The theory of just war in medieval canon law and theology has attracted to it a large body of scholarship, and is recognized as an important foundation for Western approaches to the study of ethics in war. By contrast, the tradition on war in medieval Roman law has not received much attention, although it developed doctrines that are distinct from those in canon law and theology. The oversight is notable because medieval Roman law on war influenced subsequent tradition, forming with canon law the essential basis for early modern legal thought on war and peace. While the main canonistic contributions to legal theory on war came in the twelfth and thirteenth centuries, Roman jurists added new opinion in the fourteenth and fifteenth centuries, which can be related to the political life of Italy and to the growth of the independent cities. By the fourteenth century, Roman lawyers (or civilians) often considered licit war from a secular and pragmatic perspective, and associated a right of war with sovereignty. Here, I would like to trace the development of this theory, from roughly 1250 to 1450, and particularly a view that sovereigns licitly judged the justice of their own causes, as a remedy for a lack of superior authority.
1. On just war theory in the Middle Ages, useful works include Russell, Frederick H., “Just War,” in The Cambridge History of Medieval Philosophy, ed. Pasnau, Robert and Van Dyke, Christina (Cambridge: Cambridge University Press, 2010), 2:593–606; Russell, Frederick H., The Just War in the Middle Ages (Cambridge: Cambridge University Press, 1975); Haggenmacher, Peter, Grotius et la doctrine de la guerre juste (Paris: Presses Universitaires de France, 1983); Johnson, James T., Ideology, Reason, and the Limitation of War: Religious and Secular Concepts, 1200–1740 (Princeton: Princeton University Press, 1975); Bainton, Roland, Christian Attitudes toward War and Peace (Nashville: Abingdon Press, 1960); and Regout, Robert, La Doctrine de la Guerre Juste de Saint Augustin à Nos Jours (Paris: A. Pedone, 1935).
2. Russell, The Just War, 40–54; and Haggenmacher, Grotius et la doctrine de la guerre juste, are notable exceptions.
3. This can be seen partly in the citations to classical Roman law and medieval commentaries on it, found in the writings of early modern jurists like Alberico Gentili and Hugo Grotius. See Gentili, Alberico, De Jure Belli Libri Tres, ed. Scott, J. B. and trans. Rolfe, J. (Oxford: The Clarendon Press, 1933; repr. New York, 1964); and Grotius, Hugo, The Rights of War and Peace, ed. Tuck, R., from the edition by J. Barbeyrac (Indianapolis: Liberty Fund, 2005).
4. Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999).
5. Ibid., 16–50 and 51–77, on the “humanist” and “scholastic” traditions on war, respectively.
6. On Augustine's comments on justified violence and war, see Russell, “Just War,” 594–97, and idem, The Just War, 16–39; Markus, Robert A., “Saint Augustine's Views on the ‘Just War,’” in The Church and War, ed. Shiels, W. J. (Oxford: Oxford University Press, 1983), 1–13; Hartigan, Richard S., “Saint Augustine on War and Killing,” Journal of the History of Ideas 27 (1966): 195–204; Deane, Herbert A., The Political and Social Ideas of St. Augustine (New York: Columbia University Press, 1966), 154–71; Brown, Peter, “St. Augustine's Attitudes to Religious Coercion,” Journal of Roman Studies 54 (1964): 107–16; and Regout, La Doctrine de la Guerre Juste, 39–44.
7. Augustine, Quaestiones in Heptateuchum, vi, 10, in Corpus Scriptorum Ecclesiasticorum Latinorum, ed. Zycha, J. (Prague: F. Tempsky, 1895), vol. 28, pt. 2, 428, “Iusta autem bella ea definiri solent quae ulciscuntur injurias, si qua gens vel civitas quae bello petenda est, vel vindicare neglexerit quod a suis inprobe factum est, vel reddere quod per iniurias ablatum est.” Compare with Cicero, De re publica, ed. J.G.F. Powell (Oxford: Oxford University Press, 2006), 3.35: “Illa iniusta bella sunt, quae sunt sine causa suscepta. Nam extra ulciscendi aut propulsandorum hostium causam bellum geri nullum potest.” (“Those wars are unjust which are undertaken without cause. For no war can be waged except those for the sake of punishing or repulsing the enemy.”) (Translations are mine, unless otherwise noted.)
8. Augustine, Contra Faustum Manichaeum, xxii, 74, in Corpus Scriptorum Ecclesiasticorum Latinorum (hereafter CSEL), 25:672; Quaestiones in Heptateuchum, vi, 10, in CSEL, vol. 28, pt. 2, 428.
9. Augustine, Contra Faustum Manichaeum, xxii, 74, in CSEL, 25:672.
10. Russell, “Just War,” 595; and Hartigan, “Saint Augustine on War and Killing,” 202. Augustine argued that service and killing in war could be justified, which otherwise would seem a violation of precepts such as “turn the other cheek” (Luke 6:29). He urged those restraining injustice and wickedness to maintain inward patience and virtue.
11. Russell, The Just War, 55–126.
12. Rufinus, Summa Decretorum, ed. Singer, Heinrich (Paderborn: F. Schöningh, 1902), 404, to C. 23 q. 1: “Laicis itaque ex iusta causa – vel pro vindicta inferenda vel pro iniuria propulsanda – militare non est peccatum.” (“So it is not a sin for laymen to fight on account of a just cause: either to inflict punishment or to repulse injuries.”)
13. Gratian had listed separately the apparently immediate repulsion of injuries, and the retribution or punishment of injuries. See Gratian, Decretum Gratiani, in Corpus Juris Canonici, ed. Friedberg, A., 2 vols. (Graz: B. Tauchnitz, 1879; repr. Graz, 1955), I:C. 23 q. 1 d.a.c. 1, col. 889. Compare with Reid, Charles J. Jr., “The Rights of Self-Defense and Justified Warfare in the Writings of the Twelfth- and Thirteenth-Century Canonists,” in Law as Profession and Practice in Medieval Europe: Essays in Honor of James A. Brundage, ed. Pennington, Kenneth and Eichbauer, Melodie H. (Burlington, VT: Ashgate, 2011), 73–92.
