A medieval ruler that has a Muslim fighting force at his back and call and who negotiates Jerusalem out of the hands of the Sultan of Egypt is not what you expected when you began listening to the History of the Germans Podcast. I am afraid you aint seen nuttin yet!

This week we come to what was long believed to be his masterpiece, the Constitutions of Melfi. Even if It isn’t the creation of a modern state in the 13^th century as Kantorowicz had believed there is still something fundamentally different here. The Middle Ages is a world where progress comes from people moving forward whilst looking back. They ask questions about the world and seek the answers in the past, in the Bible, the Church Fathers, Aristotle, Averroes etc. Only where the ancients are silent will great minds like Albertus Magnus look at the real world, undertake experiments and collect observation to derive their answers. Frederick is different. He does turn around and look at the natural world first and at dusty books second.

Let’s see what that means when it comes to organising his kingdom.

Transcript

Hello and welcome to the History of the Germans: Episode 80: A different kind of Emperor

A medieval ruler that has a Muslim fighting force at his back and call and who negotiates Jerusalem out of the hands of the Sultan of Egypt is not what you expected when you began listening to the History of the Germans Podcast. I am afraid you aint seen nuttin yet!

This week we come to what was long believed to be his masterpiece, the Constitutions of Melfi. Even if It isn’t the creation of a modern state in the 13^th century as Kantorowicz had believed there is still something fundamentally different here. The Middle Ages is a world where progress comes from people moving forward whilst looking back. They ask questions about the world and seek the answers in the past, in the Bible, the Church Fathers, Aristotle, Averroes etc. Only where the ancients are silent will great minds like Albertus Magnus look at the real world, undertake experiments and collect observation to derive their answers. Frederick is different. He does turn around and look at the natural world first and at dusty books second.

Let’s see what that means when it comes to organising his kingdom.

Before we start just a reminder. The History of the Germans Podcast is advertising free thanks to the generous support from patrons. And you can become a patron too and enjoy exclusive bonus episodes and other privileges from the price of a latte per month. All you have to do is sign up at patreon.com/historyofthegermans or on my website historyofthegermans.com. You find all the links in the show notes. And thanks a lot to Ernst and the 2 Roberts who have already signed up.

Before we can go to the part where we stare at Frederick with open mouths, we have to close the loop and talk about what happened when he returned from his adventures in the Holy Land. Just to recap. Frederick had finally set off on crusade in June 1228 after having delayed so often, the new pope, Gregory IX had lost his rag and excommunicated him. Frederick tried in various ways to placate the pope but to no avail. He needed his excommunication lifted since otherwise his authority and legitimacy would erode. With a pope dead set against him, this unauthorised crusade was his only hope to be re-admitted into the bosom of mother church.

When he managed to acquire Jerusalem, minus the temple of Salomon for Christendom, he thought that this would make the pope so happy that he would give up his hostile stance. But that was a bitter miscalculation. Gregory IX was – if anything – even more incensed about Frederick being successful than he was about Fredrick being late. Since Gregory VII the papacy had grown to believe it stood above all secular rulers and when Innocent III climbed to the apotheosis of papal power, he called for a crusade he would lead himself. Though this did not happen, it implanted the idea that it was the pope’s job to free Jerusalem. He would use his vassals the kings, princes and emperors for the job, but the ultimate responsibility and glory was to go to the pope. Frederick’s actions have brought this concept to collapse. He had undertaken his crusade against the explicit wishes of the pope and as an excommunicate could not be construed in any way as acting on behalf of the pope. That meant the recovery of Jerusalem was his achievement, leaving the popes whose efforts had so far failed, feeling humiliated

Hence his stay in Jerusalem was in equal measure brief as it was uncomfortable. He stayed a mere 2 days because on the day after the coronation the patriarch put the entire city under the interdict. No mass could be red, no sacrament performed. Imagine you have undertaken the immensely painful journey to Jerusalem and then against the odds, you can get into the Holy city only to find, you cannot pray before the mount Golgotha, the one reason you had come in the first place. Without that prayer, the absolution you craved would not be forthcoming. Your soul is condemned to remain in purgatory for a very, very long time. Frederick had to leave the nominal capital of his new kingdom in haste so the interdict could be lifted and the pilgrims got their absolution.

