(p.210) APPENDIX 2 Plenitude of Power and Iura Reservata
(p.210) APPENDIX 2 Plenitude of Power and Iura Reservata
Plenitude of power was closely linked to iura reservata.1 Baldo described these special prerogatives as the ways in which a ruler could overstep the law in accordance with the principle that ‘whatever the emperor has decreed has the force of law’.2 He provided his most comprehensive list of iura reservata in his analysis of merum imperium (the highest power). Here he wrote that ‘the first distinction to be made is between the absolute power of the prince and the limited power of a lesser authority. The merum imperium of the prince is defined as the absolute power which was granted to the emperor in the lex regia.’3 That power, he said, allowed him a number of prerogatives, or iura reservata: to legitimize illegitimate children; to reinstate a person from infamy; to disregard a criminal sentence and restore someone to their original status by an act of grace; to give a minor the benefits of majority; to intervene by decree in cases of adoption; to intervene by decree in cases concerning the emancipation of infants or absent children; to remove someone's rights lawfully; to overrule the law in cases concerning legitimacy. In addition, only the emperor could commission notaries; issue laws which affected ongoing litigation; delegate merum and mixtum imperium; confer major titles; designate an island as a place of deportation; proceed without observing the judicial formalities; make good any error of legal procedure; impose a supplementary tax.4
A more exhaustive list of iura reservata was provided by Ludovico Pontano in his own analysis of merum imperium.5 ‘We need to know what it is that the emperor reserves for himself,’ he said, adding somewhat unfairly, ‘lawyers have not explained this, except for Baldo, who gives three or four examples.’ Like Baldo, Pontano defined merum imperium as ‘the absolute power which the Roman people transferred to the emperor in the lex regia’. Again he cited the maxim, ‘what the prince has decreed has the force of law,’ adding, ‘this power is unrestricted (soluta) as is shown where it says “the prince is exempt from law”, even though he says that he is in honour bound by the laws.’6 Pontano (p.211) proceeded to describe more than forty separate prerogatives, including those listed by Baldo. Among these were the right to legislate and the right to pass sentence without going through the courts.
The relationship between plenitude of power and the iura reservata was not straightforward. On the one hand, the two concepts appeared to be synonymous. As seen above, Baldo described iura reservata as rights which lay outside the law; both he and Pontano defined iura reservata as an aspect of potestas absoluta (i.e. plenitude of power). In contemporary chanceries many processes, such as legitimizations, the making good of legal defects in court proceedings, the overruling of a person's rights, and the passing of sentence without trial, were ordered de plenitudine potestatis. On the other hand, not all the iura reservata described in these lists required plenitude of power. Where fundamental rights were not at stake, a ruler could initiate actions which were not open to anyone else, such as creating noble titles, levying extra taxes, building city walls and fortified outposts, coining money, issuing pardons, and passing laws, without reference to plenitude of power. With his iura reservata a ruler could overrule property and other fundamental rights based on ius gentium, provided he acted from plenitude of power. It was in this way that iura reservata were associated with absolute power outside legal norms, and were described by Baldo as ways in which a ruler could overstep the law.
Plenitude of power, as Francesco Sforza exercised it in the absence of an investiture, was not at first thought to include imperial iura reservata: in his petition to Frederick III for a diploma, the duke sought imperial plenitude of power in order to ensure that he had the iura reservata still in the emperor's hands.7 Francesco Sforza's concept was in keeping with the traditions of the fourteenth century, when the Visconti received iura reservata in the imperial vicariate and in the 1396 diploma.8 Both he and the early Visconti were already exercising plenitude of power thanks to election by their subjects. But once the Visconti had received the vicariate, they tended to accept that their plenitude of power originated with the emperor. It fell to jurists working in the duchy after Francesco Sforza's accession to devise a new model of ducal authority that would encompass imperial prerogatives, or iura reservata, even in the absence of any imperial diploma.9 (p.212)
(2) Baldo on C. 1, 19, 7 (De precibus imperatori offerendis, l. Rescripta), nr 7 gives two of these prerogatives: ‘Nota ergo hic aliqua de principis potestate; nam legem transgreditur dispensando: ff. de ritu nuptiarum, l. Qua in provincia, s.v. divus [D. 23, 2, 57]; remeatum exuli dando: ff. De poenis, l. Relegati [D. 48, 19, 4]. He finished by remarking: ‘Et conclusive, quidquid principi placuit legis habet vigorem, ut l. 1, De constitutionibus principum [D. 1, 4, 1].’
(3) Baldo on D. 2, 1, 3 (De iurisdictione omnium iudicum, l. Imperium), nr 6: ‘Dico quod prima distinctio est illa quae est duplex, scilicet absolutum in principe et limitatum in inferiore, prout in principe diffinitur sic: merum imperium est absoluta potestas imperatori concessa per legem regiam.’
(4) Baldo on D. 2, 1, 3 (De iurisdictione omnium iudicum, l. Imperium), nrs 6–7.
(5) For details of Pontano's career, see above p. 201, n. 9.
(6) Pontano on D. 2, 1, 3 (De iurisdictione omnium iudicum, l. Imperium), nr 1: ‘Dic quod duplex [i.e. merum imperium]. Primum quod personae principis solummodo reservatur. Secundum quod ex persona principis in alios magistratus distribuitur. Item primum sic definitur quod est absoluta potestas quam populus Romanus ex lege regia in principem transtulit. Probatur in l. i supra, De officio praefecti praetorio, l. Breviter [D. 1, 11, 1]; Institutiones, De iure naturali et gentium et civili, l. Sed quod principi [Inst. 1, 2, 6]; quod sit soluta probatur in l. princeps, supra De legibus senatusque consultis [D. 1, 3, 31], licet ex honestate dicat se legibus alligatum, ut l. Digna vox, C. De legibus et constitutionibus principum et edictis [C. 1, 14, 4].’
(7) The proposed diploma was to include complete plenitude of power ‘sine ulla exceptione vel diminutione’ extending to ‘reservata suppremo principi, ita ut omnes casus etiam duriores hic pro expressis habeantur,’ ASMi, Sforzesco Alemagna 569, pp. 39 and 47; see above pp. 88–9.
(8) See above pp. 54–5 and 95–6.
(9) See above pp. 98, 100, 101–2.