14. Hostiensis, Summa Aurea, to X.1.34 (De treuga et pace) (Venice, 1574), col. 359, noted that the unjust side in war should accept correction rather than resist: “In supradictis et consimilibus casibus, is qui gladio utitur, iuste facit: et per consequens, is qui defendit se, temerarie se defendit: sapienter autem faceret, si se emenderet et corrigeret vitam suam.” (“In the above and similar cases, he who uses the sword does so justly: and by consequence he who defends himself does so rashly. He would do wisely if he should emend himself and correct his life.”)
15. Rufinus, for example, noted that a war was just when the unjust side merited it; when in doubt, it was to be judged “by just presumptions” that the adversary deserved the war; Rufinus, Summa Decretorum, 405.
16. For self-defense as a right under natural law, see Gratian, Decretum, to D. 1 c. 7, and Justinian's Digest 1.1.3, where it arises under the law of nations (jus gentium), generally considered by civilians as the natural law pertaining to humankind. Medieval canonists in particular considered that rights would be exercised in accord with natural moral law, ultimately of divine origin. At least, resistance to correction when guilty put the unjust side in a state of graver guilt and afflicted the just, which compounded the offense. Self-defense created potential difficulties that seem to go untreated by canonists; as one example, as soldiers were to obey commands, and did not generally sin by fighting in an unjust war, it was not clear that they would lose their individual rights of defense. In a related case, the theologian Henry of Ghent did give a prisoner justly condemned to death a right (even a duty) to preserve his own life and escape, but only if the opportunity arose through negligence; see Tierney, Brian, “Natural Rights in the Thirteenth Century: A Quaestio of Henry of Ghent,” Speculum 67 (1992): 58–68. Other examples are in Doyle, John, “Two Thomists on the Morality of a Jailbreak,” The Modern Schoolman 74 (1997): 95–115.
17. Gratian gathered comments on war and the coercion of heretics under Causa 23 (e.g., C. 23 q. 4 cc. 36–50), and particularly on heretics, Causa 24.
18. On punishment, Gratian quoted Augustine that the mode of punishment should not exceed the sin (C. 23 q. 4 c. 40). Although there was no necessary mercy to be shown to opposing combatants during war on a canonistic view, the Decretum maintained that pilgrims, clerics, monks, preachers, women, and the unarmed poor should be free from violence and war, on pain of penance or excommunication; see C. 24 q. 3 cc. 22–5.
19. Raymond of Peñafort, Summa de paenitentia, ed. Ochoa, Xavier and Diez, Aliosius (Rome: Commentarium pro religiosis, 1976), II.5, sec. 17, cols. 485–86; Aquinas, Summa theologiae, IIa IIae, q. 40.
20. Innocent IV, Apparatus in quinque libros decretalium, to X.2.13.12 (De restitutione spoliarum) (Frankfurt, 1570), fol. 230rb–232rb.
21. Innocent IV, Apparatus in quinque libros decretalium, to X.2.13.12, fol. 231vb: “Bellum autem secundum quod proprie dicitur solus princeps qui superiorem non habet indicere potest.” (“War properly called, however, can only be declared by a prince who has no superior.”) On Innocent IV's analysis of war, compare with Russell, The Just War, 145–47, 172–76; Regout, La Doctrine de la Guerre Juste, 69–72; and Haggenmacher, Grotius et la doctrine de la guerre juste, 259–62, 280–83.
22. Rufinus, for example, had indicated that a plurality of legitimate public authorities could wage war, and Gratian himself allowed generally that “princes” (principes) could do so. See Rufinus, Summa, 404; and Gratian, Decretum, C. 23 q. 1 c. 4, where he changed Augustine's principem to the plural.
23. Decretales Gregorii IX, in Corpus Juris Canonici, vol. 2, to X.4.17.13, referring to the king of France who “ipse superiorem in temporalibus minime recognoscat.” (“he himself does not recognize a superior in temporal matters.”)
24. Ullmann, Walter, “The Development of the Medieval Idea of Sovereignty,” English Historical Review 44 (1949): 1–33, provides a still valuable account. Other older but valuable accounts include Ercole, Francesco, Da Bartolus all'Althusio. Saggi sulla storia del pensiero pubblicistico del rinascimento italiano (Florence: Vallecchi, 1932), and Calasso, Francesco, I Glossatori e la teoria della sovranità: Studio di diritto comune pubblico, 3rd ed. (Milan: A. Giuffrè, 1957).
25. Ullmann, “The development,” 11, n. 2, cites as one example Jean de Blanot, who held that a baron falls into the crimen laesae majestatis against the king, “nam rex in regno suo princeps est, nam in temporalibus superiorem non recognoscit.” (“for the king is an emperor in his own realm, since in temporal things he does not recognize a superior.”)
26. Ullmann, “The development,” 9.
27. It was not generally practiced among Christians, but the very prevalent practice of ransom involved a loss of freedom and was thought of as analogous to slavery by some jurists; see, for example, Angelus de Ubaldis, In I. atque II. Digesti veteris partem commentaria, to D.3.5.21 (Venice, 1580), fol. 98va. For historical context on ransom in the period, Contamine, Philippe, “The Growth of State Control. Practices of War, 1300–1800: Ransom and Booty,” in War and Competition Between States, ed. Contamine, Philippe (Oxford: Oxford University Press, 2000), 163–93.
28. On postliminium, a term from Roman law, see D.49.15 and note 40, below.
29. In contemporary practice, arbitration by secular third parties was possible. For arbitration among the Italian cities during the period, see Martines, Lauro, Lawyers and Statecraft in Renaissance Florence (Princeton: Princeton University Press, 1968), 347–59. For the legal theory of arbitration (pertaining to individuals), see Martone, Luciano, Arbiter-Arbitrator: Forme di giustizia privata nell'età del diritto comune (Naples: Jovene, 1984); and Bader, Karl S., “‘Arbiter, arbitrator seu amicabilis compositor,’” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Kan. Abt.) 77 (1960), 239–76.
30. For a classic treatment of the controversy over papal supremacy, see Wilks, Michael J., The Problem of Sovereignty in the Later Middle Ages (Cambridge: Cambridge University Press, 1963).
31. Pope Innocent III's decretal, Per venerabilem, also claimed for the papacy a broad power to intervene in secular affairs, although the interpretation of it has been disputed. Tierney, Brian, “‘Tria Quippe Distinguit Iudicia…’ A Note on Innocent's Decretal Per Venerabilem,” Speculum 37 (1962): 48–59, gives a summary of the debate and offers a careful reading of the decretal; Powell, James, ed., Innocent III: Vicar of Christ or Lord of the World? (Washington, DC: Catholic University of America Press, 1994), collects articles representing some of the range of opinion on Innocent's vision of papal authority. For the power to judge broken peaces and truces, as based on oaths, see X.2.1.13 (Novit ille).
