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BARTOLUS    OF    SASSOFERRATO 


CAMBRIDGE   UNIVERSITY   PRESS 

Uontron:  FETTER  LANE,  E.G. 

C.  F.  CLAY,  MANAGER 


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iARTOLUS 

OF 

SASSOFERRATO 

HIS   POSITION    IN   THE    HISTORY    OF 
MEDIEVAL   POLITICAL   THOUGHT 


CECIL   Ny  SIDNEY  WOOLF,   M.A. 

FELLOW    OF   TRINITY    COLLEGE,    CAMBRIDGE,    LECTURER    AT   THE 
LONDON    SCHOOL   OF    ECONOMICS    AND    POLITICAL    SCIENCE 


THE   THIRL  WALL    PRIZE    ESSAY,    1913 


"  We  doubted  of  Ulpian,  and  are  now  more 
perplexed  with  Bartolus  and  Baldus." 

MONTAIGNE,  Essays,  in.  13  (Cotton's  Translation). 


Cambridge  : 
at  the  University   Press 

1913 


CamtmUge : 

PRINTED  BY  JOHN   CLAY,    M.A. 
AT  THE   UNIVERSITY   PRESS 


MATRI  PRIMITIAS 


PREFACE 

THAVE  to  thank  the  Adjudicators  of  the  Thirl  wall 
Prize  for  kindly  allowing  me  to  make  all  such 
additions  and  alterations,  as  I  thought  necessary  to  my 
essay  before  publication.  I  have  accordingly  added  a 
few  pages  to  the  introductory  Chapter  I ;  the  pages  in 
Chapter  III  dealing  with  Dante,  Petrarch  and  other 
Italian  thinkers ;  and  the  short  cone]  uding  Chapter. 
The  material  for  these  additions  had  been  almost 
entirely  collected  before  the  essay  was  submitted  to 
the  Adjudicators,  though  lack  of  time  had  then  pre- 
vented me  from  working  it  up.  On  the  other  hand, 
as  a  result  of  some  farther  research,  I  have  recast  the 
end  of  Chapter  III  and  made  one  or  two  small  additions 
to  Appendix  A. 

Next  year  will  be  the  six-hundredth  anniversary  of 
the  birth  of  Bartolus,  and  the  history  of  his  posthumous 
fame,  which  is  written  in  the  catalogues  of  most  large 
libraries,  is  instructive.  For  two  centuries  after  his 
death  he  was  recognised  as  "the  prince  of  jurists"; 
from  the  invention  of  printing  to  the  close  of  the 
sixteenth  century,  one  edition  of  his  works  followed 
another.  But  Humanism,  slowly,  it  is  true,  and  not 
without  protest,  shattered  his  reputation.  His  works 
ceased  to  be  printed,  and  the  old  editions  were  consigned 


Vlll  PREFACE 


to  the  dust  and  cobwebs,  which  were  for  long  thought 
the  proper  hiding-place  of  such  "Gothic"  authors. 
It  was  only  the  last  century  which  restored  Bartolus 
to  "polite"  learning. 

Bartolus  has  returned,  not  merely  as  a  great  lawyer, 
but  as  a  political  thinker — an  important,  if  not  a 
great,  one.  Of  course,  there  must  always  be  a  large 
tract  of  debatable  border-land  between  Law  and 
Politics,  however  rigidly  we  separate  one  science  from 
another.  But  this  does  not  alter  the  fact  that,  to  call 
Bartolus  a  political  thinker,  is  to  give  him  a  title  to 
which  he  himself  made  no  claim,  and  which  would,  I 
think,  have  rather  surprised  him.  This  has  seemed 
to  me  a  distinction  of  great  importance.  I  have  re- 
ferred to  it  more  than  once  in  the  essay  itself,  the 
form  and  scope  of  which  it  has  necessarily  affected. 

I  may  refer  here  to  a  topic,  which  I  have  considered 
outside  the  range  of  this  essay.  The  authenticity  of 
many  of  the  works  of  Bartolus  was  already  doubted 
at  the  Renaissance,  and  even  earlier.  Clearly,  this  is  a 
question  of  some  importance;  and  Savigny1,  who  is,  so  far 
as  I  know,  the  only  modern  authority  who  has  handled 
it,  does  not  pretend  to  have  done  so  exhaustively.  But 
the  material  for  deciding  the  question  finally  was  not  to 
be  found  in  England,  even  supposing  I  had  been  com- 
petent to  decide  it.  The  obvious  course  was,  therefore 
to  follow  Savigny-and  this  I  have  done  with  one  or 
two  exceptions,  I  have  followed  him  in  accepting  the 
authenticity  of  the  Commentaries  on  the  Digestum 
Vetm  (with  the  exception  of  two  «  Repetitions  ")  and 

the   Infortiatum-    I    have   also    followed    him    in 

1  Geschichte  des  ram.  Rechts  im  MittelaUer,  vol.  vi.  c.  LIII. 


PREFACE  IX 

rejecting  the  Commentary  on  the  Institutes.  But  I 
have  accepted  the  Commentary  on  the  Authenticum 
as  genuine,  as  to  which  Savigny  does  not  seem 
decided;  and  I  have  similarly  accepted  the  whole  of 
the  Commentary  on  the  Tres  Libri.  The  evidence 
against  this  latter  is  merely  the  very  decided  state- 
ment of  Jason  and  Diplovatacius,  two  famous  fifteenth 
century  lawyers  of  the  Bartolist  tradition,  that  the 
share  of  Bartolus  in  the  work  ends  at  the  "  Lectura " 
on  C.  xi.  tit.  34,  the  rest  having  for  author  one  Contes 
de  Perusio.  Now  as  this  division  corresponds  with  no 
ostensible  difference;  as  the  "Lectura"  on  C.  xn.  1.  1 
is  admittedly  genuine ;  as  many  of  the  "  Lecturae " 
after,  as  before,  the  "  Lectura "  on  C.  XL  tit.  34  are 
signed,  as  being  by  Bartolus,  in  the  one  MS.1  of  the 
Commentary  on  the  Tres  Libri,  which  I  have  seen;  and, 
finally,  as  the  author  of  the  "Lectura"  on  C.  XI.  71.  1 
expressly  refers  to  a  certain  opinion  of  his,  as  held  by 
him  in  the  Tractatus  Minoritarum*,  which  is  admittedly 
by  Bartolus,  I  can  see  no  reason  to  reject  the  latter  part 
of  this  work.  The  Commentary  on  the  Digestum  Novum 
has  never  been  suspected  (though  it  will  be  found  in 
Appendix  A  of  this  essay  that  the  "Repetitio"  on 
D.  xxxix.  4.  15  has  been  shown  not  to  be  by  Bartolus). 
The  Consilia,  Quaestiones  and  Tractatus,  referred  to  in 
this  essay,  present  no  difficulty. 

A  word  of  explanation  is  also  necessary,  I  think, 
with  regard  to  Chapter  III.     It  will  be  remarked  that 

1  Venice,  Bibl.  Naz.  Cl.  v.  Cod.  m. 

2  P.  113,  §  5  of  the  Bale  ed.  (1588-9):  "Per  hoc  patet  quod  si 
legatum  relinquitur  ecclesiae  S.  Francisci,  quod   illud   legatum  est 
nullum... licet  tenuerim  contrarium  in  libello  Minoritarum." 

w.  b 


PREFACE 


the  political  thinkers  and  publicists  examined  in  that 
chapter  are,  with  a  lew  exceptions,  all  of  a  date  anterior 
to  that  of  Bartolus  himself,  and  that  the  four  political 
thinkers  of  prime  importance,  who  were  his  contem- 
poraries—Marsiglio  of  Padua,  William  of  Occam,  Lupold 
of  Bebenburg,  and  the  author  of  theSomnium  Viridarii— 
receive  only  incidental  notice.     My  apology  must  be 
that  this  is  a  work  which  has  had  to  be  finished  within 
a  given  time,  and  that  though,  had  the  time  and  space 
at  my  disposal  been  unlimited,  I  should  have  attempted 
to  continue  my  survey  of  political  thought  down  to  the 
close  of  the  period  with  which  this  essay  is  concerned— 
and  the  proper  close  seems  to  me  to  be  the  return  of 
the  Popes  from  Avignon— to  do  so  was  not  essential  to 
my  thesis.    My  aim  in  Chapter  III  was  to  demonstrate 
e  existence  of  what  I  have  called  the  Problem  of  the 
Empire,  in  the  period  which  followed  the  fall  of  the 
Hohenstaufen,  and  to  show  that,  while  the  problem 
faced  the  political  thinker  and  publicist  no  less  than 
>  lawyer,  the  answers  given  to  the  problem  by  the 
former  were  very  deeply  affected  by  two  causes,  which 
operated  hardly  at  all,  or  at  least  very  little,  on  the 
answers  given  by  the  latter.    Thus,  to  take  an  example 
have   succeeded   in   demonstrating   the   German 
answer   to  this   problem   by  my   analysis   of  the   De 

ITIT'T-  RTni  Imperii  °f  J°rdan  of  Osn^urg 

the  Not^t^a  Saeculi,  it  was  not  necessary,  howeve? 

interesting  it   would    have,   been,    to   compare    these 

earlier    reat.es  with  the  treatise  written  some  sixty 

C?er™  Tld  of  Bebenburg'  *  **  **»*•  i 

The  earlier  treatises  can,  of  course,  bear  no 
comparison  with   the   brilliant  and   acute   treatise  of 


PREFACE  XI 

Lupold;  but,  as  regards  this  problem,  the  answers  of 
all  three  are,  in  essentials,  the  same — German.  Simi- 
larly, to  demonstrate  the  French  answer,  it  was  not 
necessary,  after  my  analysis  of  the  De  Potestate  Regia 
et  Papali  of  John  of  Paris  and  other  contemporary 
treatises,  to  analyse  the  Somnium  Viridarii.  Where 
the  later  treatise  in  one  very  important  regard  has 
advanced  beyond  the  earlier  treatises,  I  have  noted  it ; 
but,  this  point  apart,  the  answer  of  the  Somnium  may 
be  fuller  than  the  earlier  answers,  but  it  is  not  a  new 
answer.  Neither  in  the  German  nor  in  the  French 
answers  to  this  problem  was  there  the  sort  of  develop- 
ment, which,  I  have  attempted  to  show,  took  place  in 
the  Italian  answer. 

Whether  any  apology  is  necessary  for  the  amount 
of  Latin  which  I  have  quoted  in  the  text  of  this  essay, 
I  do  not  know.  The  practice  is  clearly  disadvantageous 
from  the  point  of  view  of  literary  form;  but  I  think 
that  there  is  a  more  than  balancing  compensation  in 
having  before  one,  as  often  as  possible,  the  actual 
words  of  the  thinker,  with  whom  one  is  concerned. 
What  men  say  is  not  the  only  important  thing :  often 
it  is  equally  important  to  know  how  they  have  said  it. 
Besides,  the  works  of  Bartolus,  despite  innumerable 
editions,  are  not  always  accessible;  and,  in  all  cases 
to  have  put  his  own  words  into  footnotes,  and  to  have 
translated,  or  given  the  sense  of  the  passages  quoted,  in 
the  text,  would  have  been  to  expand  the  essay  to  an 
unwieldy  size. 

In  addition  to  my  thanks  to  the  Adjudicators  of  the 
Thirlwall  Prize  for  their  permission  to  alter  or  add  to 
my  essay,  I  owe  a  great  debt  of  gratitude  to  Dr  Figgis. 

62 


xii  PREFACE 

It  was  he  who  set  me  on  the  subject  of  Bartolus,  and— 
to  leave  out  of  account  what  this  essay  owes  to  his  pub- 
lished books,  to  which  my  footnotes  bear  testimony — 
my  thanks  here  can  be  no  adequate  acknowledgment 
of  all  I  owe  to  the  advice,  which  he  has  always  been 
ready  to  give  me.  By  reading  the  proofs,  as  the  essay 
went  through  the  press,  he  has  honoured  it  in  a  way 
which  only  makes  me  wish  the  more  that  it  were 
somewhat  worthy  of  his  notice.  I  have  also  to  thank 
Mr  Morant,  of  the  India  Office,  for  his  kindness  in 
reading  the  proofs,  and  my  brother,  Philip  Sidney 
Woolf,  who  has  helped  me  with  the  Index — but  that 
is  the  least  of  the  obligations  which  this  essay  owes 
him,  but  which  neither  he  nor  I  would  number  or 
repay  with  public  thanks. 

C.  N.  S.  W. 
LONDON, 

October  1913. 


NOTE    ON    AUTHORITIES 

Throughout  this  essay,  unless  the  contrary  is  specially  stated, 
I  quote  from,  and  refer  to,  the  works  of  Bartolus  in  the  edition 
published  at  Bale1  in  1588-9,  in  eleven  volumes  folio  (including 
a  volume  of  index).  In  making  my  references  or  quotations,  I 
have  referred  to  the  title  of  the  volume  in  the  Bale  edition. 
Thus 
Commentary  on  Digestum  Vetus 

Part  I.   (i.e.  Dig.  L— XL)  =  Bale  ed.  vol.  I. 

Part  II.  (i.e.  Dig.  xn.— xxiv.  tit.  2)    =    „      „      „    II. 
Commentary  on  Infortiatum 

Parti,   (i.e.  Dig.  xxiv.  tit.  3 — xxix.)=    „      „      „    III. 

Part  II.  (i.e.  Dig.  xxx. — xxxvm.)       =    „      „      „    IV. 
Commentary  on  Digestum  Novum 

Part  I.   (i.e.  Dig.  xxxix.— XLIV.)         =    „      „      „    V. 

Part  II.  (i.e.  Dig.  XLV. — L.)  =    „      „      „    VI. 

Commentary  on  Codex 

Part  I.   (i.e.  Cod.  I.— v.)  =    „      „      „    VII. 

Part  II.  (i.e.  Cod.  vi. — ix.)     \  VTTT2 

Tres  libri  (i.e.  Cod,  x.— xn.)  J 
Commentary  on  Authenticum 

(i.e.  Novels]  —    „      „      „    IX. 

Consilia,  Quaestiones,  Tractatus  =    „      „      „    X. 

1  The  references  are  to  this  Bale  ed.,  but  as  I  was  not  always 
able  to  obtain  it,  when  writing  this  essay,  the  actual  wording  of 
some  of  the  quotations  has  been  taken  from  other  editions,  chiefly 
a  Turin  ed.  (1577)  and  a  Venice  ed.  (1596).     The  texts   differ  oc- 
casionally in   the  different  editions,  but   the  differences  are  purely 
verbal  and  do  not  affect  the  sense  of  the  passages  in  any  way. 

2  The  Comment,  on  the  Tres  Libri  has  separate  pagination. 


xiv  NOTE   ON   AUTHORITIES 

Of  the  other  authorities  referred  to,  or  quoted,  in  this  essay 
I  have  used  the  following  editions  (works  which  are  referred  to  in 
this  essay  as  existing  in  periodical  publications,  the  proceedings  of 
societies,  collections  of  treatises  or  monographs,  being  included 
in  the  general  heading  of  the  work  containing  them) : 
Abhandlungen  der  konigl.  Oesellschaft  der  Wissenschaften  zu 

Gottingen,  vol.  xiv.     Gottingen,  1869. 
Acton  (Lord),  Letters... to  Mary,  daughter  of  Rt  Hon.    W.   E. 

Gladstone.     London,  1904. 

Albericus  (de  Rosate),  Commentarium  in  Codicem.     Lyons,  1545. 
Andreas  (de  Iserina),  Super  usibus  Feudorum.     Venice,  1514. 
Aquinas  (S.  Thomas),  Summa  Theologica.     Paris,  1638. 
Aristotelis  politicorum  libri  octo  cum  D.  Thomae  Aquinatis 

explanatione. .  ..His  accessere  D.  Thomae  de  regimine principum 

libri  quatuor Venice,  1 568. 

-  De  Adventu  et  Statu   et    Vita  Antichristi  (ed.   F.    H.   de 

Ferrari).     Rome,  1840. 

Archivio  Giuridico,  vol.  xxvm.     Bologna,  1881. 
Aristotle,  Politics  (ed.  Newman).     Oxford,  1887-92. 
Augustinus  (Triumphus),    Summa    de    Ecclesiastica    Potestate. 

Lyons,  1489  (?),  without  pagination. 
Baumann  (J.  J.),  Die  Staatslehre  des  h.    Thomas  von  Aquino. 

Leipxic,  1873. 
Bernabei  (C.),  Bartolo  da  Sassoferrato  e  la  Scienza  delle  Leggi. 

Rome,  1881. 
Bethmann-Hollweg  (M.  A.  von),  Der  Civilprozess  des  Gemeinen 

Rechts....     Bonn,  1864-74. 
Bini  (V.),  Memorie  Istoriche  della  Perugina  Universita,     Perugia, 

1816. 
Blondel  (G.),  Etude  sur  la  Politique  de  I'Empereur  Frederic  II  en 

Allemagne....     Paris,  1892. 
Bodin  (J.),  De  la  Republique.     Paris,  1578. 

Boehmer  (J.),  Fontes  Rerum  Germanicarum,  vol.  i.  Stuttgart,  1843. 
Bollettino  della  R.  Deputazione  di  Storia  P atria  per  I'Umbria, 

vol.  n.     Perugia,  1896. 
Brandi  (B.),  Notizie  intorno  a  Guillelmus  de  Cunio...      Rome, 

1892. 
Bryce  (J.),  The  Holy  Roman  Empire.     London,  1907. 


NOTE   ON   AUTHORITIES  XV 

Bury   (J.    B.),    The    Constitution  of  the.    Later  Roman  Empire. 

Cambridge,  1910. 

Butler  (A.  J.),  Forerunners  of  Dante Oxford,  1910. 

Buttrigarius  (J.),  Commentarium  in  Codicem.     Paris,  1516. 
Carducci  (G.),  Itimedi  M.  Cino  da  Pistoia  e  d'  altri  del  secolo  XIV. 

Florence,  1862. 
Carlyle  (R.  W.  and  A.  J.),  History  of  Medieval  Political  Thought 

in  the  West.     Edinburgh  and  London,  1903-9. 
Chiapelli    (L.),    Vita  e   Opere    Oiuridiche   di   Cino   da   Pistoia. 

Pistoia,  1881. 
Cino  (da  Pistoia),  Commentarium  in  Codicem.     Frankfort,  1578.    v 

-  Rime  di  Messer  Cino  da  Pistoia  (ed.  Bindi  and  Fanfani)- 
Pistoia,  1878. 

Constitutiones  et  Acta  Publica  Imperatorum  et  Regum,  vol.  I.  (in 

"Monumenta  Germaniae  Historica").     Hanover,  1893. 
Corpus  Juris  Canonici  (ed.  Friedberg).     Leipzic,  1879-81. 
Corpus  Juris   Civilis   (ed.    Krueger,   Mommsen,   etc.).      Berlin, 

1889-95. 
D'Ancona  (A.),  II  Concetto  delta  Unitd  Politica  nei  Poeti  Italiani 

(Discorso).     Pisa,  1876. 

Dante,  Tutte  le  Opere  (ed.  Moore).     Oxford,  1904. 
Denkschriften  der  kaiserl.  Akademie  der  Wissenschaften,  phil.-hist. 

Classe,  vol.  II.     Vienna,  1851. 
Dollinger   (I.    von),    Historical   and  Literary   Addresses  (transl. 

Warre).     London,  1894. 

-  Fables  respecting  the   Popes   of   the   Middle  Ages   (transl. 
Plummer).     London,  etc.  1871. 

Dupuy  (P.),  Histoire  du  differend  d'entre  le  Pape  Boniface  VIII  et 

Philippes  le  Bel,  Roy  de  France.     Paris,  1655. 
Durandus  (G.),  Speculum  Juris.     Frankfort,  1668. 
Egidius  (Romanus),  De  Regimine  Principum.     Rome,  1607. 
English  Historical  Revieiv,  vols.  ix.  and  x.     London,  1894  and 

1895. 
Epistolae    Saeculi    XIII,   vol.   i.   (in   "Monumenta  Germaniae 

Historica").     Berlin,  1883. 

Faber  (J.),  Breviarium  super  Codice.     Lou  vain,  1475  (?). 
Feret  (P.),  La  Faculte  de  Theologie  de  Paris  et  ses  Docteurs  les 

plus  celtbres.     Paris,  1894-7. 


xvi  NOTE  ON   AUTHORITIES 

Ficker  (J.),  Forschungen  zur  Reichs-  und  Rechtsgeschichte  Italiens. 

InnsbrUck,  1868-74. 
Figgis  (J.  N.),  Studies  of  Political  Thought  from  Gerson  to  Grotius. 

Cambridge,  1907. 
Finke  (H.),  Am  den  Tagen  Bonifaz   VIII  (no.  2   of  "Vorre- 

formationsgeschichtliche  Forschungen").     Miinster  in  W., 

1902. 

Fisher  (H.  A.  L.),  The  Medieval  Empire.     London,  1898. 
Gentilis  (Albericus),  De  Juris  Interpretibus  Dialogi  Sex.     London, 

1582. 
Gierke    (0.   von),  Das    Deutsche    Genossenschaftsrecht.     Berlin, 

1868-81. 

-  Political  Theories  of  the  Middle  Age   (transl.    Maitland). 
Cambridge,  1900. 

Johannes  Althusius...(no.  7  of  Gierke's  "Untersuchungen"). 

Breslau,  1880. 
Giornale  di  Erudizione  Artistica,  vols.  v.  and  vi.     Perugia,  1876 

and  1877. 

Glossa  Magna  (to  the  Digest).     Venice,  1584. 
Goldast    (M.),   Monarchia    S.    Romani   Imperil....     Frankfort, 

1611-14. 

-  Politica  Imperialia....     Frankfort,  1614. 

Graf  (A.),  Roma  nella  Memoria  e  nolle  Immaginazioni  del  Medio 

Evo.     Turin,  1882-3. 
Gregorovius  (F.),  History  of  the  City  of  Rome  in  the  Middle  Ages 

(transl.  Hamilton).     London,  1900-9. 
Grotius  (J.),  De  Jure  Belli  ac  Pads.     Amsterdam,  1631. 
Hardegen    (F.),   Die  Imperialpolitik   Kiinig   Heinrichs    II   von 

England  (no.  12  of  "  Heidelberger  Abhandlungen").     Heidel- 
berg, 1905. 
Heller   (J.),   Deutschland  und  Frankreich  in   ihren  politischen 

Beziehungen  vom  End*  des  Interregnums  bis  zum  Tode  Rudolfs 

von  Habsburg. . . .     Gottingen,  1874. 
Historisches  Jahrbuch  im  Auftrage  des  Gorres-GesellschafL  vol.  XTII 

Munich,  1892. 

Hugelmann    (C.),    Die   deutsche   Konigswahl   im    Corpus   Juris 
nomci  (no.  98  of  Gierke's  "Untersuchungen").     Breslau, 

1 909. 


NOTE   ON   AUTHORITIES  XV11 

Huillard-Breholles  (J.  L.),   Vie  et  Correspondence  de  Pierre  de  la 

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Jaffe  (P.),  Monumenta  Gregoriana.     Berlin,  1865. 
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Libelli de  Lite  (in  "Monumenta  Gerraaniae  Historica").     Hanover, 

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Mazzuchelli  (Conte),  Gli  Scrittori  d?  Italia....    Brescia,  1753—63. 
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Strafrechts.     Ziirich,  1908. 
Melanges  Fitting.     Montpellier,  1907-8. 
Melanges  Paul  Fabre.     Paris,  1902. 
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1  The  paper  in  vol.  xix.  "Bartolus  and  European  Political  Ideas," 
by  Dr  Figgis  is  reprinted  in  the  new  ed.  of  his  Divine  Eight  of  Kings ; 
his  paper  in  vol.  v.,  "  Eespublica  Christiana,"  will  be  reprinted,  he 
tells  me,  in  a  new  book  on  the  Churches  in  the  Modem  State. 


CONTENTS 
CHAPTER  I 

INTRODUCTION      (pp.    1—20) 

Outline  of  the  life  of  Bartolus  (p.  1).  Bartolus  a  lawyer,  not  a 
political  philosopher  (4).  Bartolus  and  the  Gloss  (5).  His  independ- 
ence (7).  Practical  character  of  his  work  (9).  His  conception  of 
Civil  Law  (12)  and  of  the  civilian's  task  (19). 

CHAPTER   II 

THE  POLITICAL  THEORIES  OF  BARTOLUS      (21 — 207) 

The  Roman  Emperor  de  jure  lord  of  the  world,  though  de  facto 
not  universally  obeyed  (21).  The  Empire  conterminous  with  western 
Christendom  (25).  The  Roman  Emperor  a  German  (28).  The  rights 
of  the  Emperor  before  coronation  (30).  The  Empire  a  delegation  from 
the  People  (34).  The  delegation  irrevocable.  The  Emperor  alone 
can  now  make  general  laws  (36).  His  laws  universally  valid  (40).  The 
Emperor,  though  not  bound  by  his  own  laws,  is  bound  by  the  higher 
laws  of  God,  Nature  and  Nations  (45).  He  cannot  deprive  anyone  of 
his  property  without  cause  (46).  He  cannot  permit  usury,  though  the 
Civil  Law  does  permit  it.  Importance  of  the  fact  that  the  Civil  Law 
was  in  great  part  of  pre-Christian  origin  (47).  But  though  the 
Emperor's,  as  all  human,  laws  cannot  contradict,  they  can  amplify, 
the  higher  laws  (48). 

Relations  of  this  de  jure  universal  Empire  with  the  powers,  which 
de  facto  do  not  recognise  it : 

I.  The  Empire  and  the  Papacy.  Early  history  of  their  relations. 
The  "  Gelasian  "  theory  of  coordination  and  equality  and  the  practical 
superiority  of  the  temporal  power  in  the  early  Middle  Ages  (53).  The 
Investiture  struggle  recast  both  theory  and  practice.  Primarily  the 


CONTENTS  XXI 

Papalists  were  combating  the  supremacy  of  the  temporal  power  ivithin 
the  Church  (57).  Only  when  driven  to  it  by  the  course  of  the  conflict, 
did  they  maintain  the  human  or  sinful  origin  of  the  temporal  power 
(61).  In  so  doing  they  reverted  to  S.  Augustine's  distinction  between 
the  holy  "Civitas  Dei"  and  the  sinful  "  Civitas  terrena."  Inapplic- 
ability of  this  distinction,  when  the  Empire  was  no  longer  Pagan  (64). 
The  Imperialists  in  the  main  on  the  defensive  (67).  The  entry  of 
Koman  Law  into  medieval  political  thought.  The  "  Gelasian  "  theory 
of  the  coordination  and  equality  of  the  two  powers  became  the  typical 
standpoint  of  the  lawyers  (70) .  This  is  illustrated  by  Bartolus  himself 
(72).  He  extends  the  coordination  of  the  two  powers  from  their  juris- 
dictions to  their  territories  (75),  though  this  does  not  exclude  the 
conception  of  the  Empire  and  Papacy  as  the  two  supreme  ruling 
powers  of  the  universe  (79).  This  is  further  illustrated  by  his  treat- 
ment of  Canon  Law  (80).  Importance  of  his  attitude  towards  Canon 
Law  and  the  canonists  (85).  But  Bartolus,  when  compelled  to  consider 
the  Papal  claims  to  superiority  over  the  temporal  power,  throws  over 
the  theory  of  the  coordination  and  equality  of  the  two  powers  in  favour 
of  the  Papacy  (86),  and  accepts  the  Donation  of  Constantine  as  valid 
(94) .  ' '  Plane  ludit ' '  (98) .  Summary  (99) .  His  thought  on  this  topic 
of  no  great  value  in  itself,  but  very  valuable  as  illustrating  the  course 
of  medieval  thought  (100).  Criticism  of  the  Respublica  Christiana  of 
Dr  Figgis  (101). 

II.  The  Empire  and  the  Regna.     Bartolus  was  concerned  with 
the  cities  of  Italy,  not  with  the  kingdoms  (107),  though  the  problems 
presented  by  both  were  for  the  most  part  identical  (108).     Bartolus 
recognises  the  royal  power  as  "de  jure  gentium,"  and  the  kings  as 
independent,  though  within  the  Populus  Komanus  or  Eoman  Empire 
(110). 

