CHAPTER SIX
“Dinanzi a me non fuor cose create se non etterne e io etterna duro.”
“Before me nothing was created but eternal things and I endure eternally.”1
FROM THE FALL of Rome in A.D. 476 to the crowning of the Frankish leader Charlemagne by the pope on Christmas Day 800, the former territory of the Roman Empire was successively flooded by waves of barbarian invaders from eastern and central Europe. Literacy, trade, and simple security dramatically receded toward the Mediterranean. By the end of the first millennium, however, the central island of the old empire had re-emerged, lapped by Muslim conquests in Spain and North Africa, Norse settlements from the North Sea and Baltic coasts to Sicily, and the incursions of tribes from the eastern steppes that had come as far as Rome and then ebbed to the edges of Vienna. The remaining center, composed of the lands colonized by Germanic tribes in what is now France, as well as Italy and central Europe, huddled together, its populations largely Roman Catholic in religion, and its local rulers the dynastic tribal successors of the Germanic invaders. Within this center two parallel structures developed: the universal Church spanning local cultures, and the fragmented feudal system of local princes. The legal relations of these two entities were in principle separate: the Church system of religious, educational, bureaucratic, and charitable life co-existed with the military and proprietary prerogatives of the nobility, though in fact the feudal administrative structure depended on Church personnel, and the Church was itself a landowner of immense wealth and political presence.
The defining legal characteristic of medieval society was its horizontal nature, reflected across these two pervasive dimensions of ecclesiastical and feudal power. From a modern and secular perspective, these two systems are difficult to imagine as operating simultaneously. Medieval society, however, was not divided into separate states, with each prince a sovereign within his own territory, ruling hierarchically all within that territory and no persons or territories remaining outside the domain of some prince. On the contrary, political society was organized into four co-existing functional sectors: the nobility, the clergy, burghers, and peasants—although some of these sectors were themselves organized vertically, and the authoritative heads of one sector might have had a certain legal authority over the members of the other sectors, as, for example, the Church had jurisdiction over wills and marriages in all sectors. Vertical power, however, was horizontally limited; for example, while a king could demand military service from the feudal vassals who were obligated to him, and while some of these lesser lords owned land to which peasants were attached, a king had no direct authority over his vassal's peasants. Similarly, the urban stratum of medieval society, comprising artisans, merchants, and townspeople of various functions, was in many aspects of life independent of both the clergy and the nobility. A great number of these townspeople were Jews, who though often operating under severe civil restrictions, were largely autonomous. It is to these cities that we owe the concepts and practices of trade, manufacturing, banking, and the organizations of guilds. Some cities were self-governing; some were under princely patronage.
In this diverse commercial environment the need for legal norms is hardly surprising, but what was it about medieval Europe that made it the birthplace of the state system and its attendant norms of international law, when there were many other diverse, commercial environments—the Levant, the Far East—where this did not happen?
First, the medieval church provided a bureaucracy that encouraged regularization across many diverse cultural communities, and also was able to lend itself to the various political authorities in order to supply an administrative apparatus for their needs. The word “clerk,” which we associate with a governmental and legal establishment, derives from “clergy” and the practice of filling administrative posts with churchmen. Second, and more important, the two-dimensional nature of medieval Europe meant that the universality of Christendom was coextensive with the radically diverse and disparate ethnic, tribal, and cultural mix. In other cultures only one of these elements prevailed, either the imperial or the fragmentary. In the case of an imperial hierarchy such as medieval China, relations with outsiders always remained just that: no “society” could develop within which they were included. This was the experience of the medieval traders in the Far East and with the Muslim courts. In the case of the diverse but fragmented societies cohabiting the same territory without an overarching superstructure, their very proximity tended to exaggerate conflict and prevent a common culture from developing. This was the case with the pre-Moghul Indian states. In both cases very advanced cultures failed to develop a state system and an international law because neither ever developed an overarching international culture.
In medieval Christendom, however, a universal, overarching institution existed that provided a society of diverse and competitive princes with both the means and the motive to develop a body of comprehensive legal practices. In the first place, legal rationales could bolster a prince's claim to territory or prerogatives. In a system of states without an overarching structure, there was no appeal to higher authority; in Europe, appeal could be made to the Church. Moreover, the omnipresence of ecclesiastical dominion often provided a motive for resistance to that dominion and the availability of legal arguments provided a resource to be deployed against the Church without having to reject ecclesiastical authority per se. As Adam Watson has put it:
The… legal justification for territorially defined realms made it increasingly easy for kings in the west to defy a particular pope (or in some areas emperor) though without formally repudiating the universal authority of these offices.2
In the second place, the superstructure of Christendom was itself an international legal culture. Popes were elected by cardinals from many different localities, and the Holy Roman Emperor was chosen according to the votes of the diverse electoral princes of the empire, including three archbishops.* It has even been asserted by some historians that the origin of the constitutional idea of a separation of powers lies in the struggle between papal and temporal authority, and the argument that the Church should determine the law as a guide but rely on independent lay rulers to execute and apply these rules.