Things did not exactly improve when he came back to Akkon. The patriarch and the Templars had gathered troops in the city. These could only be meant to fight him since there was now peace with the Muslims. Frederick had the patriarch and some leaders of the crusader orders put under house arrest which threw oil on the flames. The population rose up and pelted him and his men with filth as they went down towards their waiting ships. With a curse on his lips Frederick left the Holy Land.

The papal opposition to Frederick’s escapade was not limited to the Holy land itself. Whilst Frederick was out opening up holy sites to pilgrims, the pope was attacking on two fronts. In Germany he encouraged the imperial princes to consider the election of a new king, the deposition of Frederick as emperor and removal of his now 17-year old son Henry who had become King of the Romans

In Southern Italy Gregory IX took an even more hands-on approach. He hired an army of mercenaries, kitted them out with uniforms bearing the keys of St. Peter and sent them off to invade the Kingdom of Sicily. He flanked this move with the usual papal weapons, a release from any oath of fealty sworn to the excommunicated emperor and a solid dose of misinformation. Frederick, his Holiness announced had died in the Holy Land, a just punishment for all the unspeakable sins he had committed.

The leader of the papal army was none other than John of Brienne, erstwhile king of Jerusalem and Frederick’s father-in-law. And he was a skilful commander. By the time Frederick’s galley landed in Brindisi on June 10^th, 1229, most of the mainland was in papal hands. Frederick’s generals and his Saracen fighters were undefeated, but their area of operation had shrunk, and the units were separated.

Frederick’s arrival flipped the situation rapidly. Frederick’s mere existence exposed the papal lies. As news of the recovery of Jerusalem spread across the country, people questioned the papal intentions. Plus the emperor gained some unexpected help as the Teutonic Knights were blown into Brindisi by a storm and joined his forces.

The papal forces weighed down by their contradictions and possibly a lack of pay rarely stood and fought. By August Frederick was in Capua. The papal legate melted down the treasures of the ancient monastery of Montecassino to pay the troops just to convince them to hold the border. But still they ran. In just 2 months Frederick had cleansed his kingdom of the invaders, again with barely shot fired. These bloodless victories have become his speciality. He had gained Jerusalem without a fight, he had gained the empire through the battles of others and now Sicily regained twice, again more through law and diplomacy than brute force.

Well, not without any brute force. The city of Sora was one of the few places that resisted. It was besieged, conquered and flattened, never to rise again. “The plough should furrow the site of the faithless city as of old the city of Carthage had been”, that is how the emperor himself described his punishment. The male inhabitants were hanged, women and children sold as slaves.

Meanwhile up in Germany the situation had not spiralled out of control as Gregory had hoped. By and large the German magnates remained loyal. Only Duke Ludwig of Bavaria fell for the lure of papal promises. He had been one of the great political maneuverers during the civil wars between Hohenstaufen and Welfs. By playing one against the other he got his son into the line of succession of the Count Palatinate on the Rhine. Frederick II enfeoffed him with this rich land in 1214 and the Bavarian duke decamped immediately to lovely Heidelberg. From that day onwards until 1918 the Palatinate and Bavaria remained in the House of Wittelsbach. Frederick weirdly trusted Ludwig and made him a member of the regency council during his sons Henry minority. In 1228 Henry turned 17 and the regency was over. Henry took the reigns north of the Alps as the elected and crowned king of the Romans. The relationship between king and duke soured quickly which may be one of the reasons Ludwig sided with Gregory. In 1229 Henry lead a large army against Ludwig and defeated him, which brought an end to papal schemes in Germany.

There is an epilogue to that story. In 1231 Ludwig of Bavaria is murdered by a man nobody can identify. The murderer is tortured for days but even upon the worst pain medieval justice can inflict refuses to name the man who had ordered the hit. What bewildered contemporaries was that reluctance to name his client. In the 13^th century there was only one organisation everybody knew about whose contract killers never disclosed who they worked for – the assassins. I guess there is a significant overlap between listeners to the podcast and fans of Assassins creed, so if you are one of those, move on 60 seconds. For the rest of you, the Assassins were a radical Islamic sect who gained a significant territory in Syria. They took in young man and trained them as killers in the name of Jihad. Given that important personalities in the Middle Ages were usually armed and well-guarded, many of these attempts were suicide missions. The story goes that the recruits were given hallucinogenic drugs, mainly hashish and once properly off their faces, were led to a fake paradise where amazing food and beautiful girls were on tab. Once they had seen the beauty of where they would go, they craved nothing more than death in the name of Jihad.