III.  The  Empire  and  the  Civitates.     Difference  between  the  con- 
ception of  the  Civitas  in  the  political  thought  of  the  civilians  and  that 
of  the  Aristotelians  (112).     For  the  civilian  the  Civitas  was  merely  a 
corporation  (113).     Thus  the  problem  was  to  secure  for  the  Civitas 
rights  properly  belonging  only  to  higher  political  units  (115).     Bartolus 
establishes  (1)  the  right  of  the  Civitas  to  be  considered  a  Eespublica 
(116) ;  (2)  the  right  of  the  Civitas  to  be  considered  its  own  Fiscus  (119) ; 
(3)  the  right  of  the  Civitas  to  exercise  Merum  et  Mixtum  Imperium 
(122).     This  right  is  the  distinguishing  mark  between  the  Provincia 
or  Kegnum  and  the  Civitas  (126).     History  of  the  terms  (127).     The 
Civitas,  which  owns  no  superior,  can  exercise  Merum  et  Mixtum 
Imperium  by  concession,  prescription  or  mere  usurpation  (134) ;   (4)  the 
right  of  the  Civitas  to  legislate  (144).     History  of  the  medieval  Italian 
statutes  and  customs  (145).     The  Civitas,  as  a  licit  corporation,  can 


xxiv  CONTENTS 

CHAPTER  IV 
CONCLUSION     (384 — 394) 

Divergent  estimates  of  Bartolus  by  Dr  Figgis  and  Dr  Chiapelli 
(384).  Bartolus  not  an  Aristotelian  (385).  Importance  of  his  dis- 
tinction between  Law  and  Fact  (388).  He  must  be  judged,  not 
in  isolation,  but  as  one  of  the  medieval  civilians  (389).  His  influence 
on  political  thought  has  survived  his  popularity,  which  the  Eenaissance 
shattered  (392). 

APPENDIX  A— Biographical        .        .         .        .         .         .         .  (395) 

APPENDIX  B— Bartolus  and  the  Canonists          ....  (402) 

APPENDIX  C— Jurisdictio  and  Imperium (405) 

(408) 


CHAPTER  I 

INTRODUCTION 

BARTOLUS1  was  born  in  the  year  1314  at  Sassofer- 
rato.  Nearly  all  that  we  know  of  his  early  life  he  has 
told  us  himself2.  His  first  master  was  a  Friar  Peter3, 
who  afterwards  established  a  home  for  foundlings  at 
Venice — "vir  est  expertus,"  Bartolus  wrote  of  him  long 
after,  "nullius  hypocrisis,  mirae  sanctitatis  apud  me 

1  In  the  first  few  pages  of  this   introductory  chapter  I  merely 
attempt  to  give  a  brief  outline  of  the  known  facts  of  Bartolus'  life. 
The  greater  part  of  what  we  know  of  Bartolus  comes  from  his  own 
works:  I  therefore  give  references  to  these  wherever  possible.     After 
his  own  works,  our  chief  authority  must  always  be  Savigny's  Geschichte 
des  romischen  Eechts,  vol.  vi.  chap.  53.     But   Savigny  wrote  more 
than  sixty  years  ago,  and  there  are  naturally  both  additions  and 
corrections  to  be  made.     Some  of  these  I  have  attempted  to  collect  in 
an  Appendix  from  the  following  sources: — 1.  Works  published  since 
Savigny's  history,  which  throw  light  on  Bartolus'  biography;  these, 
so  far  as  I  know,  are   only  two — (i)   the   publication  by  Kossi   of 
documents    relating    to    Perugia    University    (those    which    concern 
Bartolus  are  in  vols.  v.  and  vi.  of  the  Perugian  Giornale  di  Erudizione 
Artistica,  1876-7);   (ii)  a  short  pamphlet  by  Lattes,   Un  Punto  con- 
troverso  nella  biografia  di  Bartolo.     2.  Passages  in  Bartolus'  works 
which  were  not  noticed  by  Savigny.     3.  The  few  MSS  of  Bartolus' 
works  which  I  have  been  able  to  see.     Vide  Appendix  A,  below. 

2  Bartolus,   Comment,   on   Dig.   Nov.   Part  n.   (D.  XLV.  1.  132), 
pp.  148-9,  §  8. 

3  Savigny  has  shown  that  the  fable  of  Bartolus  himself  having 
been  a  foundling  rests  on  a  misunderstanding ;  the  home  was  established 
at  Venice  long  after  Bartolus  had  grown  up. 

w.  1 


2  INTRODUCTION  [CH. 

et  omnes  qui  eum  bene  noscunt...et  ex  multo  amore 
quern  ad  illius  fratris  Petri  bonitatem  gero,  cum  cala- 
mus hoc  scribit,  cordis  oculus  lacrymatur."  At  a  very 
early  age,  thirteen  or  fourteen,  Bartolus  went  to  Peru- 
gia and  studied  law  under  Cino  da  Pistoia1,  famous 
both  as  a  poet  and  as  a  lawyer,  the  friend  of  Dante 
and  Petrarch.  Bartolus  told  his  great  pupil  Baldus 
that  "illud  quod  suum  fabricabat  ingenium  erat  lectura 
Cyni2."  Later,  but  probably  not  for  long,  Bartolus 
studied  at  Bologna,  again  under  famous  lawyers — 
Jacobus  Buttrigarius3,  Oldradus  de  Ponte4,  Raynerius 
Forlivensis5  and  Jacobus  de  Belvisio6.  Here  he  took  his 
doctor's  degree  in  1334,  when  not  yet  twenty.  For  the 

1  Bartolus  refers  to  opinions  of  Cino  as  given  "me  audiente" 
several  times.     Vide  Comment,  on  Dig.  Vet.  Part  n.  (D.  xvi.  3.  33), 
p.  320,  §4;  Comment,  on  Infort.  Part  n.  (D.  xxxn.  1.  22),  p.  156; 
Comment,  on  Dig.  Nov.  Part  n.  (D.  XLVI.  7,  sup.  rubric.),  p.  299,  §4 
and  (D.  XLVII.  2.  63,  §  Quod  vero),  p.  355,  §  5;  and  the  important 
autobiographical  passage  referred  to  in  the  last  note  but  one. 

2  Quoted  by  Savigny,  p.  142,  note  i. 

3  Bartolus  mentions  him  as  his  master  in  Comment,  on  Infort. 
Part  i.  (D.  xxvin.  3.  17),  p.  315,  §8;  Comment,  on  Infort.  Part  n. 
(D.  xxxvm.  11.  10,  §  Sunt  et  ex),  p.  539;    Comment,  on  Dig.  Nov. 
Part  i.  (D.  XLI.  2.  3,  §  Ex  contrario),  p.  247,  §4;  (D.  XLI.  3.  15), 
p.  311,  §72  and  Quaest.  xv. — "Hanc  quaestionem  disputavit   do. 
Bart,  in  scholis  domini  Jac.  Butrig.   Anno  domini  MCCCXXXIII  die 
xv  mensis  Decembris  "  (p.  245). 

4  The  only  mention  I  have  found  is  in  Comment,  on  Codex,  Part  i. 
(C.  v.  10.  1),  p.  531,  §  7.    And  vide  Savigny,  p.  143,  note  k. 

5  Mentioned  as  his  master  in  Comment,  on  Infort.  Part  i.  (D.  xxvni. 
3.  17),  p.  315,  §  8;  Comment,  on  Dig.  Nov.  Part  i.  (D.  XLI.  3.  15), 
p.  299,  §§4  and  8;  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLV.  1.  73, 

Stichi),  p.  84;  Comment,  on  Codex,  Part  i.  (C.  v.  10.  1),  p.  532, 
§  10;  and  Quaestio  xiv.  §  14,  p.  242.     And  vide  Appendix  A. 

1  Bartolus  frequently  refers  to  Jac.  de  Belvisio,  but  never  mentions 
him,  as  far  as  I  have  been  able  to  see,  as  his  master.  Vide  Savigny, 
however,  p.  143,  note  k. 


I]  INTRODUCTION  3 

next  live  years  of  his  life  it  is  difficult  to  fix  the  order  of 
events  with  certainty:  we  only  know  that  he  was  Asses- 
sor at  Todi1  and  Pisa2,  and  that  he  spent  some  con- 
siderable time  in  solitude  "ad  studendum  et  revidendum 
libros  per  me  ipsum3."  Then  in  1339  he  became  Pro- 
fessor at  Pisa4  University.  Here  he  remained  until 
1343,  when  he  migrated  to  Perugia,  the  city  and  Uni- 
versity most  closely  connected  with  his  fame.  In  1348 
he  and  his  brother  were  made  citizens  of  Perugia,  Bar- 
tolus  being  specially  exempted  from  the  statute  which 
forbade  citizens  from  holding  the  professorships  of  the 
University5.  In  1355  Bartolus  represented  Perugia  on 
an  embassy «to  the  Emperor  Charles  IV  at  Pisa6.  The 
Emperor  received  him  with  great  marks  of  honour, 
made  him  a  Privy  Councillor,  gave  him  a  coat  of  arms 
and  the  privilege,  both  for  himself  and  such  of  his  heirs 

1  Vide  Comment,  on  Infort.  Part  n.  (D.  xxxv.  2.  24),  p.  392: 
"Quaestio  erat  quaedam  Tuderti...Ego  dixi  per  istam  legem." 
Comment,  on  Dig.  Vet.  Part  i.  (D.  vm.  3.  38,  §  Idem  juris),  p.  603: 
"Habui  hanc  quaestionem  in  civitate  Tuderti."  Vide  Tract,  de 
Guelphis  et  Gibellinis,  ad  init. 

'2  Comment,  on  Dig.  Nov.  Part  i.  (D.  XLI.  3.  15),  p.  309,  §  50,  and 
(D.  XLI.  1.  63,  §  Quod  si  servus),  p.  233. 

3  Comment,   on  Dig.    Vet.   Part  i.,   Prima  Constitutio  (Omnem, 
§  Haec  autem  tria),  p.  13,  §  2. 

4  Vide  Comment,  on  Infort.  Part  n.  (D.  xxxv.  2.  59),  p.  398,  §  2; 
Comment,  on  Dig.  Nov.  Part  n.   (D.  XLV.  1.   73,  §  Stichi),  p.  84; 
Comment,  on  Infort.  Part  i.  (D.  xxvin.  5.  29),  p.  338,  §  9.     Below, 
p.  5,  n.  1. 

5  The  documents  are  in  Kossi,  nos.  66-8,  vol.  v.  pp.  184-8,  and 
were  printed  in  the  sixteenth  century  by  Lancellotti,   Vita  Bartoli. 

"  Vide  Comment,  on  Infort.  Part  i.  (D.  xxvin.  2.  29,  §  Forsitan), 
p.  301,  §  1 ;  Comment,  on  Const,  ad  Reprimendum,  sup.  rubric.,  p.  261 ; 
Tract,  de  Insign.  et  Armis,  §  3,  p.  341 ;  Tract,  de  Reg.  Civ.  §  18, 
p.  420;  Tract.  Testimoniorum,  §  80,  p.  445,  and  the  diplomas  in 
Eossi,  nos.  96-9,  vol.  v.  pp.  374-80.  No.  99  is  also  in  Lancellotti, 
op.  cit. 

1—2 


4  INTRODUCTION  [CH. 

as  should  .be  doctors  of  law,  to  legitimate  bastards  and 
grant  the  "venia  aetatis."  Bartolus  died  not  long  after, 
almost  certainly  in  13571. 

In  this  essay  we  are  to  examine  Bartolus  as  a  poli- 
tical thinker.  This  bare  outline  of  the  known  facts  of  his 
life  shows  us  that  Bartolus  was  a  lawyer,  that  his  whole 
life  was  spent  in  the  study,  practice  and  expounding 
of  law.  In  fact  we  shall  have  continually  to  keep  in 
mind  that  Bartolus  was  no  political  philosopher;  that 
his  political  thought  is  to  be  found  in  his  commen- 
taries and  treatises  on  Law,  not  Politics.  Just  for 
this  reason  it  is  important,  before  we  turn  to  his  political 
thought,  to  get  some  insight  into  the  position  of  Bartolus 
as  a  lawyer. 

Bartolus  is  a  Postglossator,  the  greatest  and  most 
famous  of  the  Postglossators.  The  period  of  the  Glos- 
sators  had  ended  and  been  summed  up  in  the  great 
Gloss  of  Accursius.  The  work  of  the  Bolognese  Glos- 
sators  had  been  primarily  to  restore  the  text  of  the 
Law  Books  and  then  to  interpret  those  texts  literally. 
Their  position  was  very  nearly  that  of  the  present-day 
expounder  of  Roman  Law;  but  they  differed  from  him, 
not  only  in  the  relative  poverty  of  the  material  at  their 
disposal,  but  also  because  to  them  Justinian's  Law 
Books  represented  a  still  living  system  of  law.  This 
we  shall  find  is  a  point  of  great  importance.  The  Law 
Books  were  compiled  in  the  sixth  century;  the 
Glossators  were  living  in  the  twelfth  and  thirteenth 
centuries.  Law  and  fact  necessarily  contradicted  each 
other  in  numerous  cases,  and  where  this  was  so,  the 

1  Savigny  shows  that  this  must  almost  certainly  be  the  date, 
as  that  1314  is  almost  certainly  the  date  of  his  birth. 


I]  INTRODUCTION  5 

Glossator  attempted  to  bend  facts  to  meet  a  literal 
interpretation  of  the  law,  or  else  made  concessions 
to  fact  only  with  great  reluctance. 

The  position  of  the  Postglossator  was  very  different. 
It  is  not  that  there  was  any  definite  break  in  the  tra- 
dition; the  work  of  the  Postglossators  was  the  direct 
continuation  of  that  of  the  Glossators.  Only,  in  the 
first  place,  between  the  Postglossator  and  his  texts  now 
stood  the  Glossa  Magna;  in  the  second  place  the  aim 
of  the  Postglossator  was  essentially,  rather  to  evolve  a  law 
practically  effective  for  the  world  in  which  he  lived, 
than  to  expound  a  law  scientifically  correct  according 
to  the  texts.  Let  us  see  how  Bartolus  stands  with  regard 
to  these  two  points. 

Whatever  may  be  true  of  the  Postglossators  gene- 
rally, Bartolus  himself  was  no  slavish  dependent  on  the 
Gloss.  Indeed,  a  reaction  against  the  overwhelming 
authority  of  the  Gloss  had  already  begun  under  his 
master  Cino  and  the  French  "Ultramontane"  lawyers 
with  whom  Cino  is,  intellectually,  in  close  connexion1. 
A  single  quotation  will  illustrate  Bartolus'  attitude  to 

1  Vide  Chiapelli,    Vita  e  Opere   Giuridiche  di   Cino  da  Pistoia, 
pp.  186-91.     Vide  Bartolus,  Comment,  on  Dig.  Nov.  Part  u.  (D.  XLVI. 

1.  17,  §  Cum  fidejuss.),  p.  201:  "Pet.  de  Bella  Pert...dicit  quod  hanc 
glossam  diabolus  revelavit."     Cf.    Comment,   on  Dig.   Nov.   Part  i. 
(D.  XLII.  2.  2),  p.  384,  §6;  Comment,  on  Dig.  Nov.  Part  i.  (D.  XLIV. 

2.  7,  §  Et  generaliter),  p.  499.     Bartolus  also  records  cases  of  condem- 
nation of  the  Gloss  by  others  besides  Cino  and  the  Ultramontani. 
Vide  e.g.    Comment,  on  Infort.   Part  n.   (D.  xxxv.   2.   39),  p.  396: 
"Glossam  quae  est  in...damnavi  vobis  per  istum  textum  et  ibi  damnat 
Dynus  et  Jac.  de  Arena."     Comment,  on  Infort.  Part  n.  (D.  xxxn. 
1.  22),  p.  157,  §  5:  "Glossa  male  loquitur  et  bene  reprehenditur  per 
Jac.  de  Arena."     Comment,  on  Dig.  Nov.  Part  i.  (D.  xxxix.  1.  5), 
p.   32,   §  3:    "Quando  legi  Pisis,   librum   habui  d.    And.   de   Pisis 
aliquibus  diebus  et  reprobabat  istam  opinionem  glossae." 


(J  INTRODUCTION  [CH- 

the  Gloss.  "Nota  quod  non  debemus  sequi  consilium 
Imperatoris  si  videtur  nobis  quod  non  sit  bene  latum, 
et  hoc  est  contra  eos  qui  judicant  secundum  dicta 
nostrarum  glossarum.  Unde  non  est  mirum  si  recedatur 
a  dictis  glossae,  si  veritas  est  in  contrarium  aut  ratio 
aut  lex1."  On  the  other  hand  the  Gloss  formed  a  neces- 
sary part  of  his  exposition  of  the  Civil  Law;  in  fact  by 
the  statutes  of  Perugia  University  the  Professor  was 
bound  to  read  the  Gloss  immediately  after  the  text 
which  he  was  about  to  expound2.  Thus  the  Gloss 
must  always  be  considered3,  no  less  than  the  text;  only 
Bartolus  was  ready  to  accept4  it  or  reject5  it,  as  he 
thought  fit.  Nor  was  Bartolus  altogether  unmindful  of 

1  Vide  Comment,  on  Codex,  Part  n.  (C.  vn.  45.  13),  p.  195. 

2  Vide  Padaletti,  Contribute  alia  Storia  dello  Studio  di  Perugia  nei 
Secoli  XIV  e  XV,  p.  93:  "Item  statuimus  quod  omnes  doctores  actu 
legentes  in    jure  oanonieo  et  civili  immediate    postquam   legerunt 
capitulum  vel  legem,  glossas  legere  teneantur,  nisi  continuatio  capituli 
yel  legis  aliud  fieri  suadeat...." 

3  A  glance  at  any  page  of  Bartolus'  commentaries  will  illustrate 
this— as  a  random  example  vide  the  opening  words  of  his  Kepetitio 
on  D.  XLI.  3.  55,  Comment,  on  Dig.  Nov.  Part  i.  p.  298  (this,  he  tells 
us,  was  the  first  Repetitio  he  ever  delivered) :  "Haec  lex  difficilis  est 
in  textu,  difficilior  in  glossa  et  difticillima  in  materia  extra  glossam." 

4  Vide  e.g.  Comment,  on  Dig.  Vet.  Part  i.  (D.  iv.  3.  19,  §  De  eo 
qui),  p.  426:  "Glossa  ponit  hie  unam  distinctionem  valde  pulchram 
melius  et  plenius  quam  in  aliqua  parte  mundi  et  doctores  recitant  earn 
ut  jacet."     Cf.  Comment,  on  Infort.  Part  n.  (D.  xxx.  1.  37),  p.  32: 
"Signa  illam  glossam  ut  magistram  in  hoc  titulo."     Comment,  on 
Infort.  Part  i.  (D.  xxvm.  2.  29),  p.  286. 

5  Vide  e.g.  Comment,  on  Dig.  Nov.  Part  i.  (D.  xxxix.  1.  1),  p.  20, 
§  10:  "  Sed  glossa  potest  cantare  quantum  vellet,  quia  solutio  ista  est 
contra  diet.  §."     Cf.  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLVI.  3.  95), 
p.  272,  §  1 :  "Est  quaedam  glossa  super  verbo  '  interim'  quae  intricat 
istum  textum  qui  de  se  procedit  clare  et  plene:  ideo  de  ilia  glossa  non 
euro."     Comment,  on  Infort.  Part  i.  (D.  xxvm.  7.  9),  p.  386.     Com- 
ment, on  Dig.  Nov.  Part  n.  (D.  XLVII.  1.  2),  p.  332,  §  11. 


I]  INTRODUCTION  7 

the  text.  The  story  how  he  and  his  friend  and  colleague, 
Franciscus  de  Tigrinis,  sent  from  Perugia  to  consult 
the  famous  Pisan  manuscript  of  the  Digest,  now  in  the 
Laurentian  library  at  Florence,  is  well  known1.  Un- 
doubtedly too  much  stress  is  not  to  be  laid  on  what  is,  after 
all,  an  isolated  incident.  The  main  concern  of  Bartolus 
was  not  with  the  scientific  correctness  of  his  texts  or 
their  literal  interpretation;  even  so  the  incident  is  all 
the  more  noteworthy  in  the  age  of  the  Postglossators. 

If  he  was  independent  of  the  Gloss,  as  an  authority, 
still  more  independent  was  Bartolus  with  regard  to  other 
.lawyers;  he  boasted  that  where  he  borrowed  from  his 
predecessors,  he  made  no  attempt  to  hide  his  borrow- 
ing, as  others  had  done2 — nor  need  we  doubt  the  truth 
of  this3.  Elsewhere  Bartolus  has  explained  his  views 


1  Vide  Comment,  on  Codex,  Part  i.  (C.  iv.  6.  2),  p.  387:  "...Misimus 
usque  ad  Pisas  do.  Franc.  Accursius  (Savigny  has  shown  that  this 
ought  to  be  Franciscus  Tigrinis)  et  ego  ad  videndum  Pandectas." 
Bartolus  recalls  this  again  in  Comment,  on  Dig.  Vet.  Part  n.  (D.  xx. 
5.  7,  §  Quaeritur),  p.  442.     The  "litera  Pisana"  is  mentioned  again 
in  Comment,  on  Dig.  Vet.  Part  11.  (D.  xn.  1.  1),  p.  3,  §6;  the  "vel 
Florentina,"  found  in  some  editions,  being  of  course  an  addition, 
since  the  MS  was  not  removed  to  Florence  till  after  Bartolus'  death ; 
it  is  wanting  in  the  only  MS  of  Bartolus'  Comment,  on  Dig.  Vet.  Part  n. 
which  I  have  seen. 

2  Vide  Comment,  on  Dig.  Nov.  Part  i.  (D.  xxxix.  1.  8,  §  Morte  ejus), 
p.  41,  §§  9,  10:   "Et  quia  iste  §  singularis  est,  circa  earn  materiam 
protestationis    tractabo,    quam   primo  latius   tractavit  Jo.   Monacus 
Cardinalis...et  Jo.  Andreae  earn  recitat  de  verbo  ad  verbum...Item 
And.  de  Pisis  posuit  istam  materiam  in  quadam  repetitione  quam 
fecit  et  Jo.  praedictum  quasi  in  omnibus  est  secutus;  de  eo  tamen 
nullam  mentionem  facit.     Ideo  ego  de  omnibus  mentionem  facio,  ut 
quod  suum  est  f  urari  non  videar ;  in  eo  vero  quod  est  meum  cognoscar ; 
et  si  minus  bene  dixero,  ego  redarguar;  si  vero  bene,  Deus  laudetur; 
ego  vero  ut  minimus  instructor  reputer." 

3  Savigny  indeed  quotes  a  passage  from  Baldus— "...d.  Bart... 


8  INTRODUCTION  [CH. 

on  authority  with  great  precision.  The  Middle  Ages 
were  no  doubt  far  too  inclined  to  bow  to  authority; 
but  the  charge  is  often  somewhat  vague,  and  it  is  there- 
fore well  worth  noting  his  own  words,  well  worth  seeing 
what  authorities  the  man,  whom  we  are  to  examine  in 
this  essay,  was  prepared  to  recognise.  "Debes  scire,"  he 
says,  "quod  quaedam  scripta  seu  authoritates  sunt 
approbatae  ab  Imperatore  vel  a  summo  Pontifice,  et 
istae  probant  et  concludunt  necessarie...  Quaedam  sunt 
scripta  per  summum  Pontificem  vel  Principem  nee 
approbata  nee  reprobata;  et  ista  sunt  duplicis  generis: 
quaedam  sunt  scripturae  enunciativae,  alias  recitativae, 
ut  libri  historiales,  chronica  et  similia,  et  istis,  si  a 
nostris  antiquis  creditum  videmus,  et  nos  etiam  debe- 
mus  credere,  sicut  aliis  antiquis  scripturis.... Quaedam 
sunt  scripturae  quae  procedunt  disponendo  et  deter- 
minando,  non  enunciando,  et  in  his  advertendum  quid 
servant  studia.  Quaedam  enim  scripturae,  tamquam 
authenticae  in  studiis  reputantur,  ut  dicta  Aristotelis 
et  Hippocratis  et  similium,  quae  tamquam  scripturae 
authenticae  in  studiis  servantur,  et  istis  est  standum... 
Quaedam  sunt  scripturae  quae  a  studiis  non  appro- 
bantur,  nisi  probentur  per  rationem,  et  istae  dicuntur 
magistrates  probationes,  non  tamen  necessariae.  Istis 
quidem  non  est  standum  si  contrarium  videretur,  et 
nisi  quatenus  necessarie  concluderent1." 

Certainly  the  passage  makes  no  wide  claim  for 
unfettered  thought.  But  we  note — and  this  is  the 
important  thing  for  us — that  neither  the  Gloss  nor  any 

furatus  fuit  Petro  (a  Bella  Pertica),"  but  we  need  not  lay  too  much 
stress  perhaps  on  a  single  statement  of  this  sort. 

1  Vide  Comment,  on  Dig.  Vet.  Part  n.  (D.  xn.  1.  1),  p.  5,  §§  21-3. 


I]  INTRODUCTION  9 

individual  lawyer1  is  given  the  same  position  in  the 
lawyer's  Studium  as  Aristotle  is  allowed  to  enjoy  in 
the  philosopher's  or  Hippocrates  in  the  physician's 
Studium — "quae  tamquam  scripturae  authenticae  in 
studiis  servantur."  The  opinion  of  the  Gloss  is  thus 
only  "probable,"  not  "necessary,"  just  as  is  that  of  any 
doctor — "nullus  te  cogit  stare  opinioni  doctoris2." 

We  shall  so  often  in  the  coming  pages  of  this  essay 
have  occasion  to  note  how  Bartolus  was  concerned  to 
evolve  a  law  practically  effective  for  the  Italy  of  his 
day,  that  it  is  unnecessary  at  present  to  dwell  at  any 
length  on  this  characteristic  of  his  work.  It  is  indeed 
just  this  characteristic  which  redeems  the  otherwise  far 
from  pleasant  reading  of  the  voluminous  commentaries 
of  Bartolus  and  their  uncouth  Latin.  At  every  page  we 
are  transplanted  into  the  active  many-sided  life  of  the 
Italian  cities  of  the  fourteenth  century3;  there  is  always 

1  Of  course  this  does  not  apply  to   the  old  Jurisconsult!  from 
whose  works  the  Digest  is  composed.     Vide  the  following  passage 
which  immediately  precedes  the  passage  on  authority  already  quoted : 
"Hie  habes  locum  ab  authoritate  quia  jurisconsultus  probat  dicta 
sua  per  authoritatem   Celsi.     Sed  contra  hoc  facit  quia  authoritas 
doctoris,  licet  sit  probabilis,  non  est  necessaria...  Solutio:    ilia  jura 
loquuntur  de  doctore  simplici,  sed  Celsus,  de  quo  hie  loquitur,  erat 
doctor  et  jurisconsultus,  qui   habebat  potestatem   condendi  legem, 
unde  et  ejus  interpretatio,   cum   sit  necessaria,   sicut   interpretatio 
principis...merito  potuit  allegari." 

2  Vide  Comment,  on  Codex,  Part  i.  (C.  i.  14.  1),  p.  87,  §§  7-9: 
' '  Debes  scire  quod  est  interpretatio  generalis  et  necessaria  et  in  scriptis 
redigenda  et  istam  potest  facere  solus  Princeps,  ut  hie.     Quaedam  est 
interpretatio  necessaria  et  in  scriptis  redigenda,  non  tamen  est  generalis, 
et  istam  potest  facere  quilibet  judex  et  proferre  sententiam  procedendo 
de  similibus  ad  similia...Tertia  est  interpretatio  probabilis,  tamen  non 
est  necessaria,  et  potest  in  scriptis  redigi,  ut  interpretatio  doctorum, 
quia  nullus  te  cogit  stare  opinioni  doctoris."     Cf.  Comment,  on  Dig. 
Vet.  Part  n.  (D.  xn.  1.  1),  p.  2,  §  6. 

