Quidditas

Volume 10 Article 4

1989

Frederick Barbarossa and the : Imperial , Prescriptive Rights, and the Northern Italian Cities

David R. Carr University of South Florida

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Recommended Citation Carr, David R. (1989) "Frederick Barbarossa and the Lombard League: Imperial Regalia, Prescriptive Rights, and the Northern Italian Cities," Quidditas: Vol. 10 , Article 4. Available at: https://scholarsarchive.byu.edu/rmmra/vol10/iss1/4

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Frederick Barbarossa and the Lombard League: Imperial Regalia, Pre criptive Rights, and the orthern Italian Citie by David R. Carr niversity of South Florida

The struggle between Emperor Frederick Barbarossa and the Lombard League ill ustrates conllicts between not o nly imperial and municipal ambitions but also regali an and cu tomary rights. The abili ty of the empero r to assert and to profit from regalian right reflected the efficacy of imperial p wer. Conversely, the power of the Lombard city-states lay in the recogni­ tion of Lhe validity of cu tomary rights. While this conflict centers o n the differing principles o f Roman and "Germanic" law, the present study argues that the purported de o ti o n of Barbarossa to Roman law and of the Italian ommunes to ustomary law misrepresents their po itions. T he ' stronge t legal argument came from the prin iple in Roman law of pre rip• tive acquisition. T he Lombard League ultimately forced the emperor to recognize their claim , ye t he did not abandon his claims to the contested re ,alian rights until the ve1·y end of the struggle. This investigation also examines the development of these cities and their league during this struggle. T he political and economic facets of the agreements amo ng the citie of no rthern enabled them to oppose an extraordinary emperor. T he pro torial nature of the re presentatives of the citie and the league reveal the continued presence of urban particularism as well a the absence of the nece sa1·y haracteristics of "natio nalism." The most signifi cant fe atures of the agreements resided in not the political but the economi c provisions that enabled the formation of a dynamic commercial community in no rthern Italy. By the assessment of his contempo rarie ·, Frederick was a wo rthy successor LO 's . Indeed, verbal portrait of Frederick employed portion of those of the Frank. 1 Frederick's early milita1·y exploits in the servi ce of o nrad III demonstrated both the skill and bravery he would use 30 Frederick Barbarossa

in the long struggle with his Itali an o pposition. This likable and handsome extrovert promised a solution to the sq uabbling between the powerful facti o ns of the Welt's and the Staufen, since Frederick descended from both lines. Conrad's designation of Frederick as his successor and Frederick's subsequent election by German prin es culminated at in a grand and anointment ceremony. In the midst of this celebration, F1·ederick demo nstrated another facet of his personality: the stern and unfo rgi vi ng face he wo uld present to those who o ffended him.' When Frederick I succeeded Conrad III in 11 52 as king of Germany and Italy, imperial power and prestige had been declining for over fifty years. T he investiture struggle, a string of weak emperors, revolts of nobles in Germany, the antago nism o f and Welf, and the communal movement in Italy had weakened the empire considerably. Barbaro a, as Fi-ederick ame to be call ed, respo nded to the cha ll enges that threatened to destroy the e mpire, re plyi ng quickly and vigorously to the forces of German parti ularism, to the pa pacy, and to the Ita li an ci ti es. Frederick's tro ubles with the city-states of were particularl y significant because of the theoretical and practical impact o f the emperor's eventual defeat.' Frederick, his advisor ·, and hi administrators did not accurately perceive the strength of the Ital ian cities or their devotion to inde pendence:' At be t, urban e ntities did not fit easil y within the confines of a "feudal" system. Moreover, the emperor and his advisors may have held an idie fixe. Frederick's devotion to either Roman law o r a "great design"• might explain the unsuccessful responses of the emperor to the communes. A tatic concept fai led to encompa s the citi s, for they had shown undeniable vitality and flexibility during this formative period. The emperor, however, was as energeti c. Frederick descended into Italy in 11 54 in o rder to receive the of the Lombards and of the empire. As feudal lord of , the emperor held a diet at Roncagli a in ovember. He intended to receive the oaths of fealty from his vassals, to preside over the great council of the nobles, and to hold the high court of tJ1 e realm, a court that would give redress to the grievances of his subjects. Frederick, who took ·ei-iously 1.he role of peacemaker and arbitrator, heard the complaints of the consul of Lodi and against the aggressio ns of .• He sympatheticall y pronounced the imperial ban again t the Milanese and revoked their royal privi leges.' Barbarossa full y understood that use often became u ·urpation of royal right , a nd he condemned this at the diet. • Frederick wa not concerned over previo us imperial grants of regalian rights to the cities. Rathe,· he focu ed on rights u ·urped by me communes when they wrested political control of their cities from either secular o r spiritual lords. At the moment, however, Frederick was far more interested in progress ing to his imperial coronati o n than in enumerating regalian rights, and he did not specify those right that pertained to the emperor. David R . Carr 31

Frederick did gain the imperial crown but fai led to live up to his agreement wit.h Hadrian JV to free from both the internal threat of its unruly citizens and the external threat of the Kingdom of .• When Frederick retired from Italy, therefore, he had neither pleased the nor reduced Mi lanese ex pan ionism. Hence, the emperor reentered Lombardy in 1157 to cunail the aggression of Milan. In 1158, soon after he had reduced the Milanese to submission, he convoked his second diet at Roncaglia. Frederick, a the king of Lombardy rather tha n as the Roma n emperor·, ought the full advantage of the regalian rights due him. 10 In sharp contrast to his altitude in 1154-1155,11 he now was prepared to subjugate Lombardy both mil itarily and juridically. The diet of 11 58, as in 11 ·4, was a feudal assembly, but the differences between the two we re marked. T he most important business of the earlier diet had been to receive the oaths of fealty of the vassals and to hear grievances. In 1158 Frederick concentrated upo n a new concern: the promulgati on ofa decree enumerating the regalian rights. u h claims were bound to affect citi es mo re than feudatories. •• T he emperor's j udgment against Milan in 11 54 revealed the court's inabil ity to determine precisely what constituted his regalian rights." By the Lime of the ·econd diet at Ro ncagli a (in 11 5 ), however, the e mperor in tructed the "Four Docto rs," expert Roman legi ts," and twenty-eight "judges" from the Lombard communes to draw up a list of the rights of the king in the light of his prerogati ve.,. Thejuri ts had met with representatives of fourteen Lombard communes to determine which rights appertained to the emperor. T he specifi cati o n of regali an rights was very inclu ive. ome dealt with matters of administration and justice: the appointment and installation of magistrate ; the profits from fines and penalties; and the properties of those who committed treason, of those declared outlaws, and of those incestuously married. Another group focused on claims LO military service and other military matters: taxes levied on men and land, the upplying of carriages and hips, extraordinary collections made when the king summoned an expedition, and palace customarily used by the emperor in certain ci ties. A final ategory had broad commercial and economic impact incomes from taxatio n and tolls levied at public roads, navigabl rivers, harbo r , river bank , and market ; revenues from fi sheries, alt-works, minting, and ilver mines; and claims to vacant property, as we ll a LO half or all of the trea ure found on imperial o r hurch lands, depend- ing on whether or not imperial a si tance had been given.•• The emperor wa to receive a ll regalian right that had not been granted to other parties by imperi al charter. This provisio n wa directed against the communes, which had gained privileges largely through usurpatio n. " As in 11 54, Frederick proclaimed that no illegal al ienations of imperial rights or land would be tolerated,' 8 but now he better understood his rights. The desire of the Lombard communes to regain these rights became the main co ntention between the emperor and the cities of northern Italy.•• Frederick's 32 Fredel"ick Ba rbarossa