32. On the role of the papacy in disputes, see Gaudemet, Jean, “Le Rôle de la Papauté dans le réglement des conflits entre états aux xiii et xiv siècles,” Recueils de la Societe Jean Bodin 15 (1961): 79–106; and Ullmann, Walter, “The Medieval Papal Court as International Tribunal,” Virginia Journal for International Law 11 (1971): 356–71. As Ullmann notes, the papacy symbolized the closest thing there was in medieval Europe to an international tribunal; however, again in secular disputes between monarchs it faced real limitations. For an example involving Innocent III, see Sweeney, James R., “Innocent III, Hungary and the Bulgarian Coronation,” Church History 42 (1973): 320–34.
33. Innocent, Apparatus, to X.2.13.12, fol. 231va, n. 8. The point on limiting warfare in Innocent is made well by Frederick Russell, “Innocent IV's Proposal to Limit Warfare,” in Proceedings of the Fourth International Congress of Medieval Canon Law, Toronto, 21–25 August 1972, ed. Stephan Kuttner (Città del Vaticano: Biblioteca Apostolica Vaticana, 1976), 390.
34. Innocent, Apparatus, fol. 231vb.
35. Ibid., fol. 231va. Incidentally, Innocent also observed in his discussion of war that immediate self-defense was available to all, and did not restrict it to the just.
36. On reprisals in medieval Italy, see the older but detailed treatment of del Vecchio, A. and Casanova, E., La rappresaglie nei comuni medievali e specialmente in Firenze, saggio storico (Bologna: A. Forni, 1894); and, more recently, Martines, Lawyers and Statecraft in Renaissance Florence, 359–82 and passim; and Astorri, Antonella, La mercanzia a Firenze nella prima metà del Trecento: il potere dei grandi mercanti (Firenze: Olschki, 1998), 186–95.
37. Innocent, Apparatus, fol. 232ra.
38. Ibid., “si vero non habet iudicem coram quo posset suam iusticiam obtinere, tunc sibi licet sua auctoritate recuperare sua.” (“if however he does not have a judge before whom he may obtain his justice, then it is licit for him to recover his possessions on his own authority.”)
39. More conservative on war, at least in some places, was Innocent's great contemporary Hostiensis, who deplored the frequent warfare in Europe and considered most wars unjust. His remedy went to the heart of the problem of war in Europe: he urged that all disputes should go to a judge, and at last resort to the pope (see Russell, The Just War, 142, 182).
40. Justinian's substantive texts on war are confined to practical regulations governing soldiers. The main loci are D.49.15–18. The most well-known texts pertain to the right of postliminium (D.49.15), by which a Roman soldier who escaped to safety (jurists discussed the patria or another safe harbor), or was released from capture, regained his rights as a Roman citizen, which had been lost upon capture. Marriage, however, had to be renewed voluntarily. Beyond military law, there is a brief section in the Digest on the rights of ambassadors, including foreign ambassadors (D.50.7.17), and limited aspects of maritime law at D.14.2, under the Lex rhodia de iactu.
41. For example, Azo of Bologna and Odofredus thought the emperor's permission was required; see Russell, The Just War, 45–46.
42. Mommsen, Theodor, Krueger, Paul, Schoell, Rudolf, Kroll, Wilhelm, eds., Corpus juris civilis (Berlin: Weidmann, 1892–95), vol. 1, to D.1.1.5: “Ex hoc iure gentium introducta bella, discretae gentes, regna condita, dominia distincta, agris termini positi, aedificia collocata, commercium, emptiones venditiones, locationes conductiones, obligationes institutae: exceptis quibusdam quae iure civili introductae sunt.” (“From this law of nations wars were introduced, distinct peoples, realms were established, ownerships, boundaries were set upon lands, buildings were erected; commerce, purchases, sales, leases and hires, and obligations were instituted, with certain exceptions which were introduced by the civil law.”) Compare with Institutes 1.2, in Corpus juris civilis, vol. 1.
43. For example, Odofredus, Lectura super Digesto veteri, to D.1.1.1 (Lyon, 1550; repr. Bologna: Forni, 1967–68), vol. 1, fol. 6vb; and Albericus de Rosate, Commentaria super Digesto veteri, to D.1.1.5 (Lyon, 1545), fol. 14vb.
44. For the elements of reason and evolving human custom, see Inst.1.2.
45. In general, however, Roman wars were not divorced from the sacred or divine. Roman fetial law required that war have the blessing of priests who considered the propitiousness and justice of the conflict.
46. Accursius, Corpus iuris civilis Iustinianei, cum commentariis Accvrsii [Glossa ordinaria], to D.1.1.5 (Lyon, 1627; repr. Osnabruck: O. Zeller, 1965), vol. 1, col. 17, s.v. “ex hoc iure.”
47. Accursius, Glossa ordinaria, to D.1.1.3, vol. 1, col. 16.
48. Ibid., to D.49.15.24, vol. 5, col. 1669, s.v. “hostes”: “Tertium populi liberi, qui nec nobis nec alicui sunt subditi sive sint nobis foederati, cum prius erant forte hostes, sive non, et in his non est opus postliminii.” (“Third there are free peoples, who are neither subject to us nor to another, or are federated with us, when before they were perhaps enemies, or not. For these, postliminium has no place.”) On fighting for one's country, ibid., to D.1.1.2, vol. 1, col. 16, s.v. “patria.” On the significance of the phrase pugna pro patria in medieval law, see Post, Gaines, Studies in Medieval Legal Thought: Public Law and the State, 1100–1322 (Princeton: Princeton University Press, 1964), 435–52; and for a later period, see Housely, Norman, “Pro deo et patria mori: Sanctified Patriotism in Europe, 1400–1600,” in War and Competition between States, ed. Contamine, Philippe (Oxford: Oxford University Press, 2000), 221–48.
49. Accursius, to D.49.15.24, vol. V, col. 1669. Accursius placed warring cities that were subordinate to the empire in the category of thieves (latrunculi), and not legal combatants (hostes) with the right of postliminium.
50. D.184.108.40.206: “vim enim vi defendere omnes leges omniaque iura permittunt.” (“all laws and rights permit one to defend against force with force.”) See also D.220.127.116.11; D.9.2.4.
