inspired by the classical precepts now available. One such attempt was the invention in the late 12th century of the distinction between dominium directum and dominium utile, to account for the existence of a vassal hierarchy and hence multiplicity of rights over the same land.15 Another was the characteristic mediaeval notion of ‘seisin’, an intermediate conception between Latin ‘property’ and ‘possession’, which guaranteed a protected ownership against casual appropriations and conflicting claims, while retaining the feudal principle of multiple titles to the same object: the right of ‘seisin’ was neither exclusive nor perpetual.16 The full reappearance of the idea of absolute private property in land was a product of the early modern epoch. For it was not until commodity production and exchange had reached overall levels – in both agriculture and manufactures – equal to or above those of Antiquity, that the juridical concepts created to codify them could come into their own once again. The maxim of superficies solo cedit – single and unconditional ownership of land – now for the second time became an operative principle in agrarian property (if by no means yet a dominant one), precisely because of the spread of commodity relations in the countryside that was to define the long transition from feudalism to capitalism in the West. In the towns themselves, a relatively developed commercial law had, of course, spontaneously developed during the Middle Ages. Within the urban economy, commodity exchange had already achieved considerable dynamism in the mediaeval epoch, as we have seen, and in certain important respects its forms of legal expression were more advanced than Roman precedents themselves: for example, protocompany law and marine law. But there was no uniform framework of legal theory or procedure here either. The superiority of Roman law for mercantile practice in the cities thus lay not only in its clear-cut notions of absolute property, but also in its traditions of equity, its rational canons of evidence, and its emphasis of a professional judiciary – advantages which customary courts normally failed to provide.17 The reception of Roman law in Renaissance Europe was thus a sign of the spread of capitalist relations in towns and country: economically, it answered to vital interests of the commercial and manufacturing bourgeoisie. In Germany, the country where the impact of Roman law was most dramatic, abruptly superseding local courts in the homeland of Teutonic customary law in the late 15th and 16th centuries, the initial impetus for its adoption occurred in the Southern and Western cities, and came from below through the pressure of urban litigants for a clear and professional justiciary law.18 It was soon, however, taken up by the German princes and applied on an even more imposing scale in their territories, to serve very different ends.
For politically, the revival of Roman law corresponded to the constitutional exigencies of the reorganized feudal States of the epoch. In fact, there is no doubt that on a European scale, the primary determinant of the adoption of Roman jurisprudence lay in the drive of royal governments for increased central powers. For the Roman legal system, it will be remembered, comprised two distinct – and apparently contrary – sectors: civil law regulating economic transactions between citizens, and public law governing political relations between the State and its subjects. The former was jus, the latter lex. The juridically unconditional character of private property consecrated by the one found its contradictory counterpart in the formally absolute nature of the imperial sovereignty exercised by the other, at least from the Dominate onwards. It was the theoretical principles of this political imperium which exercised a profound influence and attraction on the new monarchies of the Renaissance. If the rebirth of notions of Quiritary ownership both translated and promoted the general growth of commodity exchange in the transitional economies of the epoch, the revival of authoritarian prerogatives of the Dominate expressed and consolidated the concentration of aristocratic class power in a centralized State apparatus that was the noble reaction to it. The double social movement engraved in the structures of Western Absolutism thus found its juridical concordance in the reintroduction of Roman law. Ulpian’s famous maxim – quod principi placuit legis habet vicem, ‘the ruler’s will has force of law’ – became a constitutional ideal of Renaissance monarchies all over the West.19 The complementary idea that kings and princes were themselves legibus soiutus, or freed from anterior legal constraints, provided the juristic protocols for overriding mediaeval privileges, ignoring traditional rights, and subordinating private franchises.
In other words, the enhancement of private property from below was matched by the increase of public authority from above, embodied in the discretionary power of the royal ruler. The Absolutist States in the West based their novel aims on classical precedents: Roman law was the most powerful intellectual weapon available for their typical programme of territorial integration and administrative centralism. It was no accident, in fact, that the one mediaeval monarchy which had achieved complete emancipation from any representative or corporate restraints was the Papacy, which had been the first political system of feudal Europe to utilize Roman jurisprudence wholesale, with the codification of canon law in the 12th and 13th centuries. The Pope’s assertion of a plenitudo potestatis within the Church set the precedent for the later pretensions of secular princes, often realized precisely against its religious exorbitance. Moreover, just as it was the canon lawyers within the Papacy who had essentially built and operated its far-reaching administrative controls over the Church, so it was semi-professional bureaucrats trained in Roman law who were to provide the key executive servants of the new royal States. The Absolutist monarchies of the West characteristically relied on a skilled stratum of legists to staff their administrative machines: the letrados in Spain, the maîtres de requêtes in France, the doctores in Germany. Imbued with Roman doctrines of princely decretal authority and Roman conceptions of unitary legal norms, these lawyer-bureaucrats were the zealous enforcers of royal centralism in the first critical century of Absolutist State-construction. It was the imprint of this international corps of legists, more than any force, that Romanized the juridical systems of Western Europe in the Renaissance. For the transformation of law inevitably reflected the distribution of power between the propertied classes of the epoch: Absolutism, as the reorganized State apparatus of noble domination, was the central architect of the reception of Roman law in Europe. Even where, as in Germany, autonomous towns initiated the movement, it was princes who captured and drove it home; and where, as in England, royal power failed to impose civil law, it did not take root in the urban milieu.20 In the overdetermined process of the Roman revival, it was the political pressure of the dynastic State which had primacy: the demands of monarchical ‘clarity’ dominated those of mercantile ‘certainty’.21 The growth in formal rationality, still extremely imperfect and incomplete, of the legal systems of early modern Europe was preponderantly the work of aristocratic Absolutism.
The superior effect of juridical modernization was thus to reinforce the rule of the traditional feudal class. The apparent paradox of this phenomenon was reflected in the whole structure of the Absolutist monarchies themselves – exotic, hybrid compositions whose surface ‘modernity’ again and again betrays a subterranean archaism. This can be seen very clearly from a survey of the institutional innovations which heralded and typified its arrival: army, bureaucracy, taxation, trade, diplomacy. These can be briefly considered in order. It has often been remarked that the Absolutist State pioneered the professional army, which with the military revolution introduced in the late 16th and 17th centuries by Maurice of Orange, Gustavus Adolphus and Wallenstein (infantry drill and line by the Dutchman; cavalry salvo and platoon system by the Swede; unitary vertical command by the Czech) grew immensely in size.22 Philip II’s armies numbered some 60,000 or so, while a hundred years later Louis XIV’s ran to 300,000. Yet both the form and the function of these troops diverged immensely from that which later became characteristic of the modern bourgeois State. They were not normally a national conscript force, but a mixed mass in which foreign mercenaries played a constant and central role. These mercenaries were typically recruited from areas outside the perimeter of the new centralized monarchies, often mountain regions which specialized in providing them: the Swiss were the Gurkhas of early modern Europe. French, Dutch, Spanish, Austrian or English armies included Swabians, Albanians, Swiss, Irish, Wallachians, Turks, Hungarians or Italians.23 The most obvious social reason for the mercenary phenomenon was, of course, the natural refusal of the noble class to arm its own peasants wholesale. It is virtually impossible to train all the subjects of a commonwealth in the