attempts to reas ·en royal prerogative re ulted in a struggle with the Lombard ommune , a struggle that lasted over two decades. The Roncaglian defi nitio n has been variously imerpreted as radi al,'0 pro­ gressive," ab olutisL,22 reactionar ," and anachronistic." Whatever the nature of the decrees may have been in the context of twelfth· entury legal theory and practice, the efforts of the imperial admini tration LO implement th e Roncagli an decrees marked an important development. Milan, on the basis of less precise imperial demands, had ubmitted to the emperor prior to the Diet ofRoncagli a .. but now rebelled against F1·ederi k' demand . Milan had few allies-Hadrian IV, , and -in her opposition Lo the imperial for es, for Milanese aggressions had gained the enmity of mo t Lombard ci ti e . J o netheless, the fall of Milan on I March I 162 to Frederick, while relatively swift, only temporaril y halted this determined and increa • ingly powerful oppositi on Lo his policie in Lombardy.•• The victory of Frederick contained Lhe seeds of new oppositio n. T he wrath of the emperor, omewhat restrained in 11 54," n w imposed repres ive mea ure taken agai n ·t the Milanese and their a ll ies. T he e, oupled with Lhe execs ive exacti o ns of the imperial vi ars in nonhern Italy, gave rise to a communiL of interc t among the Lombards, a community that oppo ed the imposition of imperial control a nd re ·triction of communal liberties.•• By the midtwelfth century the vast majoriL of cities in Lombardy were communes, auto nomou towns who citizens belonged to sworn a o iations, or protocommunes till under the comrol of bi hop r ounts•• but rapidly advancing to fu ll communal statu . The ommunes, through conce ion or usurpati n, emerged as governments independent of the strictures of feudal control. ' 0 T he general as embly then chose the consu l ·, the hief officials of the commune." Composed of boni homine , the notables of the city, tJ1e consulate formed committees and hose consuls from amo ng thei1· members at tJ1 e emergence of the city as a commune." The consuls were therefore "indubitable evidence of the full-Oedged commune."" The consuls repre ented the ommunes. T hey received the plenitude of power necessary LO represent their corporation in ourt. AL the imperial diet of 11 5 at Roncaglia, the o nsuls, who assem ed LO legislation pre ented by the emperor and the princes, were advisor· to tJ1 e "Four Doctors" of and were petitioners LO the high court of the empire. T hey, however, LO k no active part in the onciliar or deliberative a pects of thi feudal assembl . While ommunes were normally xcluded from the feudal tructure,34 the Ro ncagli an Diet was an exceptio n. The consul · a ted more often as ambassadors witJi plena potestas t the ourt of the emperor than as represen­ tatives si milarly endowed LO a conciliar assembly. T hese ambassadorial consuls could bind their principal to public contra ts just as proctor bound weir prin ipals LO private contra ts. " These emerging muni ipal ities, zealous of the libertie they had wrested from tJieir overlords, did not accept any los · without opposition. Unable to David R. Carr 33

resist the imperial demands alone, they were forced to uni t.e, coalescing their opposition Lo Frederick and his officials in April I 164 by forming the Verone e League among , , , and Venice.'0 These cities threw off the oke of the imperial administrators, arguing that they hould do no more than that required by Frederick' predeces ors, that is harlemagne and other "orthodox" emperors. " Barbarossa led an entirely Italian army into the March of Verona to quell the rebellion, but the for es of the League of Verona were too strong for the imperial army, and Frederick retired to without uece s. " Realizing he could not defeat the allie at thi time, Frederick sem deputie from remona, Pavia, ovara, Lodi, and omo, cities still faithful LO the emperor, to negotiate with the members of the league. The representatives of the Lombard cities found the grievances of the Veronese cities LO be much the same as their own unvoiced complaints. A community of interest had been discovered.'9 Frederick left Italy in 11 64, but his administrators continued to levy burdensome taxes on the Lombards, particularly on the Milanese. pon his return in I 166, the emperor held at Lodi a diet in which the Lombards complained of the excesses of the imperial administration. Frederick, concerned with enlisting the aid of Pisa and in his offensive against the papacy and its allie , ignored the grievances of the Lombards:' 0 The rising antipathy of the Lombard communes toward the imperial vicars and the ev ident succe of the Veronese League in opposing the emperor brought about the formation of a league in March I 167 among the Lombard cities of , Brescia, , and ManLUa and the representative of the dispersed Milanese:" This league was onstituted not by a general pact, but rather by a series of individual agreements that carefull y guaranteed tl1e rights and possessions oftl1e individual cities." The purposes of the league were to end the regime of the imperial vi ar , to recover the former liberties of the cities, and to reestablish the city of Milan. The league did not seek at this point LO become independent of the empire.0 Later in the year, while tl1e emperor wa occupied in an attempt to seize Rome, other cities joined the league. When Frederick finally reached Pavia in September, hi force· had been decimated by a di a trous plague that had struck them at Rome. Consequemly he could do no more than pronounce tl1e ban of the empire against the Lombard rebels and make a feeble, pe1·functory assault on the 1ilanese territory.•·• The expiration of Frederick's fortunes forced him to escape Italy in disguise. The members of the league of Lombard cities, heartened at the ignominious night of the emperor from Italy, expanded their alliance. T he all ied cities of Lombardy joined forces with the Veronese League and with Venice on I December 1167 LO form what would become known a the Lombard League.•• As was the ca e with the earlier leagues, the agreemem uniting the sixteen itie - Verona, Vicenza, Padua, , , Cremona, Brescia, Bergamo, Milan, Piacenza, Lodi, , , 34 Frederick Barbarossa

Modena, Bologna, and Venice-was for the purpose of regaining lost privileges, retaining present powers, guaranteeing military support. to o ne another, and opposing the present imperial administration while maintain­ ing fidelity to the emperor him elf. The particularism of the northern communes was not cast aside by thi agreement. Viewing the formation of the Lombard League as evidence of a nascent Italian nati o nali m ignores the very purpose of the allian e.•• The commune united o nl y to gain sufficient military strengt11 to oppose successfull y the might of the empire a nd the reby to retain the autonomy of the individual citi es that Frederick had threatened. Prerogatives ali enated by the cities to the league as a whole were surrendered only temporarily a nd expediently to regain the privi leges and custom that t11e y had held before Frederick's reign." The consuls might exercise control over the negotiations of allied cities. The citi e ' of the Lombard League agreed in 11 69 that no concord was to be reached with the emperor unless the ouncil of the consuls of all the citi es of the league favored it.•• Thi provisio n was re peated by the rectors of the league in 1173.•0 Jn bi lateral agreements, the consuls and the secret coun ii held this power.•• At the formation of the Lombard League, the cities of Lombardy, Venice, and the March of Verona attempted to abando n the ystem of having each city government ontrol the negotiatio ns of the other cities. The reel.Ors of the league were invested with the power of decision in matters of war and peace.•• While t11i arrangement !early compromi ed the " overeignty" of membe1· cities, it was not preserved beyond October 1169, when this power was invested in the council o f consuls of a ll the ci ties of the league. •• The rectors themse lves admitted the power o f the con ul in 1173." The consuls of the communes, altho ugh they assembled at times, did not constitute a collegiate body within the league. These consuls met at Lodi in 11 68 to pledge their ci ties to a renewal of the concord of the league." In thi a embly they functio ned a the proctorial representatives of t11eir individual cities. They did not assume an military or administrati ve function in the league beyond that which they alread held a consul of their individual citie ·.•• The rectors of the league, not the onsuls of the cities, were the proctorial repre entatives of the league.•• Before the formation of tJie Lombard League in 11 67, the Lombard had been united through a series of alliances or treatie ', concluded by individual citie for a limited purpo e. The agreement concluded amo ng t1le iti es in December I 167, however, was not simply a concord, a pact, or an allian e, but a sworn asso iation. T he worn association of the league was a corporati o n and as such had t.he right to choose its own officials.•' The league created the magistracy of t11 e rector in December 11 67. T he rectors, u ually ten in number, were each drawn from a different city of the league and served a o ne-year term of office.•• David R. Carr 35