Finally, the universal scope of the Christian community imposed restraints on a prince's reasons for going to war. Wars among Christians needed a legal justification. It is instructive to compare Aquinas's rules as to what constitutes a just war, addressing as he was a society of diverse princes, with those of Augustine, who spoke to an imperial audience. Aquinas's rules are an effort to “enhance the security of legitimate possession.” Indeed we can trace the current preoccupation in international law with justification for war to this period when it was the aim of the medieval Church to limit the use of force to the maintenance of world order, where the “world” was Christendom.
War against non-Christians provided the exception to these efforts at limitation. Here also the unique combination of competing princes and a universal order militated in favor of a developing multinational culture. A crusade had to be proclaimed by the pope, and there were strict rules governing such proclamations as well as the relationships that obtained among the participating princes. The crusades are an example of this interplay between local identification and universality, one that is often misunderstood by a sort of anachronistic psychological Marxism that would expose them as a mere facade for plunder. As Christiansen has retorted:
To present [the Crusades] as… matters of interest disguised as matters of conscience… is too easy. It avoids the unavoidable question of why men who were never reluctant to wage war for profit, fame, vengeance or merely to pass the time, without any disguise or pretext, nevertheless chose to claim that certain wars were fought for God's honour and for the redemption of mankind.3
It is important to observe that war in each of the theatres of European expansion was sanctioned by papal authority: the reconquista of the Iberian peninsula, the efforts to recover Palestine and re-establish the Roman Christian kingdoms in the Near East, and the expansion north and eastward against the pagan Slavic lands. All of these were Christianizing missions, given legal warrant and therefore legitimacy in the eyes of other princes by the sanction of the Church. As we shall see, it was the withdrawal of the universal Church from its legitimating role, leaving in its wake a society of political entities that were unable to assert an objective legitimate status, that in part produced the modern state.
The princes of this period were not territorial in the sense of having a fixed settlement and identification with that locality and its people; that would come later. At this time, the sense of their subjects was too local to be national; and the princes' sense of themselves and their property was determined by inheritance and to a much lesser extent by solidarity with a particular land or its inhabitants. They were not the monarchs of nations. The Henry V who fought at Agincourt to recover his property on the continent is unlikely to have spoken the sentiments of a nationalist, Renaissance author like Shakespeare in exhorting his men. For Harry, yes; but not necessarily for England and St. George. Nor were these princes of states; rather they governed realms, each with a rudimentary administrative apparatus that was impermanent and fixed only to the person of the prince. As princes without nations and without states, they were in some ways well suited to give birth to what would become international law because they had legal relations with each other that required legal rules. Princes made contracts: the law of contracts for princes became the international law of treaties; princes made war and the international laws of war arose from the laws of torts and crimes among princes; the international law of territorial conquest and session arose from the laws of property and the inheritance of estates among princes.
On this distinctively medieval pattern is the present international law based. This accounts for many traits that persist in that law, as the law of the society of princes became the law of the society of states.
PRINCELY STATES
Medieval Christendom was not yet a society of politically distinct states. But at first in Italy, and then throughout the area, the complex horizontal structure of feudal society crystallized into a vertical pattern of territorial states, each with increasing authority inside defined geographic borders.4
This change was begun by the conquest of Constantinople in 1453 by the Ottoman Turks, when two events of profound consequence for the Italian cities occurred: first, the steep, high walls of Constantinople, hitherto thought to be impregnable, were battered into rubble by gigantic wrought-iron tubes that fired balls made of stone; second, a large population of talent, including a group of classical scholars, largely Greek, who were the inheritors of the premedieval tradition, were driven out of ancient Byzantium and forced to immigrate to the university towns of Italy. The only comparable injection of such talent into a thriving society might be the exodus of European refugees during the 1930s and the consequent quantum change in the quality of American universities and eventually American cultural life.*
The classical ideas of these scholars found an eager audience in Italy: parallels to the Greek city-states and the Roman city-republic appealed to the pride of the Italian city-realm. Moreover, an enormous cultural energy was released once Italian society, whose periodic eruptions of piety had never quite exhausted its love of power and pleasure, was shed of the sheer weight of hypocrisy that the medieval Church had steadily accumulated on its behalf. Finally, classical ideas—or rather Renaissance notions about such ideas—provided a rationalization of events, as the city-realm began to thrive on its independence and assertiveness, that seemed more in accord with reality than did medieval universality and the dual allegiance to the ecclesiastical and the feudal. Questions that could be answered only by reference to biblical and dogmatic texts increasingly seemed to lack the urgency of questions that could only be answered by reference to the world. The trajectories of artillery are, for example, a matter of physics, not of church doctrine. The “bombards” of the Turks presaged the change in government that would bring into being the new idea of the State.