Frederick had allegedly met the leader of the assassins during his stay in the Holy Land. Out of this most likely apocryphal story the idea emerged that Frederick had his own assassins, trained in the mysterious Saracen city of Lucera. And it was one of those who had killed the Bavarian duke.

Lovely story, but a few too many ifs and buts. My money is that the killer was either mentally ill or had other, more rational reasons to conceal his client. That doesn’t mean that Frederick of Henry are off the hook. It was known that Henry in particular wanted to be shot of the duke.

Germany and Sicliy brought back under control, the question is what next? The road to the papal residence in Agnani is wide open. Gregory IX is out of funds to pay soldiers, none of the kings and cities he calls upon are sending him military support. Frederick could just go and capture the vicar of Christ and dictate terms.. That is what his Norman forebearers had done on many previous occasions.

But Frederick had constraints that his ancestors did not have to deal with. He wasn’t just king of Sicily but also the Holy Roman Emperor. And whilst the Sicilians would be completely fine with a pope in chains, the Germans less so and the Lombard cities definitely not. That explains why he, the conqueror and ultimately injured party sued for peace.

Hermann von Salza, grand master of the Teutonic Knights and eternal go-between was sent to the curia where he achieved a truce. Still pope Gregory refused to lift the excommunication, even though that excommunication was put on for failure to go on crusade, a misdeed the emperor had undoubtedly remedied.  When the German princes vowed for the future behaviour of their overlord, Gregory ran out of arguments.

Still, Gregory took his pound of flesh. Not only did Frederick have to restore all church property he had confiscated during the war. That would be standard. But the pope also changed the way the Sicilian church was to be run. Under the Normans the Sicilian clergy had been entirely at the kings back and call. Appointments were in the royal gift and did not even need papal approval. When the usurper Tancred needed the pope in his fight with Henry VI papal influence in Sicily grew. Henry VI tried to turn back the tide but after his death Innocent III took direct charge of Sicilian bishops and abbots.in the years 1220 to 1228 Frederick had turned the dial back and expelled those bishops he found to take orders from Rome and brought the rest in line, much like he did with the Barons and the Sicilian Muslims

We do know our Frederick and his attitude to the management of Sicily, so it is surprising that he accepts wide ranging papal influence in Sicily. Clergy is no longer subject to secular law and even free from royal taxation. That was a significant concession as it allowed for the existence of institutions independent of him within the tightly run kingdom.

So, how did he want his kingdom being run?.   

Peace and Justice are the preeminent yardsticks on which medieval rulers were measured by their contemporaries. We may look at battles won or lost, territories gained or irredeemably ceded to their neighbours, but for the general population bringing peace and security was what mattered.

Peace and justice are two sides of the same medal. Real peace can only exist when there is justice and justice can only be provided when there is peace. In the previous decade Frederick had brought peace. He had driven the barons from their castles and brought the Guerrilla war in central Sicily to an end.

Now it is time to bring Justice as well.

In late summer of 1230 Frederick ordered that his justices, the judges presiding over the courts in each of the 9 provinces of his realm to send 4 of their most knowledgeable and wise lawyers to court. These men were called upon to compile the entirety of the law that prevailed in the land. This they would do under the auspices of the Lord Chief justice, Henry of Morra and the future chancellor Peter of Vinea.

This commission worked extremely fast and in August 1231 Frederick promulgated a new and comprehensive collection of the law: (quote) “We therefore desire that only the present laws under our name should be in force in the Kingdom of Sicily,’ and we order that these constitutions should be observed in the future, after the laws and customs contradicting these our constitutions have been annulled in this kingdom.”

There is now only one law in the land and that law is contained in this codex. All other pre-existing laws, orders and ordinances are null and void. What is not in the book no longer exists.