These rectors had the duty of defending the member of the league,just a the consuls had that of protecting their own cities.•• In l 173. the oath of the reCLors was more specific, calling for the 1·ectors to defend the property, privileges, and rights of tl1e cities and men of the league.•• The rectors thus pledged to work for the common good of tlle league and to abstain from 6 ace pting anytll ing for their wn profit. ' The most important function of the rectors ame to be the negotia­ tion of agreements between the league and the emperor. In 1167, the "common counsel" of tlle rectors was necessaq1 for the formati on of any peace, con ord, or cessation of hostilitie with the emperor.•• Control over the diplomacy of the cities by the rectors was increased in 1169, when the re tor prohibited an)' member of tl1e league from entering negotiations witll the emperor , itl1out the common approval of the recto1·s.•• In 1173, the ,·ectors demanded they be notified of any imperial legates o r letters elll to individual league members.•• The rectors negotiated with the emperor at Montebello in 1175•• and at onstance in l 1 3.66 There is, however, no proof that the rectors as such negotiated at Venice in 1177.6 7 Similarities between the functions and persons of the rectors and those of the consuls should not lead to tl1e conclusion that the two offices were the same. A consul of a commune could indeed be a rector oft.he league, and often was, but not all rector were consuls.•• As bot.h the rectors and consuls functioned a the proctorial repre entatives of their respective corporations, parallel right and duties were intrinsic characteristics. The strength of th league cominued to grow. Milan was rebuilt by the forces of the league by the end of 1167. The league then erected a new city, Alessandi-ia, in honor of the pope, Alexander III. Frederick, hoping to alienate the pontiff from tlle Lomba1·ds, sem emissaries to Alexander in 1169, but the pop refused to negotiate with the imperial 1·eprescntatives uni ss the Lombards and his cardinal were present. The Germans balked at this and broke off the talks. The pope, realizing the necessity of an all iance witll tlle Lombards, in 1170 re ognized the league as a corporate entity and a his ally. •• The military fonunes of the league al o improved. Soon after the papal recognition, the Lombard successfull y attacked Pavia, an imperial ally, and forced her to join the league in 1171. 70 The marqui of Montferrat, the most powerful of tl1e Italian nobles, joined under simil ar circumstances in the fo ll owing year. 71 Frederick, having quieted the affairs of Germany once more and recogniz­ ing the need for a renewed offensive, again crossed the into Italy and besieged Ale ·sandria. The iege lasted through the winter of 11 74- 1175, but in the spi-ing, the Lomba1·d forces united and threatened the imperial troops. The emperor lifted the si ge of and witl1drew to Pavia. · A truce was negotiated shortly thereafter between the league and the emperor." Three imperial and three league arbitrators were to negotiate 36 Frederick Ba rbarossa

the terms of a permanent peace between the two parties. The consuls of Cremo na were appo inted to act as mediato rs between the imperial and league plenipotentiaries." T he Cremo ne ·econ ul drew up a compro mise and presented it to ea h side, but imperial intractability stall ed acceptan e of l11 e pro posal. Soon afterward, each side charged the other with breaking me truce, and negotiati ons were discontinued." Renewed hostilities cl imaxed with the crushing defeat of the imperial fo rces at Legnan o n 29 May 1176 by the armie of the Lombard League. T he Battle of convin ed Barbaros a of the necessity of reaching a seulement with the Lombards and their allies, and negotiati o ns were renewed. When the remo ne e o n ul ubmitted substantiall y m same documem as that o f the previo u ear, l11e imperial arbitrator a cepted it. While thi · acceptance eems to repudiate me claims of Frederick's Roncaglian decree of 1 15 , the sub equent ev nt casts some doubt. T he Lombards, nushed with the success of Legnano, refu sed to pledge their fealty to the empero r. Frederick, a pparent! still holding to the Ro ncagli an positions and unable LO accept this diminutio n of l11e imperial p1·erogativ , refu ed to concl ude the agr ement. 70 T hreatened with the d e ertion of hi upporters if he d id not mak pea e with Alexander, Frederi k ent the archbi ·ho p of Mainz and 1agdeburg and the bi ho p of Wo rm LO treat wil11 the po pe at . T he struggle between Alexander and Frederi k had been bi tter. Afte1· the deal11 f Hadrian IV in 11 59, Frederick had supported a erie of antipo pe in o ppo ·it io n to the inde pendent Alexander. lexander's alliances with ici ly, Byza ntium, and the Lombard prevented l11e loss of papal o ntrol over the Maltildine lands of central Italy. T he repeat d defeats uffe red by the im perial forces came to be viewed as the wrath of St. Peter being vi ited upon the suppo rter o f the antipo pes.'" Frederick, defeated on the battlefi eld and threatened with the lo of what litlle llalian uppo n he had, began negotia• Li o ns with Alexander. Alexander at fi r t insi ted that a ny peace extended to him must also be offered to the citie of the league, the King of Sicil y, and the Byzantine emperor. Archbisho p Christian of Mainz, however, had ecured a separate peace between the po pe and emperor \ ithin fi fteen day of the beginning of the ne otia ti o n . Barbarossa accepted all the pa pal d mand concerning the ending of the schism, the restorati o n of hurch lands a nd regali a, and the urgency of e tabli shi ng a peace between the emperor and the all ies o f the pope." While the permanence of the agree· ment at Anagni wa de pendent upon the e tabli hment of peace between the pa pal allies and the empero r, the po ntiffs a ti o n nonetheles di turb d the member of the league, and several ities ued fo r separate ag1·eements wit.h the emperor a 0011 a the T reaty of Anagni b ame known.'• T he acti o ns of these few citie d id not d iminish the efforts of both po pe a nd emperor in eeking a olution to the confli L between the Lombard and m e emperor. Prelimina1·y negotiation between the league and the David R. Carr 37

emperor had begun in April 1177, a n I Lhe demands of the representatives of the league were essentiall y the same as those advanced by the Cre mo ne e in I 175 and 1176. The Lombard allies wa nted the legal recognition of the privileges that they had exercised before the advent o f Frederick and the Ro ncaglian decrees, wh il e Frederick apparently still desi1-ed implememaLion of Lhe decree of ll5 . The negoti ators spent Lhe summer disputing the contended righLs, privileges, and ustom . Wi th Al xander' agreeme nt, the emperor esLablished a six•yea r Lru ce wiLh the league, a fifteen•yea r truce with the King of Sicily, and a permane nt peace wiLh the Church. Upon Lheir conclusion, the emperor was received back into the grace of the hurch. 79 T hese negotiation of 11 77 and particularl y the Peace of Venice between Frederi k and Alexander led th Lombard to believe that Lhey had been de erted by the pope to Lh e advantage of the emperor. Frederick now could deal \ iLh Lhe league alo ne, having isolaLed its members from their papal and ici lian allies.•• Bologna, Tonona, and Alessandria made separaLe agreemems with Lhe emperor during the peri od of Lhe truce.3 ' Frederick did not consider the Lruce to be a mere expediem to gai n time, ho\ ever, since both he a nd the Lombard League refrained from violence throughom the six•yea r period.•• Lombard distrust of the papacy and the desire for peace with the emperor had a much greater effect than the suppo ed attempts of the emperor to divide and conquer.•• In March 11 83, after nearly si x yea rs o f peace, fin a l negotiati o ns began at onsLance. The demands of the 1-ecLors of the league we1-e fundamentally the ame as the Lombard demand of 1175, 1176, and 1177. T hey were wi lling to concede to tJ1 e emperor all regalian right and customs that they th emselves had not exercised before the beginning of Frederick's reign.•• The imperial 1-e presentatives accepted this proposal as valid but further suggested that a commission be set up to d ecide questions of contested rights. If a city did not wi h Lo accept thejudgmem of this body, it could pay a fine of 2000 mark per year in li eu of recognizing Lhe decision." The privileges of the emperor delineated in the Pea e of Con tance full y reflecLed and recognized the customary u age of regalian rights b the Lombard ommunes. Military fortifications a nd alliances, taxes, tolls, customary u ages, civil and criminal jurisdiction, and the free election of communal o ffi cials were conceded to the citi es of the Lombard League. The emperor demanded the regalian rights that were known to appertain to the empit-e, tJ1 e supplies and erv ice cu tomarily rendered to the e mperor, impei-ial investiture of previou ly lected offi ial , appell ate jurisdiction in cases involving property or fines worth more than twenty-five imperia l pounds, the right of feudal investiture, and an oath of fealt from hi subject every ten years. 36 The emperor was recognized as m e sovereign of Lombardy in the Peace of Constance, but that overeignty con isted more o f d ignity than of 8 power. ' T he imperi al claim of Roncagl ia were indeed curtailed by the Peace of Constance. Whereas Frederick, in 11 58, had maintained tJ1at 38 Fred erick Ba rbaro sa