51. The standard on defense can be found in civilian commentary already in the twelfth century. See, for example, Placentinus, Summa codicis, to C.8.4 (Mainz, 1536; repr. Turin: Bottega d'Erasmo, 1962), 374. The criteria were rooted in classical Roman law: immediacy came from D.18.104.22.168, whereas the criterion of moderation came from C.8.4.1, on the interdict Unde vi.
52. Concerning the pre-emptive strike, the civilian Jacobus de Ravanis held that the attacker should have a reputation for violence: Jacobus de Ravanis, Lectura super Codice, to C.8.4 (Paris, 1519; repr. Bologna: Forni, 1967), fol. 367vb. The jurist Odofredus de Denariis likewise accepted the pre-emptive strike: Odofredus, Lectura super Codice, to C.8.4 (Lyon, 1550 and 1552; repr. Bologna: Forni, 1968–69), vol. 2, fol. 140va-b. The jurist Azo offered a right of pre-emptive strike to the property holder, noting that the attacker's first strike could be the last: Azo of Bologna, Summa Azonis, to C.8.4 (Lyon, 1533), 307ra: “Sed certe forte nunquam percuteret postea. Satis est ergo quod alius petit possessorem invadere armis, vel armis terreat ipsum, ut sic possessor contra eum utatur armis.” (“But perhaps he would never strike him [if struck first] afterward. It is sufficient therefore that another seeks to invade a possession with arms, or threatens the possessor with arms, for the possessor to use arms against the invader.”)
53. Gentili, De Iure Belli Libri Tres, 62, citing the civilians Baldo degli Ubaldi (1327–1400), Alessandro Tartagni (1424–77), and Filippo Decio (1454–1535) in support. Tuck, The Rights of War and Peace, 18–31, discusses the theory of pre-emptive strike as a feature of a “humanist” school of thought on war, taking classical sources as its exclusive origin.
54. Gentili, De Iure Belli Libri Tres, 63–66, citing Thucydides, Livy, Herodotus, and others.
55. For the interdict to recover possession of immovables, against force, see D.43.16.1 (De vi et vi armata); C.8.4.1 (Unde vi).
56. Jacobus de Ravanis, Lectura super codice, to C.8.4, fol. 367va. Not all agreed with Jacobus, however; Odofredus criticized this kind of broad interpretation, writing, “[s]ed quare non licebit mihi usque ad mensem, vel usque ad annum te expellere de possessione fundi mei; quia forte tunc non potui te deiicere, sed modo possum quia convocavi amicos meos…hoc mihi non licet, quia ex hoc posset multus tumultus accidere, et multa mala possent oriri .” (“but why should it not be licit for me all the way to a month, or to a year, to expel you from possession of my estate: because perhaps then I would not be able to eject you; but I can only do so because I have called together my friends…this is not licit, because from it a great disturbance can occur and many evil things.”) See Odofredus, Lectura super codice, to C.8.4, vol. 2, fol. 141ra.
57. C.1.9.14: “…idcirco tamen iudiciorum vigor iurisque publici tutela videtur in medio constituta, ne quisquam sibi ipse permittere valeat ultionem.” (“nevertheless the vigor of judgements and the safeguard of public law seems established so that no one may permit himself to exact vengeance.”)
58. Placentinus, Summa Codicis, to C.1.9, p. 13: “Contrarium intellectum non admitto, ut si nullus iudex sit in medio, valeat sumi ultio.” (“The contrary understanding I do not allow, that if there is no judge, punishment can be exacted.”)
59. Azo of Bologna, Summa Azonis, to C.1.9, fol. 8rb, “…ut deficiente vigore iudicum possit sibi quis dicere jus, causa recuperandi nostrum vel nobis debitum; non ut ultio in personam ipsam fiat vulnerando vel occidendo…” (“…that with the lack of judges, it is possible to judge the law for ourselves, for the cause of recuperating what is ours or what is owed to us; [but] not so that punishment may be made upon the person by wounding or killing…”)
60. Jacobus de Ravanis, Lectura Institutionum, to Inst.1.2 (Lyon, 1536; repr. Bologna: Forni, 1972), 78–80.
61. Ibid., 78–79.
62. Ibid., 79; basing his argument on C.3.27.1: “Liberam resistendi cunctis tribuimus facultatem, ut quicumque militum vel privatorum ad agros nocturnus populator intraverit aut itinera frequentata insidiis adgressionis obsederit, permissa cuicumque licentia dignus ilico supplicio subiugetur ac mortem quam minabatur excipiat et id quod intendebat incurrat. Melius enim est occurrere in tempore, quam post exitum vindicare.” (“We give to all the free power of resisting, so that whichever soldier or private citizen despoils fields at night or lays ambushes on roads, he may be punished there on the spot, by a licence deservedly permitted to all; and [the offender] may receive the death which he threatened and incur what he intended.”)
63. Ibid., 79–80; based on D.22.214.171.124.
64. Ibid., 80: “Ex isto quarto genere dicunt quod illi qui non habent superiorem: tales de imperio licite adinvicem possunt debellare: ubi debitor meus vult fugere cum non habeo copiam iudicis, possum ipsum auctoritate propria capere. Ergo cum unus de imperio alii velit rem auferre cum non habent iudicem adinvicem possunt debellare.” (“They say of that fourth kind that those who do not have a superior [can wage war]: such ones who are of the empire are able to war against each other licitly. When my debtor desires to flee and I do not have access to a judge, I can seize him on my own authority. Therefore when one [polity] of the empire wishes to take away the thing of another, when they do not have a judge they are able to war against each other.”)
65. For classical uses of the term copia in Roman law, in a similar sense, see, for example, D.126.96.36.199, D.188.8.131.52, and further references in Hermann Heumann and Emil Seckel, Handlexikon zu den Quellen des römischen Rechts (Graz: Akademische Druck- u. Verlagsanstalt, 1958), 108.
66. Cinus de Pistorio, In Digesti veteris libros commentaria, to D.1.1.5 (Frankfurt, 1578), fol. 4va: “Primus, quando fit ad propulsionem illatae iniuriae in continenti, et cum moderamine…Secundo, quando fit authoritate legis scriptae…Tertio, quando fit in hostes populi Romani, vel econtra…Quarto, quando fit in defectum iudicis.” (“First [war is licit], when it is made to repulse injuries inflicted immediately, and with moderation…second, when it is made on the authority of written law…third, when it is made against enemies of the Roman people, or vice versa [i.e., non-Europeans]…fourth, when it is made in the absence of a judge.”)