But the huge cannon of Mehmed II that destroyed the fortress walls of Constantinople was difficult to transport and slow to arm. The French king, Charles VIII, however, financed the development of a cannon so light that it could be easily transported.5 Cast bronze replaced wrought iron when it was discovered that the method used to found church bells could also create cannon.* The catalyst for constitutional change occurred when Charles VIII invaded the Italian peninsula in 1494 with a horse-drawn siege train of at least forty artillery pieces. Contemporaries of this event immediately appreciated its implications: in 1498 the Venetian senate declared that “the wars of the present time are influenced more by the force of bombards and artillery than by men at arms” and desperately began trying to organize to meet this challenge. Others, too, recognized this moment as a turning point. Francesco Guicciardini, the Florentine diplomat and statesman, wrote in the 1520s:
Before the year 1494, wars were protracted, battles bloodless, the methods followed in besieging towns slow and uncertain… Hence it came about that the ruler of state could hardly be dispossessed. But the French, in their invasion of Italy, infused so much liveliness into our wars that whenever the open country was lost, the State was lost with it.6
Facing such a strategic challenge, Italian cities could no longer simply rely on their high walls and fortified towns to protect them. Machiavelli, writing in 1519, said that after 1494, “[n]o wall exists, however thick, that artillery cannot destroy in a few days.” Suddenly walls, towers, moats—all were rendered obsolete.7 As a result, princes and oligarchs made a pact with an idea: the idea was that of the State, and its promise was to make the ruler secure. The State—a permanent infrastructure to gather the revenue, organize the logistical support, and determine the command arrangements required for the armies that would be required to protect the realm—was established to govern according to the will of the ruler. In time, however, it would become clear that it was not the prince's immortality that was gained by this move, but the State's. Just as Renaissance princes had found they needed more secure, more professional armed forces than the seasonal contributions of medieval knighthood could provide, so the new Renaissance state would gradually turn to less idiosyncratic guidance than that offered by princes in order to aggrandize its wealth and power.
Thus, the modern state originated in the transition from the rule of princes to that of princely states that necessity wrought on the Italian peninsula at the end of the fifteenth century. It is certainly true that there were states before this period; but these, like the city-states of Thucydides, did not self-consciously think of themselves as juridical entities separate from (and sometimes operating in opposition to) the civil society.8 For Thucydides the State is never a thing—it has no “legal personality” as we might say. The State is always an irreducible community of human beings and never characterized as an abstraction with certain legal attributes apart from the society itself. The modern state, however, is an entity quite detachable from the society that it governs as well as from the leaders who exercise power. This detachment gives the State its potential for immortality.
We can date the appearance of such a way of looking at the State to the time when the legal and material attributes of a human being were ascribed to the State itself. All the significant legal characteristics of the State—legitimacy, personality, continuity, integrity, and, most importantly, sovereignty—date from the moment at which these human traits, the constituents of human identity, were transposed to the State itself. This occurred when princes, to whom these legal characteristics had formerly been attached, required the services of a permanent bureaucracy in order to manage the demands of a suddenly more threatening strategic competition. (The first permanent legations, for example, accredited to a particular court rather than merely serving as temporary emissaries, date from this period.) This strategic competition provoked what Finer has defined as the essential characteristic of the modern state: that
the paramount organ of government is subserved by specialized personnel; one the civil service, to carry out decisions, the other—the military service to back these by force where necessary and protect the association from other similarly constituted associations.9
Strategic competition on the Italian peninsula provoked military innovation by Italian cities that were rich but weak. In the armies of the great powers, France, Aragon, and England, the number of soldiers raised by feudal levy was compounded with that raised by hiring mercenaries. Since the fourteenth century, however, the Italian cities had relied entirely on privately organized professional armed forces. Single groups—the compagna di ventura—were recruited, supplied, and paid by their commanders, the condottieri, who sold their services to the highest bidder. The necessity for, and later the ambition of, the condottieri was a crucial element in the creation of the first modern states. For it was these mercenaries whose expensive services animated the need for the princely state, and whose ambitions then exploited the legitimating resources of that state, once the transfer of legal personality from the person of the prince to the princely state had occurred.
The condottiere was a contract employee. The word derives from the Italian for “contract,” condotta. The necessity to employ mercenaries became general on the peninsula once a few cities hired such forces because the shifting alliance structure of the region meant that no city could rely on the mercenaries of another.10 Once the superiority of the professionalized forces of the condottieri became clear, this innovation swept through all the cities of the peninsula as one after another mimicked the innovation lest it be engulfed by it. This necessity forced princes and oligarchs and ruling councils to rely more heavily on a bureaucratic apparatus, first to fund the condotte and later to provide for the acquisition of artillery. The condottieri themselves soon saw the advantage in turning their force on the authorities by whom they had been hired and supplanting them.
To rule the city he had seized, however, the usurping condottiere needed legitimacy. The condottieri took their contracts from a prince or oligarchy and hence from them alone derived the condottiere's legal status. The princely state, however, once severed from the prince who brought it into being could provide a legal status for the condottiere apart from that of an employee of the prince or ruling council whom he had deposed. Thus this irony gave birth to the modern state and its unique problem, its problematic relation to the elusive status of legitimacy: only a State, however rudimentary, could provide the prince with the infrastructure necessary to maintain expensive mercenaries, but once this infrastructure was erected, it could also provide others with the means of exercising the power they had seized, 11 and legitimate their doing so.