cu LO mary u age could not ali enate regali an rights, in I 183 he conceded that Lombard cl aims of prescriptive acquisition were legitimate.•• T he diminution of the Ro ncagli an claims, however, did no t b gin and encl in 11 83 at Constance. The Lombards had not onte ·ted that the power claimed by them were regali an rights. Rather the held that th p wers were theirs through prescrip• tive acqu1 ·1uo n. nder Roma n law, the exte nded use of powe r by one pan alienated the right LO that power from the former own er. T he cities clai med that the ir cusLO mary use of regali an power gave them the right to exe rci e the regalia. The Lo mbard cities therefore mpl yed the ame authority, Ro man law, that the emperor used to substa ntiate hi cla ims. The claim of the allied citie , howev r, had fa r better ba es in Roman law than did tho e of the emperor. He merely emplo ed the fo rm of Roman law Lo give ad ded authority to the feudal claim that had been di erned by the panel of "law-finders" at Roncagli a.•• The document both o f the empire and of the Lombard Leagu reveal the perce ptio n of a nd concern fo r the e various right . Imperial document demo nstrate 1hat by 11 3, if no t much earli r, the e mperor had given up hope of coll e ting 1he pro fits of tolls from th ities of the league. His continued gra nts to va rious nobles of right to coll ect tolls a nd impo ts, however, show that he till regarded the ·e rights as 1·egali an. By hi own tandard then, h ederick had fa il ed LO reimpose impe ri a l control in Lombardy. The league' do uments reveal that some of the Lombard citie had begun to aba ndo n the p rotecti onism and separati m ·o rampant before 11 67 and the formatio n o f the Lombard Leagu . T he particul ari sm was still rather evident in juridical and politi cal spheres, but the agreements on tolls give eviden e o f a na ent econo mic commu nit . In the o ur e of th e earl y twelfth century the citie had become accusto med LO the exer ise o f th ese rights a nd LO the income stemming from them. A number of prin iple emerged during the struggle. Within the league, reciprocity in the extracti ons of various taxes and toll s based upon the exe1· ise of regalian righ ts was firmly established.90 Only between I 167 and 1170 did the league's agreements deal with the mauer o f toll s. This indi ates the rapidity wi th which the cities we re able to seule the ir econo mic diffe rences in times o f stress. By 1170 no fewer than twelve of the most importa nt cities of the league had entered into commerciall y significa nt agreeme nts. T hese lowered or eliminated altogether the tradin , 1·estricti ons that had been imposed by LOils or ought to prevent an increase o f hindrances to econo mi c imerchange.91 T he league, forced by militar necessity to adopt a progressive e o nomic policy, became some thing more than a military alliance. The cities likely enjoyed substantial econo mic benefits from the use of regali an right . The emp ror's lo of income from the u urpa li on o f those rights was a evere problem, and he took the o ffensive in attempting to David R. Carr 39

regain his prerogative through l 162. ·The growth o f organized oppositi o n to hi attempts to re impose hi authority in Lombardy and the ho k of the imperial defeat in 1176 al Legnano had caused Frederick to look to other parts of Italy, particular( the Matildine lands of Tuscany, as sources of income.•• The Peace of onstance confirmed Frederick's failure to as ert the upremacy of hi prerogative again t the Lombard claims of the primacy o f custom. T he Lombards held that the cu tomary use of any right outweighed the clai ms of the prerogative nature of those rights. In advancing thi po itio n of prescriptive acquisitio n the Lombard implied, but never expr ssly stated, that u e could cau ·e ali enation of ri ghts, even those o f an emperor.•• But as di u e could al ienate rights, so use could pre ,. erve them. The Lombards thus were willing to concede to the empero r the right that were cu tomarily held and used by emperor . By I 183, Barbarossa conceded in turn the u urped " ustoms" in return for peace and titular control. The d iscord between the emperor a nd the cit ie of Lombardy had been chara l rized in this study a that between law a nd custom.•• Curiously, Frederick held the be t Germanic legal po ition, fo r a custom, even an old one, c uld not replace an old a nd good tatute. Valid ustom must be both old and good; it must conform to natural law.•• This Germanic legal principle is opposed oddly enough by the Roman principle of prescription (usucapi-0, praescriptio longi tem.poris), which held that a right may be establi shed by long exercise of the power or that the ame right may be extinguished by prolonged fa ilure to exe1·cise the same power.•• The trongest support fo r the Lombard position then came from Ro man law. Yet prescriptive acquisition of regalian right by panic other than a king was tantamount to alienati on of the imperial d ignity.•' Frederick was extremely careful to prohibit the ali enation of plena regni utilitas both in I 154 a nd I I 5 .•• In the Peace of onstan e, ho, e er, Fred erick did re ognize the pre criptive acqui ition of the Lombards.•• Even though a commissio n was e tablished to decide o n the owner hip of right not conceded by the emperor, the recogniti n of the defacto powers held by the Lombards marked the uccess of thei r contentions and fos te red the notion of communa l "sovereignty." The Peace of onstance also contai ned imperial recognition of the league of the Lombards. In I 158 Frederick had prohibited all sworn associations, inside or out of citie , between citie , or between per ons. 100 This struck not only at leagues, but potentially al oat communes, brotherhood , a nd guilds. Frederick' recogniti on of the right of the Lombard citi es to their league, however, made no mentio n of other sworn asso iations. 10 1 The emperor did not formally recognize the communes as legal entitie . While the right of a city to choo e onsuls may have rested on the communal status of that city, there wa no expli it recognition ei ther of the ommunes o r of the con ul 10 as proctorial representati ves of thei1· ommunes. • The investiture of 40 Frede rick Ba rba rossa