Consolidating the law isn’t unusual in the 13^th century. As literacy spread and the increasingly complex society also becomes a written society, kings and emperors commission summaries or compilations of their laws. One of those we have already encountered, the Laws of Roncaglia that Barbarossa had promulgated in 1158. Others are compiled by lawyers like Eike von Repgow’s Sachsenspiegel.

If you want to refresh your memory, check out Episode 55 – Episode 55 – The Laws of Roncaglia • History of the Germans Podcast

But these laws, that did not have a name at the time but would later be called the Liber Augustalis, i.e., the Book of the Emperor or the Constitutions of Melfi is something quite fundamentally different.

The Laws of Roncaglia weren’t new. They were just a reaffirmation that the Roman law as laid down in the Code of Justinian in the 6^th century still prevailed. What was laid down in there had often nothing to do with the law as it was practiced amongst the Lombard communes at the time. Barbarossa wanted to use the Code of Justinian to force through political and economic change. The laws of Roncaglia derived their legitimacy from the fact that these had always been the laws of the Empire and hence need to be obeyed. They were not legislation coming from the will of Barbarossa. The only new law in the laws of Roncaglia were the statutes of the university of Bologna.

The Sachsenspiegel is a compilation of the laws as they are practiced amongst the Saxons. Eike von Repgow who had put it together had no power to legislate nor did he want to introduce new legislation. Again, it is based on the idea that law is ancient and immutable. All the compiler is doing is finding and reporting it.

The constitutions of Melfi are fundamentally different. Like the Sachsenspiegel they are based on the law as it was practiced at the time. The lawyers collected the existing ordinances and commands of the Norman kings, reviewed judgements and included those concepts of Roman Law that were practiced in Sicily.

But here is the big difference. In doing so they first looked at rules that contradicted each other and selected one of them. They added new laws and regulations either on topics not yet covered or replacing existing legislation. The constitutions of Melfi were not a compilation of laws but an act of legislation.

Frederick did not just ask what the law has been, but what the law should be. What rules and regulations do we need to bring Justice to my lands. Where existing laws are unhelpful, they are replaced. Where there aren‘t any rules but there should be some, he has them created.

This is big step away from medieval thinking, not just in law but generally. The medieval mind as best expressed in the scholastic method looks at a problem and asks what the authorities have said about it. Has Aristotle or Pliny the Elder said something about this. How does that compare to other authorities, the bible or the church father. The scholastic disputation is not about, which of the authorities is right, but how one can derive a solution that fits with all of them. This is not to say that the scholastic method was an aberration. The rigour of its process and the resurrection of so many works of antiquity made a huge contribution to the development of humanities and science.

But intellectually it is a process where you move towards your goal by walking backwards with your head in a book. That is what the Sachsenspiegel and the Laws of Roncaglia do in law. With The Constitutions of Melfi Frederick turns around looks down the path and asks, what laws do I need to get to where I want to go. And his objective is a peaceful realm where people can rely on justice. But to achieve this is not for the benefit of the people, but for the benefit of the state.

To legitimise this new approach, he does not go back to the idea that the Roman Caesar was all powerful and could make laws. He goes back to the nature of man. In his preamble he says that: “Thus man, whom God created virtuous and simple, did not hesitate to involve himself in disputes. Therefore, by this compelling necessity of things and not less by the inspiration of Divine Providence, princes of nations were created through whom the license of crimes might be corrected. And these judges of life and death for mankind might decide, as executors in some way of Divine Providence,’ how each man should have fortune, estate, and status.”

If you strip out the Divine providence bit, this is pure Hobbes. “Homo Homine Lupus est”, man is by natural law prone to fight and quarrel. Only the force of the state can tame this desire for discord and civil war. This concept of an objective morality that legitimises strong central government was first published in 1679, but Frederick had incorporated it into his idea of justice as early as 1231.

Having a clear purpose and being freed from the shackles of tradition, the commission was able to  arrive at novel solutions, novel solutions the tie in with each other to achieve peace and justice.

To illustrate that let’s look at one of the fundamental theeats to peace in the Middle Ages, the feud.

Across all medieval kingdoms, society recognised feuds as a legitimate way to resolve conflict. Was that because the culture was suffused with the concepts of honour and status that needed to be constantly reaffirmed and defended. In part certainly. But the more profound issue was that there were not many other ways to resolve conflict.  