This reification of the State reshaped the international society that had come into being in the Middle Ages. The Italian peninsula was a perfect laboratory for such a new society: the principal political actors spoke a common language; they were physically proximate; none was so powerful as to make diplomacy irrelevant; repeated invasions by French, Spanish, and Imperial forces, throughout the period of this transition, were unable to establish an hegemony that could overcome a careful balance of opposing powers, which necessitated complex negotiations and intercourse; and, most importantly, the rulers of these cities faced a need for law that only an international society could satisfy, namely, the legitimation required by those who seized power by force or held it without the imprimatur of dynastic right. In these geopolitical circumstances, the Italian Renaissance produced the first princely states and, almost as a corollary, the inheritance by these entities of the legal status hitherto reserved for the persons of princes. Far too little attention is customarily paid by legal scholars to the effects of other states on a state's own constitutional system. In the Italian laboratory we can see the mimetic, competitive, reactive relationships among these states and the significance of these relationships for the constitutional order.
The Italian peninsula was dominated by five city-realms: Rome, Naples, Milan, Florence, and Venice. The center of the Renaissance in Italy was Florence, whose situation was similar to that of the other city-realms. It was her solution to that situation that provided other cities with the form on which the princely state was modeled. What were the characteristics of the Italian situation within which Florence and other cities found themselves?
First, the cities were defined geographically, as opposed to the usual springing dynastic inheritances of princes. Realms that were increased (or decreased) by the happenstance of inheritance and marriage often yielded disparate, unconnected properties scattered across Europe. This tended to fracture rather than consolidate a common culture. Second, the cities were wealthy—Florence had an annual income greater than that of the king of England and the revenue of Venice and its Terra Ferma at the middle of the fifteenth century was 60 percent higher than that of France, more than double that of England and Spain12—in a world that had recently come to a money economy. These cities could afford a bureaucracy and profit by it. Third, the wealth of the cities was coveted by others; yet the cities had populations too small to create effective militias, and therefore required mercenaries. Fourth, the Italian rulers of these city-realms faced a new and menacing technology that threatened to make obsolete the sheltering walls and turrets that protected them from their French and Habsburg predators.
This transition from prince to princely state provides us with an initial example of a strategic imperative animating a constitutional innovation—an instance, that is, where the insistent question of security in a specific context (geography, wealth, small population) yields a new legal solution and requires a story to rationalize that solution. If the constitutional innovation of the modern state was in part a response to the threat posed by mobile artillery to the walled cities of Italy, the precise shape of that response—the princely state—was not governed by strategic considerations alone, but also by the felt need to ensure legitimacy for the leadership that wedded its future to this new creation.
A vulnerability rooted in questions of dynastic legitimacy underlay all the principal city-states of Italy. Consider the situation of the cities' leaders in 1454. In Milan, the dynastic line had ended in 1447; one candidate for the succession was Francesco Sforza, a condottiere and the husband of the last male heir's illegitimate daughter. The Holy Roman Emperor, Frederick III, claimed the Duchy of Milan as forfeit to the Empire, there being no rightful dynastic claimant. The Kings of France and Spain also pressed claims.
Florence was effectively ruled by the Medicis, a banking house whose head, Cosimo, had returned in triumph from exile in 1434 to dominate the Signory, an oligarchical body. By his command of capital, Cosimo was able to affect events throughout Europe, including, for example, the Wars of the Roses (through loans to Edward IV), and to paralyze Naples and Venice by withholding credit that would have been used to finance mercenaries. Yet the Medici ruled by competence, not royal bloodlines, and thus always had to refresh their legitimacy through further successful acts on behalf of Florentine society.
In Venice, the ruling group of merchant oligarchs, the Signoria, had led the city to an expansion on the mainland, seizing towns and fortresses from the Milanese—in an effort to make Venice self-sufficient in food—and also from the Empire, Naples, and the Papacy. Unlike the other cities, Venice was an international maritime power, but her new acquisitions made her vulnerable to a coalition of forces that would, ultimately, destroy her power. Precisely because she was a republic—Venice provided a model often referred to in the Federalist Papers by the American constitutional founders—she could not claim dynastic legitimacy, which became a more pressing issue once she expanded beyond her historic city lagoon.
In Rome, the papacy was held by a Catalonian family, the Borgias. The fact that elections had been manipulated to permit more than one generation of a family to control the papacy only underscored the obvious: the pope, Alexander VI, behaved like a Renaissance prince, delegating papal authority to his children, and using the powers of the papacy, including excommunication, as diplomatic tools. Yet he did not have the legal imprimatur of a prince. Instead he became one in fact by virtue of a papal election, which cast doubt on not only his own legitimacy as a putative political monarch but also on his power to confer legitimacy on his heirs.
Naples was in the possession of the Spanish king after a century of disputed successions, recurrent revolutions, turmoil, and anarchy. It provided an example to the other cities of what might happen to them if the great kings outside Italy were to invade the peninsula, as well as providing a base to Spain from which further adventures might be launched.