consuls by Lhe emperor did acknowl edge, how ve r, the uperior power of Lhe . T he Pea e of on tance contained confirmati o n of imperial sovere ignty, but the power of the emperor was compro mi ed by that of the communes. T he emperor till "con tituted" the consul s, but onl y by investiture and not electi on. The emperor had a superior justi ce LO whi ch the ubjects could appeal, but only if the value of the ca e exceeded a prescribed amount, and even then an appeal to imperial judges wa voluntary. The emperor held hi regalia n ri ghts and his royal prerogative, but o nl y those that the Lombard recognized as customarily hi . T ho e powers 1h at the communes had arrogated by pre ·criptive acqui itio n 1 were conceded to them by the emperor. •• The Lo mbard ciLie uccessfull y opp ed the will of the emperor through the military might of the ir league. While the agreements, which reduced commercial barrier between the citie , demonstrate the diminution of communal pa rticul ari m, thefr political implicati ons hoult not be exag­ gerated. Despite the efforts of ome hi torians to a cribe embryo nic natio nalism to this asso iati on, ••• it lacked the requisite . ••• While the Lombard League was fo rmall a corporate entity, it wa in reality a confedera­ tion of inde pendent city-states. The administrative pO\ er of the league reveals the lack of unity pre ent in the corporati o n. T he rectors, although proctorial representati ve in diplomati affairs, lacked powers both of taxation and of coercio n over the individual member cities. T he rectors had the duty 1.0 protect the member of the league, but no independent economic means or coercive powers by which they might accompli h the task. The power, military and economic, of the Lombards resided in the individual citie and Lh eir offi cials. The town were the force that compell ed Frederick to compromi e. Beyond imperial re ognition of the right of the cities to form and maintain their league, the c ncessions of Barbaro a were LO the ities them elves. T he league had given the citi e onl y a mean of mo unting organized, military opposition to the emperor. T he goals of the cities in forming the associatio n were limited a nd pragmati c. T he citie remained independent and particularisti c, over a nd above the several developments LO the comrary. Particul arism aside, Frederick Barbaro a confronted these vital Itali an town . He responded with a rati o nall y devi ed plan based upo n the "ab olutist" concepts of his advisors and supported by the newly rediscovered Roma n law.••• Frederick received an extraordinarily hostile reacti o n LO his plans. T he cities were no t about to ee their carefull y acquired privilege eroded by the pronouncement o f "new" imperi al right at the imperial dieL Perhaps the Lo mbard reaction could have been predicted from the abuse of Frederick's courL, which howered his allies with privil eges a nd puni hed his oppone nt , no matter the validity of their cl aim ·. Certainly the power of the empire had eroded in the half-century preceding Frederick. T he contro l of the citie had been in the hands o f the vassals o f the emperor, David R. Carr 41

often a bishop. T he investiture conte t weakened the power of the emperors, while the growth of communes and consulates in the cities eroded the powers of the bi hops over the ci ti es. In many cases this was the victory of the les er nobility over the greater nobles-bishops, ounts, and marquises. The strong unification of town and country througho ut Italy a · ·ured the influence of the minor feudality in the towns. Frederick was forced by the complexity of the ituati on to seek ome solution other than the stri tl y feudal and Germanic laws that uppon ed the very individuals in ontrol of the con ulates o f the city- tate ·. Hence, the attempt to e mploy "Roman law," which was gaining popularity throughout Italy, e ·peciall y area with unive r ity studies in Roman law, such a Bologna. For substantive rea ons, Barbarossa cho e Roman law as a ve hicl e fo r t11 e reass rtio n of imperial powe r in Italy. Certa inl y it had enough " talu ·" to compete with eccl esiasti cal canons and papal pronouncement , which, ere 10 also crafted in the style ofJu tinian and other emperors. ' Gi ve n Frederi k's struggle with the papa y throughout this period , a legal tool would prove useful. But o, too, were the cities able to use Ro man legal principles to their advantage, particularly the argument of pre criptive acquisition. Ironically both emperor and leagi.1e employed Roman law's presti ge a nd popularity to bolster their cl aims to customar right ·. And ye t, the authority of ratio scl'i/1/a and the force of legal precedent did not ·ettle this struggle. It , a rather the uperi or power- economi a nd mil itary-of the northern Itali an citie that triumphed over imperial !aim . The Peace of Constance marked the fa ilure of Frederi ck's effort to impose 10 the Roncagli an model of imperial power in Lo mbardy. • It should be remembered, however, that the peace of 11 83 wa a pplicabl e o nly to Lombardy, and no t to the rest o f the empire. Fred ri ck's desire for power , as not de troyed but o nl y redi1·ected. Lombardy was forsake n, but the re t of the Italia n penin ul a still held out the alluring promi e o f glo r Lo 10 Barbaro a and hi uccessors. • The fo rtune of th Lombard citie increased as a res ult of this o nflict. Their exercise ofregalia n right had been confirmed. The ir ability to create leagues had been re ognized. While the Peace f o nstance provided the communes no specific de iure sancti on, the provision for installing the ir consul gave de facto recogniti on. Whi le the Lombard League did no t eliminate particularism, it had ucceeded in uniting its members for military I urpo es and in eliminating some hindrance to trade among the city- ·tates. The u·ife between F1· derick Barbaro a and the Lombard League r Oe ts several d ichotomie that exi sted during the : king and ubj e t, kingdom and communes, law and u tom, universali sm and particulari m. All these divi io ns a re central to an under ·ta nding o f the second half of the twelfth century. he rati o nali zati o n · of each side, whe t11 er product of pragmati sm or formulati ons of profound p li tical philosophies, do facili tate com prehen i n of the bases of the strife between Frederi ck a nd the league. 42 Frederick Barbarossa

The significance of theoretical formulations of these conflicts often pales be ide the struggles by the emperor and the cities to exist and persi L.

OTES I. ee Rahewin's description in Ouo of Freising, The Deeds of Frederick Barbarossa, trans. . Mierow (1953; reprint, ew York: orton, 1966), 4. 6. Ouo, however, reversed the process: "I thought it most appropriate to superimpose your virtues upon those of your predeces ors like a precious stone upon gold. Because for you almost alone, of all the princes of the Romans, has this privilege been reserved that, although you are known to have exerted yourself since early youth in the duties of war, not yet has Fortune turned upon you her malign aspect. You are known Lo be so temperate in prosperity, brave in adversit ,just in judgment, and prudent and shrewd in courts of law, that these haracteri tic eem LO have taken root within you, not merely from daily habit but as tJ10ugh divinely in pircd and granted you by God for the general advantage of the whole world." Ibid., 1.Prol. 2. In thi instance, Frederick refused to restore the privilege' he had withdrawn from a suppliant retainer. Ibid., 2.1-3. Marcel Pacaut's as essment of thi har hness is enlightening: ·• His warm qualitie were, moreover, balanced by a steely will. ourage always runs the risk of turning into brutalit)', strength may become violence; when loyalty is decei,•ed or genero ity abused, they can qui kl y turn into cruelty. If rou ed LO anger, Frederick could be extremely harsh, although perhaps he fe lt that the cruel punishment he meted out to Mil an and to some of his opponents was dictated by necessity. evcnheless, here was an obviou flaw in his haracter, a failing that was common and perhaps essential in any ruler of his day and age. Still, Frederick was far less aflJi cted by it than any of his peers." Frederick Barbarossa, trans. A.J. Pomerans ( cw York: cribner, 1970), 49. 3. ee Peter Munz, Frederick Barbarossa: A Study in l\!ledieval Politics (Ithaca: Cornell niversity Press, 1969), a solid and thought-provoking study of the emperor a nd his policies, but one that has also b en criticized as idiosyncratic and dappled with errors. 4. Quo of Freising, 2. 12- 16, does not think that Frederick understood the cities very well. ee also Munz, 71. 5. Munz, 35-37 and chap. 5, delineate his notion of the emperor's "grand de ign." 6. Otto of Freising, 2.14-16. In 1152 at Im, Frederick had received several pleas from Lombards. Munz, 59. 7. Monume11ta Cer111a11iae Historica, Constitutio11es et Acta Pu.blica. hnperato11m1 et Reg1m1 (hereafter cited a 1HCH, Const.) , ed. Ludwig Weiland (Hanno,•er: lmpensis Bibliopolii Hahniani, I 93), 1:216- 19. 8. Ibid., 1:20 : " os autem ad pleniorem regni utilitatem providentes, non solum in posterum sed etiam omnes huiusmodi illicita alienatione hactenus perpetrata hac presenti sanctione ca amus et in irritum deducirnus.'' 9. Ibid., 1:191 -94. See Munz, 64, n. I, on the Treaty of Constance between Hadrian and Frederick, which had been concluded 23 March I 153. The execution of Arnold of Brescia did not cure the troubled relations between the pope and the Romans. ee also Horst Fuhrmann, Germany in the High Middle Ages, c. 1050-1200, trans. T. Reuter ( ambridge: Cambridge niver ity Press, 1986), 143- 44, for a convenient summary of the volatile interactions between the emperor and both the Romans and the pope. David R. Carr 43