3  The  following  quotations  will  serve  as  examples.    Vide  Comment. 


10  INTRODUCTION  [CH. 

something  that  reveals  the  man  and  his  age.  We  have 
remarked  that  most  of  our  knowledge  of  Bartolus  is 
derived  from  what  he  himself  tells  us;  the  references, 
which  we  have  already  given,  might  easily  be  supple- 
mented. Bartolus,  for  example,  is  always  ready  to 
illustrate  a  legal  point  by  appealing  to  his  own  experi- 
ence  to  cases  he  has  known  or  to  opinions  he  has 

given  both  at  Pisa  and  Perugia,  the  two  cities  most 
closely  connected  with  his  name,  as  at  Florence,  the 
small  dependent  cities  near  Perugia,  such  as  Spoleto  or 
Assisi,  and  elsewhere1.  Similarly  he  will  recall  cases 

on  Dig.  Nov.  Part  I.  (xLm.  19. 1,  §  Quaesitum),  p.  468 :  "  Hie  est  bonus 
textus  et  est  argumentum  ad  quaestionem.  Equus  qui  currebat  ad 
bravium  per  seipsum  primo  ivit,  cum  ragatius  qui  equum  ducebat  inde 
ceciderit,  quod  (sic)  ille  equus  debet  habere  bravium.  Breviter  ego 
consuevi  dicere  sic,  quod  debemus  advertere  verba  statuti,  utrum 
dicunt,  'si  quis  cum  equo  primo  venerit,'  vel  '  ei  equitatori  qui 
primo  venerit,'  et  similia,  et  tune  non  habeat  bravium;  vel  dicant, 
'  domino  equi  qui  primo  venerit  debeatur  bravium,'  tune  equo  veniente 
sine  equitatore  debeatur  bravium."  Horse-races  took  place  in  numbers 
of  Italian  cities  at  certain  times  of  the  year ;  Dante  refers  to  the  famous 
Lent  foot-race  at  Verona  (Inf.  xv.  122).  Bartolus'  decision  is  very 
curious  and  it  would  be  interesting  to  know  if  such  a  rule  ever  actually 
held  good.  Then  vide  Com.^nt.  on  Dig.  Vet.  Part  n.  (D.  xn.  2.  30, 
§  In  popularibus),  p.  95,  §  4:  "  ...ut  fuit  de  facto  in  civitate  ista,  facta 
fuit  quaedam  societas  vel  liga  per  cives  hujus  civitatis  contra  aliquos 
contra  formam  statutorum,  quae  liga  adhuc  durat...."  Finally  we 
may  well  notice  the  number  of  passages  in  which  Bartolus  refuses  to 
consider  a  matter  "  quia  pendet  de  facto."  Vide  e.g.  Comment,  on 
Dig.  Nov.  Part  n.  (D.  L.  1.  6,  §  Filius),  p.  648,  §  3:  "Non 
determine  modo  quia  quaestio  est  in  civitate  Clusina,  et  forte  ex- 
aminabitur  in  civitate  ista."  Cf.  Comment,  on  Dig.  Vet.  Part  i. 
(D.  iv.  4.  38),  p.  444,  §  7. 

1  Comment,  on  Codex,  Tres  libri  (C.  x.  43.  1),  p.  53:  "Nota... 
quod  quando  quis  subit  onera  sponte,  debet  protestari,  ne  prejudicet 
sibi  vel  suo  privilegio:  et  sic  feci,  quando  fuit  imposita  mihi  prae- 
stantia,  de  qua  potui  excusari,  tamen  nolui  me  excusare :  feci  tamen 
scribere  in  catastro  in  lib.  solutionum  quod  illud  faciebam  non  animo 


I]  INTRODUCTION  11 

in  which  other  famous  lawyers  have  appeared,  or  record 
incidents  of  their  lives1.  The  ten  volumes  of  his 
commentaries  are  a  curious  and  little-worked  mine, 
from ,  which  many  sides  of  medieval  history,  besides  that 
one  which  concerns  us  in  this  essay,  might  with  little 
difficulty  be  enriched. 

praejudicandi  mihi  in  privilegiis  et  pactis  mihi  factis."  Comment, 
on  Infort.  Part  i.  (D.  xxvm.  5.  29),  p.  338:  "In  civitate  Pisana 
tempore  conflictus  civitatis  Lucanae,  quo  tempore  ibi  actu  legebam, 
factum  fuit  unum  statutum,  quod  quicumque  acceperit  vexillum 
Florentinum  haberet  centum.  Duo  acceperunt  nee  apparebat  quis 
primo,  et  dom.  Franciscus  Tigrinis  erat  de  Ancianis  et  scripsit  mihi, 
et  ego  respondi...."  Comment,  on  Infort.  Part  n.  (D.  xxxm.  2.  30), 
p.  211,  §  4:  "Facit  ad  quaestionem  in  qua  consului  in  civitate 
Spoleti."  Comment,  on  Infort.  Part  i.  (D.  xxrx.  1.  1),  p.  440,  §  1 :  "  Et 
istam  legem  induxi  semel  ad  pulchram  quaestionem.  Cavetur  statutis 
civitatis  Assissii...."  Comment,  on  Infort.  Part  n.  (D.  xxxvin.  18.  2, 
§  Videndum),  p.  550,  §  3:  "  Et  sic  de  facto  consului  in  civitate 
Florentiae."  Comment,  on  Infort.  Part  n.  (D.  xxxvi.  1.  4),  p.  421: 
"  Et  sic  de  facto  consului  in  quadam  civitate  imperii."  On  one 
occasion  he  says,  Comment,  on  Infort.  Part  n.  (D.  xxxv.  2.  90),  p.  408, 
§  12:  "Quaero  de  una  quaestione  quae  me  multum  facit  dubitare. 
Non  habui  de  facto,  sed  hac  nocte  fui  imaginatus." 

1  Vide  e.g.  Comment,  on  Infort.  Part  i.  (D.  xxvi.  2.  11),  p.  132, 
§  27:  "Iste  quaestio  fuit  semel  in  civitate  ista  pro  tutela  filiae 
Bemardini  Comitis  de  Merciana  et  fuit  comissa  Bononiae  quatuor 
doctoribus,  scilicet  Eic.  de  Mai.  qui  erat  ibi  tune  relegatus,  Jac.  de 
Bel.,  Jac.  But.  et  Bay.  de  For.  qui  fuerunt  discordes."  Comment,  on 
Dig.  Nov.  Part  n.  (D.  XLVIII.  16.  1,  §  Suspecti),  p.  521:  "Istam 
opinionem  Jac.  Balduini  Dynus  tenuit  semel,  cum  legeret  pro  Franc. 
Accursio...Do.  Franc,  in  sequenti  die  legit... ubi  resolvit  eandem 
materiam  meri  et  mixti  imperii  et  tenuit  glossam  sui  patris.  Tune 
quidam  scholaris  ivit  ad  do.  Dynum,  et  do.  Dynus  incontinent! 
misit  per  scholas  quod  volebat  disputare  illam  quaestionem  et  tenere 
opinionem  Jac.  Balduini  et  reprobare  opinionem  glossae;  et  istam 
dissensionem  audivi  ore  tenus  a  do.  Cyno."  Comment,  on  Dig.  Vet. 
Part  n.  (D.  xvn.  1.  26),  p.  336,  §  1:  "Jo.  Andreae  fuit  missus 
ambasiator  a  legato  ad  Papam ;  dum  reverteret  fuit  derobatus  apud 
Papiam.  Quaerebatur  utrum  deberet  sibi  restitui  a  legato.  Convocati 
doctores  dixerunt  quod  sic...." 


12  INTRODUCTION  [CH. 

We  may  now  turn  to  consider  how  Bartolus  views 
the  chief  material  of  all  his  thought—that  "civilis 
sapientia "  of  the  five  volumes,  into  which  the  Corpus 
Juris  Civilis  was  divided  by  the  medieval  lawyers1. 

In  his  very  remarkable  Tractatus  Testimoniorum 
he  attempts  to  show3  that  "jus  nostrum" — i.e.  the 
Civil  Law— may  be  called,  according  to  different 
considerations,  a  Sapientia,  a  Scientia  and  an  Ars4. 
He  defines5  Sapientia  as  "habitus  speculations,  con- 
siderans  caiisas  altissimas";  and  while  this,  he  thinks, 
chiefly  applies  to  theology  or  metaphysics,  it  may  also 
be  applied  to  the  work  of  the  jurist.  "-Eat  enim  res 
sanctissima  ista  civilis  sapientia,  ut  Ulpianus  ait6.  Ipsa 
enim  causas  altissimas  considerat:  quia  est  divinarum 

1  Vide  Sernw  in  doctorat.  do.  Johannis  de  Saxoferrato,  p.  508, 
circa  fin.     He  compares  them  to  the  five  miraculous  loaves.     The 
five  volumes  are,  of  course,  the  Dig.  Vet.',  Infortiatum',  Dig.  Nov.', 
Codex  i.-ix. ;  and  the  Volumen  =  Codex  x.-xii. ,  Institutes,  Authenticuml 
Most  editions  of  Bartolus  are  bound  up  in  five  volumes,  the  Consilia, 
Quaestiones  and  Tractatus  being  bound  with  the  Comments,  on  Authen- 
ticum  and  Institutes',   the  Comment,  on  the  Codex,  Tres  libri,  being 
sometimes  bound  in  with  the  Comments,  on  the  other  two  parts  of 
the  Codex,  sometimes  separately  with  the  index,  which  is  found  in 
most  of  the  later  complete  editions. 

2  Pp.  434-53. 

a  Vide  §§  70-2,  p.  444.  He  is  considering  the  four  cardinal  moral 
virtues,  first  of  which  he  names  Prudentia  (§  68).  Accordingly  in 
§  69  he  proceeds  to  consider  Prudentia — "ad  quod  declararidum, 
sciendum  est  quod  Sapientia,  Scientia  et  Prudentia  differunt."  He 
then  returns  to  Prudentia  in  §  73  and  ff.,  after  those  which  here 
concern  us. 

4  §72. 

5  §  70:   "Est  enim  Sapientia  habitus  speculationis,  considerans 
causas  altissimas,   et  haec  pertinet  principaliter  ad  theologiam   et 
metaphysicam,  quae  Deum  et  primas  causas  considerat  et  de  prin- 
cipiis  omnium    aliarum  scientiarum  judicat,   et  etiam   de   ista  ad 
juristas;   unde  merito  dicitur.     Est  enim  res  sanctissima,  etc." 

6  Beferring  presumably  to  D.  i.  1.  1  and  D.  i.  1.  10. 


I]  INTRODUCTION  13 

atque  humanarum  rerum  notitia  et  cognitio,  judicat  de 
principiis  aliarum  scientiarum;  reprobat  enim  principia 
omnia,  quae  fidei  catholicae  repugnant,  et  hac  conside- 
ratione  bonus  judex  recte  sapiens  dicitur,  et  cum  ad 
eonsilium  sapientis  recurritur  vulgo  de  jurisperito  in- 
telligitur."  Scientia1  is  denned  as  "habitus  specula- 
tionis  demonstrativus  ratione  vera  considerans  causas 
inferiores."  This  especially  applies  to  the  natural 
sciences,  but  is  also  applied  to  "jus  nostrum"  by  the 
Emperor  in  the  first  preface  to  the  Digest2 — -"et  merito, 
quia  etiam  causas  inferiores  considerat.  Non  solum 
enim  divinarum,  sed  etiam  humanarum  est  cognitio3, 
sed  etiam  de  universalibus  judicat.  Jura  enim  non  ad 
singulares  personas,  sed  generaliter  constituuntur  et 
etiam  de  necessario  se  habentibus.  Leges  enim  con- 
stringunt  hominum  vitas,  et  eis  omnes  obedire  oportet, 
maxime  quia  est  inventio  et  donum  Dei,  ut  ait  Demos- 
thenes et  retulit  Martianus4.  Nee  praedictis  obviat 
quia  mutabilia  sunt  per  Principis  Imperium,  vel  alte- 
rius  cui  attinet,  quia  etiam  quae  jura  naturalia  sunt, 
mutabilia  sunt  divino  Imperio  vel  alterius  cui  Deus 
concesserit,  ut  in  miraculis  declaratum  est :  nee  tamen 
per  hoc  minus  dicuntur  necessariae  se  habere."  Finally 
Ars5  is  defined  as  "habitus  ratione  naturae  factivus"; 
this  term  is  also  applied  to  Jus  by  the  Jurisconsultus, 
when  he  says,  "Jus  est  ars  boni  et  aequi6." 

We  ought  especially  to  note  how  the  term  Sapientia 
is  applied  to  the  Jus  Civile,  along  with  theology  and 
metaphysics,  each  a  science  "quae  Deum  et  primas 

i  §  71.  2  Vide  D.  Prima  Const.  §  1. 

3  Vide  D.  i.  1.  10.  4  Vide  D.  i.  3.  2. 

5  §72. 

6  D.  i.  1.  1,  where  Ulpian  quotes  the  saying  as  of  Celsus. 


14  INTRODUCTION  [CH. 

causas  considerat  et  de  principiis  aliarum  scientiarum 
judicat."  This  places  the  Civil  Law  on  a  level  with  the 
V  highest  branches  of  learning.  Elsewhere  Bartolus  goes 
even  further.  In  a  speech  made  when  his  brother  Bon- 
accursius  was  created  a  Doctor1,  Bartolus  is  led  to  take 
.into  consideration  the  "essential  goodness  and  perfection 
of  this  Civilis  Sapientia2."  He  finds  that  it  manifestly 
excels  all  other  sciences,  in  that,  unlike  them,  it  is 
"perfect  in  itself,"  needing  the  "suffrage"  of  no  other 
science.  The  perfect  philosopher  must  be  a  logician, 
the  perfect  physician  a  philosopher,  the  perfect  canonist 
must  first  have  this  very  Civilis  Sapientia.  But  the 
Civilis  Sapientia  says  of  itself:  "I  sit  a  queen  and  am 
no  widow  and  shall  see  no  sorrow."  It  is  truly  a  queen, 
for  it  rules,  like  a  Prince,  over  good  and  bad,  gives 
peace  to  whole  provinces  and  scatters  gifts  with  princely 
magnificence.  All  other  sciences  are  only  sciences  in 
so  far  as  they  are  recognised  and  supported  by  it, 
though  he  is  bound  here  to  except  theology,  to  which, 
he  confesses,  even  the  Civilis  Sapientia  is  inferior. 

1  The  two  speeches  of  Bartolus  are  very  interesting.      At   the 
beginning  of  the  one  for  Johannes  de  Saxoferrato  he  says,   "  tres 
sermones  me  fecisse  in  hoc  loco  memini "  (p.  507);    but  only  two 
have  survived.     In  the  first  two,  he  says,  he  had  quoted  authorities 
from  the  Civilis  Sapientia  and  Scripture  "  permistim,"  in  the  third 
only  from  the  Civilis  Sapientia;   so  here  in  the  fourth  he  will  only 
refer   to    Scripture,   "  et   quia    hie  pro    quo   sermo   effunditur,   est 
Johannes,"  he  will  refer  only  to  S.  John. 

2  Vide  pp.  506-7.     He  takes  as  his  text  Accursius'  own  proud 
explanation  of  his  name  in  the  Gloss  to  D.  xxxvi.  1.  63,  ad  verb. 
"  conditio  "  : . . ."  nomen  meum,  scilicet  Accursium :  quod  est  honestum 
nomen,  dictum  quia  accurrit  et  succurit  contra  tenebras  juris  civilis." 
Among  the  many  titles  of  praise  bestowed  on  Bartolus,  and  which 
most  of  his  old  biographers  recount,  is  "  Optimus  auriga  in  hac  civili 
sapientia." 


I]  INTRODUCTION  15 

But  he  makes  no  other  exception.  As  medicine  with- 
out philosophy  is  "vidua,"  so  Canon  Law  without  the 
Jus  Civile  is  "vidua  et  imperfecta  scientia,"  while  Civil 
Law  "alterius  adminiculo  non  eget,  vidua  non  est,  et 
vidua  esse  non  potest." 

So  exalted  a  view  of  the  Civil  Law  was  one  which 
could  hardly  find  general  acceptance.  The  immense 
popularity  of  the  study  of  Civil  Law  from  the  eleventh 
century  onwards  had  raised  up  powerful  enemies  against 
it.  The  theologians  were  against  it;  and  while  the 
Canon  Law  had  also,  to  some  considerable  extent,  to  face 
the  hostility  of  the  theologians,  Civil  Law  had  to  bear 
the  hostility  of  the  canonists  as  well. 

Bartolus  is  well  aware  of  this  hostility.  In  the 
same  speech1,  after  his  praise  of  the  Civil  Law,  he  turns 
to  the  jurist.  The  Civil  Law,  as  a  science  "in  se 
perfecta,"  produces  a  son  like  itself — the  son  is  of  course 
the  jurist.  Of  him  may  be  said,  in  the  psalmist's  words: 
"The  stone,  which  the  builders  refused,  is  become  the 
head  stone  of  the  corner.  This  is  the  Lord's  doing: 
it  is  marvellous  in  our  eyes."  He  gives  two  examples. 
In  Perugia  the  jurists  are  forbidden  any  share  in  the 
city's  government ;  yet,  he  says,  at  the  time  of  pro- 
cessions we  see  them  precede  all  others.  Again  in  the 
Roman  Curia  and  Church  the  clergy  are  forbidden 
"hac  civili  sapientia  imbui."  "Tamen  Romana  curia 

1  P.  506:  "Lapis  reprobatus  est  per  substantiam  cujuslibet 
juristae,  qui  in  hac  civitate  ad  regimen  per  eorum  statuta  totaliter 
est  remotus :  tamen  hie  lapis,  seu  jurista,  factus  est  in  caput  anguli. 
Nam  videtis  juristas  omnibus  praecedere,  et  tempore  processionum 
faciunt  juristas,  qui  omnibus  patrocinantur,  praecedere  et  etiam  in 
recognitionem  dominii  certum  largiuntur:  sic  et  curia  Eomana,  sic  et 
Komana  ecclesia  hunc  lapidem  in  clericis  reprobat,  vetando  eos  hac 
civili  sapientia  imbui;  tamen,  etc." 


16 


INTRODUCTION  [CH. 


in  hac  scientia  obtinet  principatum.  Longe  enim  plures 
sunt  ibi  legistae,  quam  canonistae,  quare  hoc  a  Domino 
factum  et  est  mirabile  in  oculis  nostris."  In  another 
speech1  he  says  that  though  the  clergy  and  religious 
may  be  forbidden  to  learn  the  Civil  Law,  yet  without  it 
there  will  be  no  justice  in  their  courts. 

This  is  all  the  more  remarkable  in  that  Bartolus  was, 
as  we  shall  see  later,  in  no  sense  hostile  to  Canon  Law. 
Hostility  there  had  been  between  the  two  sorts  of 
lawyers.  Cino,  the  master  of  Bartolus,  was  a  bitter  and 
contemptuous  opponent  of  the  canonists,  so  much  so  that 
canonists,  as  late  as  Panormitanus,  note  his  hostility 
and  reprove  him.  Bartolus  himself  wrote  no  works  on 
Canon  Law2,  but  he  stood  at  the  juncture  of  two 
epochs.  The  great  lawyers  who  followed  him  were 
mostly  doctors  "in  utroque  jure."  Old-fashioned  theo- 
logians might  still  complain  of  the  neglect  of  theology 
for  law,  but  the  epoch  of  hostility  was  over,  at  least  so 
far  as  concerns  the  Civil  and  Canon  Laws3. 

Bartolus  thus  thinks  of  the  Civilis  Sapientia  as  a 

1  P.  508:    "...et  licet  Petrus  dixerit,  Domine  non  lavabis  pedes 
meos  in  aeternum,  tamen  ei  responsum  est,  Si  non  lavero  te,  non 
habebis  partem  mecum.      Ita  in  proposito,  licet  statutum   sit  per 
Ecclesiam,  ut  jura  civilia  per  religiosos  et  clericos  in  sacris  non 
discantur,  et  sic  pedes  non  laventur,  tamen  si  haec  scientia  non 
lavabit,  in  curiis  eorum  justitia  non  erit...." 

2  The  authenticity  of  Bartolus'  Tractatus  de  Differentia  inter  Jus 
Canonicum  et  Civile  is  very  doubtful.    It  is  denied  by  Diplovatacius, 
who  says  that  it  is  composed  from  a  similar  treatise  by  one  Jacobus 
Albertus  de  Bononia,  who  lived  at  Verona,  and  flourished  1330  (vide 
Introductory  note  in  Bale  ed.  p.  402).    Stintzing  also,  in  his  Geschichte 
der  popularen  Literatur  des  rainisch-kanonischen  Eechts  in  Deutschland, 
pp.  70-1,  doubts  its  authenticity. 

3  Vide    Marcel    Fournier,    "  L'Eglise    et    le    Droit    Komain    au 
xme  siecle"    (in   Nouvelle  Revile  Historique  de   Droit  Fran^ais   et 
Etranger,  1890),  p.  114. 


l]  INTRODUCTION  17 

branch  of  study  comparable  to  any  in  dignity  and  in- 
dependence and  superior  to  all  save  theology.  It  need 
not,  then,  surprise  us  if  we  find  that  this  Civilis  Sapientia 
is  thought  a  proper  material  for  the  solution  of  problems 
which  to  us  would  seem  entirely  foreign  to  law. 
Bartolus  was  far  from  being  a  man  who  knew  only  law. 
He  had  studied  Hebrew1  and  Geometry2;  the  Tractatus 
Testimoniorum  alone  would  show  that  he  was  a  student 
of  Aquinas3;  he  commented  on  a  Canzone  of  Dante4 

'  Vide  Tract,  de  Imign.  et  Armis,  §  29,  p.  344.  Bartolus  records 
a  dispute  with  his  master  as  to  the  rationality  of  writing  from  richt 
to  left,  as  in  Hebrew. 

2  Vide   Tyberiadis,  Proem,  p.  363,  where  he  names   his  friend 

Guido  of  Perugia,   "magnus  theologus  universalis  in  omnibus  qui 

meus  fuerat  et  erat  in  geometria  magister."     Bartolus  wrote   this 

treatise  when  on  a  holiday  in  a  villa   by  the   Tiber.      The  river 

banks  and  its  bed,  suggested  various  legal  problems  to  him   which 

3  began  to  work  out  merely  for  his  amusement,  until  warned  in 

i  vision  to  make  them  into  a  treatise.     When  he  was  in  great  doubt 

about  certain   «  figurae "   in   the  second   book   (there  are  wood-cut 

hgurae      in  all  the  editions),  Guido  of  Perugia  chanced  to  visit 

urn  and   by  reason  of  the  heavy  rains,  was  compelled  to  spend  the 

jght  with   him:    "cum  ipso  praedicta   contuli   et   figuras  secundi 

i  formare  complevi  et  multa  spiritual  gaudia  ex  collationibus 

spmtualibus  secum  habui,"  etc. 

With  the  passages  quoted  from  the  Tractatus  Testimoniormn 
above  may  be  compared  Aquinas,  Summa  Theologica,  n.  1,  quaest.  55- 

4  Bartolus  mentions  Dante  twice.     On  one  occasion  he  refers  to 

Dante's  Monarchia-we  shall  consider  the  passage  later  in  dealing 

with  Bartolus'  political  theories.     But  even  more  interesting  is  his 

other  mention  of  Dante,  in  his  Comment,  on  Codex,  Tres  libri  (C  xn 

LI).     Bartolus  is  discussing  -Quid  sit  nobilitas?"  and  introduces 

tes  Allegeri  de  Florentia,  poeta  vulgaris  laudabilis  recolendae 

lemonae,  qui  circa  hoc  fecit  unam  cantilenam  in  vulgari,  quae  incipit 

'Le  dolce  rime  d'amor.'"     He  disagrees  with  Dante's  doctrine  of 

ility,   but  does   so  reverently— «  salva  reverentia  tanti  poetae  » 

However  incongruous  Bartolus'  legal  criticisms  of  the  Canzone  may 

seem  to  us,  we  may  well  remember  Dante's  own  analysis  of  his  poems 

2 


18  INTRODUCTION  [CH. 

and  wrote  a  treatise  on  Heraldry1.  But  in  all  his 
studies  and  all  his  interests  the  Civilis  Sapientia 
was  the  medium  through  which  they  were  approached. 
This  is  not  sufficiently  explained  by  saying  that  law 
was  to  Bartolus  a  "passion  rather  than  a  pursuit2" — 
though  perhaps  true  in  itself.  It  must  rather  be  ex- 
plained by  the  conception  of  the  Civilis  Sapientia  as  a 
branch  of  learning,  which  considers  not  only  the  "altis- 
simas  causas,"  but  "causas  inferiores"  as  well,  and 
which,  as  only  theology  besides,  is  complete  in  itself, 
needing  no  other  "adminiculum."  Someone  once  asked 

both  in  the  Vita  Nuova  and  the  Convivio  (the  Canzone  in  question  is 
in  the  Convivio,  Trattato  iv.).  Bartolus'  Kepetitio  on  this  Law  (C.  xn. 
1.  1)  is  not  found  in  all  editions — not  e.g.  in  the  Turin  ed.  of  1577. 
Both  his  references  to  Dante  were  published  separately  by  the  great 
Dante  scholar,  Witte,  in  1861,  on  whose  reprint  there  are  a  few  pages 
of  just  criticism  by  Negroni,  "  Dante  Allighieri  e  Bartolo  di  Sassofer- 
rato  "  (in  Rivista  di  Cose  Dantesche,  and  published  separately,  1890). 
Witte 's  reprint  may  also  be  found  in  Bernabei,  "  Bartolo  da  Sassofer- 
rato  e  la  Scienza  delle  Legge,"  Documenti,  p.  168  and  if. 

1  Tract,  de  Insign.  et  Armis.     As  a  treatise  on  heraldry  we  should 
nowadays  think  it  very  insufficient— in  fact  it  has  nothing  about  what 
we  should  call  the  "Laws  of  Heraldry."      On  the  other  hand  the 
opening  words  are  significant  of  Bartolus'  whole  intellectual  stand- 
point:  "  Horum  gratia  de  insigniis  et  armis  quae  quis  in  vexillis  et 
clypeis  portat  videamus,  et  primo  an  hoc  sit  licitum,  et  eo  casu  quo 
est  licitum,  qualiter  sint  pingenda  et  portanda."     Heraldry,  no  less 
than  the  Tiber,  suggests  legal  problems.     Having  decided  in  what 
cases  it  is  lawful— and  Bartolus  allows  anyone  to  adopt  arms,  pro- 
vided they  do  not  already  belong  to  someone  else— Bartolus  gives 
some  very  fanciful  explanations  of  the  heraldic  colours,  and  there 
can  be  no  doubt  that  Kabelais  in  Book  i.  chaps.  9  and  19,  is  laughing 
at  this  treatise ;  especially  since  he  mentions  a  treatise  of  Laurentius 
Valla,  attacking  Bartolus  on  the  same  subject. 

2  Figgis,  "  Bartolus  and  European  Political  Ideas  "  (in  Transactions 
of  Royal  Hut.  Society,  vol.  xix.  1905),  p.  151.    But  these  pp.  151-6  of 
Dr  Figgis'  paper,  as  a  whole,  give  an  admirable  picture  of  Bartolus' 
intellectual  characteristics. 


I]  INTRODUCTION  19 

Johnson  whether  Lord  Coke  was  not  a  "mere  lawyer." 
Johnson  feared  he  was — but  thought  that  Lord  Coke 
"would  have  taken  it  very  ill  if  you  had  told  him  so." 
To  Bartolus  the  phrase  a  mere  lawyer  would  have 
meant  little.  Had  he  been  accused  of  being  one,  he 
would  have  answered  that  he  was  indeed  "minimus 
inter  legum  doctores1";  but  that,  apart  from  theology, 
law  was  complete  and  sufficient  in  itself — he  might 
have  pointed  to  his  library  of  34  books  of  theology 
and  30  of  law2,  as  containing  the  sum  total  of  all 
wisdom. 

If  then,  in  the  matter  that  concerns  us  particularly, 
we  say  that  Bartolus  was  not  a  political  thinker,  we 
must  remember  that  this  distinction  between  law  and 
politics  is  rather  ours  than  his.  His  Civilis  Sapientia 
is  a  term  that  can  include  far  more  than  "our  term  Law. 
The  field  of  action  which  Bartolus  sketches  out  for  the 
jurist  is  very  significant.  In-  my  Father's  house,  that 
is  to  say  in  this  Civilis  Sapientia,  there  are,  he  says3, 
"many  mansions."  "Quidam  enim  ad  legendum  in  civi- 
tatibus  regiis  assumuntur,  quidam  ad  assidendum  in 
locis  insignibus  praeponuntur,  quidam  ad  advocandum 
in  curiis  principum  et  regiis  attrahuntur,  alii  ad  consu- 
lendum  in  cameris  assidue  requiruntur,  alii  ad  con- 
silium  principum  assumuntur.  Hi  enim  sunt  quibus 
respublica  regenda  committitur."  Similarly,  in  his 
treatise  De  Regimine  Civitatis,  when  he  is  about  to 
discuss  the  best  form  of  government,  he  says — "Haec 
investigatio  necessaria  est  juristis:  quoniam  dominL 

1  Bartolus  usually  signs  his  "  Eepetitiones  "  thus. 

2  Savigny,  p.  152,  note  e,  gives  these  numbers  on  the  authority  of 
,  Diplovatacius. 

3  Sermo  in  doct.  do.  Johannis  de  Saxoferrato,  p.  508. 

•2—2 


2Q  INTRODUCTION  [CH-  * 

universales,  dum  de  reformatione  civitatis  tractant, 
vel  iuristas  consulunt,  vel  eis  committunt;  vel  cum 
ipsi  assident  apud  eos,  de  regimine  civitatis  querel 

proponitur1." 