67. Ibid., “Et per hoc dicunt quidam, quod qui sunt de imperio, vacante eo, possunt ad invicem debellare, quia non est superioris copia et recursus.” (“And due to this, certain jurists say that whoever is of the empire, but with the empire vacant, are able to fight against each other, since there is no recourse to a superior.”)
69. Albericus de Rosate, Commentaria super Digesto veteri, to D.1.1.5 (Lyon, 1545), vol. 1, fol. 14va, n. 7: “Sed canonistae dicunt quod vacante imperio succedit ecclesia romana…non puto verum, cum nec imperium ab ecclesia nec econverso dependeat, sed simul ortum habuerunt.” (“But canonists say that with the empire vacant the Roman church succeeds to its place…I do not think that this is true, since neither the church nor empire depend on each other, but have an origin together.”)
70. Ibid., “[p]uto quod vacante imperio assumi possint arma sine eius licentia.”
71. Albericus, Commentaria, to D.1.1.5, fol. 13rb, nn. 6–7: “Possent addi et alii duo modi quibus est iustum bellum, scilicet quando authoritate legis scripte quis potest se vindicare, et sibi ipsi ius dicere, ut C. quando lice. unicui se si iudi vindi, et in multis casibus quos not. C. de iude., l. nullus, et unus ex illis propter defectum iudicis, ut in frau. cred., l. ait pretor, sec. si debitorem.” (“There can be added two other kinds of just war, namely when someone is able to avenge himself on the authority of written law, and judge the law for himself [citing C.3.27.1, C.1.9.14], and one on account of the failure of a judge [when he can judge his own cause] [citing D.184.108.40.206].”)
72. Cecil N. S. Woolf, Bartolus of Sassoferrato: His Position in the History of Medieval Political Thought (Cambridge: Cambridge University Press, 1913), 134ff.
73. All of these have been discussed as justifications for the cities' exercise of merum et mixtum imperium, or sovereignty. See Ullmann, Walter, “De Bartoli Sententia: Consilium repraesentat mentem populi,” in Bartolo da Sassoferrato, Studi e Documenti per il VI Centenario, ed. Segoloni, Danilo, 2 vols. (Milan: Giuffre, 1962), 2:707–33, on the theory of custom and legislative authority. Woolf, Bartolus of Sassoferrato, 142, notes that Bartolus was uncertain whether imperial rights were prescribed (by praescriptio longissimi temporis), largely because he faced, in his own day, a vacant empire or schismatic emperor, which made prescription doubtful. More recently Ryan, Magnus, “Bartolus of Sassoferrato and free cities,” Transactions of the Royal Historical Society, 6th ser., 10 (2000): 65–89, offers a fine-grained discussion of the logic and inconsistencies of Bartolus's views on the independence of the cities.
74. Woolf, Bartolus of Sassoferrato, 154–62.
75. Maiolo, Francesco, Medieval Sovereignty: Marsilius of Padua and Bartolus of Saxoferrato (Delft: Eburon, 2007), 231–35, gives a brief summary of scholarly views on the nature of Bartolus's conception of sovereignty. And, in practice, the diverse strategies of territorial control in Italy allowed varying degrees of autonomy to subject cities.
76. Bartolus, Tractatus represaliarum, in Omnia, quae extant, opera (Venice, 1590–1602), X (Consilia, qvaestiones, et tractatvs), fol. 119vb–124va.
77. Ibid., fol. 119vb: “Represaliarum materia, nec frequens, nec quotidiana erat tempore, quo in statu debito Romanum vigebat Imperium: ad ipsum enim tanquam ad summum Monarcham habebatur regressus, et ideo hanc materiam legum Doctores, et antiqui iuris interpretes minime pertractaverunt.” (“The matter of reprisals was neither daily nor frequent in that time in which the Roman Empire thrived in its proper state. Recourse was had to the Emperor as to the highest monarch, and therefore the doctors and old interpreters of the law did not treat this matter.”)
78. Ibid.: “Postea vero peccata nostra meruerunt, quod Romanum Imperium prostratum iaceret per tempora multa, et Reges et Principes, ac etiam civitates maxime in Italia, saltem de facto in temporalibus dominum non agnoscerent, propter quod de iniustiis ad superiorem non poterant haberi regressus…;” (“Afterwards, however, our sins merited that the Roman Empire would lie in ruins for a long time, and kings and princes, and also cities (particularly in Italy), would not de facto acknowledge a lord in temporal affairs, on account of which no recourse could be had to a superior concerning injustices.”) See also the comments in Quaglioni, Diego, “Le ragioni della guerra e della pace,” in Pace e guerra nel basso medioevo. Atti del XL Convegno storico internazionale, Todi, 12–14 ottobre 2003, ed. Menestò, Enrico (Spoleto: Fondazione Centro italiano di studi sull'alto Medioevo, 2004), 125–29.
79. Compare with Haggenmacher, Grotius et la doctrine, 167–70, on reprisals and the significance of the denial of justice as a formal cause for war.
80. Tractatus represaliarum, fol. 120ra, nn. 5–6: “Et bellum licitum est ex causis praedictis, quod etiam probatur, quia de iure gentium est, quod id quis ob tutelam sui corporis fecerit, videtur fecisse iuste…corpus intelligo sive loquamur de uno individuo, sive de uno corpore mixto. Unde ob tutela unius civis, potest civitas indicere bellum, sicut unus particularis potest indicere bellum contra omnes ob tutelam personae suae, et suarum rerum, ubi superioris copia vel aliud remedium haberi non potest…et praedicta puto iuregentium et veritati civili consonare…”
81. See Canning, Joseph, “The Corporation in the Political Thought of the Italian Jurists of the Thirteenth and Fourteenth Centuries,” History of Political Thought 1 (1980): 9–32. The foundational work on the subject is still Gierke, Otto, Political Theories of the Middle Age, trans. Maitland, Frederic (Cambridge: Cambridge University Press, 1900). On corporation theory in relation to monarchies, see Kantorowicz, Ernst, The King's Two Bodies (Princeton: Princeton University Press, 1957). As on many issues, Innocent IV was an important early pioneer of the argument; see Rodriguez, Manuel, “Innocent IV and the Element of Fiction in Juristic Personalities,” The Jurist 22 (1962): 287–318; also Tierney, Brian, Foundations of the Conciliar Theory: The Contribution of the Medieval Canonists from Gratian to the Great Schism, enl. new ed. (Leiden: Brill, 1998), 89–108; and Quantin-Michaud, Pierre, Universitas. Expressions du mouvement communautaire dans le moyen-âge (Paris: Vrin, 1970).
