what pleases the emperor. There is even an explanation inside the Corpus Juris where the imperial authority had come from. According to this theory, the right to pass laws had originally rested with the Roman people but that under Augustus they had permanently transferred this right to the benevolent emperor.

Subsequently under the Roman law the princeps could pass or cancel any law he liked, he can appoint the judges who are responsible to him, and he has a wide range of privileges, we will discuss in a moment.

For Barbarossa the Corpus Juris was even more an answer to all his prayers than it was to Italian merchants. It solved so many problems.

His first problem was still the foundation of his authority. The Ottonian emperors had derived their authority from the concept of sacred kingship, from being the vicar of Christ on earth. But following the investiture conflict this source of authority had been lost, or worse was now residing in the papacy who could enfeoff the emperor with it. That was unacceptable to Barbarossa because it meant the pope could easily choose someone else, say the Byzantine emperor or the King of France and make them emperor.

But where, if not from the Pope where does his authority come? Well, it is there in black and white in the Codex Juris. The emperor has absolute power over all citizens of the empire because that power has transferred to his predecessor the divine Augustus in the first century. In fact, imperial authority predates the popes and even Christianity and hence is independent of papal authority.

His second issue was that imperial administration had so far relied entirely on the chancery which was staffed with churchmen. Even though Barbarossa was able to retain the loyalty of his bishops and the German church in general throughout his reign, having a non-ecclesiastical source of smart administrators would be extremely useful. And that is where the school of Bologna comes in. They are churning out a near endless stream of young, highly trained and mostly impecunious men that could be put to good use in the imperial administration. And they will. For instance Pietro della VIgna the chancellor of Barbarossa’s grandson Frederick II was one such jurist who had studied in Bologna on a scholarship.

The third problem was more specific, how to exercise power in Italy. The German governance system did no longer work in Italy. The bishops and princes through which the emperor exercises power in Germany were simply too weak in Italy. The episcopal rights and privileges had transferred to the communes and the major princes had largely disappeared except for parts of Piedmont and some pockets in central Italy. What was needed was a legal definition of the relationship between the powerful communes and the emperor. And that is where the Corpus Juris comes in.

It was so simple. The communes had already adopted Roman law. And the corpus Juris was a codex which means it was a coherent unified law, not a pick’n choose. So conceptually if you use the rules on contract law you also accept the absolute rule of the emperor.

During this assembly in Roncaglia, Barbarossa took this line very forcefully. He did promulgate the so-called Laws of Roncaglia. They are so-called laws of Roncaglia because these weren’t new laws. The way he framed it was that these were just reminders of what the law already was according to the Codex Juris.

Let’s see what that means specifically.

The first is the Lex Regalia, the law of the imperial rights.

Do you remember the oaths that Otto and Rainald have made 57 Communes swear earlier in the year? It is the one where the citizens of each city have promised that they “shall not deprive him of his royal rights here or elsewhere, and if they should be taken from him I shall in good faith aid him to recover and retain them.”

Barbarossa thinks it is time to be a bit more specific about these royal rights. Like very specific, like having a piece of paper saying exactly what is is, specific. For that he enlists the help of the famous jurists of the university of Bologna. These four great doctors, I spare you the names, are held in the highest regard across Europe for their knowledge and understanding of the Codex Juris Civilis of Justinian. Barbarossa tasks them to produce a comprehensive list of all the Regalia, the royal rights in Italy. The lawyers draft in 28 further lawyers, one from each major city to help with the task. The professional lawyers are unleashed.

This commission comes up with a long list of regalia which include ownership of all public roads, navigable rivers, harbors and riverbanks, the right to demand any kind of tolls for transit or use of bridges, the right to mint coins, income from fisheries and salt mines. The crown also owns all lands without an owner, the property of traitors and convicted criminals and of those who live in incestuous unions. And half the treasures found on imperial or church land and all of it if he assisted in its recovery. All silver mines. The right to commandeer ships and conveyance of goods on roads. The emperor can also demand a special tax for an imperial expedition, the so-called Fodrum.

And now comes the smart bit. The Laws of Regalia stipulates that whoever currently exercises these rights has to prove ownership with an imperial charter explicitly awarding these rights.

As I mentioned before, these rights had been lost to the crown during the long imperial absences from Northern Italy. They were initially assumed by the bishops and then by the Italian communes. Some of the bishops had received imperial charters confirming the transfer of these rights, but only when they were loyal to the emperor against the pope – so not that many. Usually the bishop had simply taken the rights without ever saying please and thank you. In the early 12th century, the communes wrestled the privileges from the bishops and again there was rarely an imperial charter confirming the transfer. They may have forced the bishop to sign a paper transferring the rights, but that was illegal without consent of the emperor.

That was it. Nobody had the necessary papers and bingo, the emperor could claim the lion’s share of all these sources of income. To get a bit of context around that. The regalia are estimated to have produced an income for the empire of 30,000 mark of silver per year. Compare that to the fine Milan paid of 9,000 mark of silver or the 400 mark of silver Henry the Proud and Pope Innocent II fell out over which cost the Welf the crown. 30,000 mark silver per year is an unimaginably large sum, dwarfing anything Barbarossa could get from Germany. And more importantly any resources any of the great German princes could ever mobilize.

The law on the regalia has some elements of Roman law as we have seen, but it is at heart still going back to traditional concepts of ownership and enfeoffment. There are three more “laws” in inverted commas that are pure Roman law.