With  this  conception  of  the  lawyer's  task  in  mind, 
we  may  now  turn  to  the  political  theories  of  Bartolus. 
Those  theories,  we  must  remember,  are  the  "disjecta 
membra"  of  a  system,  scattered  up  and  down  his  legal 
commentaries.  Our  task  cannot  be  analysis,  but  rather 
the  reconstruction  of  such  a  system  of  thought,  as 
we  may  suppose  existed  in  the  mind  of  Bartolus.  For 
this  reason  we  must  especially  endeavour  to  avoid  an 
arbitrary  or  incomplete  choice  of  topics,  on  which  to 
examine  his  political  theories. 

i  Tract,  de  Reg.  Civ.  %  6,  p.  418. 

It  is  interesting  to  compare  with  these  views  of  the  Jurist  s 
action  the  following  passage  from  Bodin,  in  the  introductory  (Latin) 
letter  to  his  De  la  Eepublique.  Bodin,  we  may  remember,  was  a 
Bartolist,  in  days  when  lawyers  were  divided  into  two  very  hostile 
camps— Bartolists  and  Novitii:  "Juris  consult!... peti  consueverunt 
qui  quidem  respublicas  instituere,  fines  imperiorum  regere,  causas 
regum  disceptare,  populorum  mores  sanare,  principum  foedera  sancire, 
civium  lites  et  controversias  dirimere,  divinas  humanasque  leges  ad 
hominum  inter  homines  societatem  accommodare  didicerunt." 


CHAPTER   II 

THE    POLITICAL   THEORIES   OF   BARTOLCTS 

"MAGNA  et  ardua  sunt  et  fundamentum  totius  juris 
nostri,"  says  Albericus  de  Rosate1,  a  contemporary  of 
Bartolus,  discussing  questions  connected  with  the  ex- 
tent and  character  of  the  Empire,  in  his  commentary 
on  the  Law  Cunctos  Populos.  The  opening  words  of 
this  first  law  of  Justinian's  Code—"  Cunctos  populos 
quos  clementiae  nostrae  regit  temperamentum"— invited 
discussion  on  the  universal  lordship  of  the  Emperor. 
These  words  "Cunctos  populos  quos,"  says  Bartolus2," 
imply  that  there  are  certain  peoples  who  are  not  "  sub 

1  Vide  Comment,  on  Codex,  Part  i.  (C.  i.  1.  1),  p.  6  verso  and  ff. 
The  whole  of  this  long  commentary  is  well  worth  attention— "  Quid 
ergo, ' '  he  asks  in  §  11 ,  »  sub  praedictis  pro  veritate  tenebimus  ?  Quia 
magna  et  ardua  sunt  et  fundamentum  totius  juris  nostri,  et  non 
reperi  tacta  per  alios,  secundum  mei  paucitatem  ingenii  subjiciam 
quod  verum  fore  crediderim  correctione  cujuslibet  melius  sententientis, 
altius  exordiendo  materiam  et  distinguendo  tempora  et  originem  et 
progressum  imperil."  It  is  to  be  noted  that  he  refers  both  to  John  of 
Paris'  treatise  De  Eegla  et  Papali  Potentate  and  to  Dante's  Monarchia 
—and  again  in  his  Commentary  on  Codex,  Part  n.  (C.  vn.  37.  3), 
p.  108.  The  lawyers  show  a  fairly  general  acquaintance  with  Dante's 
Monarchia.  The  canonist  Zabarella,  in  his  Comment,  on  the  Decretal 
Venerabilem,  similarly  refers  to  it,  as  well  as  to  the  Defemor  Pads  of 
Marsiglio  of  Padua— not  "is  qui  late  de  medicinis  scribit,"  he  adds. 
This  is  interesting,  in  view  of  the  fact  that  it  is  generally  stated  that 
Marsiglio  had  studied  medicine. 

2  Comment,  on  Codex,  Part  i.  (C.  i.  1.  1),  p.  7. 


22  THE   EMPIRE  [CH. 

Imperio,"  while  elsewhere1  in  the  Law  Books  the 
Emperor  is  said  to  be  "  dominus  totms  mundi." 
Bartolus  solves  the  difficulty  by  offering  two  explana- 
tions of  the  word  "  regit2."  -  Either  the  Emperor  meant 
that  he  ruled  all  peoples  de  jure  or  de  facto.  In  the 
latter  case,  the  relative  *  quos  "  must  be  taken  "  restric- 
tive," since  de  facto  there  are  some  who  do  not  obey 
the  Emperor.  But  Bartolus  considers  that  the  former 
meaning  was  in  the  Emperor's  mind,  and  so  the  relative 
must  be  taken  "declarative."  This  distinction  between 
right  and  fact — the  acceptance  of  the  Imperial  claims 
in  right,  with  the  accompanying  recognition  of  their 
invalidity  in  fact — is  at  the  basis  of  all  the  political 
theories  of  Bartolus.  But  if  de  jure  the  Emperor's 
position  as  lord  of  the  whole  world  is  unassailable,  this 
does  not  imply  that  all  other  "  dominium  "  is  merely  de 
facto.  The  Emperor  is  "dominus  totius  mundi  vere,"  but 
others  can  be  domini  "  particulariter  " ;  the  world  con- 
sidered universally  is  the  Emperor's,  but  "singulae  res" 
are  not  necessarily  his3.  Again  he  discusses  the  question 
in  his  Commentary  on  the  first  preface  to  the  Digest4 

1  Bartolus  refers,  for  an  example,  to  D.  xiv.  2.  9 — "Kespondit 
Antoninus  Eudaemoni,  « Ego  quidem  mundi  dominus  etc.'  " 

2  "  Aut  verbum  'regit,'  hie  positum  intelligitur  prout  de  jure  est, 
et  tune  de  jure  regit  (i.e.,  the  Emperor)  omnes  populos;  et  sic  relati- 
vum  ponitur  declarative — '  quos,'  scilicet '  omnes.'    Et  hoc  puto  fuisse 
de  mente  Imperatoris.    Aut  vis  intelligere  prout  de  facto  est :  et  tune 
quia  quidam  de  facto  non  obediunt,  et  sic  talis  qualitas  non  competit 
omnibus  de  genere,  tune  relativum  ponitur  restrictive." 

3  Vide  Comment,  on  Dig.  Vet.  Part  i.  (D.  vi.  1.  1,  §  Per  hanc 
autem),  p.  553:  "Ego  dico  quod  Imperator  est  dominus  totius  mundi 
vere.    Nee  obstat  quod  alii  sunt  domini  particulariter,  quia  mundus 
est  universitas  quaedam;  unde  potest  quis  habere  dictam  universita- 
tem,  licet  singulae  res  non  sint  suae." 

4  Comment,  on  Dig.  Vet.  Part  i.  (Prima  Constitutio,  §  Omnem),  p.  9, 


II]  THE   EMPIRE  23 

(De  ratione  et  methodo  juris  docendi).  He  recalls  the 
controversy  between  Bulgarus  and  Martinus,  the  suc- 
cessors of  Irnerius,  the  two  most  famous  of  the  "  four 
Doctors,"  and  records  that  the  Gloss  decides  in  favour 
of  Bulgarus,  who  held  that  the  Emperor  was  not  lord  of 
the  world  in  so  far  as  that  implies  a  universal  ownership1. 
Thus,  Bartolus  continues,  "  ratione  protectionis  et  juris- 
dictionis,"  the  Emperor  is  lord  of  the  world,  because  he 
is  bound  to  defend  the  whole  world;  and  in  the  same 
way  "  ratione  protectionis  vel  administrationis  "  anyone 
is  called  "  dominus  "  of  that  which  he  protects  or  ad- 
ministers. But,  on  the  other  hand,  in  his  Commentary 
on  the  Constitution  of  the  Emperor  Henry  VII,  "Ad 
Reprimendum2,"  on  which  Bartolus  commented  near 
§  3:  "Quaerit  glossa...numquid  secundum  quod  Imperator  dicitur 
habere  dominium  universalis  jurisdictionis,  ita  et  particularium  rerum. 
Quae  quaestio  fuit  antiquitus  agitata  inter  Martinum  et  Bulgarum... 
Glossa  hie  determinat  pro  opinione  Bulgari,  quod  Imperator  non  sit 
dominus  rerum  particularium .  Ad  leges  contrarias . . .  respondetur  quod 
ratione  protectionis  et  jurisdictionis  Imperator  dicitur  dominus  mundi, 
quia  tenetur  totum  mundum  defendere  et  pro tegere.... Item  probatur 
quia  ego  video  quod  ratione  protectionis  vel  administrationis  dicitur 
quis  esse  dominus.... Et  haec  opinio  est  vera."  Cf.  also  Comment,  on 
Codex,  Tres  libri  (C.  xi.  49.  2),  p.  104,  §  2:  "  Omnia  sunt  Principis 
ad  jurisdictionem  et  universale  dominium,  sed  non  quantum  ad 
particulare." 

1  Savigny,  Geschichte  des  romischen  Rechts  im  Mittelalter,  vol.  iv. 
pp.  180-3,  records  this  controversy  and  gives  the  evidence  for  the 
well-known  story,  how  Martinus  for  his  answer  received  a  horse  from 
the  Emperor  Frederick  I,  Bulgarus  nothing — "Amisi  equum,  quia 
dixi  aequum,  quod  non  fuit  aequum." 

2  Comment,  on  Constitut.  ad  Reprimendum  (ad  verb.  Totius  Orbis), 
p.  262,  §  8:  "Imperator  recte  dicitur  dominus  mundi,  scilicet  univer- 
salis,  licet  singulares  •  sint    domini    praediorum    suorum.      Unde  a 
possessoribus  ipse  posset  vendicare  mundum,  nee  est  opus  quod  omnia 
sint  sua  quo  ad  protectionem  etc.  ut  notatur  in  prima  constitutione 
Digestorum    (in    principio),  quia  imo   sunt   (i.e.    omnia)   ipsius,   si 
universaliter  considerentur." 


24  THE   EMPIKE  [CH- 

the  end  of  his  life,  in  honour  of  Henry's  grandson, 
Charles  IV,  he  maintains  that  it  is  unnecessary  to  say 
that  the  Emperor  is  lord  of  everything  "  quo  ad  protec- 
tionem,"  since  everything  is  really  his,  taking  everything 
as  a  part  of  the  "  universitas  "  of  the  world,  not  in  its 
particular  aspect,  as  a  separate  part  of  this  whole.  Thus 
the  Emperor  is  "  rex  universalis,"  lord  of  the  world,  but 
not  proprietor  of  everything  in  the  world.  And  therefore 
as  "rex  universalis"  he  is  above  all  other  powers;  for  the 
Empire  is  of  divine  origin,  and  so  goes  by  election,  like 
ecclesiastical  offices,  while  the  "  reges  particulares  "  are 
kings  by  succession,  which  is  less  "  divine1."  Men  owe 
the  Emperor  all  loyalty  and  must  honour  him  with  all 
their  hearts;  for  he  is  "Deus  in  terris2,"  and  "respectu 
officii,"  which  must  have  no  end,  he  may  be  called 
"  sempiternus3."  To  dispute  his  power  is  sacrilege4 ;  to 

1  Tractatus  de  Reg.   Civitatis,  §  23,  p.   420:    "Omnis  rex  aut 
mediate  aut  immediate  a  Deo  eligitur,  vel  ab  electoribus  inspirante 
Deo....Et  ex  hoc  nota  quod  regimen  quod  est  per  electionem  est  magis 
divinum  quam  illud    quod  est   per  successionem.      Ideo    in   rebus 
ecclesiasticis  successio  omnino  detestatur....Et  ideo  electio  Principis, 
qui  est  rex  universalis,  fit  per  electionem  praelatorum  et  principum, 
non  autem  vadit  per  successionem.... Hoc  enim  Imperium  Deus  de 
coelo  constituit....Keges  vero  particulares  sunt  magis  ex  constitutione 
hominum."    Lucas  de  Penna,  Comment,  on  Codex,  Tres  libri  (C.  xi. 
71.  1),  p.  637,  §  1,  says  however— "  Rex  quoque  plus  juris  habet  in 
regno,  quam  Imperator  in  Imperio,  nam  ex  successione  est,  ut  vivente 
patre  filius  ejus  rex  dicitur...et  Imperator  ex  electione." 

2  Comment,   on    Constit.   ad   Reprimendum   (ad  verb.   Fidelitatis), 
p.  262,  §  5:  "Tota  fidelitas  debet  Principi.     Est  enim  Deus  in  terns 
...Et  ibi  nota  de  Deo  scriptum  est  'Diliges  Dominum  Deum  tuum  ex 
to  to  corde  tuo,  et  ex  tota  mente  tua,  et  ex  omnibus  viribus  tuis.' " 

3  Comment,  on  Codex,  Tres  libri  (C.  xi.  9.  2),  p.  79,  §  1:   "Im- 
perator respectu  officii,  quod  non  debet  habere   finem,  potest  dici 
sempiternus."     He  adds  that  it  is  wrong  "to  adore"  the  Emperor, 
unless  "pro  quadam  exhibitione  reverentiae." 

4  Tractatus  de  Imignibus  et  Armis,  §  3,  p.  341:    "De  Principis 
enim  potestate  disputare  sacrilegium  est." 


II]  THE   EMPIRE  25 

deny  that  he  is  "  dominum  et  monarcham  totius  orbis  " 
(de  jure  of  course)  is  perhaps  heresy1. 

Grotius2  was  very  severe  on  Bartolus  for  this  last 
expression,  though  not  quite  just.  It  comes  from  one 
of  the  most  interesting  and  important  passages  in 
his  works.  He  is  discussing — "  Quis  dicatur  populus 
Romanus."  Dismissing  the  opinion  of  the  Gloss, 
which  divides  mankind  into  five  "genera  gentium," 
he  maintains  that  there  are  but  two  "  principaliter," 
the  Populus  Romanus  and  the  Populi  extranei.  As  to 
the  Populus  Romanus,  the  Gloss,  he  continues,  says  that 
it  stands  for  the  whole  Roman  Empire  (accipitur  pro 
toto  Imperio  Romano).  "  Sed  diceres  tu,  cum  modicae 
gentes  sint,  qui  Romano  Imperio  obediant,  ergo  videtur 
quod  sit  parvus  populus  Romanus."  To  this  Bartolus 
answers  by  an  analysis  of  the  various  "gentes"  who  made 
up  the  western  European  world  of  his  time.  "  Quaedam 
sunt  gentes  quae  Imperio  Romano  obediunt,  et  istae  sine 
dubio  sunt  de  populo  Romano."  Then  there  are  those 

1  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLIX.  15.  24),  p.  637. 

2  Grotius  refers  to  the  "stultum  titulum "—"  quern  quidam  tri- 
buunt  Imperatori  Komano,   quasi    ipse    etiam    in    remotissimos    et 
incognitos  hactenus  populos  jus  imperandi  habeat,  nisi,  Jurisconsul- 
torum  diu  princeps  habitus,  Bartolus  haereticum  ausus  esset  pronun- 
ciare  qui  id  negat."     Vide  De  Jure  Belli  ac  Pads,  p.  348.     Bodin 
pretends  that  this  is  Bartolus'  return  to  the  Emperor  Charles  IV,  "  qui 
annoblist  Bartol,  et  luy  donna  le  lyon  de  Guelles  en  champ  d'argent, 
et  puissance  d'ottroyer  benefice  d'aage,  pour  luy  et  pour  les  siens  qui 
feroient  profession  d'enseigner  le  droit:  et  en  recognoissance  d'un  tel 
bienfait,  Bartol  a  laisse  par  escrit,  que  tous  ceux-la  sont  heretiques, 
qui  ne  croient  pas  que  1'Empereur  soit  seigneur  de  tout  le  monde,  ce 
qui    ne    merite   point   de   response   etc."     (Vide   De   la  Republique, 
pp.  138-9.)     There  is  no  need  to  give  this  explanation — nor  is  there 
any  evidence  to   show  that  Bartolus  wrote  this  passage  after  his 
embassy  to  Charles  IV,  which  in  fact  took  place  not  two  years  before 
his  death. 


26  THE   EMPIRE 

"gentes"  who  do  not  obey  in  everything,  but  do  in  certain 
points— "ut  quia  vivunt  secundum  legem  populi  Romani, 
et  Imperatorem  Romanorum  esse  dominum  omnium  fa- 
tentur,  ut  sunt  civitates  Tusciae,  Lombardiae  et  similes; 
et  isti  etiam  sunt  de  populo  Romano.  Nam  cum  populus 
Romanus  in  eis  exerceat  jurisdictionem  in  aliquo  articulo, 
totam  jurisdictionem  retinet."  Then  there  are  those 
who,  like  the  Venetians,  obey  the  Emperor  in  no  point 

«  nec  istis  legibus,"  claiming  exemption  by  concession 

of  the  Emperor,  "  et  isti  similiter  sunt  de  populo 
Romano,"  from  the  very  fact  that  they  hold  their 
exemption  on  the  basis  of  concession  from  the  Roman 
Empire.  Then  there  are  those  who  do  not  obey  the 
Emperor,  "  tamen  asserunt  se  habere  libertatem  ab  ipso 
ex  contractu  aliquo,  ut  provinciae,  quae  tenentur  ab 
Ecclesia  Romana,  quae  fuerunt  donatae  ab  Imperatore 
Constantino  Ecclesiae  Romanae :  posito  pro  constanti, 
quod  donatio  tenuerit,  quodque  revocari  non  possit, 
adhuc  dico  istos  de  populo  Romano  esse.  Nam  Ecclesia 
Romana  exercet  illas  in  terras  jurisdictionem  quae  erat 
Imperio  Romano  et  istud  fatetur ;  non  ergo  desinunt 
esse  de  populo  Romano,  sed  administratio  istarum 
provinciarum  est  alteri  concessa.  Vide  in  simili,  juris- 
dictio  in  clericos  est  concessa  totaliter  Papae ;  desinuntne 
propter  hoc  clerici  esse  cives  Romani  ?  Certe  non,  quod 
apparet,  quia  retinetur  jus  succedendi."  Finally  the 
kings  of  France,  England,  etc.,  and  presumably  their 
subjects  too,  are  also  a  part  of  the  Roman  people — "  si 
enim  fatentur  ipsum  (i.e.  the  Emperor)  esse  dominum 
universalem,  licet  ab  illo  universali  dominio  se  subtra- 
hant  ex  privilegio  vel  ex  prescriptione  vel  consimili, 
non  desinunt  esse  cives  Romani  per  ea  quae  dicta  sunt. 


II]  THE    EMPIRE  27 

Et  secundum  hoc  quasi  omnes  gentes  qui  obediunt 
sanctae  matri  Ecclesiae  sunt  de  populo  Romano.  Et 
forte,"  he  continues,  "  si  quis  diceret  dominum  Impera- 
torem  non  esse  dominum  et  monarcham  totius  orbis, 
esset  haereticus.  Quia  diceret  contra  determination  em 
Ecclesiae,  contra  textum  S.  Evangelii,  dum  dicit, '  Exivit 
edictum  a  Caesare  Augusto,  ut  describeret  universus 
orbis,'  ut  habes  Luc.  II.  Ita  etiam  recognovit  Christus 
Imperatorem  ut  dominum." 

The  whole  passage  is  very  significant  and  we  shall 
return  to  it  more  than  once  in  the  following  pages. 
What  for  the  moment  we  have  to  observe  is  that 
Bartolus  does  not  make  independence  of  the. Emperor 
mean  exclusion  from  the  Populus  Romanus  or  "  totum 
Imperium  Romanum."  That  independence,  if  it  is 
de  jure,  must  be,  he  argues,  by  concession  from  the 
Emperor ;  and,  therefore,  those  who  base  their  indepen- 
dence on  such  concession,  must  recognise  the  Emperor 
as  de  jure  "  dominus  omnium,"  more  especially  since 
not  to  do  so  is  contrary  to  the  teaching  of  the  Church, 
the  Gospel  and  the  example  of  Christ.  This  may  be 
a  not  very  solid  line  of  argument — but  the  conclusion 
is  of  the  greatest  importance.  It  means  that  the  con- 
ception of  all  western  Europe  as  forming  one  community 
can  survive,  even  when  the  local  independence  of  the 
units,  who  compose  it,  is  allowed:  we  shall  return  to 
this  point  again  later.  We  see,  to  begin  with,  that  the 
Populus  Romanus  is  not  a  "  small  people." 

But  Bartolus  has  not,  as  Grotius  accuses  him  of 
doing,  made  any  claim  for  the  Emperor  "in  remotis- 
simos  et  incognitos  hactenus  populos."  The  truth  is 
that  he  does  not  mention  any  very  remote  and  unknown 


28  THE    EMPIRE  [CH. 

peoples,  whether  within  the  Populus  Romanus  or  the 
Populi  extranei.  He  maintains  that  within  the  Populus 
Romanus  are  all  who  obey  the  Roman  Church,  and  he 
shows  that  all  these,  as  obedient  to  the  Roman  Church 
and  as  independent  by  concession  from  the  Emperor, 
must  recognise  the  Emperor  as  de  jure  "  dominus 
omnium."  The  Populi  extranei  are  those  who  do  not 
recognise  the  Emperor  as  de  jure  lord  of  the  world— 
"  Graeci,  qui  non  credunt  Imperatorem  Romanum  esse 
dominum  universalem,  sed  dicunt  Imperatorem  Con- 
stantinopolitanum  esse  dominum  totius  mundi.  Item 
Tartari,  qui  dicunt  Grantchan  esse  dominum  uni- 
versalem. Et  Saraceni,  qui  dicunt  dominum  eorum 
esse  dominum  totius  orbis.  Idem  in  Judaeis."  All 
these,  we  must  note,  were  actually  outside  the  western 
Church.  Bartolus  may  have  thought  that  they  ought 
to  recognise  the  western  Emperor  as  lord  of  the  world 
— but  he  does  not  say  so.  What  he  does  do  is  to  make 
that  recognition  the  test  of  inclusion  within  the  Populus 
Romanus,  which,  he  argues,  is  therefore  conterminous 
with  western  Christendom.  The  line  of  argument,  we 
may  repeat,  is  weak  perhaps:  but  the  conclusion  is  clear 
and  very  important. 

But  if  the  Emperor  was  still  lord  of  the  Roman  people, 
it  could  not  be  denied  that  he  was  a  German,  seldom  in 
Italy  and  powerless  in  Rome  itself.  Bartolus'  patron, 
the  Emperor  Charles  IV,  had  come  into  Italy  to,  be 
crowned,  under  a  solemn  promise  to  the  Pope  to  stay 

no  more  than  one  night  in  his  capital  city  of  Rome 

a  promise  Charles  had  religiously  kept.  That  the  Roman 
Emperor  was  in  fact  a  stranger  had  to  be  both  recog- 
nised and  accounted  for. 


Il]  THE   EMPIRE  29 

"  Imperator  est  modo  in  Alemannia  et  est  de  jure 
superior1/'  says  Bartolus,  discussing  reprisals.  Later 
we  shall  see  him  recognise  the  German  princes  as  the 
Electors  to  the  Roman  Empire ;  and  in  his  Tractatus 
de  Regimine  Civitatis2  he  discusses  how  it  is  that  the 
Empire  has  been  translated  to  the  Germans.  All 
Christians  are  our  brothers,  he  suggests.  The  Empire 
could  not  have  been  transferred  to  a  Saracen  or  other 
infidel ;  for  this  reason  examination  is  necessary  before 
the  Emperor's  coronation.  This  explanation  is  fully 
in  accord  with  his  former  definition  of  the  Populus 
Romanus.  Rome  is  the  "  communis  patria3,"  in  which 
national  distinctions  disappear.  Yet  this  explanation 

1  Tractatns   Repraesalium,   Quaestio   n.   5,   §   11,   p.   331.     The 
phrase    "Imperator   venit    in    Italiam,"   used  more   than   once   by 
Bartolus,   shows    how  men    realise    that  the  Emperor  is  away   in 
Germany,  and  that  it  is  exceptional  for  him  to  come  to  Italy.     Vide 
e.g.  Comment,  on  Codex,  Part  n.  (C.  vi.  25.  6),  p.  56;  or  on  Codex, 
Tres  libri  (C.  x.  1.  4),  p.   7,  §  1:    "Imperator  venit  in  Italiam  et 
reperit  quandam  civitatem,  quae  erat  contra  Imperium  etc." 

2  Tractatns  de  Regimine  Civitatis,  §§  24-5,  p.  420:    "Nota  quod 
periculosum  est  habere  regem  alterius  gentis.     Sed  dices  ergo:   quo- 
modo  per  Ecclesiam  translatum  est  Imperium  in  Germanos,  id  est 
Teutonicos...Kespondeo,  omnes  Christiani  dicuntur  fratres  nostri...In 
hominem  vero  Saracenum,  paganum  vel  infidelem  non  possit  trans- 
ferri,  et  ideo  sequitur  'Nee  poteris  alterius  gentis  Kegem  habere.'     Et 
propter  hoc  necessaria  est  examinatio  ejus  qui  coronandus  est  Impera- 
tor.    Vel  expone  ilia  verba  secundum  Augustinum...'non  poteris'  i.e. 
'non  debebis  per  regem,'  cum  alterius  regnum  non  ita  fideliter  con- 
servatur.     Et  ideo  postquam  etc."  as  above. 

:}  Vide  Comment,  on  Dig.  Nov.  Part  n.  (D.  L.  1.  33),  p.  653: 
"Quaero,  ad  quid  dicitur  communis  patria  Eoma?  Eespondeo,  quia 
quilibet  potest  ibi  conveniri...Praeterea  quilibet  de  Imperio  Eomano 
est  ibi  civis."  Cf.  Comment,  on  Infort.  Part  i.  (D.  xxvii.  1.  7, 
§  Komae),  p.  199:  "Dicit  Jac.  de  Arena  quod  ille  qui  est  in  curia 
Eomana  debet  habere  fructus  sui  beneficii  prout  si  esset  in  patria  sua, 
quia  Eoma  est  communis  patria." 


30  THE    EMPIRE  [CH. 

does  not  altogether  satisfy  Bartolus.  He,  is  after  all  an 
Italian,  and  we  shall  see  in  later  pages  of  this  essay 
how  closely,  in  the  fourteenth  century,  claims  to  the 
Empire  were  connected  with  the  growing  spirit  of 
nationalism,  alike  in  Italy,  France  and  Germany. 
Bartolus,  no  less  than  Dante  or  Petrarch,  must  some- 
times think  of  the  Empire  as  rightly  and  historically 
an  Italian  possession.  Within  the  Populus  Romanus 
we  have  seen  many  "  gentes,"  and  he  owns  that  the 
"  Imperium  Romanum  postquam  fuit  ab  Italicis  se- 
paratum semper  decrevit  in  oculis  nostris  ;  hoc  tamen," 
he  adds,  "  absque  Dei  judicio  occulto  factum  non  fuit." 

Beside  the  fact  that  the  Emperor  was  away  in 
Germany,  the  medieval  civilian  had  to  consider  another 
point  of  contrast  between  the  Roman  Empire  of  his 
own  day  and  the  old  Empire  of  his  Law  Books.  The 
medieval  Emperor  only  received  his  title  after  the 
Imperial  coronation  at  Rome,;  before  that  he  was  Rex 
Romanorum1.  The  title  came  into  use  in  the  eleventh 
century;  up  till  then  the  uncrowned  Emperors  had 
styled  themselves  merely  kings  of  the  Franks,  Saxons, 
etc.2  The  question  which  the  medieval  lawyer  had 
especially  to  consider  was,  whether  the  Rex  Romanorum 
could  exercise  Imperial  authority  and  use  Imperial 
rights  before  his  coronation,  or  whether  these  also 

1  Vide  Comment,  on  Dig.  Vet.  Part  i.  (Prima  Constitutio),  p.  8, 
§  15:    "Quaero  quando  quis  dicatur.Imperator  esse.     Et  dico  quod 
ante  coronationem  non  est  Imperator  sed  Hex  Eomanorum...Sed  post 
coronationem  dicitur  Imperator  sive  Princeps...nam  Princeps  et  Im- 
perator sunt  idem."     Cf.  Comment,  on  Infort.  Part  i.  (D.  xxix.  1.  43), 
p.  448,  §§  1-2:  "Habes  quod  ex  sola  electione  non  est  quis  miles  nee 
aliquam  dignitatem  consequitur  ex  electione  sola... Item  nee  Imperator 
efficitur  Imperator,  nisi  suscepta  infula." 