Higher justice was administered intermittently by peripatetic kings. So, unless the king came round, there was no court that could adjudicate the differences between important nobles. And if he came around that was no guarantee the case would be heard. To bring a case, the claimant needed access to the immediate entourage of the ruler who could suggest a case to be heard.

Next problem, the judgements were utterly unpredictable. There were few written laws and lots of unwritten conventions. These were applied by a judge and jury made up of kings and nobles with little legal training.

So as a nobleman being attacked by a ruthless neighbour, you did not know if at all and when you would get justice. Taking up arms and defending your rights was often a necessity, not a choice. Society had to accept it, even if the church was trying to put limitations around it through the Truce of God.

The constitutions of Melfi are going to the root cause of feuds to provide peace.  

The rules start with an outright ban on feuding. (i) A count, baron, knight, or anyone else who publicly incites war in the kingdom should be punished by death after all his goods have been confiscated. (ii) Moreover, he who makes attacks or counterattacks should be condemned by the proscription * of half of all his goods. Bingo! The defence that “he started it” may save your neck, but still means you lose half of all you own! Great incentive to deescalate a conflict.

Then he takes a stab at avoiding feuds in the first place. Many of those we hear emerge when men are drinking together and real or perceived sleights end up with swords drawn. So he tries to nip those in the bud:

“Since the bearing of forbidden weapons sometimes is the cause of violence and murder, we elect to resist now rather than to avenge later. By the present law, we order that none of the fideles of our kingdom should dare to carry sharpened and prohibited weapons: small knives with points, swords, lances, breast-plates, shields or coats of mail, iron maces, or any others which have been made more to cause injury than for some beneficial purpose. However, we allow the curials and their servants to carry the aforementioned prohibited arms and others as long as they are staying with us in the court or are returning to or from home or are traveling on our business. We also exempt knights, the sons of knights, and townsmen from the force of the present law. We do not forbid them at all to carry swords when they ride on business outside of the locality in which they live. But when they have returned to their own locality or are guests somewhere, they should immediately put aside their swords.”

Privately owned castles as we have heard in the last episode are already banned which again reduces the probability of nobles resorting to feud because that makes it a lot more dangerous.

And then he addresses the biggest issue, the absence of alternatives to get justice. Sicily did already have a fairly sophisticated legal infrastructure, but the Constitutions of Melfi establish a full system of appellate courts.

The kingdom is divided into 9 districts. In each district there is a permanent court, presided over by a Justice usually a trained lawyer. This is an appellate court, i.e., it decides mainly cases brought up from judges. Of those there are 5 each in the major cities, 3 in the medium sized ones and at least one in the smaller ones. The judges are the courts of first instance.

Any dispute, quarrel or crime is to be brought before the Judge in the city. If either party is unhappy with the decision, they can appeal to the court at district level who will investigate the case anew. And even on the district court decision, there is an appeal to the royal court, presided over not by the king, but by the Lord Chief Justice. And for minor disputes there are baillis or magistrates in most larger villages whose decisions are reviewed by the judges.

Not only is this full range of appellate courts absolutely unique in Europe and in many places will take until the 19^th century to develop, the process in front of the courts is also extremely modern.

There is no trial by combat. There are no compurgators, the sworn witnesses who could get you off by simply stating that you were a decent and honest man.

Frederick’s court procedure aims to establish the facts. To do that there are broadly two methods. In the Anglo-Saxon/Germanic tradition the idea is that both sides of the disputes battle it out before the judge and jury. Judge and Jury only look at the evidence presented by the parties. In the Roman law procedure that is applied here, the judge attempts to establish the facts through enquiry. The parties bring the facts, but the judge can ask for additional information to support the enquiry. 

It is the judge’s job is to question witnesses, review documents and other evidence in order to find out what really happened. Only on that factual basis would he (and I am afraid it was inevitably a he), make his decision. T

Frederick goes one further in his desire to bring peace through state intervention. He determines that if a crime was committed, the judge would investigate, even if the injured party does not want a prosecution or can no longer ask for one. This state prosecution is new. Again, the compilers of the laws looked at what needed to be done to stop the intimidation of witnesses and victims and came up with a novel solution, a solution that you find today in many Roman Law based legal systems such as Germany and France.