IO. The basi of Barbarossa's claim as king rather than emperor has been pointed out by H. Koeppler, "Frederick Barbarossa and 1he 'chools of Bo logna," English Historical Review 54 (1939): 580-86. An imperial basis can be onl y inferred and not proved. Thi i not to say, however, that there were no bases for imperial claims in Roman law, for these have been fully hown by P. W. Finsterwalder, "Di e Ge etze de Reichstags von Roncalia von 11. 'ovember J 158;' Zeilschrift der Savigny- lijtu11g, Cen11a11ische Abteitu11g 51 (193 1): 66-67, n. 3. 11. Frederick had encountered repeated difficulties in coll ectingfodr111n during his fir t expeditio n to Italy. ee Munz, 72-73, - 9. 12. Frederick had uccessfull y a ened hi · rights at Besan~on in 1157, but Burgundy lacked ambiti ous communes. See ibid., I I - 19. The Roncagli an definition is in MC H, Cc11st., 1:244-45. cc al o George Blo nde), "Etude sur Jes dro its regalic 11 s et la onstiLUtion de Ron agli a," in Melanges Paul Fabre (Pari s: A. Pi a rd, 1902), 236-57. 13. MC /I, Coml., 1:243: "Regalia, veluti monetam, thcoloneum, pediaticum, ponus, comitaLUs et ali a simili a, i qua un1. ·· 14. The assessment of the contribution o f the Roman legists who were summoned to a feudal assembly b a German R man emperor and advised by the residents of communal citic ha presemed problem t historians. Blonde). 254-57, considers the definition of regalia a feudal document in a Roman guise; Ugo Balza ni, "Frederick Barbaro a a nd the Lombard League," Cambridge Medieval Hi to,y (Ca mbridge: Cambridge ni,•ersity Press, 1926), 5:427-28, also considers it a mix• tu re of Roman and Germanic law; Koepplcr, 577-607, views the claims of Roncaglia a chicn y Germanic; Finsterwalder, 1-69, poi nts o ut the bases in Roman law fo r the claims of Roncaglia but cautions 1hat cxten ive research must be done on the Gennanic bases before a decision may be made; Edouard J ordan, L 'Allegmag,U1 el l'//alie aux Xlle el XJJ/e siecles, Hi stoire enerale, no. 5 (Pari : Presses univcrsitaires de , 1939), 66-6 , admits the innuence of Roman law but points to the claims of previous medieval emperors, claim tJ,at were ba ed o n Germani law; Geoffrey Barraclough, The Origi'IIS of Modem Cen11a11y, 2d ed. ( ew York: apricorn, 1963), l 8 l , differe ntiate · between regalia based o n fe udal law and on imperial prerogative (also regalia), "w hic h stood o utside and abo e feudal law": Carlo Calisse, A History of Italian Law, trans. L. B. Register (Hoston: Little, Brown, 1928), 675, emphasizes the royal propri etary nawrc of the regalia; George von Below, Der deutsche Staat dl!S Mittelalters, 2d ed. (Leipzig: Quellc and Meyer, 1925), 149-56, po its the Germanic o ri gin of regalian rights but also onsidcrs th e innuence of Roman la, o n Frederick himself to have been great; both Julius Fi ker, Forsclnmgen wr Reichs• 11nd Rech tsgesch.icte //aliens (I 6 - I 74; reprint, Aalen: Scientia, 1961), a nd Antonio l'ertile, Storia del diritto italiano dalla caduta dell'lmpero roma'lln a/la codificw.in11e, 2d ed., 6 vols. in 9 (Bo logna: A. Forni, 1965), are helpful in determining the Germanic origins of individual rights, but neitl1er anempts a ys t.ematic a pproach to th e problem of regalian r ights as a whole. ee also Heinrich Appelt, "Friedrich Barbarossa und das romi che Recht," Riimische histori clie Mitteiltmgen 5 ( 1961- 1962): I -34. 15. Alfred Hessel, Ceschichte der Sta,11 Bol1Jg11a vo11 I 116 bis 1280, Historische Studien veroeffenlicht von E. Ebering, no. 76 (Berlin: E. Ebering, 1910), 95. Gaines l'ost, tudies i11 lYledieual Legal Thought: Public Law anti thl! State, J 100-1322 (Princeton: Princeton niversity Pre s, 1964), 0- 5, has been careful to poim out that these itulices took no pan in the legislative fu ncti on of the diet, but rather acted as a group 44 F1·ederick Barbarossa

of legal advisor to Lhe Four Doctors (Mart i nus, Bulgaru , J acobus, and Hugo). ProCLorial rcprc entation did occur at Lhis dieL, but not Lhrough these individuals. Frederick had received a delegation from the Bolognese schools in 1155. 16. ·· Regali a sum he : Arimannie, vie publicc, flumina navigabilia, ct ex quibus liunt navigabili a, ponu , ripaLica, vecLigali a que dicuntur Lho lonca, monete, mulctarum penarumque compendia, bona vacantia, el que indigni legibus auferuntur, nisi que spelialiLer quibu dam conceduntur, et bona comrahentium incestas nuptia , et dampnatorum et proscripLorum secundum quod in novis con titutionibus cavetur, angariarum et parang-.iriarum et plaustrorum et navi um prestationes, et extraordinari a coll ati o ad felicissimam regalis numinis expediti onem, potesta conslitue ndorum magistratuum ad iusLiLiam expediendam, argentarie, et palatia in civitatibus consueLi , piscationum redditus et sali narum, et bona committentium crimen maie Latis, et dimidium thesauri invcnti in loco ce aris, non data opera, vel in loco religioso; si data opera, totum ad eum pertinet." MC I/, Const., 1:244- 45. 17. Giovanni 8. Testa, History of the War of Frederick I against the Communes of Lombardy (1853; reprint, London: Smith and Elder, I 77), 210; Francesco La nzani, Loria dei comwii ilaliani dalle origi11i al 1313, tori a Politi a d'Itali a, no. I (M il an: F. Vallardi, I 82), 231; Blo nde!, 240. l . MCI/, Const., l:247- 4 . Peter Ri esenberg consider the Roncaglian definition to be a renewal of earlier statements by Roger 11 a nd Lothar IL lnali,mability of S1JUereig11ty in Medieval Political Thought, olumbia tudies in Lh e ocial ciences, no. 59 1 ( 1956; reprint, ew York: AM , 1970), 11 - 12. 19. esare Vignati, toria diplomatica della lega lom.barda (I 66; reprint, T urin: Bouega d'Erasmo, 1966), 34 : "consuelam Paratam, e t consuetum Transitum ... , Et debet transire pacifice, ita quocl in Ep is opatu vel Comitatu aliquo frauclolcntam moram non facict." 20. Hessel, 99: Blonclel, 255; Koepplcr, 582- 6. 21. Ba rraclough, Origins of 1\ilodem Germany, 179- 80; Munz, 169-70. Munz wavers in his a sessme nt, considering the regalia hiefl y important for their potential economic returns a1 one moment (167, n. I) and at the next "nothing more than a public declaration of Frederick's determination to establi sh himself as the real governme nt in Lombardy" ( 170). 22. Lanza ni , 235. 23. eoffre)' Barraclough, History in a Chauging World ( orrnan: niversit of Oklahoma Pre s, I 955), 6- ; Robert Folz, L '/dee d'Empire m Occiderit du Ve au XI Ve siecle (Paris: Aubier, 1953), 110-23. 24 . Fedor Schneider, Rom und Romgedarike im Mittelalter: Die geistigen Crimdlage11 der Re,wissarice (: Drei Masken Verlag, 1926), 2 1 ;J ordan, 6 -69. Munz, 11 9, 12 1, after stating that the decrees "were weeping in scope and encompas eel a new con• ception of government" then depicts Frederick as having "resurrected ancient laws which were va lid but whi h he knew to be outmoded." 25. iWCH, Const., I :242. 26. Papal opposition grew even tronger at this time, however, a nd undoubtedl y influe nced th e Lombard . J ordan, 71-7 . 27. Otto o f Freising, 2.17-1 . 28. T he inadequacies of the imperial admini trators arc discus eel by Munz, 122-25, 272-77. David R. Can- 45

