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«1. The Sixteenth Century Context The first half of the Sixteenth Century in Europe was dominated by the con- flict between France, led by Francis I, ...»

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The influence of Bartolus of Sassoferrato on Andrea Al-

ciato‟s Discussion of a Legal War

James Mearns *

1. The Sixteenth Century Context

The first half of the Sixteenth Century in Europe was dominated by the con-

flict between France, led by Francis I, Valois (1494-1547) and the Holy Ro-

man Empire, ruled by Charles V (1500-1558), originally a Burgundian

Habsburg1. The latter had become Charles I of Spain in 1516. Here, as a

Flemish native, he was perceived as a foreigner, particularly in the kingdom of Castile2. He was made Emperor-elect of the Holy Roman Empire in 1519, when he entered into his inheritance of the dynastic Habsburg lands follo w- ing the death of his grandfather the Emperor Maximilian I (1459-1519)3. He was subsequently crowned Emperor by Pope Clement VII (1478-1534) in Bologna in 1530 and thereby added his name to the list of Charlemagne‟s successors.

There is a debate in the historiography on the nature of Charles‟ imperial- ism4. While P. Rassow emphasises its medieval roots 5, K. Brandi sees Charles V as the «…first modern empire builder, working towards a centralised and *

Department for Roman Law and Legal History, Katholieke Universiteit Leuven. Email:

James.Mearns@law.kuleuven.be 1 The context of Spanish foreign policy during the reign of Charles V is discussed in J. H.

Elliott, Imperial Spain 1469-1716, London 2002, pp. 164-211. On the legal and diplomatic relationship between France and the Empire, see R. C. H. Lesaffer, Charles V, Monarchia Universalis and the Law of Nations, «Tijdschrift voor Rechtsgeschiedenis», 71 (2003), pp.


2 Elliott, Imperial, pp. 144-159 on the revolt of the Comuneros (1520-1522), provoked both by the desire to maintain the traditional Castilian Cortes and by accounts of Flemish rapacity. The revolt was successfully crushed by the Emperor.

3 Elliott, Imperial, p. 146 and A. Pagden, Lords of all the World: Ideologies of Empire in Spain, Britain and France c. 1500 - c. 1800, Yale 1995, p. 40, notes that the «…Castilians…were sufficiently uneasy about Charles V‟s pretensions and their possible consequences for the place of Castile within the empire to forbid him to use the Imperial title on Castilian soil».

4 Lesaffer, Charles V, p. 82.

5 Lesaffer, Charles V, p. 82, citing P. Rassow, Die Kaisersidee Karls V. dargestellt an der Politik der Jahre 1528 bis 1540, Graz 1932; P. Rassow, Die politische Welt Karls V., Munich 1942; P. Rassow, Der letzte Kaiser des Mittelalters, Göttingen 1957.

Studi Umanistici Piceni 34 (2014), pp.

2 James Mearns bureaucratic territorial empire»6. A third opinion is put forward by the Spanish historian Ramón Menéndez Pidal, who maintains that Rassow and Brandi overemphasise the role of the Holy Roman Empire and neglect the fact that Charles was the ruler of a Spanish Empire 7. I hope to show by analysing Alciato‟s commentarium on Ex hoc iure [D. 1, 1, 5], which was written during Charles‟ reign as Emperor, that an adequate picture of Charles‟ imperial project can only be painted only by drawing on all three strands.

In 1516, Charles was accompanied from Burgundy to Spain by his aged, but experienced and cosmopolitan Chancellor, the Italian humanist from Piedmont, Mercurino Gattinara (1465-1530)8. The latter wished to pursue a policy of monarchia universalis 9. This project can be broken down into a number of different aspects 10.

The first is the influence of humanism. The relevant texts include Dante‟s De monarchia, a proto-humanist work of political theory, which established the Emperor as a universal World-Emperor, with almost absolute freedom 6 Lesaffer, Charles V, p. 82, where he quotes K. Brandi, The Emperor Charles V, The Growth and Destiny of a Man and a World-Empire, London 1939.

7 Lesaffer, Charles V, p. 82, quoting R. Menéndez Pidal, Idea imperial de Carlos V, Madrid 1963, with further references.