If you add it all up, the constitutions provided a coherent system to suppress feuding. The ban on carrying weapons reduced the probability of feuds emerging, the system of appellate courts provided reassurance that the aggrieved party could find swift and predictable justice. If the conflict has broken out, the argument that “the other one has started it”, brings only partial relief. And yes, there are draconian punishments for anyone breaking the peace. But the latter have existed for 300 years threatening punishment both here and in the afterlife without much effect. This one worked.

There are more provisions in the constitutions of Melfi that feel extremely modern. Secular Divorce procedures were introduced, though only the man was allowed to ask for one. Weaker members of society were brought under the particular protection of the state, that includes nuns and widows but also Jews, Muslims and prostitutes. The punishment for rape of a prostitute was death. Rape and the difficulty to prove takes up a significant section in the Liber Augustalis. He cannot find a solution either, but at least allows circumstantial evidence as proof and puts a fine of four gold coins for anyone who does not come to the aid of a woman being raped.

It even included laws about the environment. Hemp and Flax can only be soaked in places 1 mile away from cities or castles, burials have to have a minimum depth and animal cadavers have to be deposed off a quarter mile from the district. What is remarkable about that is not so much the specific rules, but that there are royal rules about air and water quality at all. At the time the idea of the state ensuring the health of its citizens was again entirely novel.

Finally Frederick sets out the administrative structure of his kingdom. Above and on top of everything is he, the king. Then there are three great officials, the Chancellor, responsible for administration and documentation, the Lord Chief Justice in charge of the courts and the Treasurer in charge of collecting taxes, paying out funds and keeping the books. All three of them are salaried officials appointed upon merit. Beneath them the structure gets a bit murky as justices and governors have overlapping responsibilities in the provinces. But what a difference to the political structure in the empire where the imperial princes have roles based on inheritance and where there are simply no salaried bureacrats, except for the chancellor and his notaries. Where there is no tax income to pay for any institutions.

That being said, the state of Frederick II wasn’t completely detached from the medieval world. The opening paragraphs are dedicated to the persecution of heretics who were to be subjected to the harshest of punishments. Tax was arbitrary and collected by tax farmers who enriched themselves at the expense of the people.

And there is obviously no notion of citizenship of the people. The inhabitants of the kingdom are subjects whose freedoms can be restricted at will based on the necessities of the state. And that state is Frederick II. And what we do not know is how neat and tidy the system really was. Were there really justices in all the cities who diligently enquired into the circumstances of the cases? Did the cases progress smoothly to the appellate courts etc., etc., pp.

And there is the shadowy downside of the legitimisation of his powers. Frederick believed that without a firm hand, his kingdom would fall into chaos and civil war, something he had experienced painfully during his entire childhood. It was better to brutally enforce justice, or the will of the king which was the same thing, then letting things slip. And that was to apply even if it is cruel. He did wipe out the city of Sora, had its male population hanged and the women and children sold into slavery in the name of the necessities of the state. This notion of justice being blind and cruel applies not just to his subjects but even to his own family and closest friends.

The state of Frederick II was and is a near endless source of debate. Was Frederick really foreshadowing the renaissance, an absolutist ruler 400 years before Louis XIV, a modern autocrat or was he just resurrecting or prolonging the institutions of his Norman forebearers plus a set of fanciful ideas that were never implemented?

These debates moved to the forefront of the historical debate in the 1920s and 30s after the publication of Ernst Kantorowicz famous biography of Frederick II. I may have said this before, but the perception history of Frederick II is almost as interesting as the actual history. So we will do at least one episode on that when we come to the end of this season.

But next week we remain firmly in the 13^th century. Frederick can keep the peace with the pope until 1239 when Hermann von Salza died and this vital communication link breaks. In the interim he tries to consolidate his reign. Sicily put on a stable footing, his gaze turns to Lombardy where a Second Lombard League had formed. And then there is the realm north of the Alps where his son Henry who he had made king of the romans at the age of 8 was now asserting his independence from a father he had not seen since childhood. I hope you will join us again.

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