29. Bishops exerci ed comital rights by the late eleventh century. Ibid., 149-50, n. I. 30. This despite the presence of feudatories in the cities. See ibid., 148-5 1. On the development of the Italian communes, see M. A. von Bethma nn-Hollweg, Ursprung der lombardischen tiidtefreiheit (Bonn: A. Marcus, I 46); Walter oet,, Die E11tsteh:1mg der italienischen Kom111u11en in friihe11 MiUelaller, Sitzungberichte dcr Bayerischen Akademie der Wi senschaflen, Philosophische- historische Abteilung (Munich: Verlag der Bayeri chen Akademie der Wis enschaft, 1944); Karl von Hegel, Geschichte der Stiidteverfassrmg von ltalien, seit der Zeit der ro111isc/1en Herr chafl bis z1111t Ausgmrg des zwiilflen JahrhwuJerts, 2 vo ls. in I (Leipzig: Weidmann, I 47); Lamani; icola Ottokar, 7he Nledieval City-Communes (Florence: Tyszkicwicz, 1933); . W. Previte-Orton, "The Italian ities till c. 1200," Cambridge i\!ledieval History ( ambridgc: ambridge University Press, 1926), 5:208- 41; Lothar von Heinemann, Z.ur Entstehu11g der Stadt· verfassu11g in ltalim (Leipzig: . E. M. Pfeffer, 1896); Penile, 2, part l; Friedrich Karl von avigny, Geschichte des romischeri Rechts i111 Mittela/ter ( 1834-1851; reprint, Darmstadt: Centner, 1961), vol. 3. 3 1. The general assembly also legislated, declared peace and war, and ratified treaties. avigny, 3: 112-1 9, and Test.a, 96, cont.end that the co11siliu.-m generale was not attended by all citizens, but by one hundred LO three hundred inhabitants. Testa maintains thi was cu tom and not law, for by law e ery citizen from the age of eighteen was admitted to the general council. Previte-Orton, 232-33, states thaLall citizens were required to auend the council and that during the lauer half of the twelfth century, meetings of the parlamento, or general assembly, were curtailed to avo id revolution that might re ult from the gathering of such a "mob." Penile, 2:50-54, holds a compromise position, stating that the early communes allowed all ci tizens to attend but later re tricted member hip in the council to the head of households. All the above authorities maintain 1ha1 the general assembly, whether restricted or not in membership, chos 1h c onsuls. 32. For treatmem of the bo11i lwmines and th ir identifi ation with the consulate, see R. Da,•i dsohn, "Origine

37. Cardinal Bo o, Boso's Life of Alexander Ill, trans. G. M. Ellis (Totowa, J.: Rowman and Littlefield, 1973), 64. 38. Barni, 4:7 6. 39. Testa, 3 10-1 J. considers this meeting to have bee n of great effect in unifyin g the sentiment o f the cities of nonhern Ital)'· But Boso, 64-65, the contemporary biographer of Alexander III, uggests this unification existed before the confronta· tion between imperial and league forces, thereby explaining the inconclu ive imperial milit ary acti ons. 40. Jordan, 96-9 . Munz, 249, sees tJ,e expedition as an attempt to capture Alexander Ill. 41. Vignati, 109. 42. Ibid., 105-7, 109-11 , 11 2- 15, 11 5-16, 123-25, 126-31, 132-34. 43. Fo r more detailed accounts of the f rmati o n a nd ex pan ion o f this league, see Allessandro Vi conti, "Lega Lo mb, rda," in Enciclopedia ilaiiana (Rome: lnstituto della Enciclopedia ltaliana, 1933), 20:734; Te ta, 326-40; Lanzani, 2•16-49;.Jordan, 100- 101 ; Balzani, 440; Pi etro Rotondi, "l nizio della grand lega lombarda," Archivio storico lombardo 2 1 (1894): 39 -404; ignati, 10 1-40. 44. Balza ni, 442. 45. Vignati, 143- 46. 46. La nzani, 26 ; Vignati, 5; and Testa, 444, each po it varying forms of nationali sm a motivating the formatio n of the Lo mbard League. Jorda n, 65-66, admits the presence o f a "su-a nge son of nati onali m" but o nsiders th e attribution of a "natio nal spirit" to th e Lombards at this time erroneous. Barni, 4:41, thinks the particulari m of the ci ti es, especiall y lila n, di count any on of nati o na li sm. The unification was prompted by a nti- erman, not Italian natio nal, feelings. 47. For more detailed accounts, con ul t Barni, 4: -90; J ordan, 101- 3; La nza ni, 250-53; Testa, 3"6-60; Bal1.a ni, 442- 43; isconti, 734 ; Vignati, 135-63. 4 . Vignati , l 9. On councils of consuls, sec ibid .. 50-51. 49. Ibid ., 242-43. 50. This was the a e in ovara in I 167 and in Vcrcelli in 1170. Ibid., 156,213. 51. Ibid., 145. 52. Ibid., I 9. 53. Ibid., 242-43. 54. Ibid., 170- 7 1, 177- 2. 55. See ibid., 209, however, for an a pparent a umptio n of mili tary dutie by the consuls. Barni, 4:97, refers 10 a "council of the consuls" taking place in 11 73 in Milan. 56. The concept of the proCLorial powers o f the rectors has been accepted by Donald E. Quell er, The Office of Ambassador in the Middle Age (Princeton: Princeton niversity Press, 1967), 28-29. 57. Vignati, 143. T he existence of the associati on wa not full y accepted by the members of the league until 11 68. p to that time the league could be referred to as simply a concordia. Ibid., 147, 153, 168, 179. Thereafter th e league was call d a societas. Ibid., 149,170, 190.191 , 201 , 20 , 210,2 19, 235,242, 25 , 264,276,310,314, 322, 324, 348, 352, 359, 370, 374, 3 6. 5 . Ibid., 237-3 , 244,259. 269-70, 278, 337- 3 , 372-75. No information exi t on the institutional machinery of tl1 e re tors. See Ferdinand Giiterbock, .. Die Recktoren des Lombardcnbunds," Q1w/len ,md Forschw1ge11 aus italie11i lwn Archive,, 1md Bibliotheken 18 (1926): 1- 29. David R. Carr 4 7

