Papal pronouncements on legitimate lordship and the formulation of nationhood in early fourteenth-century Scottish writings
Early fourteenth-century Scotland produced some of the period's clearest expressions of nationhood, most famously with the so-called Declaration of Arbroath of 1320. Despite the letter's fame, its conceptual language and that of related Scottish texts has not hitherto been entirely recognised. The present article demonstrates that these writings are closely informed by contemporary legal ideas concerning lawful jurisdiction and just war. Their use of legal ideas can be shown to have been inspired by the concerns and outlook of the papacy, particularly with regard to its temporal lordship in Italy. It is this inspiration that can explain the clarity and force with which the Scottish texts of these decades present the kingdom as specifically Scottish and the nation as a political force, for which they have since become renowned.
Two Notes on Nationalism in the Middle Ages
In an excellent article, ‘Pro patria mori in Medieval Political Thought,’ Ernst H. Kantorowicz has recently called attention to the importance of the concept of patria in the rise of the national monarchy and state in the later Middle Ages. No correction is needed, nor, perhaps, any addition. But since he modestly admits that he did not mean to exhaust the subject and does not examine the two laws, and since I had begun to note occasional remarks in the canonists and legists about the patria in association with theories of public law and the state, I wish to add some illustrations of the legal thought on the subject in the twelfth to fourteenth centuries. These illustrations will supplement, moreover, the essay by Halvdan Koht on nationalism in the Middle Ages.
The Public Law of the Visigothic Code
IT has been observed that the student of public criminal law can hardly find a better central point from which to begin an examination of the complex matter in the barbarian codes than the legislation of the Visigoths. There is little doubt that the Visigothic codes illustrate the transition from a Roman to a Germanic legal basis and the fusion of Roman and Germanic law with greater precision and detail than any other examples in the leges barbarorum.1 However, to avoid attributing undue emphasis to the Germanic element, the Leges Visigothorum, and indeed much other barbarian legislation, may best be described as 'Romance law' and not merely as 'barbarian law.' It is true that they are Germanic 'folklaws,' but much else is commonly added. These laws do not consist of pure Germanic custom, but contain many Roman elements which at times are transmitted with little change, as in the Visigothic antiquae. In general they reflect the legal ideas and intellectual climate of the age for which they were devised. There is an organic combination of Roman theory and practice, Christian sentiment, and a new factor contributed by the Germanic invaders from their ancient custom, or established on the basis of their experiences during the invasions. It must be reiterated that the product of such fusion and growth deserves to be called 'Romance' as well as the languages that were evolved within the same cultural milieu. No one has put the matter better than Father Ziegler in his study of Church and State in Visigothic Spain, where he terms the Visigothic Code 'a gradual and discriminating amalgamation of the written code of Rome with Germanic customary law,' and indicates that 'it is not a Germanic code, hut Roman, with considerable vestige of Germanic custom' and 'with a distinctly Christian tone.'2 Also the Visigothic laws occupy a central position in relation to much other barbarian legislation, especially the great bodies of Bavarian and Lombard law, and in many instances present characteristically German legal * Read in part at the annual meeting of the American Historical Association in Washington, D.C., on 29 December 1948. See Appendix A for titles and references cited in this article. All op. cit. references in the notes are to works indicated in this appendix. I wish to acknowledge here the valued assistance of my colleague, Professor Katherine Fischer, of the Rice Institute, who has examined the entire manuscript for accuracy of reference and translation.