Let us grant then that these cities were insecure and could profit from the legitimacy and focus of energy that a State could provide—why at this time? Surely there had been insecure oligarchies of dubious legitimacy before? Why did it take the psychological and cultural change that produced perspective in drawing and melody in music and the nude in modern painting—why did it take the Renaissance to create the princely state?
Partly it was a matter of contrast with what had gone before. Renaissance skepticism about the deference owed to medieval authority fortuitously fed the necessities that led to the princely state. If the universal Church could not confer legitimacy, much less security, on the realms of the Renaissance prince, this was as much liberating as it was dismaying. The philosopher of the Renaissance who was most interested in the interplay between the internal constitution of the State and its external, strategic security wrote:
If the various campaigns and uprisings which have taken place in Italy have given the appearance that military ability has become extinct, the true reason is that the old methods of warfare were not good and no one has been able to find new ones. A man newly risen to power cannot acquire greater reputation than by discovering new rules and methods.13
This insight led its author, Niccolò Machiavelli, and others, to the constitutional outlook that framed the princely state.
It was a sharp break with the perspective it superseded. Whereas the new Renaissance state intertwined the legal and the strategic, the medieval world had mingled the religious and military. As Sir Michael Howard has expressed it:
Knighthood was a way of life, sanctioned and civilized by the ceremonies of the Church until it was almost indistinguishable from the ecclesiastical order of the monasteries… equally dedicated, equally holy, the ideal to which medieval Christendom aspired. This remarkable blend of Germanic warrior and Latin sacerdos lay at the root of all medieval culture.14
In a society in which all activity had religious significance, the knight served God by serving his liege and by waging war according to rules laid down by the Church and delegated to temporal authority. The military relationship between vassal and lord, knight and liege, also reflected the economic relationship: the vassal was allotted property and accepted the obligation to provide military service to the lord in war. Thus arose a legal relationship that depended upon both economic realities and military imperatives. Both of these were transformed at the end of the medieval era; whether as a result or as a cause, the spiritual structure collapsed as well.
When rapid expansion of a money economy shook the agricultural basis of medieval society, the effects of this development on military institutions were immediate…. [T]he great money powers of the period, the Italian cities, came to rely entirely on professional soldiers….
New classes of men, freed from the preceding military traditions, were attracted into the services by money, and with this infiltration of new men, new weapons and new [tactics] could be introduced. [This evolution was accelerated by the development of artillery, which was expensive and favored the offense at the expense of fortifications and the feudal castle.] The moral code, traditions and customs, which feudalism had evolved, had lost control over the human material from which the armies were now recruited….War was no longer undertaken as a religious duty, the purpose of military service became financial gain.15
Entrepreneurs are hardly likely to provide services for their customers that entail their own annihilation and the sacrifice of their capital. In Machiavelli's first diplomatic mission on behalf of the city of Florence, he negotiated the fees of a condottiere engaged in the efforts to regain Pisa. Observing at Pisa the mercenaries sent by the king of France, an ally of Florence in the campaign, he noted that these troops refused to advance against the city, mutinied, and finally simply disappeared. Indeed, during the last months of 1502, Machiavelli was present at Sinigaglia when Cesare Borgia persuaded a number of hostile condottieri to meet with him and had them murdered once they arrived. These events confirmed for Machiavelli the weaknesses of reliance on the condottieri and the need for a ruthless and decisive political leader.
Machiavelli devised the following proposals: (1) Florence should have a conscripted militia: the love of gain would inevitably corrupt the condottiere who would avoid decisive battles to preserve his forces, betray his employers to a higher bidder, and seize power when it became advantageous; (2) the prince had to create institutions that would evoke loyalty from his subjects which in other countries was provided by the feudal structure of vassalage, but which had in Italy been lost with the collapse of medieval society; (3) legal and strategic organization are interdependent: “there must be good laws where there are good arms and where there are good arms there must be good laws.”16 “Although I have elsewhere maintained that the foundation of states is a good military organization, yet it seems to me not superfluous to report here that without such a military organization there can neither be good laws nor anything else good”; 17 (4) deceit and violence are wrong for an individual, but justified when the prince is acting in behalf of his state; (5) permanent embassies and sophisticated sources of intelligence must be maintained in order to enable successful diplomacy; and (6) the tactics of the prince, in law and in war, must be measured by a rational assessment of the contribution of those tactics to the strategic goals of statecraft, which are governed by the contingencies of history. All of these conclusions compel a final one: princes must develop the princely state.