8 J. M. Headley, The Emperor and His Chancellor: A study of the imperial chancellery under Gattinara, Cambridge 1983; Elliott, Imperial, p. 146; Lesaffer, Charles V, pp. 85-86 and Pagden, Lords, p. 44.

9 The problem of any claim to universal Empire in the medieval and Early Modern period is described well by Pagden, Lords, p. 38: «Although Rome‟s new heirs, from Charles I, Charlemagne to Charles V, or their advisers, spoke with varying degrees of conviction of a Universal Monarchy which would be the true successor to the orbis terrae, they were uncomfortably aware that the „world‟ was now composed of a multiplicity of cultures and of ind ependent states, some of which, in particular the Ottoman – the only other polity to be formally described as an empire – and the Chinese, were almost as large in territorial extension, and quite as sophisticated as any European polity. In the period after 1492 the discovery that there existed an entire continent of which the Ancients had been wholly ignorant effectively excluded the possibility that any ancient emperor could have been literally a world ruler. A new geography – and with it a new cartography and topography which charted the progress of the European empires… – provided a wholly new and far more immediate image of the „world‟ than any that had been available in either antiquity or the Middle Ages». The background of monarchia universalis is also described in the second volume of F. Braudel, The Mediterranean and the Mediterranean World in the Age of Philip II, London 1973, at pp.


10 Lesaffer, Charles V, pp. 87-89, summarising the following works of J. M. Headley, The Habsburg World Empire and the Revival of Ghibellinism «Journal of Medieval and Renaissance Studies», 7 (1978), pp. 93-127; J. M. Headley, Gattinara, Erasmus and Imperial Configurations of Humanism «Archiv für Reformationsgeschichte», 71 (1980), pp. 64-98; Headley, Germany, pp. 15-33; Headley, The Emperor; J. M. Headley, Rhetoric and Reality: Messianic, Humanist, and Civilian Themes in the Imperial Ethos of Gattinara in M. Reeves (ed.), Prophetic Rome in the High Renaissance Period, Oxford 1992, pp. 241-270.

The influence of Bartolus on A. Alciato‟s Discussion of a Legal War 3 from the interference of the Church. Since Gattinara had also benefited from a training as a jurist, he had been immersed in the tradition of glosses and commentaries on the Roman law. As we shall see, Bartolus provides a legal legitimation of the Emperor‟s role as an ultimately supreme ruler over a panoply of more or less independent entities, such as the Italian cityrepublics. A structuralist question can then be raised in relation to the Holy Roman Empire11: is the legal relationship between cities and individual territories of the Empire in the late Middle Ages equivalent to that between these same geographical entities and the Empire under Charles V, according to Alciato?

Second, Gattinara was encouraged by the astrological predictions at time of Charles V‟s coronation as Emperor in 1519, which provided him with the aura of a second Charlemagne 12.

Third, Gattinara wished to direct another crusade uniting Christendom against the Turk, who continued to presented a real and present threat to Europe13.

Fourth, he wished to promote «…harmonious co-operation…»14 with the Pope, but this involved Charles being able to intervene in ecclesiastical affairs. This situation would include Charles having the ability to call a general council in the event of the Pope‟s failure to deal with the heresy of Luthe ranism. Gattinara employed this argument against Clement VII in order to justify the Emperor‟s sack of Rome in 1527. Both in his criticism of Clement‟s papacy and in his desire that the Emperor should promote universal peace throughout Christendom, Gattinara was influenced by a strain of Erasmianism within Spain, which was pursued by humanist intellectuals such as Juan Luis Vives (1492/1493-1540) and Juan de Valdés (c. 1509Fifth, Italy was to be the foundation of a universal Empire. Gattinara was influenced by the example of the Roman Caesars, the claim of the successors of Charlemagne to the Regnum Italicum and the custom of crowning the Emperor in Rome. Italy would provide a base from which to launch a crusade. Gattinara emphasised these points in order to attempt to legitimate the Italian wars between France and the Empire (1494-1559). On the advice of

–  –  –

Gattinara, Charles switched from the expansionist policy of his maternal grandfather Ferdinand II of Spain (1452-1516) against the Moor in North Africa to an attempt to enforce his dynastic rights to the crowns of Naples and Sicily, which he had inherited with the death of Ferdinand in 1516.