2  Vide  Bryce,  Holy  Roman  Empire,  Note  C,  pp.  530-1. 


II]  THE   EMPIRE  31 

depended,  like  the  Imperial  title,  on  the  coronation  at 
Rome.  Bartolus  maintains  decidedly  that  he  can.  The 
Rex  Romanorum  is  "generalis  dominus1."  He  points 
to  the  Constitution  "  Ad  Reprimendum,"  on  which  he 
is  commenting,  and  which  deals  with  High  Treason, 
whether  against  the  Imperator  or  Rex  Romanorum. 
Moreover  he  had  himself  seen  letters  of  Charles  IV — 
"  quae  literae  sunt  Perusii  sub  bulla  aurea  " — quashing 
"  omnes  et  singulas  sententias  processus  et  condemna- 
tiones,  mulctas  et  sorbanitationes  per  quoscumque  divos 
Romanorum  Imperatores  et  Reges...\a,t&s  seu  promul- 
gatas,"  and  other  letters  granting  various  privileges, 
"tamdiu,  quamdiu  per  successorem  nostrum,  Regem 
Romanorum  seu  Imperatorem,  non  fuerit  revocatum." 
Bartolus  points  to  these  as  a  decisive  answer  to  the 

1  Vide  his  Comment,  on  the  Constitutio  ad  Reprimendum  (ad  verb. 
Keges),  p.  264:  "Nota  diligenter  quod  ante  coronationem  habetur 
(i.e.  the  rex  Eomanorum)  generalis  dominus.  Si  enim  esset  privata 
persona,  contra  eum  facientes  non  inciderent  in  legem  Juliam  Majes- 
tatis,  ut  hie  patet.  Et  sic  potest  administrare  et  dare  privilegia..,et 
sic  cessat  disputatio  Jac.  de  Arena  quam  posuit  Cynus  in  lege  Bene  a 
Zenone... Potest  etiam  facere  condemnationes :  ut  patet  ex  literis 
domini  Caroli  Imperatoris,  concessis  communi  Perusii,  cum  ego  tune 
apud  ipsum  legatione  fungerer,  ubi  inter  cetera  sic  ait :  '  Omnes  et 
singulas  sententias  processus  et  condemnationes,  mulctas  et  sorbanita- 
tiones per  quoscumque  divos  Romanorum  Imperatores  et  Reges, 
praedecessores  nostros,  contra  vos  et  singulas  civitates  et  communis 
Perusii  personas  latas  seu  promulgatas  tollimus  et  relaxamus.'  Potest 
etiam  ante  coronationem  concessiones  aliorum  Imperatorum  tollere  et 
revocare,  quod  patet  ex  aliis  literis  ejusdem  Imperatoris,  ubi  inter 
cetera  concessit  quaedam,  et  addit,  'tamdiu  quamdiu  per  successorem 
nostrum,  Regem  Romanorum  seu  Imperatorem,  non  fuerit  revocatum,' 
quae  literae  sunt  Perusii  sub  bulla  aurea.  Et  praedicta  vera,  post- 
quam  persona  est  electa  in  Romanorum  regem  et  per  sedem  Apostoli- 
cam  fuerit  approbata.  Aliter  autem  videtur  tenere  Glossa  in  c.  i.  de 
jurejur.  in  Clementinis,  quod  etiam  electi  in  disoordia  possunt  adminis- 
trare." 


32  THE   EMPIRE  [CH. 

question.  In  them  Rex  and  Imperator  Romanorum 
are  put  on  the  same  level,  and  they  are  of  course 
especially  authoritative  as  the  words  of  Emperors  them- 
selves. Discussion  is  unnecessary — "  sic  cessat  disputatio 
Jac.  de  Arena  quam  posuit  Cynus  in  lege  Bene  a 
Zenone."  In  his  own  Commentary  on  this  law1 
Bartolus  refers  again  to  Cino's  reproduction  of  Jacobus 
de  Arena's  solution  of  the  question,  as  also  to  Durandus 
(Speculator),  but  here  too  he  himself  seems  to  think 
the  discussion  unnecessary;  he  adds  nothing  of  his  own, 
except  that  "de  hoc  non  est  nostrum  disputare,  sed 
quod  Imperator  velit,  dicit." 

But  though   Bartolus  says    "cessat  disputatio  Ja- 
cobi  de  Arena2,"  it  is  well  worth  turning  to  this  very 

1  Comment,  on  Codex,  Part  n.  (C.  vn.  37.  3),  p.  168.     Cf.  Comment, 
on  Authenticum  (Collatio  vi.  Constitutio  quae  de  dignitatibus,  §  Quid- 
quid),  p.  92,  §  8,  where  he  again  refers  to  the  disputatio  of  Jac.  de 
Arena,  "quam  disputationem  refert  Cynus,"  and  refers  to  his  own 
commentary  on  C.  xn.  3.  5  (p.  123),  where  however  he  does  not 
touch  the  real  question  at  issue  (i.e.  the  rights  of  the  Rex  Roma- 
norum after  election),  but  says  generally :  " Nota...quod  videatur  posse 
dici,  quod  ex  sola  electione  jus  non  tribuatur,  sed  tune  cum  electionis 
literae  praesentantur,"  which  is  hardly  very  pertinent. 

2  Hugelmann,  Die  deutsche  Konigswdhl  im  Corpus  Juris  Canonici, 
does  not  identify  the  "Jaco.  de  Are.,"  mentioned  both  by  Bartolus 
and  by  Johannes  Andreae  (in  the  Gloss  to  the  Clementine  Decretals) 
as  the  author  of  the  Disputatio,  which  Cino  "ad  literam  posuit." 
Vide  p.  123,  n.  1:  "Wer  mit  der  Abkiirzung  Jaco.  de  Are.  gemeint 
ist,  vermochte  ich  bisher  nicht  mit   Sicherheit  festzustellen.     Ich 
vermute  darunter  Jacobus  de  Ardizone."     In  the  only  edition  of 
Jacobus  de  Arena,  which  I  have  seen,  the  Disputatio  is  not  to  be 
found;    I  have  not  succeeded  in  seeing  any  edition  of  Jacobus  de 
Ardizone.     But  in  the  edition  of  Cino,  which  I  have  used  (Frankfort, 
1597),  the  author  of  the  Disputatio  is  given  as  "Jacobus  de  Arena," 
in  full.     In  the  editions  of  Bartolus  we  often  find  "Jac.'de  Are.," 
"Jac.  de  Aret.,"  "Jac.  de  Aren."  each  within  a  few  lines  of  the 
others.     Failing  decisive  evidence  to  the  contrary,  it  seems  more 
natural  to  refer  the  Disputatio  to  the  more  famous  Jacobus  de  Arena. 


II]  THE   EMPIRE  33 

interesting  discussion,  as  reproduced  "de  verbo  ad 
verbum"  by  Cino1.  After  a  long  argument  it  is  decided 
that  the  Rex  Romanorum  obtains  "potestatem  et  juris- 
dictionem  imperialem"  immediately  after  election,  and  is 
not  dependent  for  them  on  the  Imperial  coronation.  The 
coronation  has  spiritual  effects — "  dona  spiritualia,  sive 
dona  Spiritus  Sancti  et  gratiam  consequitur  Imperator." 
Jacobus  de  Arena  and  Cino  thus  answer  a  difficulty 
which  would  naturally  suggest  itself — if  the  Rex 
Romanorum  has  all  tne  Imperial  rights  and  juris-  / 
diction  before  his  coronation,  is  the  coronation  itself  ^ 
necessary,  or  at  any  rate  does  it  do  more  than  give 
a  mere  change  of  title  ?  Such  an  idea,  said  Albericus 
de  Rosate2,  "nemo  sanae  mentis  approbabit."  But 
Bartolus  leaves  the  point  unquestioned.  He  notes  that 
the  Emperor  is  not  Emperor  "  nisi  suscepta  infula,"  but 
at  the  same  time,  as  regards  the  exercise  of  Imperial 
authority,  he  makes  the  Rex  Romanorum  in  no  way 
inferior  to  the  crowned  Imperator. 

We  may  notice  one  other  point  of  interest.  Bartolus 
makes  the  Papal  approbation  a  necessary  preliminary  to 
the  exercise  of  Imperial  authority  by  the  Rex  Roma- 
norum— the  mere  election  is  not  enough.  Here  he 
differs  not  only,  as  we  should  expect,  from  staunch 
Imperialists  like  Cino,  but  it  would  seem  even  from 
some  of  the  canonists.  Bartolus  himself  has  noted  that 
the  Gloss  to  the  Clementine  Decretals  maintains  that 
"  etiam  electi  in  discordia  possunt  administrare."  Else- 
where he  has  referred  to  Durandus,  who  says  that  the 
Emperor  "  ex  sola  principum  electione  etiam  ante 

1  Comment,  an  Codex,  Part  n.  (C.  vn.  37.  3),  p.  446. 

2  Comment,  on  Codex,  Part  i.  (C.  i.  1.  1),  p.  108  verso. 

w.  3 


34  THE    EMPIRE  [CH. 

confirmationem  aliquam  verus  est  Irnperator  et  con- 

sequitur  jus   administrandi1."      Bartolus   clearly   does 

maintain  the  necessity  of  Papal  approbation — we  shall 

find  Bartolus  a  very  shy  thinker  wherever  the  Papacy 

is  concerned.     The  question  of  Papal  approbation  was 

one  of  great  importance.     The  necessity  of  going  to 

Rome  itself  for  the  Imperial  coronation  made  it  often 

impossible  for  the  coronation  to  follow  immediately,  or 

even  soon,  after  the  election  in  Germany.     To  make 

the  exercise  of  Imperial  authority  dependent  upon  the 

coronation  was,  at   least  for  everyone  but  the    Pope, 

highly  undesirable.   Later  the  title  "Imperator  electus" 

superseded    that    of   "  rex    Romanorum,"   and    as,   in 

ordinary  usage,  the  "  electus "  was  left  out,  those  who 

were  never  crowned  at  Rome  received  the  full  Imperial 

titles.     Thus  the  really   important   question  was   the 

necessity  of  Papal  approbation.     In  Bartolus'  own  day 

its  importance  is  illustrated  by  the  history  of  the  Diet 

of  Rense.     Bartolus,  however,  does  no  more  than  affirm 

its  necessity,  referring  us  at  the  same  time  to  contrary 

opinions.     He  himself  offers  no  discussion. 

We  have  seen  above  that  Bartolus  contrasts  the 
elective  "  rex  universalis  "  with  the  hereditary  "  reges 
particulars."  Election  is  a  more  divine  method  of 

1  Speculum  Juris,  n.  Partic.  i.,  De  Eescript.  Praesentat.,  §  Eatione, 
p.  71,  §  18:  "Et  sunt  hie  argumenta  quod  donatio  facta  Ecclesiae 
Komanae  per  dominum  Kodolphum  regem  Alemaniae,  nondum  coro- 
natum  in  Imperatorem,  non  teneat....Arguitur  tamen  quod  valeat 
rescriptum  et  praedicta  donatio.... Imperator  enim  ex  sola  principum 
electione  etiam  ante  confirmationem  aliquam  verus  est  Imperator  et 
consequitur  jus  administrandi."  However  he  goes  on  to  maintain 
that  the  donation  was  really  a  restitution  of  lands  which  rightly 
belonged  to  the  Church  and  had  been  held  back  by  "principes 
tyranni." 


II]  THE   EMPIRE  35 

appointment  than  succession,  and  therefore  the  Princeps 
is  elected  by  the  princes  and  prelates  "  inspirante  Deo." 
The  conception  of  the  Imperium  as  "  a  Deo  "  went  back 
to  the  Christianised  Empire1,  but  it  never  excluded  the 
conception  of  the  Imperium  as  a  delegation  from  the 
people,  and  two  famous  texts  invited  the  medieval 
lawyer  to  consider  the  people  as  the  source  of  Imperial 
authority.  But  if  the  Law  Books  pronounced  the  Empire 
a  delegation,  by  means  of  the  Lex  Regia,  from  the 
Roman  people,  none  the  less  the  electors  to  the  Empire 
were  now  the  German  princes.  So  far  indeed  as  the 
"  populus  Romanus  "  stood  for  the  "  whole  Roman 
Empire,"  the  electors  might  be  considered  as  represent- 
ing the  Populus  Romanus2.  But  we  have  to  remember 
that  the  medieval  lawyers  applied  the  term  "  populus 
Romanus "  not  only  to  the  whole  Empire,  but  also,  in 
a  narrow  sense,  to  the  populace  of  the  medieval  city  of 
Rome.  Twice  in  medieval  history  that  populace  had 
attempted  to  play  the  role.  The  Revival  of  Roman 
Law  had  not  only  served  for  the  foundations  of  the 
Hohenstaufen  Empire,  but  had  recalled  to  men's  minds 
that,  before  the  old  Empire  had  existed,  there  had  been 
a  Populus  Romanus,  itself  sovereign  over  the  world,  and 
that  the  very  sovereignty  of  the  Emperor  had  been  in 
origin  a  delegation  from  this  people.  It  was  with  this 
narrow  "  populus "  in  mind  that  the  lawyers,  for  the 
most  part,  discussed  the  relations  of  the  Populus 
Romanus  to  the  Emperor. 

1  Vide  Gierke,  Deutsche  Genossenschaftsrecht,  vol.  in.  p.  128. 

2  The  Pope  too,  so  far  as  he  was  allowed  to  have  instituted  the 
Electors,  might  be  considered  a  delegate  of  the  People.     Vide  Gierke, 
Pol.   Theories  of  the  Middle  Age,  notes   155-7,   pp.   149-50,   more 
especially  for  the  references  to  Occam. 

3—2 


36  THE   EMPIRE  [CH. 

The  lawyers  on  this  topic  discussed  two  questions — 
first,  whether  the  delegation  of  Imperial  power  by  the 
Lex  Regia  was  a  revocable  grant,  and  secondly,  whether, 
after  the  act  of  delegation,  any  power  still  remained 
1  with  the  Populus,  in  particular  the  power  of  making 
laws;  at  the  same  time  they  considered  whether  the 
Senate  had  still  authority  to  pass  Senatusconsulta. 

Bartolus  discusses  and  decides  the  two  questions 
together.  The  Emperor  alone  can  make  and  interpret 
law.  Originally,  even  after  the  delegation  of  the  Im- 
perium  to  the  Emperor,  the  Populus  retained  the  power 
of  making  law,  because  they  still  retained  the  power  of 
election  and  deprivation.  But  nowadays  "omnis  potestas 
Imperii  est  abdicata  ab  eis."  The  German  princes  have 
the  right  of  election,  the  Pope  alone  the  right  of  depri- 
vation. The  people  retains  "  nihil  de  Imperio,"  and  so^ 
cannot  retain  their  legislative  power.  But  the  passage 
is  well  worth  quoting  in  full.  "  Nota,"  says  Bartolus, 
"  quod  solus  Imperator  potest  legem  condere  et  inter- 
pretari....0pponitur  et  videtur  quod  imo  et  alius 
quam  Imperator  potest  legem  condere,  scilicet  populus 
Romanus. . . .  Item  senatus . . .  Solutio :  dicunt  quidam, 
Imperator  solus  potest,  et  nullus  alius  solus.  Alii 
dicunt,  quod  illi  faciunt  Principis  auctoritate,  et  hoc 
magis  placet.  Sed  an  hodie  populus  Romanus  et 
senatus  possit  (sic)  facere  legem?  Gl.  dubitat  hie  et 
in  lege  '  Non  ambigitur.'  Breviter  dicebam  ibi1,  ego 

1  Comment,  on  Dig.  Vet.  Part  i.  (D.  i.  3.  8),  p.  53.  Bartolus  is  not 
quite  so  decided  here.  ' '  Videtur  quod  soli  Principi  sit  licitum  condere 
legem.... Timore  hujus  contrarii  fuit  revocatum  in  dubium,  utrum 
hodie  isti  possint  condere  legem.  Quidam  (i.e.  say)  quod  sic...Quia 
verum  est  quod  solus  Princeps  potest,  non  tamen  alius  solus,  sed  simul. 
Unde  senatores  possunt  condere  legem  et  populus  Romanus  idem 


II]  THE   EMPIRE  37 

credo  quod  populus  Romanus  et  senatus  non  possunt 
facere  legem.  Ratio  est:  postquam  populus  Romanus 
transtulit  potestatem  in  Principem,  adhuc  apud  eos 
remansit  potestas  eligendi  et  privandi...et  illo  tempore 
poterat  populus  Romanus  condere  legem,  et  etiam 
senatus:  sed  hodie  omnis  potestas  Imperii  est  abdicata 
ab  eis.  Jus  enim  eligendi  habent  principes  de  Aleman-'  / 
nia,  et  jus  privandi  habet  solus  Papa.... Cum  enim  nihil 
sit  quod  de  Imperio  remanserit  eis,  non  video  quo 
possint  legem  condere,  quod  nota.  Et  hanc  rationem 
nullus  facit1." 

We  may  next  turn  to  a  passage  from  the  Com- 
mentary on  the  Code2.  Bartolus  is  considering  various 
difficulties,  and  the  solution  of  these  difficulties,  in  this 
particular  law,  C.  vin.  52.  2 — "Secundum  Placentinum 
(quod)  dicta  lex  '  De  quibus '  (D.  I.  3.  32)  loquitur  secun- 
dum  tempora  antiqua,  secundum  quae  populus  Romanus 
poterat  facere  legem  generalem;  ergo  et  consuetudinem 
generalem  contrariam  legi,  et  illam  contrariam  legem 

poterit,  cum  populus  Eomanus  posset  Principis  potestatem  revocare. 
Sed  tamen  hoc  glossa  non  tenet,  sed  tenet  quod  populus  non  posset 
hodie.  Unde  Gulielmus  (de  Cunio)  bene  dicit,  quod  est  differentia 
inter  legem  et  senatusconsultum.  Nam  legem  nullus  potest  facere 
nisi  Princeps,  sed  senatusconsultum  potuerunt  facere  senatores"  — 
(he  does  not  say  "possunt").  He  then  goes  on  to  discuss  whether 
Populus  Komanus  "possit  revocare  potestatem  Imperatoris,"  and 
gives  Gulielmus  de  Cunio's  arguments  to  prove  that  they  can — "imo 
dicit  plus,  quod  possit  eum  degradare";  he  does  not  decide  himself, 
but  goes  off  to  ask — "Quid  si  coram  senatoribus  est  impetrata  venia 
aetatis,  an  ipsi  hoc  possunt?" 

1  Comment,  on  Codex,  Part  i.  (C.  i.  14.  11),  p.  92,  §§  2-4. 

"  Comment,  on  Codex,  Part  n.  (C.  vin.  53.  2),  pp.  324  and  325.  This 
law  runs:  "  Consuetudinis  ususque  longaevi  non  vilis  auctoritas  est, 
verum  non  usque  adeo  sui  valitura  momento  ut  aut  rationem  vincat 
aut  legem," 


38 


THE   EMPIRE  [CH. 


tollentem.  Haec  lex  loquitur  secundum  tempora 
moderna,  secundum  quae  populus  Romanus  non  potest 
legem  generalem  facere  :  ergo  nee  consuetudinem  con- 
trariam  illam  vincentem. . . .  Quod  non  videtur  bene 
dictum,  quia  secundum  hoc  dictae  legi  <De  quibus' 
esset  derogatum  seu  abrogatum...quod  in  casu  dubii 
dicere  non  debemus....Praeterea  Gulielmus  de  Cunio  in 
dicta  L.  'De  quibus'  illud  impugnat  et  aliter  fatetur, 
quod  in  Principem  translata  est  potestas  condendi  legem 
expressam  et  scriptam,  non  autem  consuetudinariam, 
quae  in  eum  non  potuit  transferri,  cum  procedat  ex 
tacito  consensu....Et  sic  dicit  hodie  populum  Romanum 
posse  facere  consuetudinem  generalem,  cum  potestas 
ipsius  legis  consuetudinariae  inducendae  non  sit  trans- 
lata in  Principem ;  et  secundum  hoc  dicta  lex  '  De 
quibus'  hodie  remanet  in  suo  statu,  quod  placet  Mar. 
Suli.  (Martinus  Sulimanus),  ubi  dicit  hodie  populum 
Romanum  legem  posse  facere  generalem  scriptam  et 
expressam  :  de  quo  hie  non  insisto,  quoniam  plene  est 
tractatum  in  lege  finali,  supra,  '  De  legibus  et  con- 
stitut.'"  (C.  i.  4.  14). 

We  see  here  that  while  Placentin  and  Gulielmus  de 
Cunio  both  decide  that  as  regards  laws — "  scriptae  et 
expressae" — the  Roman  people  have  no  power  left  them, 
Martinus  Sulimanus  clings  to  the  opinion  that  they 
still  have  that  power.  Here  again  Bartolus  does  not 
decide,  but  refers  us  back  to  the  passage,  which  we  have 
quoted  above,  from  the  Commentary  on  C.  I.  14.  12, 
where  he  maintained  that  the  Roman  people  no  longer 
has  the  power  to  legislate1. 

1  Jacobus  Buttrigarius,  Bartolus'  master,  maintained  the  right  both 
of  people  and  senate,  and  his  argument  is  well  worth  quoting.     Vide 


Il]  THE    EMPIRE  39 

The  attempts  of  Arnold  of  Brescia  and  of  Rienzi 
may  warn  us  against  dismissing  these  discussions  as 
absurd  or  purely  academic.  On  the  other  hand  the 
very  failure  of  these  attempts  had  made  quite  clear  that 
the  world  would  not  accept  either  laws  or  commands 
from  the  Roman  populace.  Bartolus,  at  any  rate,  denies 
the  Populus  any  power  to  make  general  laws.  We  may 
note,  however,  that  in  the  second  passage,  quoted 
above,  the  discussion  is  not  merely  on  the  right  of 
the  Roman  people  to  make  laws — "scriptae  et  ex- 
pressae  " — but  also  on  the  right  to  give  their  customs 
the  force  of  law.  Placentin  denied  them  this  last  right, 
Gulielmus  de  Cunio  allowed  it :  Bartolus  himself  seems 
to  lend  some  support  to  the  latter  view1.  Yet  here  too 

his  Comment,  on  Codex,  Part  i.  (C.  i.  14.  2),  p.  31  verso:  "Quaere  an 
populus  Komanus  possit  hodie  legem  condere  et  Imperium  revocare. 
Kesp.  sic,  quia  quaecunque  disponuntur  per  modum  legis  possunt 
revocari  per  contrariam  legem... sed  ita  est  quod  Imperium  fuit  trans- 
latum  in  Principem  per  legem  revocatoriam ;  ergo  per  contrariam  legem 
possunt  revocare.  Praeterea,  nonne  potestatem  dedit  prius  populus 
Komanus  senatui  et  revocavit  et  dedit  Principi?...Sed  potest  dubitari 
an  senatus  hodie  possit  legem  facere :  nam  ab  eo  Imperator  potestatem 
non  habet,  sed  a  populo.  Sed  die  quod  nullus  solus  potest  facere  nisi 
Princeps,  sed  omnes  senatores  simul  qui  sunt  centum  numero  possunt 
facere.  ..Nam  tempore  quo  fuerit  facta  ilia  lex  jam  erat  translatum 
Imperium  in  Principe,  cum  post  primum  Codicem  fuerit  compilatum 
Dig.  vetus,  et  tamen  ibi  dicitur  quod  possunt  legem  facere.  Vel  die 
quod  faciant  auctoritate  Principis." 

1  We  may  continue  the  passage  above: — "Sed  contra  praedicta 
instatur.  Nam  non  debemus  sequi  quod  pop.  Kom.  fecit,  scilicet 
utendo  moribus  contra  legem,  sed  quod  facere  debeat,  scilicet  utendo 
lege  communi....Sed  gl....sic  respondet  et  bene,  videlicet  quod  non 
debemus  sequi  illud  quod  pop.  Eom.  facit  perperam  et  erronee...Sed 
bene  sequi  debemus  illud  quod  pop.  Eom.  ex  certa  scientia  fecit  con- 
suetudinem  inducendo...quia  Eoma  est  communis  patria...et  est  caput 
mundi,  et  sic  aliae  civitates  debent  sequi  ipsius  consuetudinem,  non 
autem  ipsa  aliarum  civitatum...unde  illud  vulgare:  'Eoma  caput 
mundi  tenet  orbis  frena  rotundi.'" 


40  THE  EMPIRE  [CH- 

the  discussion  was,  if  we  should  not  say  academic,  at 
least  a  question  that  in  fact  was  decided ;  and  Cmo, 
realising  this,  had  told  his  readers  that  he  did  not  care 
which  view  they  held— either  as  regards  the  power  to 
make  law  or  custom— since  he  knew  that  no  one  would 
observe  them  outside  of  Rome  itself.  "  De  his  opini- 
onibus  tene  quae  magis  tibi  placet,  quia  ego  non  euro. 
Nam  si  populus  Romanus  faceret  legem  vel  consuetu- 
dinem  de  facto,  scio  quod  non  servaretur  extra  urbem1." 
The  whole  discussion  as  to  the  power  of  the  Populus 
Romanus,  with  regard  to  law  or  custom,  was  by  this 
time  merely  a  remnant  of  an  antiquated  conception  of 
the  Populus  Romanus,  as  represented  by  the  actual 
Roman  populace.  Rome  might  always  be  the  "corn- 
munis  patria"  or  the  "caput  mundi,"  but  no  longer  in 
the  sense  that  its  populace  was,  or  represented,  the 
Populus  Romanus. 

The  Emperor,  then,  alone  can  make  general  laws. 
But  we  have  seen  that  this  Emperor,  though  de  jure 
"  dominus  omnium,"  is  de  facto  not  obeyed  by  many 
kings  and  peoples.  Is  this  same  distinction  between 
de  jure  universality  and  de  facto  disobedience  to 
hold  good  in  the  case  of  the  laws  of  this  Roman 
Emperor  ? 

If  we  turn  back  to  the  discussion  as  to  the  extent  of 
the  Populus  Romanus,  we  see  that,  though  in  this 
passage  Bartolus  refers  to  obedience  to  the  Roman  Law, 
as  a  sign  of  obedience  to  the  Empire  "  in  aliquibus  "- 
in  the  case  of  those  "qui  non  obediunt  Romano  Imperio 
in  totum,  sed  in  aliquibus  obediunt :  ut  quia  vivunt 
secundum  legem  populi  Romani,  et  Imperatorem 
1  Cino,  Comment,  on  Codex  (i.  14.  12),  p.  29. 


Il]  THE   EMPIRE  41 

Romanorum  esse  dominum  omnium  fatentur,  ut  sunt 
civitates  Tusciae,  Lombardiae  et  similes" — and  again 
refers  to  those  who,  like  the  Venetians,  "  nullo  modo 
obediunt  Principi  nee  istis  legibus," — he  does  not 
finally  introduce  this  question  of  obedience  or  disobedi- 
ence to  Roman  Law  as  the  decisive  test  of  inclusion 
within  the  Populus  Romanus1. 

With  this  we  may  compare  another  passage,  which 
follows  immediately  after  his  explanation  of  the  words 
"  Cunctos  populos  quos  etc.,"  in  the  first  law  of  the 
Code,  which  we  have  noticed  above.  He  explains  that 
these  words  may  be  either  understood  de  jure — and 
that  he  believes  was  what  the  Emperor  meant — or, 
if  the  words  are  to  be  explained  de  facto,  then  the 
relative  "  quos  "  must  be  understood  "  restrictive,"  and 
this  is  given  as  Cino's  opinion — "per  duas  rationes. 
Primo  ne  leges  sint  apud  eos  ludibrio,  quod  esse  non 
debet....Secunda  ratio  quia  non  sunt  digni  (i.e.  those 
who  do  not  obey  the  Emperor)  legum  laqueis  innodari.' 
As  a  matter  of  fact  the  reasons,  though  given  by  Cino, 
were  given  before  him  by  Petrus  de  Bella  Pertica, 
whose  words  are  well  worth  quoting.  -".Diceret  aliquis," 
he  says'2,  "quae  est  ratio  sui  dicti,  ex  quo  omnes  Imperio 
subjacent,  ad  quid  tune  dixit,  '  quos  nostrae  clementiae 
etc.?'  Breviter,  quia  sunt  de  jure  sub  Romano  Imperio, 
et  de  facto  non  reguntur,  quia  reputantur  viles,  ut  non 
sint  digni  legum  laqueis  innodari;  unde  alias  Graeci 
noluerunt  legem  Romanis  tradere,  nisi  essent  digni. 
Unde  cum  illi,  qui  non  obediunt  Imperio,  viles  repu- 
tantur, hinc  est  ut  non  sint  digni  legibus  ligari:  et  ideo 

1  Vide  above,  p.  28. 

2  Repetitiones  in  Aliquot... Cod.  Leges  (C.  i.  1.  1),  p.  8,  §  3. 


42  THE   EMPIRE  [CH. 

dixit  Imperator,  'cunctos  populos  quos  etc.'...Quaedam 
simt  personae,  quae  propter  eorum  vilitatem  legum 
laqueis  non  sunt  dignae  innodari....Item  alia  ratione 
Imperator  noluit  comprehendere  eos,  qui  non  reguntur: 
nam  licet  posset  omnes  cohercere,  tamen  quia  illi,  qui 
non  recognoscunt  Imperatorem  dominum,  non  servarent 
statutum,  ne  ex  errore  uno  sequatur  alius  error... ne 
statuta  sua  reputarentur  frustatoria  et  delusoria,  quod 
esse  non  debet,  ideo  Imperator  talibus  noluit  statutum 
suum  extendi1." 