82. For example, see the important study of Lauterpacht, Hersh, Private Law Sources and Analogies of International Law (London: Longmans, Green & Co., 1927), and recently Lesaffer, Randall, “Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription,” European Journal of International Law 16 (2005): 25–58.
83. See above, notes 14 and 15.
84. Hobbes, Thomas, Leviathan, ed. Tuck, Richard, rev. student ed. (Cambridge: Cambridge University Press, 1996), 90 (bk. 1, ch. 13).
85. de Ubaldis, Angelus, Renovata Guerra, in Quaestiones Doctissimae (Turin, 1580), fols. 22va-24vb. On this quaestio and the idea of bilateral justice, compare with Haggenmacher, Grotius et la doctrine, 117.
86. Angelus, Renovata Guerra, fol. 23ra, “tamen quia quilibet dominorum dictorum in terris et territoriis suis habent merum et mixtum imperium et omnimodam iurisdictionem sui imperii, suaeque iurisdictionis, suique territorii, licitum est contra alium bellum indicere.” (“nevertheless, since each of the said lords has merum et mixtum imperium [sovereignty] in their lands and territories, and every kind of jurisdiction pertaining to their authority, jurisdiction and lands, it is licit for them to declare war against another.”)
87. Ibid., “…tamen quis habeat iustam vel iniustam dubitatur eo quod quilibet asserit se prius insultatum, et se pro defensa sui iuris facere dictam guerram, quo casu propter dubium ex utroque latere dicere possumus guerram iustam.” (“…nevertheless, who has a just or unjust cause is doubted, since both assert that they were insulted first, and that they made war to defend their right; in which case, on account of the doubt, we can say that war is just on both sides.”)
89. Earlier in canon law, a few jurists contemplated wars that could be subjectively just on both sides. The twelfth century canonist Rolandus imagined that a prince could be deceived (for example, from bad information) as to the culpability of his adversary, and excusably believe that his cause was just; Rolandus, Summa magistri rolandi, ed. Thaner, Friedrich (Aalen: Scientia Verlag, 1962), to C. 23 q. 2, 88. Stephen of Tournai furnished a longer discussion of the same issue; see Russell, The Just War, 89–92. Angelus, however, focused on the rights of sovereigns and the frequent uncertainty of the just cause in the absence of a tribunal to judge disputes.
90. Raphael Fulgosius, In primam Pandectarum partem commentariorum…tomus primus, to D.1.1.5 (Lyon, 1544), fol. 8ra: “Respondeo quod quia incertum erat utra pars iuste bellum moveret, nec erat iudex communis utrique superior, per quem id possit certum civiliter effici, optima ratione constituerunt gentes, ut eius rei iudex bellum foret. (“I respond that because it was uncertain which side moved the war justly, nor was there a common judge as superior for both, through whom a decision could be brought about by civil procedure, by the best reasoning people established that war would be the judge of the thing.”) On Fulgosius, compare with Haggenmacher, Grotius et la doctrine, 203–4; also Tuck, The Rights of War and Peace, 32.
91. Fulgosius, In primam Pandectarum, fol. 8ra, n. 2. His analysis, to the extent that it features some examples from Roman history, appears in line with general humanist concerns.
92. Ibid., fol. 8ra, n. 5.
93. Ibid., fol. 8rb. His support for recourse to the pope in secular, and certainly territorial, disputes had a basis in canonists such as Hostiensis, who like many, wished to see disputes among Christians settled by judges and ultimately the Pope (see above, note 39).
94. de Castro, Paulus, In primam partem Digesti veteris commentaria, to D.1.1.5 (Venice, 1582), fol. 4va, n. 3b: “Nam etiam de iuregentium antequam essent magistratus quilibet sibi ipsi poterat ius dicere, post creationem vero magistratum inhibitum est cuique sibi ipsi posse dicere. Si ergo deficit magistratus, remanemus in dispositione iurisgentium.”
95. de Castro, Paulus, Consilia (Frankfurt, 1582), vol. 1, consilium 400, fol. 207rb: “Priusquam iura fierent, nullo ordine iudiciario, qui tunc erat incognitus, consequatur quis ius suum. Sed autem regia manu, si regis aderat copia; vel si non aderat, auctoritate propria suscepto bello. Quod quidem omni iure licitum videbatur divino, scilicit naturali atque gentium.”
96. Ibid., fol. 207rb, n. 2: “Caeterum si deficit copia magistratus, quia parum est iura fuisse condita, ex quo non est qui tueatur ipsa…[a]d iura primaeva redimus, quibus omni iure nobis liceat, auctoritate propria ius nostrum consequi.”
97. A good recent discussion of the meanings of jus in medieval canon and Roman law is found in Robinson, Jonathan, William of Ockham's Early Theory of Property Rights in Context (Leiden: Brill, 2012), 69–100.
98. Paulus, In primam partem…commentaria, to D.1.1.1, fol. 3ra–b.
99. D.1.1.5. The Roman law of nations was based on D.220.127.116.11–D.1.1.5, and Inst.1.2; see above, note 42, for D.1.1.5. Liberty was originally common to all, but that condition was subsequently modified by the institution of slavery, which was also considered natural and as a result of war (see note 111 below). Gratian's Decretum was similarly a source for the jus gentium, both in its treatment of natural law and the law of nations; Decretum, D. 1, cc. 7–9.
100. Paulus, Consilia, fols. 207va–b. Paulus observed that war could only be just according to reason under the law of nations, and argued that it was repugnant to reason that, if the magistrate should be lacking, individuals would have to give up their right/what was rightful (ius nostrum); see fol. 207rb, n. 2.
101. See, generally, Tierney, Brian, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150–1625 (Grand Rapids, MI: William B. Eerdmans, 1997), 131–69. In Roman law things that were unowned and open to acquisition were considered res nullius, or things of no one. Medieval canonists generally considered that property was first held in common; private property was usually thought to have become necessary sometime after original sin, and was established by a combination of appropriation and consent.