The princely state enables the prince to rationalize his acts on the basis of ragione di stato. He is not acting merely on his own behalf, but is compelled to act in service of the State. Notice how the very word state undergoes a transformation in this period from its Latin root status meaning a “state of affairs,” to the State as an institutionalized “situation.” By extending the power of the prince, the State replaces the lost relationship of vassalage and its obligations to an overlord with a citizen's duty, a crucial change if Machiavelli's conscript army was ever to become a reality. He urged a system in which a civil bureaucracy would replace the strategic and legal roles of vassals. Civil servants would provide a more reliable infrastructure.18 Perhaps the most important official reflection of Machiavelli's statecraft is the statute of December 1505, which ordered the organization of a Florentine militia. This law was drafted by Machiavelli, and the preamble announces some of Machiavelli's fundamental views, especially the idea that the foundation of a republic is “justice and arms,” that is, the intertwining of constitutional and strategic capabilities. It is significant also that a statute embodies these ideas because a princely state requires laws, whereas a prince acting alone needs only decrees. This is an essential movement toward the formation of public rather than private authority.
The medieval system had been a rights-based system. Each member of that society had a particular place that determined rights, obligations, and a well-defined role. It is a familiar but erroneous portrait of the medieval era that depicts its society as uniform and colorless. Rights-based systems can in fact yield enormous diversity, because though conformity may be enforced by law, it is not necessarily enforced by that most pitiless of masters, the individual ambition; thus such systems often encourage creativity, as the natural exuberance of individuals attempts to circumvent the rigidity of their assigned roles and the received wisdom. Yet these systems often strike us as irrational in practice because they do not attempt to match talent and performance with role. Perhaps that is why contemporary philosophers today who urge us to adopt rights-based systems often must resort to hypothesized situations like the Rawlsian veil of ignorance, behind which each person must choose a distributive system he or she would prefer without knowing what particular person one turned out to be.
What rights-based systems reject, then, is rationality applied to the contingent situation. Thus the Franciscans imprisoned Roger Bacon for his scientific speculations; the Dominicans preached crusades against the cultivated nobles of Toulouse; the Benedictines erased masterpieces of classical literature in order to copy litanies, and sold pieces of parchment for charms.19 And even though Aquinas, Duns Scotus, and William of Ock-ham were rigorous logicians, only Aquinas applied this rigor to the analysis of their political condition.
The spirit of the Renaissance, by contrast, was quickened by curiosity, piqued of course by the recovery of classical models that provided an alternative to the medieval paradigms, but driven relentlessly by a need for inquiry into the place of temporal man himself. Copernicus and Galileo; Vesalius and Harvey; Leonardo and Michelangelo; Petrarch and Boccaccio—all had this in common: a desire to see man's contingent situation as it is. This draws the light of rationality back onto the viewer. In the medieval period, there had been a universal system of customary law, based on the rights of inheritance, charters, and grants. Customary law is the common law of practices. We are inclined today to think of common law as generated by courts, but this is really an abbreviation: common law is simply the customary law of the judiciary; it grows and is modified by the exercise of court practices. The medieval period was almost entirely ruled by a kind of common law, but the generating institutions of that law were seldom judicial courts.
When these institutions began to malfunction—as, for instance, when the introduction of a money economy broke down the rights-relations of lord and vassal with regard to military service20—and new practices developed (such as the professional, mercenary army), the questioning figures of the Renaissance tried to design institutions that would improve on the merely customary (for example, Machiavelli's plan for a conscripted militia drawn from the Florentine population).
Precisely because the inherited institutions were rights-based, they could not promote new arrangements that were violative of the customary methods. A prince alone could not rewrite the constitutional rules of his society's governance to meet his own needs; that would require an institution that objectified the needs of the prince but was distinct from the prince himself. In Italy, the development of such an institution was catalyzed by the strategic threats facing the city-states.
From 1494, Italy became the prize for which Spain and France contended, with local allies, in the first modern epochal war. All eyes were focused on the security of these fragile cities. Men of letters and artists were urged to design countermeasures to the bronze cannon that invaded Italy in 1494. Leonardo's notebooks of this period contain sketches for a machine gun, a primitive tank, and a steam-powered cannon, 21 and Michelangelo repeatedly submitted drawings of fortifications that he thought would withstand bombardment by the new technology of artillery.
The medieval world had been roughly split in two halves. In the west, there were realms where dynastic power had devolved on princes who were hemmed in by customary law, the autonomy of their vassals, and the local rights of towns. These were realms where legitimacy was solid, but the power of the prince circumscribed. In the east, in central Europe, princes were subject to the dual universality of the pope and the emperor, both elected rulers representing complex sets of competing interests. As cities in Italy and princely realms in the Netherlands and parts of Germany began to assert their independence and to accumulate wealth and power, they found themselves subject to assaults on their legitimacy, because their assertions of independence were not endorsed by the papacy or the empire.