Now  the  argument  of  Petrus  means  this,  that  obedi- 
.ence  to  the  Emperor  means  obedience  to  his  laws,  that 
those  who  do  not  obey  are  unworthy  of  his  laws,  and 
that  therefore  the  Emperor,  rather  than  let  his  laws 
be  illusory,  renounces  his  superiority  over  those  who 
do  not  obey  him.  There  could  be  no  more  curious 
or  interesting  example  of  the  difference  between  our 
conception  of  law  and  that  of  the  Middle  Ages.  To 

1  As  Bartolus  refers  here  to  Cino  it  may  be  well  to  give  Cino's 
words  as  well  as  those  of  Petrus.  Vide  Cino,  Comment,  on  Codex 
(C.  i.  1.  1),  p.  1  verso,  §§  2-3:  "...Videtur  innui  quod  Imperator  non 
regit  totum  populum  ut  colligitur  ex  litera  ista  'quos  etc.'  Sed  lex 
alibi  dicit  quod  Imperator  est  totius  mundi  dominus....Praeterea  lex 
cavetur  quod  Deus  de  coelo  constituit  Imperium....Ergo  temporaliter 
sub  Imperio  omnes  populi  omnesque  reges  sunt,  sicut  sub  Papa  sunt 
spiritualiter.  Ergo  contra.  Eespondeo,  litera  ista  '  quos '  potest  sumi 
duobus  modis.  Uno  modo  implicative....Secundo  modo  restrictive.... 
Et  secundum  hoc  respondeo  quod  Imperator  totius  mundi  de  jure 
dominus  est:  sed  de  facto  sunt  aliqui  qui  resistunt,  propter  quod 
ponit  hie  istam  literam  restrictivam,  et  hoc  facit  duobus  rationibus: 
prima,  ne  suae  leges  apud  illos  sint  illusoriae,  quod  esse  non  debet... et 
sic  ex  uno  errore  sequeretur  alius.... Secunda  ratio  est,  quia  illi,  qui 
non  recognoscunt  Imperatorem  suum  dominum,  reputantur  viles  et 
indigni  laqueis  suae  legis  innodari....Unde  alias  dicitur  quod  Graeci 
noluerunt  tradere  leges  Komanis,  nisi  essent  digni  legibus,  et  ideo 
expert!  sunt  eos  per  signa,  sicut  refert  Glossa." 


II]  THE   EMPIRE  43 

them  law  was  the  "gift  and  invention  of  God,"  and 
was  therefore  something  too  good  for  the  "vile"  and 
the  "  unworthy  " ;  while  to  us,  who  have  brought  law 
down  from  Heaven,  and  put  it,  as  a  command,  into  the 
mouth  of  a  "  sovereign,"  the  notion  of  law  as  too  good 
for  its  subjects,  the  notion  of  a  "sovereign"  voluntarily 
abdicating  his  claims  over  a  part  of  his  subjects,  "  ne 
leges  sint  apud  eos  ludibrio,"  is  almost  incomprehensible. 
To  Bartolus  also  the  view  of  Petrus  and  Cino  was  unac- 
ceptable. Not,  indeed,  because  to  him  law  was  anything 
but  the  "  gift  and  invention  of  God,"  but  simply  because 
Bartolus,  far  in  advance  of  these  other  lawyers,  per- 
ceived that  Imperial  law  could  not  be  restricted  merely 
to  those  who  remain  subject  to  the  Emperor.  "  Hoc 
non  multum  placet,"  he  says  after  having  given  the 
"  duas  rationes  "  of  Cino,  "  quia  sequeretur  quod  leges 
Imperiales  non  ligarent  Florentinos,  et  alios  qui  non 
obediunt  Principi  de  facto  " ;  and  therefore,  as  we  saw 
above,  he  prefers  the  "declarative"  interpretation  of 
the  words  "  Cunctos  populos  quos  clementiae  nostrae 
regit  temperamentum  " — i.e.  "  prout  de  jure  est." 

Bartolus  here  is  doubtless  thinking  chiefly  of  Italy, 
but  it  would  be  a  mistake  to  suppose  that  he  restricts 
the  universality  of  Roman  Law  to  Italy1.  Roman  Law 

1  In  the  case  of  Frederick  IPs  Constitution  "  Cassa  et  Irrita,"  which 
was  included  in  the  Code,  its  universal  validity  is  definitely  stated, 
though  the  "  praeceptum  de  publicando  "  was  only  in  Italy.  Vide 
Comment,  on  Codex,  Part  i.  (C.  i.  2.  12,  Authentic.  Cassa  et  Irrita), 
p.  42,  §§  1-2:  "  Dicit  hie  'per  Italiam.'  Quaeritur  utrum  ista 
constitutio  habeat  locum  alibi  quam  in  Italia.  Gl.  dicit  quod  sic, 
quia  eadem  ratio,  et  dicit  verum.  Nam  ista  constitutio  est  generalis 
in  toto  mundo,  preceptum  vero  de  publicando  non  fuit  nisi  in  Italia,  ubi 
magis  expedit."  Albericus  deEosate  is  very  clear ;  vide  his  Comment, 
on  Codex,  Part  i.  (C.  i.  12.  6),  p.  45  :  "  Katio  quare  haec  lex  in  ea 


44  THE    EMPIRE  [CH. 

is  the  Jus  Commune,  and  the  laws  of  all  other  peoples 
are  no  more  than  Statutes,  valid  only  within  their 
limited  boundaries,  and,  even  within  them,  as  else- 
where, inferior  to  the  Jus  Commune.  And  if  his  deci- 
sion that  obedience  to  Roman  Law  was  not  to  be 
dependent  upon  recognition  of  the  Roman  Emperor, 
was  important  for  the  future  of  Roman  Law  in  Italy,  it 
was  still  more  important  for  Europe  at  large.  We  have 
to  remember  that,  though  we  are  still  a  century  off  the 
"Reception,"  the  encroachment  of  Roman  Law  on  the 
national,  customary  laws  had  long  since  begun,  in 
Germany,  France  and  even  England.  At  any  rate  it 
is  certain  that,  if  Roman  Law  was  to  be  "received," 
it  would  have  to  be  divorced  completely  from  its  con- 
nection with  the  Emperor;  it  must  come  as  Common 
Law,  not  Imperial  Law,  if  it  was  to  be  accepted  by  the 
sovereign  "Princes."  To  Bartolus  Roman  Law  is  still 
essentially  the  Emperor's  law — he  had  himself  glossed 
two  constitutions  of  the  Emperor  Henry  VII  and 
placed  them  as  an  eleventh  collation  in  the  Authen- 
ticum.  But  he  has  taken  a  step  of  the  greatest 
importance  in  separating  obedience  to  the  Emperor's 
laws  from  recognition  of  the  Emperor  himself.  We 
shall  have  to  return  to  this  point  more  than  once  in 
later  pages. 

Thus  far,  then,  our  analysis  of  Bartolus'  thought 
gives  us  a  picture  of  an  Imperator  or  Rex  Roma- 
horum,  who  is  de  jure  lord  of  the  whole  world.  This  is 

(i.e.  Constantinople)  locum  non  babeat,  statim  subditur,  quia  per- 
sonaliter  est  Imperator,  qui  providere  potest.  Ex  qua  ratione  dicunt 
quidam  leges  non  servari  in  Alemannia  vel  alibi,  ubi  sit  Imperator; 
quod  non  puto  verum.  Kegulariter  autem  lex  communis  est  omnibus 
civitatibus  et  locis." 


Il]  THE    EMPIRE  45 

explained  as  meaning  that  he  is  lord  of  the  whole  world 
considered  as  one  "universitas,"  but  that  he  is  riot  lord 
of  each  particular  part,  all  of  which  together  make  up 
that  "  universitas."  Then  "the  world,"  we  found,  is 
practically  synonymous  with  western  Christendom;  all 
Christians  (i.e.  western  Christians)  are  the  Populus 
Romanus.  This  is  all  de  jure;  Bartolus  has  already 
made  it  quite  clear  that  de  facto  the  majority  of  the 
European  powers  do  not  obey  the  Emperor;  though, 
whether  they  do  or  not,  he  has  managed  to  retain  them 
within  the  Roman  people.  We  must  now,  therefore, 
turn  from  right  to  fact,  and  see  how  Bartolus  handles 
the  relations  of  this  de  jure  "dominus  omnium"  with 
those  who  de  facto  do  not  obey  him.  This  we  shall 
do  most  conveniently  under  three  heads :  (1)  the  rela- 
tions of  the  Empire  with  the  Papacy ;  (2)  the  relations 
of  the  Empire  with  the  national  kingdoms ;  (3)  the 
relations  of  the  Empire  with  the  Civitates — which 
means  the  cities  of  Lombardy,  Tuscany  and  Central 
Italy. 

We  have  still,  however,  one  more  point  to  consider, 
before  we  turn  to  the  relations  of  the  Empire  and  the 
Papacy.  So  far  we  have  seen  no  check  to  the  Imperial 
omnipotence  save  such  as  came  from  fact;  we  must 
now,  to  complete  our  view  of  the  Empire,  consider 
restrictions  of  a  different  kind.  Not  only  the  Emperor, 
but  his  own  laws — the  Jus  Commune  et  Imperiale — 
and  all  other  human  laws,  are  dependent  upon  higher 
laws — the  Jus  Divinum,  the  Jus  Naturale  and  the  Jus 
Gentium.  And  even  as  regards  his  own  laws,  though 
he  submits  to  them  "de  voluntate,"  not  "de  necessi- 
tate," it  is  still  "aequum  et  dignum"  that  he  should 


46  THE   EMPIRE  [CH. 

be  bound  by  them.  On  the  other  hand  a  compact  the 
Emperor  is  bound  to  observe,  for  a  compact  is  "de  jure 
gentium,"  and  the  Jura  Gentium  are  immutable1. 

A  question  much  discussed  by  the  medieval  civilians 
was  whether  the  Emperor  can  take  away  without  cause 
another  man's  "dominium"  in  a  thing.  Jacobus  But- 
trigarius,  says  Bartolus,  said  "simpliciter"  that  he  can. 
Bartolus,  who  denies,  as  we  have  seen  above,  that  the 
universal  lordship  of  the  Empire  interferes  with  parti- 
cular ownership,  maintains  the  contrary2.  The  Emperor 
cannot  make  a  law  containing  anything  unjust  or  dis- 
honest, for  that  is  contrary  to  the  substance  of  law, 
which  is  "sanctio  sancta,  jubens  honesta  et  prohibens 
contraria."  God  gave  him  jurisdiction,  but  not  for  the 
purpose  of  sinning  or  injustice.  The  Emperor  can  take 

1  Vide  Comment,  on  Codex,  Part  i.  (C.  1. 14.  4),  p.  87 :  "Breviter  hie 
dicitur,  aequum  et  dignum  est  Principem  et  legibus  vivere,  et  quemlibet 
habentem  imperium.     Opponitur  quia  in  veritaie  Princeps  est  solutus 
legibus. ...Solutio  :  fateor  quod  ipse  est  solutus  legibus.  Tamen  aequum 
et  dignum  est  quod  legibus  vivat.     Ita  loquitur  hie.     Unde  ipse  sub- 
mittit  se  legibus  de  voluntate,  non  de  necessitate.    Ita  debes  intelligere 
hanc  legem.     Quaere,  quid  si  Imperator  facit  pactum  cum  aliqua 
civitate,  utrum  teneatur  illud  pactum  servare?     Videtur  quod  non 
quia  est  solutus  legibus.... Con trarium  est  veritas.     Nam  pacta  sunt 
de  jure  gentium.... Jura  gentium  sunt  immutabilia." 

2  Vide  Comment,  on  Codex,  Part  i.  (C.  i.  22.  6),  p.  112,  §  2 :  "  Quod 
non  puto  verum,"  says  Bartolus.     "Nam  Princeps  non  posset  facere 
unam  legem  quae  contineret  unum  inhonestum  vel  injustum.     Nam 
est  contra  substantiam  legis.     Nam  lex  est  sanctio  sancta,  jubens 
honesta  et  prohibens  contraria.... Eodem  modo  si  vellet  auferre  mihi 
dominium  rei  mei  injuste,  non  posset,  quia  Princeps  habet  jurisdic- 
tionem   a   Deo....Deus   non   dedit  ei    jurisdictionem   peccandi,   nee 
auferendi  alienum   indebite."      Cf.   Comment,  on  Dig.   Vet.  Part  i. 
(Prima  Constitutio,   §  Omnem),  pp.   9-10,   §§  4-6.      He  also  asks, 
"Quid  de  civitate?"  and  answers,  "  Dico  idem  multo  fortius  quod 
etiam  legem  condendo  dominium  rei  mei   sine  causa  auferre  non 
potest." 


II]  THE   EMPIRE  47 

away  "quaedam  de  jure  civili,  ut  actiones,  quaedam  de 
jure  gentium,  ut  dominium,"  he  cannot1. 

The  question  of  usury  furnishes  another  interesting 
example.  That  usury  was  tolerated  by  the  Civil  Law 
was  clear,  while  strictly  condemned  by  the  Canon  Law 
and  the  general  public  opinion  of  the  Middle  Ages2. 
But  it  is  forbidden,  not  only  by  Canon  Law,  but  also 
by  Divine  Law.  "Hodie  de  jure  canonico,  imo  potius 
de  jure  divino,  obligatui  usurarum  lex  resistit  in 
to  turn3."  It  cannot  be  denied  that  it  is  allowed  by  the 
Civil  Law,  and  the  Emperor,  who  allowed  it,  is  not 
therefore  to  be  considered  a  heretic,  because  Moses  also" 
permitted  usury  "propter  duritiem  populi4."  But  it  is 
"de  voluntate  juris  civilis,"  not  "de  potestate,"  for  "non 
potuit  Imperator  tollere  legem  majoris,  scilicet  legem 
divinam,"  as  expressed  in  the  Gospel  prohibition  of 
interest5. 

In  this  context  it  is  interesting  to  turn  to  one  or 
two  of  the  many  passages  in  which  Bartolus  calls 
attention  to  the  fact  that  the  Digest  is  the  work  of 

1  Vide  Comment,  on  Codex,  Part  i.  (C.  i.  19.  2),  p.  105,  §  3.  But 
"  ex  causa  "  he  can;  vide  Comment,  on  Dig.  Vet.  Part  i.  (D.  vi.  1. 15), 
p.  557:  "Nota  quod  Princeps  ex  causa  potest  auferre  jus  meum  seu 
rem  meam  et  dare  alteri.  Idem  puto  in  republica  alterius  civitatis." 

'2  Vide  Comment,  on  Infort.  Part  n.  (D.  xxxiv.  6.  2),  p.  316: 
"  Sicut  enim  de  jure  civili  usurae  sunt  prohibitae  ultra  certam 
quantitatem,  ita  he-die  de  jure  canonico  sunt  prohibitae  in  totum." 
So  Comment,  on  Infort.  Part  i.  (D.  xxiv.  3.  43),  p.  77 :  "  Omnes  usurae, 
etiam  legales,  sunt  hodie  prohibitae  et  correctae  de  jure  canonico." 

3  Comment,  on  Dig.  Vet.  Part  n.  (D.  xn.  6.  26),  p.  159. 

4  Comment,  on  Codex,  Part  i.  (C.  iv.  32.  16,  Auth.  ad  Haec),  p.  485 : 
"  Non  possumus  negare  quin  usurae  de  jure  civili  sunt  permissae,  licet 
permitti  non  potuerunt:    nee  propter  eas  haereticus  fuit  Imperator, 
quia  Moyses  propter  duritiem  populi  permisit  usuras." 

5  Vide  the  "Antiqua  Lectura,"  §§  5-6  on  the  same  law. 


48V  THE  EMPIRE  [CH. 

Pagan  authors.  Thus,  in  commenting  on  the  first 
preface  to  the  Digest,  Bartolus  considers1  the  propriety 
of  the  invocation  of  the  Divine  Name  at  the  beginning 
of  a  work  by  Pagan  lawyers— "cum  omnes  istae  leges 
fuerint  factae  per  paganos."  He  accepts,  as  expla- 
nation, that  it  is  Justinian  himself--"  fait  Christianis- 
simus,"  said  Cino2,  "et  in  nullo  erravit"— who  is  speaking 
as  the  author  of  this  first  preface,  and  that  he  is 
speaking  here,  not  of  the  laws  themselves,  but  of  his 
compilation.  The  same  discussion  occurs  at  the  begin- 
ning of  his  Commentary  on  the  Digest um  Novum3. 
The  passage  is  also  interesting  in  another  regard. 
Realising  that  the  Jurisconsulti  were  Pagans,  Bar- 
tolus seems  to  think  that  this  should  mean  that  they 
lived  before  Christ.  "Dicitur  quod  tempore  Caesaris 


1  Vide  Comment,  on  Dig.  Vet.  Part  i.  (Prima  Constitutio),  p.  1, 
§  1:    "  Et  prima  nota  quod  hie  fit  invocatio  divini  nominis,  scilicet 
Christi....Et  certe  hie  dubitatur  de  uno,  ut  in  glossa  quadam  antiqua, 
quae  communiter  non  habetur,  et  quaerit  quomodo  est  hoc  possibile 
quod  invocatio  Jesu  Christi  fuerit  facta  hie,  cum  omnes  istae  leges 
fuerint  factae  per  paganos.     Et  respondet  hie  Justinianus  et  Inst.  in 
proemio....Et  voluerunt  quidam  dicere  quod,  quamvis  hoc  sit,  nihilo- 
minus  ille,  qui  loquitur,  ut  est  Justinianus,  potest  hoc  facere,  qui  fuit 
hujusmodi  constitutionis  compilator.   Item  non  loquitur  hie  de  legibus, 
sed  loquitur  de  compilatione  sua." 

2  Vide  Cino,  Comment,  on  Codex  (C.  i.  1.  1),  p.  2,  §  6. 

3  Vide  Comment,  on  Dig.   Nov.  Part  i.  (xxxix.  1,  sup.  rubric.), 
p.  1:    "  Quaesitum  fuit  a  compilatoribus  quoniam  in  omni  operis 
principio  consuevit  invocatio  fieri  secundum  sectarum  diversitatem. 
Quaero  quern  vos  invocabitis  in  isto  principio.     Respondent  compila- 
tores,  Nos  sumus  Christiani  et  Imperator  Justinianus,  ideo  invocabimus 
nomen  domini  nostri  Jesu  Christi.... Oppono,  cum  ab  alia  secta  quam 
Christiana  nomen  Christi  invocatur,  videtur  fieri  in  contemptu....Sed 
isti  fuerunt  Jurisconsulti,  qui  fuerunt  ante  Christum,  et  sic  pagani. 
Ergo  etc.     Nam  in  Legibus  1  et  2,  De  orig.  juris  dicitur  quod  tempore 
Caesaris  fuerunt  et  Christus  fuit  natus  tempore  Octaviani." 


II]  THE   EMPIRE  49 

fuerunt,"  whereas  Christ  was  born  in  the  time  of'Octavian. 
Another  lawyer,  whose  commentary  on  Book  xxvn.  of 
the  Digest  is  included  in  most  editions  of  Bartolus, 
points  to  a  law  of  the  Infortiatum  as  showing  expressly 
that  the  laws  of  the  Digest  were  made  after  the  advent 
of  Christ,  though  he  refers  to  several  contrary  Glosses1. 
But  however  weak  these  passages  may  show  the 
medieval  civilian's  history  to  have  been,  they  are 
exceedingly  interesting  as  illustrating  his  mental  out- 
look. A  lawyer  like  Bartolus,  in  daily  touch  with 
a  work  that  was  obviously  pre-Christian,  was  compelled, 
to  some  extent,  to  realise  that,  though  the  Corpus  Juris 
was  a  living  system  of  law,  none  the  less  it  belonged  to 
a  different  age,  with  different  ideas  and  ideals.  Bartolus 
had  as  little  history  as  most  medieval  thinkers,  but  he 
does  certainly  seem  to  realise,  dimly  perhaps,  but  con- 
tinually, that  there  are  changes  in  the  modes  of  life 


1  Nicholas  de  Neap.  (Spinellus),  a  contemporary  of  Bartolus, 
Comment,  on  Infort.  Part  i.  (D.  xxvn.  1.  17,  §  Jam  Autem),  p.  217: 
"Ibi,  'non  Judaeorum '  exponit  glossa  i.  '  Christianorum,'  et  sic 
secundum  istam  expositionem  habes  expresse  quod  leges  Digestorum 
fuerunt  factae  post  adventum  Christi  in  Virginem.  Tu  habes  glossam 
contrariam  in  Lege  Titia,  §  finali,  infra,  De  auro  et  argent,  legat. 
(D.  xxxiv.  2.  38,  §  Seia)  etLege  i.  D.,  De  justitia  et  jure  (D.  i.  1.  1)...." 
Of  the  Glosses  referred  to,  that  on  D.  xxxiv.  2.  38,  §  Seia,  says  on  the 
words  of  the  Law  "  volo  jubeoque  signum  Dei" — "  ut  crucem, 
secundum  Hug.  Sed  certe  hoc  tempore  Christus  non  venerat  in 
Virginem,  unde  die  quandam  imaginem."  The  other  Gloss  is  on 
the  words  "  In  nomine  Domini  " — "  Hoc  in  compilatione  Digestorum 
fuit  dictum,  non  quando  leges  factae  fuerunt,  quia  pagani  erant."  In 
the  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLV.  1.  34),  p.  43,  Bartolus 
says :  ' '  Ista  lex  non  habet  respectum  ad  Judaeum  vel  hereticum  vel 
de  Christiano,  cum  isti  condentes  jura  Digestorum  erant  pagani,  cum 
leges  fuerint  factae  per  trecentos  annos  antequam  Christus  veniret, 
vel  plus." 

w.  4 


5Q  THE   EMPIRE  [CH. 


thought,  no  less  than  the  visible  political  changes 
in  ,the  succession  of  Empires  and  Kingdoms. 

This  is  illustrated,  in  connection  with  our  present 
inquiry,  in  an  interesting  manner.  In  cases  of  dis- 
crepancy between  texts  in  different  parts  of  the  Corpus 
Juris  Bartolus  is,  as  a  rule,  very  unwilling  to  accept,  as 
explanation,  that  the  later  has  corrected  the  earlier1.  In 
the  present  instance,  however,  we  shall  see  this  allowed. 
"Videtur  quod  testator  non  possit  prohibere  Falci- 
diam,"  he  says  in  his  Commentary  on  tfie  Code'2',  and 
answers—  "Aliud  olim  aliud  hodie,  et  sic  ilia  jura  cor- 
riguntur,"  that  is  to  say,  the  law  "Quod  de  bonis"  of  the 
Digest  is  corrected  by  the  Novels.  The  prohibition 

1  Comment,  an  Dig.  Vet.  Part  i.  (D.  i.  1.  9),  p.  26,  §  2:   "  Dicunt 
quidam  quod  haec  (lex)  per  illam  (C.  de  leg.  1.  final.)  corrigitur:  quod 
non  placet,  quia  debet  evitari  legum  correctio  quantum  potest."     Cf. 
Comment,  on  In/art.  Part  i.  (D.  xxv.  1.  5),  p.  92,  §  1  :  "  Die  quod  nos 
debemus  leges  legibus  concordare,  si  possumus." 

2  Vide  Comment,  on  Codex,  Part  n.  (C.  vi.  49.  19,  Auth.  Sed  cum 
testator),  p.  138,  §1:    "Videtur  quod  testator  non  possit  prohibere 
Falcidiam....Solutio:   aliud  olim,  aliud  hodie:    et  sic  ilia  jura  cor- 
riguntur.    Illud  est  certum,  sed  unum  fecit  me  jam  dubitare  secundum 
rationem  Legis  Quod  de  bonis  §  1,  quae  dicit  quod  ideo  testator  non 
possit  prohibere,  quia  est  contra  publicam  utilitatem.     Si  ilia  ratio 
esset  vera,  videretur  quod  adhuc  hodie  non  possit  prohibere.    Domini, 
pro  certo  ista  nostra  jura  moralia  variantur  ex  tempore  secundum 
morum  varietatem.     Lex  Quod  de  bonis  fuit  facta  tempore  quo  erant 
pagani,  nee  vita  in  alio  seculo  sperabatur.     Sed  aliud  cogitabant  nee 
aspiciebant  merita  animae  et  ideo  cogitaverunt  quod  si  haeres  non 
lucraretur  ex    aditione   haereditatis,   omitteret   haereditatem  et    sic 
testamentum  remaneret   nullum,  quod  esset  contra  publicam  utili- 
tatem.... Postea  tempore  hujus  authenticae  Komanum  Imperium  erat 
Christian  um  et  Imperator  Justinianus  fuit  Christianus,  et  sic  ipse 
considerabat   aliud    seculum  et    salutem  '  et    merita  animae  ;    unde 
cogitavit  quod  licet  haeres  non  lucraretur  aliquid  commodi  pecuniarii, 
tamen  ex  eo  solo  quod  facit  istum  pium  actum,  quod  adimplet  volun- 
tatem  defuncti,  habet  meritum  apud  Deum  et  propter  lucrum  istius 
meriti  cogitavit  quod  non  omitteret  aditionem  haereditatis." 


II]  THE   EMPIRE  51 

was  not  allowed  formerly  as  being  contrary  to  public 
utility:  "to-day"  it  is  no  longer  contrary,  and  therefore 
allowed.  "Domini,"  Bartolus  continues,  "pro  certo  ista 
nostra  jura  moralia  variantur  ex  tempore  secundum 
morum  varietatem."  The  law  "Quod  de  bonis"  was 
made  in  Pagan  times,  when  an  after-life  was  unthought 
of.  It  was  therefore  thought  that,  if  the  heir  received 
no  pecuniary  advantage  from  the  "  hereditas,"  he  would 
repudiate  it,  which  would  have  been  contrary  to  the 
public  advantage.  But  "tempore  hujus  authenticae" 
the  Roman  Empire  was  Christian  and  the  Emperor 
Justinian  himself  a  Christian,  who  took  account  of 
another  world  and  the  salvation  and  merit  of  the  soul. 
And  so  he  thought  that  though  the  heir  had  no  pe- 
cuniary advantage,  yet  in  fulfilling  the  will  of  the  dead 
he  would  obtain  merit  and  reward  in  the  eyes  of  God1. 

This  acknowledgment  that  "nostra  jura  moralia 
variantur  ex  tempore  secundum  morum  varietatem"  is 
very  noteworthy.  It  must  be  taken  in  connection  with 
the  general  aim  which  dominated  the  work  of  the  Post- 
glossators.  Their  aim  was  to  adapt  the  texts  into  a 
law  practically  effective  for  the  Italy  of  their  day. 
The  revival  of  Roman  Law  associated  with  the  school 
of  Bologna  in  the  eleventh  and  twelfth  centuries  was, 
we  must  remember,  the  first  general  and  direct  contact 
of  the  European  mind  with  Pagan  antiquity.  Thence 
onwards,  till  the  revival  of  Greek  at  the  end  of  the 
Middle  Ages,  Pagan  learning  flowed  back  into  western 

1  Cf.  similar  passages  in  Comment,  on  Infort.  Part  n.  (D.  xxx.  1. 
58),  p.  45,  §§  5-6,  and  in  Comment,  on  Dig.  Vet.  Part  i.  (D.  n.  14.  47), 
p.  302,  §  2:  both  treat  of  the  same  matter  and  bring  out  the  diffe- 
rence in  the  attitude  of  the  Pagan  Jurisconsult!  and  the  Christian 
Justinian. 

4—2 


52  THE  EMPIRE  [CH. 

Europe  in  a  continuous  stream.  That  learning  had  to 
be  assimilated  with  the  Christian  ideas  and  ideals, 
which  were  the  foundation  of  medieval  thought.  The 
process  of  assimilation  is  most  conspicuous,  and  perhaps 
most  interesting  to  watch,  in  the  case  of  Aristotle.  But 
we  have  to  remember  that  there  is  a  similar  process 
in  the  case  of  the  Corpus  Juris.  It  is  true  that  the 
Corpus  is  the  compilation  of  a  Christian  Emperor,  and 
is  only  in  part  the  work  of  Pagan  jurists ;  but  then, 
even  in  its  Christian  parts,  the  Corpus  Juris  is  built  on 
foundations  that  lie  far  back  in  the  Pagan  past.  The 
importance  of  this  we  shall  see  later,  in  dealing  with 
the  theories  of  Bartolus  on  the  relations  of  the  Empire 
and  Papacy.  It  is  enough  for  our  present  purpose  to 
see  that  his  clear  recognition  of  the  Pagan  character  of 
the  Digest  falls  into  line  with  the  practical  aim  of  all 
his  work — namely  to  adapt  Roman  Law  to  the  con- 
ditions of  his  own  day. 