102. Thomas Hobbes, Leviathan, 98 (bk. 1, ch. 14).
103. Quoted in Tuck, Rights of War and Peace, 131–32.
104. Hobbes, Leviathan, 86–90 (bk. 1, ch. 13).
105. Ibid., 32–33 (bk. 1, ch. 5).
106. Notably, Hobbes acknowledged that no one was able to lay down or transfer to the sovereign the right of self-defense, as all rights were laid down for some benefit to oneself (Leviathan, 93; bk. 1, ch. 14).
107. Ibid., 92 (bk. 1, ch. 14). Hobbes argued that without civil authority to enforce mutual promises, humans tend to break their word for a lack of fear and the sake of advantage (96, 99). Covenants are made valid and enforceable by civil authority.
108. Ibid., 100–11 (bk. 1, ch. 15).
109. Locke, John, Two Treatises of Government: And a Letter Concerning Toleration, ed. Shapiro, Ian (New Haven: Yale University Press, 2003), 103 (bk. 2, ch. 2, § 8): “And thus, in the state of Nature, one man comes by a power over another, but yet no absolute or arbitrary power to use a criminal…but only to retribute to him so far as calm reason and conscience dictate, what is proportionate to his transgression…[i]n transgressing the law of Nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men for their mutual security…”
110. Ibid., 102–3 (bk. 2, ch. 2, § 7). Hugo Grotius had earlier articulated a very similar right, on which see Straumann, Benjamin, “The Right to Punish as a Just Cause of War in Hugo Grotius' Natural Law,” Studies in the History of Ethics 2 (2006): 1–20.
111. Locke, Two Treatises of Government, 110 (bk. 2, ch. 4, § 23). Medieval civilian jurists also saw slavery as a just institution under the law of nations; see for example, Jacobus de Ravanis, Lectura, to Inst.1.2, 77. It arose as a merciful alternative that spared the captive in war from death. In a similar way, for Locke, slavery could follow upon a justly punitive act in a state of nature, if the captor saw a utilitarian value in putting the captive to work, rather than death. The slave did not lose the right of self-defense, however.
112. Locke, Two Treatises of Government, 105–6 (bk. 2, ch. 2, § 13). Also among Hobbes's further laws of nature, which are maintained in civil society, was that man could not be a judge of his own causes; Hobbes, Leviathan, 109 (bk. 1, ch. 15).
113. Locke, Two Treatises of Government.
114. Ibid., 197–209 (bk. 2, ch. 19, § 222–43). Locke raised the question of judging again in treating the resistance to and removal of bad government (§240): “Here, it is like, the common question will be made, ‘Who shall be judge, whether the prince or legislative act contrary to their trust?’…To this I reply, ‘The people shall be judge,’” and compared the government to a deputy or trustee of the people.
115. Ibid., 107–9 (bk. 2, ch. 3): “Want of a common judge with authority puts all men in a state of nature” (§19). Locke noted that a government will also be in a state of war with its people if it routinely abuses power (bk. 2, ch. 19, §222). This seems to undermine the notion that government is a deputy or trustee, whose limited rights could simply be revoked; however, it fit with the idea that also between governments and people there was no higher superior, and that the dissolution of a tyrannical government would not proceed according to a normal judicial process.
116. This pertained also to war, where Paulus wrote that wars coming from reason were just, whereas ones coming from the passions were unjust; Paulus, In primam partem…commentaria, to D.1.1.5, fol. 4va, n. 3c: “…ut sunt bella iniusta, quando ad illa non moventur homines ex ratione, sed ex sensualite…illa sunt bella licita, quando ad illa moventur homines ex ratione, et illud ius dicitur instinctus naturalis ex ratione proveniens.” (“…as are unjust wars, when men are not moved to undertake them by reason, but from sensuality... those wars are licit, when men are moved to them by reason, and that law is called a natural instinct coming from reason.”) Paulus followed jus commune tradition in tying just wars to their accord with reason and natural law.
117. Tuck, The Rights of War and Peace, 17, suggests that Hobbes may have heard Gentili lecture, when the latter was Regius Professor of Civil Law at Oxford and Hobbes was a student, during 1603–5. On Gentili's approach to the rights of war, see Tuck, The Rights of War and Peace, 16–50, passim. See also the collection of essays on Gentili in The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire, ed. Kingsbury, Benedict and Straumann, Benjamin (Oxford: Oxford University Press, 2011); and Gentili, Alberico, The Wars of the Romans. A Critical Edition and Translation of De Armis Romanis, ed. Kingsbury, Benedict and Straumann, Benjamin, and trans. Lupher, David (Oxford: Oxford University Press, 2011). On Gentili and his career, see Panizza, Diego, Alberico Gentili, giurista ideologo nell'Inghilterra elisabettiana (Padua: D. P. Via Vergerio, 1981); and van der Molen, Gesina H. J., Alberico Gentili and the Development of International Law, 2nd rev. ed. (Leiden: A. W. Sijthoff, 1968).
118. Gentili, De Iure Belli Libri Tres, vol. 2, 15. At the same time, however, Gentili, like many jurists, urged sovereigns to consent to arbitration to end disputes. Those who did not were “setting their faces against justice, humanity, and good precedent” (2:16).
119. Paulus, to D.1.1.5, fol. 4va, n. 4.
120. Paulus, to D.1.1.5, fol. 4va, n. 4: “Puto etiam quod licet de iure divino non licet bellare pro subiugando bellatos…de iure tamen gentium unus populus liber non recognoscens superiorem possit contra alium liberum si facit ad bonum finem ut illos bene regat et gubernat, aliter bella qui exercuit populus romanus ad hunc solum finem pro gloria imperii non fuissent licita nec ipsorum principatur et monarchia, et tamen contrarium est verum quia Christus aprobavit dum dixit reddite que sunt Cesaris Cesari, et cetera.”