Western kings, in particular, came to realize the significance of the [Italian innovation] and of the much greater power which Italian rulers were able to concentrate in their own hands…. True, the most conspicuous Italians, from the Medicis, the Sforzas and the Borgias down to dozens of smaller rulers, had power without legitimacy. The western kings had legitimacy without much effective power…22
The Italian solution, adopted, for example, by the pope himself, was the princely state. The pope became a prince, and the Roman Church his state. Western kings envied the power that this innovation was able to concentrate in the hands of the prince. Thus,
[t]hose rulers who understood best the political lessons to be learnt from Renaissance Italy set about turning the legitimate but shadowy medieval overlordship of their realms into a [princely state] on the grand scale, with themselves as the real and absolute masters within the boundaries of their kingdom.23
These possibilities presented themselves: either a prince could seize power and form a state; or if one had the good fortune to inherit a kingdom, one could transform it from a realm into a princely state. (A realm, in contrast to a state, has only customary political structures; for example, it has no permanent bureaucracy, diplomatic corps, or armies.) Which option was available was largely determined by history and geography. Thus the first option was the way of the city rulers who had not come to power by virtue of dynastic inheritance (this was the pattern of the Sforzas, the Borgias, the Medicis), but it was also, to a certain degree, the situation of Henry Tudor, who, though presenting dynastic claims, ended a civil war by force. The second choice was made by Louis XI, the king of France, the largest and richest realm in the west. After he inherited the throne, he systematically reduced the power of the nobility, the Church, and the parliaments of his realm by force and deceit, and established a princely state on the Italian model that was particularly attractive to the towns and cities that he enriched even as he circumscribed their political independence.24 Similarly, in Spain, the dynastic marriage of Ferdinand of Aragon and Isabella of Castile brought a legitimate inheritance of great wealth and territory, which was transformed by Ferdinand's internal, centralizing policies, and by what can justly be called a Florentine foreign policy. This transformation yielded a princely state of transcontinental ambition. Fueled by the wealth of the Americas, Spain reached its apogee during this period. By contrast, the Habsburg king, Maximilian, inherited realms that were not geographically contiguous, and his election as emperor simply found him opposed by princes—in Bavaria, Saxony, Prussia—who were themselves in the process of creating princely states. In this situation, Maximilian wished to subsume the princely states of his competitors in a new European imperium.
One conspicuous feature of the Italian system was the balance of power. We owe this concept to the Medici (balances are, after all, a banking concept), but, as we will see, this idea only came into being in the modern world when there was an international society—the Italian society of princely states—and, of course, the reflection upon the nature and requirements of that society by a shrewd and lucid ruler. Francesco Sforza proposed an alliance to Lorenzo de Medici in order to oppose the growing power of Venice, which had seized territory on the Italian mainland. Sforza suggested that if Venice were not rebuffed, she would by her conquests become so much richer that she would be able to hire condottieri capable of enlarging the Venetian state even further and by this process eventually dominate the Italian peninsula. Lorenzo agreed, but he qualified his consent by observing that Venice must not be destroyed, because this would weaken the forces that might one day be needed to coalesce in order to oppose the power of Rome or the Empire. Doubtless Lorenzo also did not want to so strengthen his own ally by giving Milan sole control over the rich valley of the Po, as to tempt Sforza into his own bid for hegemony. Therefore the reply from Florence contained the historic phrase “the affairs of Italy must be kept in balance.” This is the compensating idea to Machiavelli's observation that the princely state always has an urge to expand.25
The development of princely states alone was not enough to create an international society beyond Italy. Rather this came about, bringing with it notions of a law among states, owing to the need to maintain a balance of power in order to protect against the strongest princely state, Spain. First, however, the overarching power of the universal Church had to be broken, so that states could develop on a territorial basis with subjects who looked to the state rather than elsewhere for allegiance. The universal Church, in medieval times, was the uniting system within which an international society of princes could begin to develop; once these members became princely states, the Church (and the Empire) were a hindrance to the development of a society of states.
The story I have just told is a straightforward one. At its center was the realization by the Italian city-realms of the late fifteenth century that the high, fortified walls that had protected their citizens and their riches would be battered to bits by the introduction of artillery into siege campaigns. Once this fact became apparent, reliance on mercenary forces became problematic: if troops had to leave their fortresses and actually fight decisive battles to protect the city, then mercenary condottieri were dubious men for the job. Why should they risk not only their lives but their investment on behalf of a temporary employer? They would have to be compensated for such risks. These two realizations—which were plain to contemporary commentators—form the parentheses within which the princely state existed. It was created in order to provide a secure infrastructure and revenue base for hiring mercenaries; it flourished to serve the needs of the mercenaries themselves, especially the maintenance of legitimacy; it withered and was everywhere superseded because it could not field forces to match the commitments of states that were larger, richer, and, above all, animated by transcendent motives less vulnerable to the transient allegiances of paid captains. Machiavelli's hope that reifying the State would encourage loyalty and sacrifice was not misplaced, but his view that a citizen militia relying on these qualities could substitute for mercenaries was.
The princely state allied the dynastic conventions of medieval feudalism with the constitutional innovation of a distinct and objectified state. This was a secular move, as is most dramatically evident in the secularization of the papal states. When it was followed by a sectarian reaction—motivated in part by disgust at this transformation of the papacy and the Church—princely states attempted to call forth the sacrifice and endurance required by the new forms of warfare by relying on sectarian appeals. To a large degree, they succeeded, and the result was the epochal Thirty Years' War. States the size of cities, however, could not muster the revenues necessary to wage war on the new, vast scale that they themselves had inadvertently brought into being, and the Italian plain ceased to be the incubator of constitutional orders.