Finally,  we  should  note  that  certain  distinctions, 
both  subtle  and  logical,  were  made,  by  which,  while  the 
superiority  of  these  higher  laws  over  purely  human  law 
was  safeguarded,  the  scope  of  legislation,  either  by 
Leges  or  Statuta,  was  not  restricted  within  too  narrow 
limits.  "...Dicimus  de  jure  divino  quod  distinguatur, 
non  tollatur,  per  humanum1."  This  is  explained  more 
in  detail  in  the  commentary  on  the  law  "Omnes 
Populi,"  where  Bartolus  developes  his  theory  of 
statutes2.  As  far  as  the  Jus  Divinum  is  concerned 
with  "spiritualia,"  statutes,  like  Imperial  laws,  contra- 
dicting it  are  invalid.  But  so  far  as  it  is  concerned 

1  Vide  Comment,  on  Infort.  Part  i.  (D.  xxiv.  3.  25),  p.  49,  §§  40-1. 

2  Comment,  on  Dig.  Vet.  Part  i.  (D.  i.  1.  9),  p.  30,  §  22. 


Il]  THE   EMPIRE  53 

with  "  temporalia  "  it  may  be  amplified  by  human  laws. 
Thus  Divine  Law  says — "Thou  shalt  not  kill";  but 
elsewhere  it  says  that  the  slayer  shall  himself  be  killed. 
Hence  "ex  causa  potest  permitti  per  leges  et  statuta 
quod  quis  occidatur."  Again  Divine  Law  says — "In  ore 
duorum  vel  trium  stat  omne  verbum."  Civil  Law,  how- 
ever, says  seven  witnesses  are  required  to  a  will.  In 
this  case  Civil  Law  holds,  because  it  excludes  sin — that 
is  to  say,  the  extra  witnesses  exclude  the  chance  of 
fraud.  But  if  the  Civil  Law  does  not  exclude  sin,  it  is 
invalid  where  contrary  to  Divine  Law,  since  it  is  then 
no  longer  amplifying,  but  revoking  the  superior  law. 

As  regards  Natural  Law  and  the  Law  of  Nations  a 
similar  distinction  was  made.  "Si  quidem  statuta  fiant 
super  his,  quae  nullo  jure  disposita  sunt,  valent...Si 
autem  super  his,  quae  disposita  sunt  a  jure  naturali 
vel  gentium,  non  valent  tollendo  in  totum,  sed  in  aliquo 
derogando  vel  addendo,  sic1." 

I.       TH  E    EMPIRE    AND    THE    PAPACY 

It  is  nowhere  more  important  to  realise  that  the 
Corpus  Juris  is  only  in  part  a  Christian  book  than 
when  we  come  to  the  topic  with  which  we  are  to  deal 
in  this  section.  Even  in  its  Christian  parts  the  Corpus 
Juris  represents  political  conceptions  which  are  funda- 
mentally Pagan2.  The  Corpus  Juris  represents,  as 

1  Ibid.  §  21. 

2  Vide   Gierke,   Deutsche   Genossenschaftsrecht,   vol.    in.   p.    128: 
"Das  Corpus  Juris  iibeiiieferte  auch  in  seiner  aus  christlicher  Zeit 
hemihrenden  Bestandtheilen  der  Nachwelt  keinen  specifisch  christ- 
lichen,  sondern  den  mit  christlichen  Zuthat  ausserlich  geschmiickten 
heidnischromischen  Staats-  und  Rechtsbegriff . " 


54         THE  EMPIRE  AND  THE  PAPACY        [CH. 

regards  the  relations  of  Church  and  State,  the  system 
which  is  known  as  Byzantinism,  and  which  means  the 
absorption  of  the  Church  in  the  State.  Christianity 
had  come  into  conflict  with  the  Empire,  just  because  it 
was  opposed  to  the  Pagan  conception  of  religion  as 
existing  "in  the  State,  for  the  State  and  through  the 
State1."  When  Christianity  became  a  lawful  religion, 
>arid  finally  the  only  lawful  religion,  the  Imperial  con- 
ception of  the  omnipotence  of  the  State  over  religion 
underwent  little,  if  any,  change.  The  change  came  far 
more  from  the  side  of  Christianity,  first  demanding, 
through  the  Apologists2,  admittance  within  the  Empire, 
and  then  in  part  accepting  the  Imperialist  standpoint. 
In  the  famous  words  of  S.  Optatus — "Non  (enim)  est 
respublica  in  ecclesia,  sed  ecclesia  in  republica,  id  est  in 
imperio  Romano3." 

But  this  by  no  means  represented  the  universal 
view  of  the  fourth  century  Churchmen,  and  whether 
S.  Optatus  or  S.  Ambrose4  represent  the  dominant 

J  Gierke,  op.  cit.  p.  Ill  and  cf.  .Ramsay,  The  Church  in  the  Roman 
Empire,  chap,  xiv.,  espec.  pp.  354  and  ff.  Cf.  also  p.  236— the 
Christians  were  regarded  as  "enemies  to  civilised  man  and  to  the 
customs  and  laws  which  regulated  civilised  society,  etc." 

2  Vide,  as  an  excellent  example,  the  well-known  passage  in  chap, 
xvii.  of  Justin's  first  Apology.     The  Apologist  has  to   show  that 
Christianity  is  not  incompatible  with  citizenship. 

3  The  passage  is  quoted  in  full  by  Carlyle,  Hist,  of  Med.  Pol. 
Thought  in  the  West,  vol.  i.  p.  148,  note  3. 

4  Carlyle,  op.    cit.    vol.    i.   p.    1,   brings  together  a  number  of 
examples  to  show  that  there  was  "a  more  general  appreciation  at 
that  time  of  the  independence  of  the  Church  relatively  to  the  State 
than  has  been  always  recognised."     Still  it  is  worth  noting  that  a 
good  part,  if  not  most,  of  his  examples  come  from  pens  engaged  at 
the  moment  in  violent  controversy,  in  which   the   other  side   had 
Imperial  support.     This  however  is  not  true  of   S.  Ambrose,   who 


II]  THE   EMPIRE   AND   THE    PAPACY  55 

opinion,  there  can  be  no  doubt,  when  we  come  to  the 
fifth  century,  that  the  western  Church  was  not  going 
to  accept  the  Byzantine  conception  of  the  relations  of 
Church  and  State.  Byzantinism  remained  the  theory 
and  practice  of  the  East.  The  fifth  century  saw  the 
break-up  of  the  Empire  in  the  West,  and  the  definite 
rejection  of  Byzantinism  by  a  theory,  which  we  may 
call  "Gelasianism,"  not  because  Pope  Gelasius  was  by 
any  means  the  first  to  deny  the  supremacy  of  'the 
temporal  power  in  the  spiritual  sphere,  but  because  the 
form,  which  he  gave  to  that  denial,  was  to  be  of  lasting 
influence  on  the  thought  of  the  whole  of  the  Middle 
Ages1.  Thus  in  the  centuries  which  lie  on  the  border- 
land between  ancient  and  medieval  history  we  have 
two  distinct  conceptions  of  the  relations  of  Church  and 
State.  We  have  the  Imperial  conception  of  the  omni- 
potence of  the  State,  within  which  is  the  Church,  and 
we  have  the  "Gelasian"  conception,  in  which  Church 
and  State  are  conterminous,  and  which  insists  on  the 
independence,  equality  and  co-ordination  of  the  spiritual 
and  temporal  powers.  In  both  cases  the  conception  of 
Church  and  State  in  antithesis  was  absent,  but  in  the 
former  case  the  Church  was  absorbed  in  the  State,  while 
in  the  latter,  under  the  influence  of  the  actual  break- 
up of  the  State  in  Western  Europe,  and  still  more 

certainly  represents  quite  an  opposite  conception  of  the  relation  of 
Church  and  State  to  that  of  S.  Optatus. 

1  ' '  Duo  quippe  sunt,  imperator  Auguste,  quibus  principaliter  mundus 
hie  regitur:  auctoritas  sacrata  pontificum  et  regalis  potestas,  in  quibus 
tanto  gravius  est  pondus  sacerdotum,  quanto  etiam  pro  ipsis  regibus 
hominum  in  divino  reddituri  sunt  examine  rationem"  (Epist.  xn. 
§  2  to  the  Emperor  Anastasius).  Vide  other  passages  from  Gelasius, 
quoted  with  this,  in  Carlyle,  op.  cit.  pp.  187-91. 


56  THE    EMPIRE   AND   THE   PAPACY  [CH. 

under  the  influence  of  S.  Augustine,  the  secular  State 
tended  to  merge  into  the  Church  or  Civitas  Dei.  In 
both  conceptions  there  is  but  one  society;  but  in  the 
East  that  society  is-  a  State,  in  the  West  it  is  a 
Church1. 

The  result  is  that,  in  considering  the  political 
thought  of  the  early  Middle  Ages,  we  must  get  rid  of 
the  terms  Church  and  State,  which  nowadays  inevitably 
imply  an  antithesis.  The  political  problem  of  the  early 
Middle  Ages  was  to  define  the  relations  of  the  two 
powers  in  the  one  Church-State,  Civitas  Dei  or  Populus 
Christianus.  And  this  was  the  more  difficult  in  that, 
while  no  one  doubted  -  that  theoretically  the  Pope  was 
the  vicar  of  Christ  and  the  spiritual  head  of  Christen- 
dom, the  temporal  power  was  at  the  same  time  very 
generally  recognised  as  the  "rector  et  defensor  Eccle- 
siae,"  also  the  vicar  of  Christ,  and  even  the  "rex 
Ecclesiae2."  The  vigorous  attempt  to  assert  the  inde- 
pendence of  the  spiritual  sphere,  which  was  made  when 

1  Cf.    Bury,    The    Constitution    of   tlie    Later    Roman   Empire, 
pp.  33-4. 

2  Vide  Ohr,  Der  Karolingische  Gottesstaat  in  Theorie  und  Praxis. 
His  very  interesting  dissertation  brings   this    out,   with    regard    to 
Charlemagne's  relations  to  the  Papacy,  with  great  force.     On  p.  8 
Ohr,   having   given   a   number  of    discordant  opinions   by  modern 
authorities  on  those  relations,  remarks — "  Diesen  einander  mannigfach 
wiedersprechenden  Urteilen  gegeniiber  ist  zunachst  festzustellen,  dass 
die  Beurteilung  der  Frage,  wie  Karls  eigene  Stellung  gewesen  sei,  stets 
verquickt  zu  werden  pflegt  mit  der  anderen  Frage,  welche  historische 
Bedeutung  dieser  Karolingischen  Idee  von  Gottesstaate  zuzusprechen 
ist.     Und  dabei  herrscht  vielfach  die  Neigung  vor  mit  den  heutigen 
Vorstellungen  von  Staat  und  Kirche  in  einer  Zeit  zu  operieren  da  es 
weder  einen  Staat,  noch  eine  Kirche  im  modemen  Wortsinne  gab." 
Vide  also  Dollinger,  "The  Empire  of  Charles   the   Great  and  his 
Successors"  (in  Hist,  and  Lit.   Addresses,   transl.    by   M.   Wane), 
pp.  109-10. 


II]  THE    EMPIRE   AND   THE    PAPACY  57 

the  Carolingian  Empire  was  breaking  up  in  the  ninth 
century,  and  associated  with  the  names  of  Nicholas  I, 
John  VIII,  Hincmar  of  Rheims,  and  the  forged  Decre- 
tals, was  premature.  To  understand  the  Investiture 
struggle,  we  have  to  remember  that  up  to  its  very 
beginning  the  temporal  power  has  exercised  an  effective 
supremacy  in  the  Church-State,  alike  in  temporal  and 
spiritual  matters,  while  at  the  same  time  the  theo- 
retical separation  of  the  two  spheres,  each  under  its 
independent  head,  the  Imperium  or  Regnum  and  Sacer- 
dotium  respectively,  was  generally  maintained.  And 
not  even  Charlemagne,  or,  perhaps,  even  Justinian  him- 
self, seems  more  obviously  supreme,  than  Henry  III, 
deposing  three  Popes  and  appointing  three  others  in 
succession.  Yet  a  whole  world  of  difference  lies  be- 
tween Henry's  or  Charlemagne's  position  and  Justinian's. 
Justinian  represents  ideas  that  go  back  to  days  long 
before  the  Empire  became  Christian — the  "jus  sacrum" 
as  a  part  of  the  "jus  publicum1";  Henry  or  Charlemagne 
represent  those  Christian  Emperors,  whose  picture 
S.  Augustine2  had  drawn,  thinking  of  Constantine  and 
Theodosius,  but  in  fact  constructing  an  ideal  for  the 
Middle  Ages. 

The  result  of  the  Investiture  struggle  was  to  recast 
both  theory  and  practice. 

Gregory  VII  and  the  Papalists  were  combating  the 
supremacy  of  the  temporal  power  within  the  Church. 

1  Vide  Hinschius,  "Allgemeine  Darstellung  der  Verhaltnisse  von 
Staat   und   Kirche"    (in  Marquardsen's  Handbuch   des   oeffentliclien 
Eechts  der  Gegenwart,  vol.  i.),  p.  192.     Cf.  Gierke,  op.  cit.  p.  114, 
and  Knecht,  Die  Eeligionspolitik  Kaiser  Justinians  I,  p.  147. 

2  Vide  De  Civitate  Dei,  Lib.  v.  chap.  24-6  (in  Migne's  Patrologia 
Latina,  vol.  XLI.). 


58  THE    EMPIRE   AND   THE    PAPACY  [CH. 

This  applies  not  only  to  the  Empire,  but  to  all  kingdoms ; 
be  the  temporal  power  Imperium  or  Regnum,  it  must 
stand  below  the  Sacerdotium.  But  if  Henry  was,  on 
the  occasion  of  the  excommunications,  in  Gregory's  eyes 
merely  "rex  Theutoniae1,"  we  must  remember  that, 
earlier  at  least,  he  had  recognised  in  Henry  the  "caput 
laicorum"  and  "Romae,  Deo  annuente,  futurus  Impe- 
rator2."  The  reason  why  Gregory  could  keep  the  peace 
with  other  kings,  but  not  with  Henry,  was,  in  great 
part,  just  because  Henry  was  not  merely  King  of 
Germany.  Henry  was  heir  to  the  supreme  position  of 
Charlemagne,  Otto  and  his  father  Henry  III — supreme, 
not  only  in  Germany,  but  in  Italy  too,  and,  most  im- 
portant of  all,  in  the  Church.  To  that  supremacy  Henry 
was  heir,  and  that  supremacy  the  Pope  was  determined 
not  to  allow. 

This  is  the  basis  of  the  struggle.  The  Papacy  was 
refusing  to  acquiesce  in  the  traditional  supremacy  of 
the  secular  power  in  the  Church,  which  formally  indeed 
it  had  never  recognised.  Up  till  now  the  Papacy  had 
contented  itself — at  least  if  we  leave  out  of  account  the 
short  period  in  the  middle  of  the  ninth  century — with 
insisting  on  .the  "  Gelasian  "  conception  of  the  equality 
and  co-ordination  of  the  two  powers  and  therefore  of 
the  supremacy  of  the  Sacerdotium  in  its  own  sphere 
of  "  spiritualia."  That  conception  no  longer  served. 

1  In  the  first  excommunication  we  read:  "...totius  regni  Teutoni- 
corum  et  Italiae  gubernacula  contradico."     Vide  Eeg.   in.    10   (in 
Jaffe,  Monumenta  Gregoriana),  p.  224.     In  the  second:  "Et  iterum 
regnum  Teutonicorum  et  Italiae... interdicens   ei."     Vide  Reg.  vn. 
14 a,  p.  403.     Henry  calls  himself  "Romanorum  dei  gratia  rex." 
Vide  Reg.  i.  29  a,  p.  46. 

2  Vide  Reg.  i.  20,  p.  35  and  cf.  Reg.  i.  11,  p.  22. 


Il]  THE    EMPIRE   AND   THE   PAPACY  59 

Gregory  demanded  the  absolute  supremacy  of  the 
Sacerdotium,  not  its  mere  independence  within  its  own 
sphere.  On  the  other  hand,  Gregory  was  as  desirous  as 
any  of  his  predecessors  for  concord.  This  can  be  illus- 
trated by  his  relations  both  with  other  kings1,  and  also 
with  Henry  himself — only  the  price  of  that  concord 
must  be  the  obedience  of  the  temporal  power  to  the 
spiritual  in  case  of  conflict.  He  praised  the  Empress 
Agnes  that  through  her  zeal  "for  the  peace  and  concord 
of  the  universal  church  "  she  has  helped  "  pontificatum 
et  imperium  glutino  caritatis  astringere2,"  by  restoring 
Henry  to  the  communion  of  the  Church :  we  know  as 
a  matter  of  history  that  the  price  of  that  restitution  was 
Heniy's  promise  of  obedience,  in  language,  as  Gregory 
himself  says  in  a  letter  of  the  previous  year,  such  as  had 
never  been  addressed  before  by  any  king  to  any  Pope3. 
In  a  letter4  written  to  Henry  himself,  he  lamented 

1  Vide  in  1073  the  letter  to  the  Emperor  Michael  at  Constantinople 
in  return  for  "literas...plenas  vestrae  dilectionis  dulcedine  et  ea, 
quam  sanctae  Komanae  ecclesiae  exhibetis,  non  parva  devotione." 
"  Scitis  enim,"  he  says,  "quia,  quantum  antecessorum  nostrorum  et 
vestrorum  sanctae  apostolicae  sedi  et  imperio  primum  concordia  profuit, 
tantum  deinceps  nocuit,  quod  utrimque  eorumdem  caritas  friguit." 
Vide  Keg.  i.  18,  pp.  31-2.  Cf.  Reg.  i.  75,  pp.  93-5,  a  letter  of  1074 
to  Philip  of  France.  Gregory  is  rejoiced  to  see  from  Philip's  letters, 
' '  te  beato  Petro  apostolorum  principi  devote  ac  decenter  velle  obedire 
et  nostra  in  his  quae  ad  ecclesiasticam  religionem  pertinent  monita 
desideranter  audire  atque  perficere."  He  reminds  him  that,  "virtus 
christianorum  principum  in  ejusdem  Eegis  castris  ad  custodiam 
christianae  militiae  nobiscum  convenire  debeat."  Cf.  also  letter 
to  William  I  of  England,  Eeg.  vn.  25,  p.  419. 

-  Vide  Eeg.  i.  85,  pp.  106-8. 

3  Vide  Eeg.  i.  25,  p.  42.     The  letter  of  Henry  is  in  Eeg.  i.  29  a, 
pp.  46-8. 

4  Vide  Eeg.  n.    31,   pp.    144-6.     "Sed  quia  magna  res  magno 
indiget  consilio  et  magnorum  auxilio,  si   hoc   Deus  me  permiserit 


60  THE   EMPIRE    AND   THE    PAPACY  [CH. 

that  men  should  sow  discord  between  them,  and  proposes 
that  he  should  leave  the  Roman  Church  itself  to  Henry's 
protection,  while  he  himself  led  his  projected  Crusade. 
The  proposal  contained  in  this  letter  is  proof  in  itself 
that  Gregory  was  sincere  in  wishing  for  concord  between 
the  two  powers.  The  Crusade,  we  know,  was  never  led 
and,  in  the  end,  it  was  in  Rudolf,  not  Henry,  that  the 
Pope  found  the  king  who  would  accept  the  new  position 
of  inferiority.  It  is  very  necessary  to  do  justice  both 
to  Gregory  and  Henry,  because  by  understanding  them 
we  have  the  key  to  the  whole  difference  between  the 
Papalist  and  Imperialist  standpoint.  Gregory  was,  as  we 
have  said,  obviously  sincere  in  his  desire  for  concord, 
and  we  may  go  further  and  say  that  he  obviously  had 
a  place  of  great  importance  for  the  secular  power  within 
the  Church.  But  it  must  be  an  obedient  power.  It  is 
equally  clear  that  Henry  could  not  be  expected  to 
accept  this  position.  Between  the  two  parties  is  the 
"  Gelasian  "  theory  of  concord,  co-ordination,  equality. 
Both  parties  maintained  that  they  were  upholding 
the  old  tradition.  In  truth  neither  of  them  was.  The 
Papalists  would  throw  over  the  theoretical  co-ordination 
and  equality  of  the  two  powers.  The  Papalists  were  the 
innovators.  The  Imperialists  pleaded,  not  in  reality  for 
the  "  Gelasian  "  system,  but  for  the  system  which  had 
in  practice  obtained  for  nearly  three  centuries — the 
practical  superiority  of  the  royal  power.  Henry  was  the 

incipere,  a  te  quero  consilium  et  ut  tibi  placet  auxilium;  qui,  si  illuc 
favente  Deo  ivero,  post  Deum  tibi  Eomanam  ecclesiam  relinquo,  ut 
earn  et  sicut  sanctam  matrem  custodias  et  ad  ejus  honorem  defendas. 
Quid  tibi  super  his  placet  et  quid  prudentia  tua  divinitus  aspirata 
decernat,  mibi  quantocius  potes  remittas,  nam,  si  de  te  plus  quam 
plurirai  putent  non  sperarem,  verba  haec  frustra  proferrem." 


II]  THE   EMPIRE   AND   THE   PAPACY  61 

heir  of  Charlemagne  and  Henry  III,  and  the  heir  to 
their  position  of  superiority. 

Thus  conflict  was  inevitable,  and  it  was  in  the  midst 
of  the  struggle  in  1081  that  Gregory  wrote  his  famous 
denunciation  of  kingship  as  of  human  and  sinful — even 
diabolical — origin.  "Itane  dignitas  a  saecularibus — etiam 
Deum  ignorantibus — inventa  non  subjicietur  ei  dignitati, 
quam  omnipotentis  Dei  providentia  ad  honorem  suum 
invenit  mundoque  misericorditer  tribuit  ?  cujus  films— 
sicut  deus  et  homo  indubitanter  creditur — ita  su^mmus 
sacerdos,  caput  omnium  sacerdotum,  ad  dexteram  Patris 
sedens  et  pro  nobis  semper  interpellans,  habetur ;  qui 
saeculare  regnum,  unde  filii  saeculi  tument,  despexit  et 
ad  sacerdotium  crucis  spontaneus  venit.  Quis  nesciat : 
reges  et  duces  ab  iis  habuisse  principium,  qui  Deum 
ignorantes,  superbia  rapinis  perfidia  homicidiis,  postremo 
universis  pene  sceleribus,  mundi  principe  diabolo  vide- 
licet agitante,  super  pares,  scilicet  homines,  dominari 
caeca  cupidine  et  intolerabili  praesumptione  affecta- 
verunt1."  We  cannot  say  that  these  words  were 
adopted  to  suit  the  controversy  of  the  moment,  for  they 
occur  in  the  most  important  of  all  Gregory's  letters,  in 
one  that  may  properly  be  called  the  apology  for  his 
policy.  And  though  one  cannot  find  anything  in  his 
other  letters  to  compare  with  their  violence,  the  main 
idea  of  the  human,  and  even  sinful,  origin  of  kingship 
can  certainly  be  paralleled2.  In  the  same  letter  he 

1  Vide  Reg.  vm.  21,  pp.  456-7. 

2  Vide  Reg.  iv.  2,  p.  243:  "  Sed  forte  putant,  quod  regia  dignitas 
episcopalem  praecellat.   Ex  earum  principiis  colligere  possunt,  quantum 
a  se  utraque  differunt.     Illam  quidem  superbia  humana  repperit,  hanc 
divina  pietas  instituit.     Ilia  vanam  gloriam  incessanter  cap  tat,  haec 
ad  coelestem  vitam  semper  aspirat." 


62  THE  EMPIRE  AND  THE   PAPACY  [CH. 

compares  the  inferior  power  of  a  temporal  Emperor  with 
that  of  an  exorqist,  that  is  to  say,  with  the  lowest  but 
one  of  the  minor  orders.  The  exorcist  is  a  "  spiritual 
Emperor  "  over  the  demons— shall  he  not  have  power 
over  those  who  are  subject  to  the  demons  ?  And  if  an 
exorcist,  how  much  more  a  priest1. 

This  last  passage  is  especially  interesting,  because  it 
contains  the  one  actual  quotation  from  S.  Augustine  to 
be  found  in  Gregory's  letters2.  But  that  it  is  to 
Augustine  that  Gregory  has  gone  back  for  this  con- 
ception of  kingship  is  of  course  indubitable.  We  are 
back  once  more  in  the  old  distinction  between  the 
earthly  and  the  heavenly  city.  Priests,  says  another 
Papalist  writer,  excel  kings  as  the  angels,  the  sons  of 
God,  excel  the  sons  of  men — "  filii  autem  hominum 
nuncupantur  qui  de  terreno  regno  gloriantur3." 

Gregory  was  by  no  means  alone  among  the  Papalists 
in  tracing  back  kingship  to  a  human  foundation.  Al- 
ready, as  is  well  known,  we  have  the  idea  of  a  compact 
between  king  and  people,  as  the  basis  of  the  secular 
power4.  But  Gregory  did  not  maintain  merely  the 
human  origin  of  kingship  ;  its  origin  is  sinful,  even 
diabolical ;  and  it  is  not  merely  the  origin  of  kingship, 
which  he  condemned,  but  the  office  itself.  Now  Gregory 

1  p.  459. 

2  Vide   Mirbt,   Die   Stellung   Augustines    in   der    Publizistik    der 
Gregorianischen  Kirchenstreits,  p.  34. 

3  Vide  Honorius  Augustodunensis  (in  Lib.  de  Lite,  vol.  in.,  in 
Monumenta  Germaniae  Historica),  pp.  66-7. 

4  Vide  Manegold  of  Lautenbach,  Ad  Gebehardum  Liber  (Lib.  de 
Lite,  vol.  i.),  p.  365.     And  vide  a  very  interesting  passage  in  Gerhoh 
of  Reichersberg  (Lib.   de  Lite,  vol.  m.),  pp.   345-6,  on   kings  as 
"hominum  creaturae,"  obtaining  by  priestly  benediction  the  office 
"ad  quod  divina  ordinatione  assumpti  sunt." 


Il]  THE   EMPIRE   AND  THE   PAPACY  63 

may  not  stand  alone  even  here,  but  it  was  emphatically 
not  the  general  Papalist  position. 

Nor  was  it  in  reality  what  we  may  call  the  primary 
position  of  Gregory  himself.  It  was  a  secondary  position, 
on  which  he  was  compelled  to  fall  back,  when  his 
primary  conception  of  the  proper  relations  between 
the  temporal  and  spiritual  powers  was  rejected — and 
naturally  enough — by  Henry.  But  if  not  in  Henry,  at 
any  rate  in  Rudolf,  Gregory  found  the  king,  whom  he 
needed.  How  far  Gregory  really  was  from  viewing  the 
Imperium  as  the  work  of  the  devil  comes  out,  as  clearly 
as  could  be,  in  a  letter  written  to  Rudolf  in  1073 1. 
"  Licet  ex  praeteritis,"  he  writes,  "  nobilitatis  tuae 
studiis  clareat,  te  sanctae  Romanae  ecclesiae  honorem 
diligere,  nunc  tamen,  quanto  ipsius  amore  ferveas  quan- 
t unique  ceteros  illarum  partium  principes  ejusdem 
amoris  magnitudine  transcendas,  litterae  tuae  nobis 
transmissae  evidenter  exponunt.  Quae  nimirum  inter 
cetera  dulcedinis  suae  verba  illud  nobis  videbantur 
consulere,  per  quod  et  status  imperii  gloriosius  regitur 
et  sanctae  ecclesiae  vigor  solidatur :  videlicet  ut  sacer- 
dotium  et  imperium  in  unitate  concordiae  conjungantur. 
Nam  sicut  duobus  oculis  humanum .  corpus  temporali 
lumine  regitur,  ita  his  duabus  dignitatibus  in  pura 
religione  concordantibus  corpus  ecclesiae  spirituali  lu- 
mine regi  et  illuminari  probatur."  At  that  date — 
Rudolf  was  not  yet  king — Gregory  still  had  hopes  of 
Henry,  "  quod  ipsum  in  regem  elegimus,"  as  well  as  for 
the  sake  of  his  father.  But,  Gregory  added,  "concordiam 
istam,  scilicet  sacerdotii  et  imperii,  nihil  fictum,  nihil 

1  Vide  Keg.  i.  19,  pp.  33-4.     Kudolf  was  not  yet  king. 


64  THE  EMPIRE  AND   THE   PAPACY  [CH. 

nisi  purum  decet  habere."  Here  is  the  key  to  the 
Papalist  position.  Gregory  wished  for  the  concord  of 
the  Sacerdotium  and  Imperium,  if  it  could  be  pure  and 
Veal,  as  he  understood  those  words — that  is  to  say,  if 
-the  temporal  power  accepted  the  ultimate  superiority  of 
the  Sacerdotium.  The  right  place  of  the  Imperium  is 
within  the  "  corpus  ecclesiae,"  its  duty  to  govern  and 
illuminate  in  conjunction  with,  and  in  dependence  on, 
the  Sacerdotium.  If  it  will  not  accept  that  position, 
it  must  be  put  outside  the  Church  and  rule  in  the 
earthly  State. 