121. Cicero, De officiis, trans. Miller, Walter (Cambridge, MA: Harvard University Press, 1913), 41 (1.12.38): “when a war is fought out for supremacy and alien glory is the object of war, it must still not fail to start from the same motives which I said a moment ago were the only righteous grounds for going to war.” These were that war should be made after an official demand for redress of some wrong, or an official declaration (1.12.36). Aristotle made his argument with less qualification: see his Politics, ed. Everson, Stephen (Cambridge: Cambridge University Press, 1988), 178 (1333b39–1334a2). The larger context of Aristotle's comment is his well-known theory of natural slavery, by which inferior peoples could be conquered and ruled by others; see Politics, for example, 1256b22–27 and 1.5–7 on slavery generally. The argument on natural slavery was familiar to medieval commentators on Aristotle, but became more popular in some humanist writing in the Renaissance and early modern period. On natural slavery, see Tuck, The Rights of War and Peace, 40–44; Pagden, Anthony, The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology (Cambridge: Cambridge University Press, 1987), 27–56; Pagden, Anthony, “Dispossessing the Barbarian: The Language of Spanish Thomism and the Debate over the Property Rights of the American Indians,” in The Languages of Political Theory in Early-Modern Europe, ed. Padgen, Anthony (Cambridge: Cambridge University Press, 1987), 79–98; and Tierney, Brian, “Aristotle and the American Indians––Again: Two Critical Discussions,” Cristianesimo nella storia 12 (1991): 295–322.
122. It would be less surprising if Paulus argued that only infidels should face this kind of war, but he was clear on the point, describing the Venetians as a free people (In primam partem…commentaria, fol. 4va, n. 5d).
123. For the idea that the law of nations conformed to common practice and human necessities, Inst.1.2: “nam usu exigente et humanis necessitatibus gentes humanae quaedam sibi constituerunt.” (“For with custom and common human necessities demanding it, some human peoples established these laws for themselves.”) Medieval civilians also understood, from the text of Justinian as well as the influence of theology, that the jus gentium ultimately had divine origins: “sed naturalia quidem iura, quae apud omnes gentes peraeque servantur, divina quadam providentia constituta, semper firma atque immutabilia permanent” (Inst.1.2). (“But indeed these natural laws, which are observed equally among all peoples, having been established by a certain divine providence, always remain firm and immutable.”)
124. Tuck, The Rights of War and Peace, 1–15.
125. Underlying the use of any specific Roman law precept in early modern international law was an old view that it was not merely positive law but a kind of written reason (ratio scripta), often traces of which could be found reflected in various customs among human societies, historical or contemporary. This can be related again to a belief in the transcendent foundation of the law. Canon law also contributed principles to early modern international law, from the important principle of noncombatant immunity, to influential views on contracts. On contracts, see Lesaffer, Randall, “The Medieval Canon Law of Contract and Early Modern Treaty Law,” Journal of the History of International Law 2 (2000), 178–98.
126. Tuck, The Rights of War and Peace, 16–50, argues for the influence of some of these classical attitudes on war in the late Renaissance and early modern period. See also his Philosophy and Government 1572–1651 (Cambridge: Cambridge University Press, 1993), where he considers in greater detail the traditions of Stoicism and skepticism, which were introduced into Renaissance political discourse.
127. For biographical information on Paulus, see Lange, Hermann and Kriechbaum, Maximiliane, Römisches Recht im Mittelalter, 2 vols. (Beck: Munich, 2007), II:813–26; Lauro Martines, Lawyers and Statecraft, 87, 186, 499–500; Kirshner, Julius, “Paolo di Castro on ‘Cives ex Privilegio,’” in Renaissance: Studies in Honor of Hans Baron, ed. Molho, Anthony and Tedeschi, John A. (Dekalb, IL: Northern Illinois University Press, 1971), 229–64.
128. Hörnqvist, Mikael, “The Two Myths of Civic Humanism,” in Renaissance Civic Humanism: Reappraisals and Reflections, ed. Hankins, James (Cambridge: Cambridge University Press, 2000), 104–42; and Hörnqvist, Mikael, Machiavelli and Empire (Cambridge: Cambridge University Press, 2004), explore the themes of civic praise, expansionism, and empire in early fifteenth century Italian humanist work; touched on also by James Hankins, “Rhetoric, History and Ideology: The Civic Panegyrics of Leonardo Bruni,” in Renaissance Civic Humanism: Reappraisals and Reflections, 143–78.
129. The seminal and controversial discussion of Renaissance “civic humanism” is found in Baron, Hans's The Crisis of the Early Italian Renaissance, 2nd ed. (Princeton: Princeton University Press, 1966). Although parts of Baron's thesis have been rejected, it is agreed that early quattrocento humanism featured classicizing and patriotic rhetoric, praising the government and institutions of some of the emergent Italian cities. On the origins of this political rhetoric, see Skinner, Quentin, “Machiavelli's Discorsi and the Pre-Humanist Origins of Republican Ideas,” in Machiavelli and Republicanism, ed. Skinner, Quentin and Viroli, Maurizio (Cambridge: Cambridge University Press, 1990), 126–34; and his The Foundations of Modern Political Thought, 2 vols. (Cambridge: Cambridge University Press, 1978), 28–84, where he argues that “civic humanist” political discourse of the quattrocento had its roots in a thirteenth and fourteenth century urban civic discourse in Italy. For revisionist views on the significance of civic humanism, a term Baron coined, see the essays in Renaissance Civic Humanism: Reappraisals and Reflections.
130. Even Paulus recited the standard elements of just war on a canonistic or theological view, in a repetitio on D.1.1.5 printed with his commentary (Paulus, In primam partem…commentaria, to D.1.1.5, fol. 5va, n. 6b).
131. Andrea Alciato, In aliquot titolos tomi tertii Pandectarum…commentaria, to D.41.2 (Lyon, 1550), 139, n. 8. Alciato held that when in doubt—which might be no more than a colorable claim—the war should be presumed just. Compare with the canonist Francesco Accolti, for whom the war should be presumed unjust if in doubt; Acccolti, Consilia seu responsa (Venice, 1572), fol. 16vb.
132. From a historical viewpoint, intermarriage and kinship created important ties between formally independent kingdoms in Europe, as did mutual interests and common pressures, although the history or sociology of these polities can be separated from their legal construction.
He thanks Lawrin Armstrong and Jonathan Robinson for their comments and suggestions on an earlier draft. Sincere thanks are also due to Elizabeth Dale and to the anonymous reviewers of Law and History Review for their helpful critique. Finally, great thanks are due to the librarians at the Arthur W. Diamond Law Library of Columbia University, past and present, including Whitney Bagnall and Sabrina Sondhi, and to Meredith Shedd-Driskell of the Law Library of Congress, for their valuable assistance during the research stages of this paper.
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