59. Vignati, 147. 60. Ibid., 244-45. 61. Ibid., 147, 192, 243, 277. See also Lanzani. 62. Vigna1i , 145. 63. Ibid., 190. 64. Ibid., 242. 65. Ibid ., 264-67. 66. Ibid., 34 -5 I. 67. Gi.i tcrbock, 17. 68. For example, Oprandus of Vicenza and Banholomcw of Vercelli were both rectors in 11 83, but not consuls. Vignati, 372. 69. Ibid., 20 1-4. 70. Ibid., 210. 71. Ibid., 233-34. 72. See W. Heinemeyer, .. Der Friede von Mon1ebello (1 175)," Deutsches Archiv 11 (1954): 101-39. ee also Munz, 304, n. I. 73. Munz, 258- 61 ; MCH, Const., 1:339-46. 74. Jordan, 108. 75. Ibid., 11 0. ee also Gi.iterbock; and Heinemeyer, 101- 39. 76. Jordan, 71-79, 104 - 16. 77. The agreement was concluded ovembcr 1176. MCH, Ccmt., 1:350-54. 78. Testa, 423. This incident is played down by Boso, IO 1-2. 79. MC /-/, Ccmt., 1:360-64. 0. Thi opinion of the "treachery" of the pope and the desire of the emperor 10 separate 1he all ies is advanced by Testa, 432-37; Jordan, J 13; and Lanzani, 265. I. Testa, 439- 40; Lanzani, 265. The upposed agreement between Frederick and Bologna is largely conjecture. lf Frederick hoped, as Testa maintains, to "reduce the League 10 a mere name" b means of advantageous agreements, his scheme met wi th very li ttle success. 82. According 10 Lanzani, 265, the "plot" of tl,e emperor was simply to encourage tl,e resurgence of particularism among the members of the league. 3. Sarni, 4:109. According to Munz, 315-69, this period witnessed the beginning of the third plan of Frederick- this one to establi h feudali sm as a constitutional principle. 84. MC/-/, Const., I :396-99. 85. Ibid., I :400- 403. 86. Ibid., 1:408- 18. 87. Sec Munz, 362. See also Myron P. Gilmore, Argu111e11tfro111 Roman Law i11 Political Tlwught, 1200-1600( e, York: Ru ssell and Russell, 1967), 17-44, on the subsequent developments of mernn, et mi.xtum imperium and the concept of sovereignty. . On the right of prescription, cc note 93 in this article. On the importance of the Peace of Constance, sec Balzani, 452; Te ta, 443-44; Lanzani, 266-68; James Bryce, The (1904; reprint, New York: Schocken Books, 1961), 179; Hessel, 96; Below, Der deut.sd1e Staal, I 07;Jordan, 136-41; Campiche, 20; alissc, 139, 166, I 4; Barni, 4:109-12; Walter Lenci, "Der Kon tanzer Frieden von 11 3 und die italienis he Politik Fri edrichs I," Histori.sche Zeit.schrift 32 (1923): l 91 - 204; Heinz Kauffman, Die italitmische Politik Kaiser Friedrichs I. nach dem Frieden von Cons/am (1183- 1189), 48 Frederick Barbaro sa

Criefswalder Abhandlungen zur e chichte de Miuelal1ers, no. 3 (Criefswald: E. Panzig, 1933), 9-24. 89. Appell, 27. 90. For examples ee 1he agreements o n te/011ewn a nd pedagium in Vignati, 114, 11 5, 127, 149-50, 155, 165. ·ovara, for xample, made the same concessions to Vercclli in 1170. Ibid., 169, 179, 194, 205, 206. Pedagium a ppears to be a bridge toll. Penile, 2:442-43; MCH, Const., 1:297, 415. ee also Jo han Friedrich Boehmer, Acta lmperii Selecta. (Innsbruck: Wagner, 1870), IOI , 11 3; and Fi cker, 4: 180, 183. 91. ee, e.g., agreements on telo11ea, pedagia, ripatica., curaturn in Vignati, 114, 11 5, 127, 155, 165, 179, 194,205. 92. This interpretalion is advanced by Le nci, I 9- 261 . Mum, 3 11, does not consider 1he Baille of Legnano a maj or defeat or a deci ive baule. The shift in imperial po li cy took place at Montebello in 1175, when, ace rding to Munz, 30,1-5, 1he Roncagli an scheme had been abandoned. 93. As Rei enberg, 42-47, points oul, the principle of a lie nability wa s later "arrogated" by 1he ities 1hem elves. 94. This dis1inc1io n cannot be drawn too far, since the law that Frederick employed was itself customary. Fins1erwalder, 65-69; Koeppler, 5 0- I. Frederick, however, also made use o f Roman law. On the u e a nd effect of the revived Roman law, see Fo lz, 11 5-16, and Ernst 1-1 . Kantorowicz, "Kingship unde r the Impact of ciemific J urisprude nce,'' in Twelfth Centu,y Europe a11d tlte Fou.,ulations of Modem ociel)', ed. Claggeu, Pos1, and Reynold (Madison: niver ity of Wisconsin Press, 1961), 89-111. 9-. Koeppler, 5 I, 5 5. Indeed 1hc Lombards had been temporarily hean e ned in 1158 by the sl ated in1 ention ofFredcri k 10 find the old laws, as o pposed to creating law in 1hc "Roman" fa hio n. Munz, 168-72. Later, "they were determined LO reject all outright inno a1i on made by Frederick as well as hi attempt to foist innova• tio ns o n 1hem in 1he hape of allegedly old la, ." Ibid., 2 4. 96. n prescriptive acquisition, cc Ern L H. Ka ntorowi z, The King's Two Bodies: A ttuly in Mediaeval Political Theology (Princeton: Princeton niver i1y Press, 1957), 164 -66; alis e, 437-40; P rti le, 4:2 16-24; Adolf Berger, E11c)'clopedic Dictionary of Roma11 Law, Tran a 1ions f 1he American Philo ophical o iety, n .. , 43, pt. 2 ( 1953): 645, 752. 97. On the ali e nation of the ro al dignity, see Post, 281, 38 1, 400-404; and Heinrich Mittcis, Der IMI des !when Mittelalters, 2d ed. (Weimar: H Bohl a u , 1944), 629-31. On the po itio n of regalia among the honors of the monarch, sec Kantorowi z, The King's Two Bodies, 170-73. ee Ric cnbcrg, 90-1 12, o n la ter develo pments of th e pri nci pie o f pres ri ptio n. 9 . MCH, Co11st., I :20 , 24 . 99. "No Romanorum imperator Fridericus et filiu noste r Henricu Ro ma­ noru m rex oncedimus vobis civitatibus, locis el personis ocielati regali a el onsue1udincs vestras 1am in civita1e quam ex1ra civitatem, ... in perpewum; videlicet ut in ipsa civitate omnia habea1i , icut ha tcnus habuistis ve l e er· cetis; scili cct ... , ct in cctcri que ad ommoditatem pecta m civiiawm." Ibid., 1:4 12. 100. "Conven1icula quoque et omne coniura1ionc in civitatibus cl extra . . . , inter civitatem et civilatem et inter per onam cl pcrsonam sive inter civ itatem et David R . Carr 49

personam omnibu modi Cieri prohi bemus et in pre1eritum fa tas assamus." Ibid., 1:4 14. IOI. "Item so ietatem, quam nunc habent, tcncre et, quo1iens volu erint. renovare eis li ceat."' Ibid., I :4 14 . 102. The ontention of Miueis, 3 I 2, that 1he oaths of fealty given the emperor by the con ul and ci ti ze ns of Lo mbard towns made those cities corporate va sal i erroneous. As 1he consuls (MCI I, Const., I :4 13) and the citizens (ib id., I :4 15) gave oaths onl y of fealt and not of homage as well, the oaths were public and not feudal. n public oaths of fealty, see Fritz Kern, King hip aud Law in the Middle Ages, tran .. B. Chrimes, Studies in Mediaeval History, no. 4 (1949; reprint, Oxford: Ba ii Bi a kwell , 196 ), 12 1-23. I 03. Kaufma nn; Lenci, I 9- 261. 104. ee, for example, Testa, 443; and Lanzani, 26 105. Munz, 2 l , n. I, following Ficker, rejects the anributio n of nationali sm 10 the opposition 10 Frederi k: ''The sources do not betra the lightest ign of national on ciou ne s among the Lombards. he cities objected to Frederick because he de tro ed their ancient libcrtic .... The fact that Frederick was 'German' was in idental. They would have opposed any local lord with the same determinati on." I 06. Ibid., chap. 5. Munz uggests that these regali an rights we re, however, "improvised" from Germanic law and were not drawn from Roman I w at all. T he point is uncontestabl e; the origin of t.h e laws wa indeed errnani c a nd customary, but it is ignificant 1ha t the emperor ought 10 pr s nt them in 1he gui e o f Ro man law. Thi charade, if that i what it was, was arried out by a man who clai med 10 be heir to the Roman emperors, who employed jurist sc hooled in that law, who in turn ought aid from j udges styled con uls from 1he it ies most of I hich laid claim to Roman origins. 107. Despite the Roman "form" and conte nt of a small number of specifi c points, the Roncaglian definitions were drawn from Cennanic, Frankish, and Lombard custom. ee Harold J. Berman, Law a11d Revo/11tio11: The Formation of the Wes/em Legal Traditi