Sixth, with the annexation of the dynastic Habsburg lands in Austria and Bohemia to the Low Countries and the territories of the New World, the Holy Roman Empire saw its largest geographical expanse since the days of Charlemagne16. Therefore, Gattinara perceived an opportunity to use the resources of these regions in order to develop his plan of monarchia universalis.

Seventh, the result of this expansionism would not be a true Empire, where all other monarchs would be subdued militarily. Instead, Charles intended to enter into «…a stable alliance…»17 with his subordinate territories. Nevertheless, other rulers would not enjoy the benefit of an «…autonomous international policy…»18.

The consequence of the various strands of Gattinara‟s vision of monarchia universalis was effectively «…juridical hegemony or overlordship…»19.

However, the Emperor would leave the local laws and liberties of his territories in place, thereby falling short of the degree of institutional unity at which Gattinara was probably aiming 20. This would in turn have had the effect of thwarting the creation of a sense of imperial mystique or common enterprise21.

Furthermore, Charles V had crushed the revolt of the Comuneros in Spain by 152222. This victory imparted fresh confidence in his Imperial project.

However, the Emperor‟s attempt to attain the status of a hegemon over Christendom was resisted by Francis I, although the French King was prima facie at a disadvantage. France in the early Sixteenth Century was less wellequipped militarily, lacked Charles‟ colonies, administered a smaller territory and was ruled by a government which was still dominated to a considerD. Willoweit, Deutsche Verfassungsgeschichte: Vom Frankreich bis zur Wiedervereinigung Deutschlands: Ein Studienbuch (6th edn.), Munich 2009, p. 107.

17 Lesaffer, Charles V, p. 88.

18 Lesaffer, Charles V, p. 88.

19 Lesaffer, Charles V, p. 88.

20 Elliott, Imperial, p. 167. However, Headley attributes the idea of leaving the «…local privileges, provincial customs and native institutions of the various lands…» in place to Gattinara in The Emperor, at p. 11.

21 Ibid. [What does Ibid. mean? Elliott Imperial, p. 167 or Headley?] 22 See note 2 above.

The influence of Bartolus on A. Alciato‟s Discussion of a Legal War 5 able extent by a late-medieval feudal nobility 23. For these reasons, Francis attempted to thwart Charles V‟s expansionist policies 24.

It should also be noted that the Emperor‟s economic policy was unsuccessful in the long-term25. There was a lack of a coherent financial plan 26.

Charles V would borrow the money to finance his wars from bankers, while waiting for the next ship laden with gold to arrive from the New World 27.

He also created juros or credit bonds, which led to rapid inflation, creating a class of rentiers composed of nobles, foreign bankers and merchants 28. His desire to centralise also involved an attempt to enforce heavy taxes upon the Empire‟s subjects29.

Charles V reached the highest degree of centralisation during his reign with the defeat of the Schmalkaldic League at the battle of Mühlberg in

154730. However, his final push to enforce the unity of Christendom by military means ultimately failed after this initial success. His German policy was in ruins when Prince Maurice of Saxony marched on Innsbruck in 1552, forcing Charles to flee 31. Given his lack of success in stamping out Lutheranism, the Emperor abdicated in 1555 32.

Finally, Gattinara‟s plan also failed in Spain, where a cosmopolitan universal Empire was always perceived as a central European project led by a Flemish Emperor33.

Alciato‟s own legal doctrine on territorial entities before the advent of the modern state was developed in this political context. In order to understand his approach to these questions within his works, it is necessary to have an idea of his own educational background 34. Alciato received a humanist trainSee R. J. Knecht, The Rise and Fall of Renaissance France 1483-1610, Oxford 2001, pp.


24 Knecht, The Rise, pp. 77-201.

25 Elliott, Imperial, pp. 181-211.

26 Elliott, Imperial, p. 207.

27 Elliott, Imperial, p. 199.

28 Elliott, Imperial, p. 195.

29 Elliott, Imperial, p. 201 and p. 207.

30 M. Stolleis, Geschichte des öffentlichen Rechts in Deutschland: Erster Band: Reichspublizistik und Policeywissenschaft 1600-1800, Munich 1988, pp. 70-71. For a description of the battle, see Braudel, The Mediterranean, pp. 911-918.

31 Elliott, Imperial, p. 209 and Braudel, The Mediterranean, pp. 923-926.

32 Elliott, Imperial, p. 210.

33 Elliott, Imperial, p. 211.

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