The ultimate solution to the artillery threat to the fortified town lay in a new design for fortresses. The bastioned trace—a “trace” being a blueprint or outline—is believed to have originated in Italy and has come down to us as the trace italienne for that reason. With this design military architects remade the vulnerable fortress wall into a formidable defensive platform for fire. The high walls that had hitherto characterized fortified cities were made lower and thicker to present less prominent and less fragile targets to besieging artillery. Doing so, however, entailed an additional vulnerability because close assaults could exploit the dead zones along the walls or within the interstices created by square or circular towers. The solution was found in erecting projecting bastions on which could be mounted weapons that covered these blind spots. Then the walls themselves, whose surfaces were slanted to deflect bombards, were buttressed on the inside by earth, so that their defenders could rely on the walls to absorb the force of projectiles. A ditch outside the exterior wall heightened the effect of the fortress wall without making it high enough to crumble or topple when struck. Because the defenders were now firing from behind as much as twenty feet of earth, they were masked from the ditches directly below. These designs forced the besieger to pay a heavy price in time and manpower, but they also extracted costs from the besieged:
These new fortresses, characterized by thick sunken walls and a snowflake-shaped plan that enabled the defenders to sweep every foot of the walls with enfolding cannon fire, proved capable of resisting artillery bombardment and assault alike. To ensure their control over these expensive, powerful and strategically important fortifications, the central governments of Renaissance states increasingly garrisoned them with regular standing armies…. To recruit, train, pay and supply these troops required unprecedented amount of money, larger military and fiscal bureaucracies and correspondingly higher taxes. The military expenditures of the Spanish monarchy, for example, increased roughly twentyfold between 1500 and 1650, a 300% increase even after adjusting for inflation.26
Although the first bastion design dates from the 1480s, it was the French invasion of Italy in 1494 that produced the trace italienne and the desperate efforts of the princely states to erect them. In 1553, faced with the prospect of an attack, the city of Siena tried to fortify itself using the new architecture. When the attack came the next year, even though few of the projected walls had been finished, so much had already been spent on fortification that Siena had no funds left to raise a relief army and the city surrendered unconditionally in 1555.
Such fortresses drove up the size and cost of armies in two ways: large numbers of troops were required for lengthy sieges because the fortress was too formidable a redoubt to be left in the rear of an advancing army; and this meant that, to be most effective, the new fortresses required large garrisons that could successfully pursue an evacuating force. As a consequence, the dominant constitutional form began to move away from the smaller, princely states to kingly states, a transition that can be seen as the Italian strategic innovations moved north in the 1530s. By then over a hundred Italian engineers were working in France on the kingdom's northern defenses. By 1544 more than a dozen such fortresses lay along the border with the Netherlands, defended by more than a thousand artillery pieces. At the same time, other Italians were working for the Habsburg realm at a staggering cost. The fortified center of a single city, Antwerp, with nine bastions, cost one million florins ($150,000) and between 1529 and 1572, some forty-three kilometers of defenses of the new style27 were built in the Netherlands at a cost of ten million florins ($1.5 million).*
The French introduction of mobile artillery into Italy in 1494 had set in train a series of events by which princes and oligarchs found it necessary to set up bureaucracies, first in order to raise money for mercenaries and fortress renovation, and then to give those same mercenaries and oligarchs legitimacy. Once created as a mere instrument of the prince, the State took on a life of its own, and a succession of constitutional orders arose that interacted with changes in the strategic environment.
Whereas princely states became progressively discontinuous, as dynastic inheritance and marriage added property, and progressively more sectarian, as these states sought to unite ecclesiastical and political bases of legitimacy, the new forms of kingly states were geographically centralized and coolly rational where religious matters were concerned.
One can go further. Once the princely state came into being, territorial conceptions of strategy replaced those of purely dynastic motivation. This development was masked in the Italian experience because the cities were the states: their fortification was a minimum criterion for survival. As we shall see, however, in the struggle of kingly states massive fortress lines became the centerpiece of military policy and contemporary techniques of siege warfare dictated the forces sufficient to garrison such lines.30 To summarize the development described in this chapter, we may turn to Paul Kennedy, who writes of this period:
The post 1450 waging of war was intimately connected with [state formation]… There were various causes for this evolution… But it was war, and the consequences of war, that provided a much more urgent and continuous pressure toward “nation-building” than these philosophical considerations and slowly evolving social tendencies…. Above all, it was war—and especially the new techniques which favored the growth of infantry armies and expensive fortification and fleet—which impelled belligerent states to spend more money, [to develop] new organizations for revenue collecting, [to effect] the changing relationship between kings and estates in early modern Europe.31
By means of a state, oligarchs and princes could enhance their preparations for security, while attaching themselves to an institution that would legitimate their acts. Soon this new institution had spread to other regions, prompting Christopher Marlowe to write of England,
Albeit the world thinks Machiavelli is dead,
Yet was his soule but flowne beyond the Alpes,
And now the Guize is dead, is come from France
To view this lande and frolicke with his friends.32