The second one is the lex tributum, Law on Tributes which reestablishes the taxation system of antiquity. The emperor is thereby entitled to raise a fixed amount from each citizen as a regular poll tax as well a tax on property. If you have been following the podcast for a while you know how important the ability to raise regular taxes is to the formation of stable political entities in the Middle Ages. One of the key reasons the kings of England could fight two hundred years wars against a much larger France was their ability to raise taxes. Can you imagine how European history would have unfolded if the Holy Roman Emperors had been able to raise taxes from the richest region of Western Europe? To the Italians relief this law was not to be implemented immediately. It was more of a reminder that the emperor can bring such taxes.

The third is the lex omnis iurisdictio which declares that all jurisdiction and coercive power belongs to the prince and that all judges receive their authority from the prince and have to swear an oath to that effect. That de facto abolishes the municipal courts and replaces them with imperial courts.

All this is indeed legit under the Codex Juris Civilis and the four great Doctors of Law tell the Italian Communes that this is what it is. Barbarossa gets up and allegedly delivers a speech dripping with Latin quotations and references to the Codex Civilis. Not bad for an illiterate man with modest if not negligible Latin.

At the end of the speech the bishops, nobles and communes formally renounce their regalia and swear an oath on the four laws. Rahewin even tells the story that the communes suggest to Frederick that he should appoint a Podesta in each commune to ease implementation. A Podesta was usually an external person of good standing who was given dictatorial powers over a city for a fixed period of time. These Podestas had become necessary as strife between factions inside the city had become uncontrollable. You may have seen the pictures of San Gimignano a small town in Tuscany which has preserved many of its medieval tower houses. Practically all Italian cities were full of these family fortresses that are a physical manifestation of the brutality of city politics. It is the Capulets against Montagues everywhere. As positions hardened between different family factions the cities became ungovernable and hence the need of a Podesta to stand in the middle for a fixed period. An imperial Podesta chosen by Barbarossa and installed for an indeterminate time is a very different proposition.

The whole these laws and the Podestas are a massive case of imperial overreach. Compare the laws of Roncaglia with the terms of the surrender of Milan. The Laws of Roncaglia are even more intrusive than the terms the defeated city had to sign.

• Milan was allowed to keep his consuls and elections without a podesta

• Judicial authority was awarded to legates only in cases involving the honor of the empire not everything

• There was no mention of taxes, just a one-off payment.

It is hard to understand why the cities, in particular those who had been fighting alongside Barbarossa against Milan would accept such terms. Well, they may just have sworn to all these things, not out of conviction, but because they were standing in a muddy field outside Piacenza surrounded by the now much smaller but still lethal army of Barbarossa.

We will see next week how all this pans out.

But before we do that, let me just talk a little bit more about Roman and German law.

There is no doubt that Barbarossa would have loved to extend the laws of Roncaglia to the entirety of his empire. But German legal traditions were fundamentally at odds with Roman law.

It does not cover all areas of the law but focuses on two areas, the Landrecht, which is the laws governing the interactions between free men and women. It is focused on topics like property rights, inheritance, family law and neighborhood disputes. The Landrecht also includes criminal law stipulating mainly compensation, so-called wergild for injuries.

The second part is the Lehnsrecht or feudal law. It determines the rights and obligations between the different layers of society starting with the king and going down to spiritual and secular princes, lords, free men of substance and other free men subject to feudal obligations.

And finally, it covers the courts, namely that the court is comprised of a jury of peers presided over by the king or a count.

You see the difference. Roman law is rationality versus Germanic law is tradition. Roman law is focused on issues in an urban society whilst Germanic law covers issues arising in a rural society. Roman law is applied by professional lawyers, Germanic law is applied by peers. In Roman law the emperor is above the law and makes the law, in Germanic law the king is subject to the law and new law arises from precedent and customs.

These two systems could not be more different.

We will get to hear more about Roman law and Germanic law traditions as we go along, but here are the broad outlines what happens.

In Germany, as always, the situation was a bit more muddled. Roman law and professional lawyers became an important tool for the princes to manage their territories. It ultimately became the law of the Empire and so formally reigned supreme. However, Germanic law and compilations like the Sachsenspiegel was not completely abolished. It was presumed to remain in force thanks to a privilege granted by Charlemagne, which almost certainly did never exist. That meant It could be applied to disputes between Saxons, but all cases involving non-Saxons or areas not covered by Germanic law, Roman law was dominant. In fact, the Sachsenspiegel was still cited as a source of law in 1932.

There is however one legal tradition where Germanic law concepts still prevail. And that is English law. It is not that the Kings of England were unaware of Roman law. Absolutely not. Allegedly a copy of the Codex Civilis had come to Oxford as early as 1149 and many advisers and clergymen of the Plantagenet kings had been trained in Roman law.

According to Norman Cantor it was mostly an issue of convenience. England already had a functioning legal infrastructure with shire courts and hundred’s courts that would be difficult to replace. Moreover, these courts did a decent enough job as far as the king was concerned. They managed themselves, i.e., did not cost him much and transferred a steady stream of fines and court fees to the king. And as for the concept of an autocratic king as the source of all laws, that was hard to push through after Magna Carta and the provisions of Oxford. I mean one King tried but lost his head over the issue.

So, there you go. Germanic law traditions no longer apply in Germany but via English law are still in use in the US, Canada, Australia, many commonwealth countries and dominate the world of international trade. And poor law interns still sweat over risks to Bulgarian chocolate factories through the night

As mentioned before, next week we will see how the Italian cities take the laws of Roncaglia. Spoiler alert, not well. And Barbarossa looses the moral high-ground when he accepts cash for conflict from the Cremonese. I hope you will join us again.

And in the meantime, if you feel like supporting the show or want to get hold of these bonus episodes, sign up on patreon.com/historyofthegermans. All the links are in the show notes.