There  are  thus  two  distinct  lines  in  the  Papalist 
theories,  which  carmot  be  harmonised,  because  they 
are  properly  alternative.  Primarily,  we  may  say,  the 
Papalists  wished  to  maintain  the  temporal  power  within 
the  Church,  but  in  dependence  on  the  spiritual  power ; 
if  that  position  of  dependence  were  rejected,  the  temporal 
power  must  be  put  outside  the  Church1.  And  if  the 
temporal  power  goes  outside  the  Church,  we  return 
to  the  distinction  between  State  and  Church,  and 
a  distinction — this  is  the  point  of  importance — which 
placed  the  sinful,  even  diabolical,  State  in  antithesis  to 
the  holy  Church.  Now  that  was  an  antithesis  which 
neither  Gregory,  nor  the  Papalists  throughout  the 
Middle  Ages,  were  really  ready  to  maintain. 

If  we  turn  back  for  a  moment  to  S.  Augustine,  we 
see  that  his  whole  condemnation  of  the  State  is  con- 
cerned with  the  Pagan  State.  Augustine's  De  Civitate 

1  This  is  expressed,  almost  in  so  many  words,  by  a  Papalist  poet : 
' '  Ergo  vel  ecclesiae  membrum  non  dicatur  |  Caesar,  vel  pontifici  summo 
supponatur."  Vide  Gualterus  de  Insula  (in  Lib.  de  Lite  vol.  in.), 
p.  559. 


Il]  THE   EMPIRE   AND   THE   PAPACY  65 

Dei  is,  in  part  at  least,  a  controversial  work,  an  answer 
to  the  Pagan's  complaint  that  the  sack  of  Rome  in  410 
had  fallen  in  Christian  days.  Augustine  set  out,  and 
his  disciple  Orosius  followed  him,  to  show  that  Rome 
had  been  no  more  fortunate  in  Pagan  days.  In  a  famous- 
passage  he  condemns  all  kingdoms,  without  justice,  as 
"fair,  thievish  purchases1,"  and  denies  that  justice 
is  possible  in  the  Pagan  State.  He  refuses  to  allow 
that  Cicero's  definition  of  "respublica"  could  properly 
apply  to  Pagan  Rome2.  For  Cicero  showed  that  a 
State  cannot  exist  without  justice;  but  the  Pagan 
Romans  were  without  justice — "  for  where  man  does 
not  serve  God,  what  justice  can  be  thought  to  be  in 
him  ? "  And  though,  by  another  definition  of  his  own, 
he  proves  Rome  to  have  been  a  true  "respublica,"  he 
only  does  so  by  abandoning  the  criterion  of  justice, 
which  would  bar  Rome,  as  it  would  the  Empires  of 
the  Egyptians,  Assyrians  and  others.  "  For  in  the 
City  of  the  wicked,  where  God  does  not  govern  and 
men  obey,  sacrificing  unto  Him  alone,  and  consequently 
where  the  soul  does  not  rule  the  body,  nor  reason  the 
passions,  there  is  generally  found  wanting  the  virtue  of 
true  justice3." 

True  justice  can  exist  only  in  the  Christian  State, 
and  the  Christian  State — Christian  Rome — is  not  "  the 


1  Vide  Lib.  iv.  chap.  4,  col.  115.     John  Healey,  the  author  of 
the  first  English  translation  of  the  De  Civ.  Dei,  translates  "magna 
latrocinia"  by  "fair  thievish  purchases."     His  translation  is  by  no 
means  always  clear  or  accurate,  but  like  all  sixteenth  and  seventeenth 
century  English  translations,  very  fine  and  vigorous. 

2  Vide  Lib.  xix.  chap.  21,  coll.  64&-9. 
:5  Vide  Lib.  xix.  chap.  24,  coll.  655-6. 

w.  5 


66         THE  EMPIRE  AND  THE  PAPACY        [CH. 

Babylon  of  the  West1,"  the  "head2"  of  the  Civitas 
Terrena,  but  becomes  merged  in  the  Civitas  Dei, 
which  may  lawfully  use  the  earthly  peace3  on  its  pil- 
grimage, and  which  needs  the  Christian  Emperor  for  its 
defence  against  infidels  and  heretics4.  Augustine  had 
a  very  real  place  for  a  Christian  Emperor  in  his  Civitas 
Dei.  He  was  the  opponent  of  the  Donatists — and  it 
was  they,  not  Augustine,  who  had  asked — "  Quid  est 
Ecclesia  Imperatori5  ? "  The  result  is  that,  though 
Augustine  could  identify  Pagan  Rome  with  the  Civitas 
Terrena6,  it  was  impossible  for  the  medieval  Papalist; 

1  Vide  Lib.  xv.  chap.  17  at  end,  col.  497,  Lib.  xvm.  chap.  2, 
col.  561  and  chap.  22,  col.  578. 

2  Vide  Lib.  xv.  chap.  5— and  cf.   the  comparison  between   the 
foundation  of  the  Civitas  Terrena  by  the  fratricide  of  Cain  and  the 
foundation  of  Pagan  Kome  by  the  fratricide  of  Eomulus. 

3  Vide  Lib.  xix.  chaps.  17  and  26. 

4  Vide  Lib.  v.  chap.  25,  col.  173,  where  the  Emperor  Theodosius 
is  praised,  because  in  the  troubled  times  of  his  reign,  "ex  ipso  initio 
imperii    sui    non    quievit    justissimis    et    misericordissimis    legibus 
adversus  impios  laboranti  Ecclesiae  subvenire,  quam  Valens  haereticus 
favens  Arianis  vehementer  afflixerat,  cujus  Ecclesiae  se  membrum 
esse  magis  quam  in  terns  regnare  gaudebat." 

5  Vide  the  passages  quoted  by  Carlyle  in   op.  cit.  p.    149;   cf. 
Gierke,  Deutsche  Genossenschaftsrecht,  vol.  in.  p.  125. 

6  Ideally  of  course  neither  the  Civitas  Dei  nor  the  Civitas  Terrena 
is  of  any  one  place,  date  or  nation — vide  Lib.  xiv.  chap.  1,  col.  403 — 
and  Augustine  particularly  insists  that  there  are  "non  quatuor,  duae 
scilicet  Angelorum  totidemque  hominum,  sed  duae  potius  civitates, 
hoc  est  societates,  una  in  bonis,  altera  in  malis,  non  solum  Angelis, 
verum  etiam  hominibus  constitutae"   (Lib.  xn.  chap.  1,  col.  349). 
But,  in  the  controversial  parts  of  the  work  especially,  Pagan  Borne 
and  the  Christian  Church  tend  to  stand  opposed  as  the  two  cities  on 
earth— vide  e.g.  Lib.  xxn.  chap.  6,  the  comparison  between  the  love 
that  made  Rome  worship  Komulus  its  founder,  and  the  faith  in  the 
divinity  of  Christ  which  makes  the  citizens  of  the  heavenly  City  love 
its  Founder.     In  Lib.  xvm.  chap.  2,  col.  560,  Augustine  calls  other 
kings  and  kingdoms  "velut  appendices"  of  the  two  great  Empires  of 


II]  THE   EMPIRE   AND   THE   PAPACY  67 

when  Pagan  Rome  was  long  since  dead,  to  revive  the 
distinction  between  Church  and  State  as  the  distinction 
between  the  Civitas  Dei  and  the  Civitas  Terrena. 
Alone  the  development  of  the  Antichrist  legend  had 
given  Rome  its  holy  task  in  the  world's  history,  differ- 
entiating the  Roman  Empire  from  all  the  Empires 
which  had  gone  before  it1.  Papalist  theory  left  the 
Investiture  struggle,  not  with  a  denial  of  the  divine 
ordination  of  the  State,  not  with  the  conception  of 
a  sinful  State  over  against  a  holy  Church,  but  clinging 
still  to  the  single  society,  a  Church-State,  in  which 
there  are  two  divinely  ordained  powers,  though  not 
equal,  since  the  Sacerdotium  is  to  be  decisively  superior. 
Long  after  the  Investiture  struggle  we  shall  see  Pope 
Boniface  indignantly  maintain  the  impossibility  of  his 
denying  the  existence  of  the  two  divinely  ordained 
powers. 

The  Imperialists  were  on  the  defensive.  Whereas 
before  the  Investiture  struggle  it  was  essentially  the 
Papalist  who  appealed  to  Pope  Gelasius,  in  order  to  prove 
the  existence  of  the  equal  and  co-ordinate  powers,  it  was 
now,  and  for  the  rest  of  the  Middle  Ages,  as  essentially 

Assyria  and  Home.  And  vide  Kobertson,  "Regnum  Dei"  (Bampton 
Lectures,  1901),  Lecture  v.  pp.  169-222. 

1  Augustine  knows  no  such  differentiation.  As  God  gave  the 
Empire  to  the  Romans,  so  He  gave  it  to  the  Assyrians  and  Persians, 
etc.,  vide  Lib.  v.  chap.  21,  coll.  167-8.  And  it  is  very  interesting 
that  Augustine  does  not  commit  himself  to  what  became  for  the 
Middle  Ages  the  generally  accepted  interpretation  of  the  words  in 
II  Thess.  2— "he  who  now  letteth  will  let,  until  he  be  taken  out  of 
the  way" — as  referring  to  the  Roman  Empire.  "Ego  prorsus  quid 
dixerit  me  f ateor  ignorare ' ' — he  thinks  they  may  ' '  non  absurde ' '  apply 
to  Rome,  but  does  not  pledge  himself  to  this  interpretation.  Vide 
Lib.  xx.  chap.  19,  coll.  685-6. 

5—2 


68  THE   EMPIRE  AND   THE   PAPACY  [CH. 

the  Imperialist1;  the  Papalist  now  appealed  to  them 
rather  to  prove  the  greater  burden  imposed  on  the 
Sacerdotium,  which  was  soon  interpreted  as  meaning  its 
higher  dignity2. 

But  the  Imperialists  were  not  merely  on  the  defensive. 
They  appealed  to  the  past,  and  were  as  often  arguing 
for  the  traditional  supremacy  of  the  temporal  power,  as 
for  the  independence  and  equality  of  the  two  powers. 
Of  this  the  remarkable  treatises  of  Gerhard  of  York 
are,  of  course,  the  best  examples.  He  carried  the  war  into 
the  enemy's  camp3.  But  he  was  not  alone4.  He,  and  the 

1  Vide  e.g.    Tract.   Eboracemis   v.    (in  Lib.   de  Lite,   vol.   in.), 
pp.  684-6. 

2  Vide  e.g.  Bernaldus  Presbyter,  Apologeticae  Rationes  (Lib.  de 
Lite,  vol.  n.),  p.  97. 

3  Vide  especially  Tract,  v.  pp.  685-6,  and  Tract,  iv.  pp.  665-6. 

4  Wido    of    Osnaburg,   De    Controversia   Hildebrandi  et  Henrici 
(Lib.  de  Lite,  vol.  i.),  pp.  462-70,  has  a  very  notable  —  because  up 
to  a  point  quite  correct — appeal  to  history,  and  with  him  should  be 
compared  the  Dicta  cujusdam  de  discordia  Papae  et  Regis  (Lib.  de 
Lite,  i.),  pp.  454-60.     Cf.  also  Petrus  Crassus,  Defensio  Henrici  IV 
(Lib.  de  Lite,  vol.  i.),  pp.  435-7— Gregory  is  injuring  the  memory 
of  past  Emperors  "orthodoxae  fidei,"  who,  with  the  preachers,  built 
up  the  Church ;  and  sometimes  the  Emperors  did  more  "  imperando  " 
than  the  preachers  "praedicando."     Cf.  also  Tract,  de  Investitura 
Episcoporum  (Lib.  de  Lite,  vol.  n.),  pp.  503-4.     Then  they  appeal 
to  the  past  reverence  of  the  Popds  for  the  Emperors— and  especially 
to    Gregory  the    Great.    ,  The    author    of    the  treatise  De    Unitate 
Eccledae  servandae  (Lib.  de  Lite,  vol.  n.),  pp.  196-200,  denies  the 
excommunication  of  Arcadius  by  Pope  Innocent — he  can   find   no 
authority  for  it.     And  it  is  worth  noting  how  Petrus  Crassus,  p.  449, 
makes  use  of  the  example  of  S.  Ambrose's  refusal  of  the  Eucharist 
to    Theodosius — a  favourite  example  with   the   Papalists — to   show 
how  the  Pope  should  provide  for  the  "aedificatio  animarum,"  not,  as 
Hildebrand,  "in  occisione  gladii."     Of  course  he  does  not  mention 
the  refusal  of    the  Eucharist — Ambrose  merely   "summoned    him 
(Theodosius)  to  the  Church,  prescribed  penance  and  took  pains  to 
salve  him  in  soul  and  body."     Hugo  of  Fleurus,  in  his  De  Reyia 


Il]  THE   EMPIRE  AND  THE   PAPACY  69 

other  supporters  of  the  temporal  power  no  less,  while 
rebutting  the  Papalist  claims  to  supremacy,  took  their 
stand  on  the  equality  and  co-ordination  of  two  powers ; 
but  they  then  went  on  to  argue  for  a  very  real  supremacy 
for  the  temporal  power,  appealing  repeatedly  to  history1 
to  show  both  the  obedience  of  former  Popes  and  the 
supremacy  of  former  Emperors  down  to  Henry  III. 
We  must  remember  that,  if  the  Antipope  Clement  were 
to  be  defended,  it  was  especially  necessary  to  vindicate 
for  Henry  IV  the  position  which  his  father,  Henry  III, 
had  occupied  at  Sutri. 

After  the  treatises  of  the  anonymous  Yorkist,  none 
of  the  works  produced  by  the  Investiture  struggle  are 
more  remarkable  than  the  Defensio  Regis  of  Petrus 

potest.  et  sacerd.  diynit.  (Lib.  de  Lite,  vol.  n.)  wrote  specially  to 
refute  Gregory's  condemnation  of  kingdoms,  as  of  sinful  and  diabolical 
origin — he  quotes  Gregory's  words  at  the  opening  of  his  treatise 
(p.  464). 

1  History  is  pretty  well  bandied  about  between  the  Imperialists 
and  the  Papalists.  The  Papalists  compare  the  virtuous  Emperors 
and  kings  of  old  times  with  the  wicked  ones  of  to-day — "Hii  con- 
structores  fuerunt  prius  ecclesiarum,  |  Vos  destructores  penitus  nunc 
estis  earum."  Vide  Hugo  Metellus,  Certamen  Papae  et  Regis,  p.  715. 
But  Gregory  himself  said  that  in  all  history  he  could  not  find  examples 
of  twelve  saintly  kings.  Further  the  amazing  statement  of  Bonizo, 
bishop  of  Sutri,  that  Charlemagne  was  never  crowned  Emperor,  must  be 
taken  in  connection  with  the  history  which  he  gives  of  the  Patriciate, 
and  especially  his  version  of  Henry  Ill's  "Patricialis  tyrannis." 
"Quid  namque  est,  quod  mentem  tanti  viri  ad  tantum  traxit delictum, 
nisi  quod  crediderit  per  patriciatus  ordinem  se  Romanum  posse 
ordinare  Pontificem?"  But  it  will  be  said,  he  continues,  that 
Charlemagne  himself  was  Patrician;  to  which  he  answers  that,  in 
Charlemagne's  time,  Constantine  and  Irene  governed  the  Roman 
Empire— and  therefore  there  was  no  higher  title  left  for  Charlemagne 
than  "father  and  protector  of  the  Roman  city."  Vide  "Liber  ad 
Amicum"  (in  Jaffe,  Monumenta  Gregoriana),  Lib.  in.  pp.  617-8,  and 
Lib.  v.  p.  629  and  ff. 


70  THE   EMPIRE   AND  THE   PAPACY  [CH. 

Crassus.  It  is  full  of  appeals  to  Roman  Law,  to  the 
Code  and  Novels  in  particular — for  Crassus  is  before 
the  period  of  the  Bolognese  Glossators,  and  does  not 
seem  to  know  the  Digest,  as  he  does  the  other  parts  of 
the  Corpus  Juris.  But  he  bases  his  whole  position  on 
law1.  Gregory  is  guilty  according  to  both  laws,  and 
should  be  judged  and  deposed  by  them — a  safer  and 
better  way  than  by  arms2.  The  treatise  announces 
the  entry  of  Roman  Law  into  medieval  political 
thought. 

We  have  mentioned  that  in  a  later  part  of  this 
essay  we  shall  see  Pope  Boniface  maintain  the  impos- 
sibility of  his  denying  the  existence  of  the  two  powers 
—the  reason  he  gives  is  that  he  is  a  lawyer  of  forty 
years  standing.  The  theory  of  the  two  equal  and 
independent  powers — though  Pope  Boniface  of  course 
denied  most  emphatically  the  equality  and  independence 
of  the  temporal  power — came  to  be  essentially  the 
position  taken  up  by  the  lawyers3.  Though  the  Glos- 
sators tried  to  force  the  facts  of  the  twelfth  century  into 
theories  drawn  from  a  strict  interpretation  of  the  Roman 
texts,  they  did  not  attempt  to  maintain  the  superiority 
of  the  temporal  power  alike  in  the  spiritual  sphere 
and  in  the  temporal — a  theory  they  could  with  little 
difficulty  have  drawn  from  the  Corpus  Juris. 

1  Henry  is  king  not  "vi  et  armis,"  but  "legibus,"  vide  p.  434. 
Cf.  p.  443  and  ff.  where  he  wishes  to  show  the  Saxons  that  Henry 
is  their  lawful  king;  cf.  pp.  452-3.     So  p.  435  Hildebrand  has  become 
Pope  "Julia  et  Plautia  lege  contempta." 

2  Vide  pp.  438-41.     Cf.  p.  452 — Hildebrand  "sanctorum  canonum 
contemptor,"  naturally  rejoices  rather  in  arms  than  laws.     "Quis 
igitur  huic  legum  inimico  hanc  poenam  merito,  qui  filio  (Henry  IV) 
necem  paravit,  legibus  addictam  esse  non  censeat?" 

3  Vide  Gierke,  Pol.  Theories  of  the  Middle  Age,  Note  38,  pp.  118-9. 


ll]  THE    EMPIRE   AND   THE    PAPACY  71 

Justinian  recognises  the  Imperium  and  Sacerdotium  j 
as  the  twin  gifts  of  God,  proceeding  from  the  same 
principle  for  the  adornment  of  human  life1  and  differing 
little  one  from  another2.  The  Sacerdotium  "  rebus 
divinis  inservit,"  the  Imperium  "humanas  res  regit." 
But  the  spheres  are  not  "  distinct  and  separate  " ;  the 
Imperium  does  not  restrict  itself  to  temporal  matters. 
"Nihil  imperatoribus,"  says  Justinian3,  "  aequae  curae 
fuerit  atque  sacerdotum  honestas ;  si  quidem  hi  etiam 
pro  illis  semper  deo  supplicant.  Nam  si  alterum  omni 
ex  parte  integrum  est  et  fiducia  dei  praeditum,  alterum 
recte  et  decenter  rempublicam  sibi  traditam  exornat, 
bonus  quidem  concentus  existet,  qui  quicquid  utile  est 
humano  generi  praebeat.  Nobis  igitur  maximae  curae 
sunt  et  vera  dei  dogmata  et  sacerdotum  honestas,  quam 
si  illi  custodiunt,  per  ipsam  magna  bona  a  deo  nobis 
datum  in  nosque  et  quae  habemus  firmiter  possessuros 
et  quae  nondum  adepti  sumus  insuper  adquisituros  esse 
confidimus." 

1  Vide  Justinian,  Novettae  Const,  vi.   Praefatio,  "Maxima  inter 
homines  dei  dona  a  superna  benignitate  data  sunt  sacerdotium  et 
imperium,   quorum  illud  quidem  rebus  divinis   inservit,   hoc    vero 
humanas  res  regit  earumque  curam  gerit :  quorum  utrumque  ab  uno 
eodemque  principio  proficiscitur  et  humanam  vitam  exornat." 

2  Vide  Nov.   Const,  vn.  2.     Justinian  is  here  legislating  against 
the  alienation  of  ' '  res  ecclesiasticae ' '  and  makes  certain  exceptions. 
He  allows  an  exchange  in  certain  circumstances  between  the  Emperor 
and  a  Church  or  religious  institution,   on  the   condition   that  the 
Emperor  gives  in  return  something  of  equal  or  greater  value  than  the 
thing  taken.     In  such  a  case  the  exchange  is  to  hold  good  and  no  one 
concerned  in  it  to  be  amenable  to  any  penalty  imposed  by  former  laws 
— "utique,"  he  continues,   "cum  nee  multo  differant  ab  alterutro 
sacerdotium  et  imperium,  et  sacrae  res  a  communibus  et  publicis, 
quando  omnis  sanctissimis  ecclesiis  abundantia  et  status  ex  imperialibus 
munincentiis  perpetuo  praebetur." 

3  Immediately  following  the  passage  quoted  above  note  1. 


72  THE   EMPIRE  AND  THE   PAPACY  [CH. 

The  Middle  Ages  referred  repeatedly  to  these  Novels, 
but  they  had  to  abide  by  the  phrases  which  place  the 
two  powers  together  as  the  "  dona  Dei,"  not  differing 
much  one  from  another,  and  to  shut  their  eyes  to  the 
obvious  superiority  over  both  spheres,  which  is  expressed 
in  the  passages,  taken  as  a  whole.  Here  and  there  in 
the  Middle  Ages  the  plea  of  superiority  for  the  temporal 
power  would  be  made — above  all  in  the  lifetime  of 
Bartolus  by  Marsiglio  and  Occam.  But  the  plea  was  still, 
as  in  the  Investiture  struggle,  for  the  superiority  in  the 
one  society,  the  Ecclesia  or  Respublica  Christiana,  not 
for  the  superiority  of  State  over  Church.  The  Byzantine 
theory  of  the  absorption  of  the  Church  in  the  State 
rarely  made  itself  heard1,  just  as  the  antithesis  of 
Church  and  State,  as  the  Civitas  Dei  and  Ci vitas 
Terrena,  which  Gregory  had  found  himself  compelled  to 
adopt,  was,  in  general,  rejected  by  the  Papalist  theory — 
even  when  at  its  highest  under  Boniface  VIII2. 

We  may  expect,  then,  that  Bartolus  will  place  the 
Empire  and  Papacy  side  by  side  as  separate  and  dis- 

1  On  Frederick  IPs  plans  vide  Huillard-Breholles,  Vie  et  Corre- 
spondance  de  Pierre  de  la  Vigne,  pp.  204-19.  And  vide  Occam's 
reference  to  Justinian  (in  Goldast,  Monarchia  S.  Eomani  Imperil, 
vol.  n.  p.  329).  Kadulf  de  Colonna,  a  Papalist,  acknowledges  that 
Charlemagne,  as  Patrician,  had  power  both  to  order  the  apostolic 
see  and  to  appoint  bishops.  The  former  power  he  did  not  use,  but 
did  not  renounce— the  latter  he  used.  Finally  Lewis  the  Pious  gave 
up  both  rights  ' '  expresse. ' '  Vide  his  tract.  ' '  De  Translatione  Imperii ' ' 
(in  Goldast,  op.  cit.  vol.  i.),  chap.  6. 

-  In  this  context  it  is  very  interesting  to  note  how  Augustinus 
Triumphus,  Summa-  de  Eccles.  Pot.,  Quaest.  XLVI.  art.  1,  refers  to 
S.  Augustine's  comparison  of  kingdoms  without  justice  as  "magna 
latrocinia,"  to  deduce  the  necessity  of  obedience  from  all  men  to 
the  Papacy, -and  how  John  of  Paris,  De  Pot.  Regali  et  Sacerdot., 
chap,  xix.,  answers  this  Papalist  argument  by  pointing  out  that 
S.  Augustine  was  referring  to  Pagan  states. 


II]  THE   EMPIRE   AND   THE   PAPACY  73 

tinct,  but  co-ordinate,  powers.  "Quidam  sunt  habentes 
jurisdictiones  separatas  et  distinctas,  ita  quod  una  ab 
alia  non  dependet,  nee  sunt  sub  eodem  domino,  ut  Papa 
et  Imperator1."  Both  are  of  Divine  origin — "Impe- 
rator  et  Ecclesia  processerunt  a  Deo  tamquam  a  causa 
efficiente2";  and  they  are  nearly  related  one  to  another3 
-"non  multum  differunt,  tamen  in  aliquibus  differunt4." 
This  conception  of  the  relations  of  the  Empire  and 
Papacy  may  be  illustrated  throughout  his  commen- 
taries. "Imperator  et  Papa,"  "Princeps  et  Papa"— 
the  two  go  together;  the  Pope  is  another  "Princeps"  of 
the  Law  Books5.  Thus  "Papa  et  Imperator  possunt 
concedere  regibus  nostris  regna  quae  tenentur  per 
Saracenos,  quae  jam  (sic)  fuerint  nostra6."  We  have 
mention  of  captains  of  war,  "qui  per  Papam  vel 
Principem  mittuntur  ultra  mare  ad  expugnandum 
Saracenos7."  So,  when  Bartolus  says  that  statutes 

1  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLVIII.  17.  1),  p.  528. 

2  Comment,  on  Dig.  Vet.  Part  i.  (Prima  Constitutio),  p.  8,  §  14. 
Cf.  Comment,  on  Authenticum,  Collatio  i.  (Quomodo  oporteat  Episcopos, 
§  Maxima  Quidem),  p.  25,  §  1 :  "  Imperium  et  Sacerdotium  processerunt 
a  Deo  et  eodem  tempore." 

3  Thus  "dicuntur  quodam  modo  fraternizare,"  vide  Comment,  on 
Di<).    Vet.  Part  i.   (Prima  Constitutio),  p.   8,    §  13.     Elsewhere   the 
Church  is  called  the  sister  of  the  Empire.     Vide  below,  p.  95. 

4  Comment,   on   Authenticum   (De   non   alien,    aut   permut.  rebus 
ecclesiast.  §  Sinimus),  p.  28:  "Dicitur  enim  hie  quod  Imperium  et 
Sacerdotium  aequiparantur....Sed  respondeo,  quod  licet  Imp.  et  Sac. 
non  multum  differant,  tamen  in  aliquibus  differunt." 

5  In  Durandus  we  find  this  definitely  stated.     Vide  his  Speculum 
Juris  (Lib.  n.  Partic.  in.,  de  Appellationibus,  §  Videndum),  p.  480: 
"Videndum  restat  a  quibus  appellari  possit.     Et  quidem  generaliter 
ab  omnibus  tarn  delegatis,  quam  ordinariis....A  Principe autem,  scilicet 
a  Papa  vel  Imperatore,  non  appellatur." 

6  Comment,  on  Dig.  Vet.  Part  n.  (D.  xix.  1.  57),  p.  391. 

7  Comment,  on  Codex,  Tres  libri  (C.  xn.  12.  1),  p.  125. 


74  THE   EMPIRE   AND   THE   PAPACY  [CH. 

against  the  liberty  of  the  Church  or  ecclesiastical  per- 
sons are  invalid,  we  are  told  that  such  statutes  are 
those  "contra  privilegia  concessa  ecclesiis  seu  ecclesi- 
asticis  personis  per  Principem  seu  Papam1."  Similarly 
"scripta  seu  authoritates  approbatae  ab  Imperatore  vel 
summo  Pontifice  probant  et  concludunt2." 

Sometimes  the  correspondence  is  carried  further. 
The  Senate  is  made  to  correspond  with  the  college  of 
cardinals,  the  Praeses  Provinciae  with  the  Papal  legate. 
"Nota  quod  ad  famam  solus  Princeps  et  senatus  potest 
restituere,  et  eodem  modo  Papa  et  collegium,  quo  ad 
spiritualia,  et  quo  ad  temporalia  in  his  qui  sunt  Eccle- 
siae  subjecti;  aliter  secus  secundum  Innocentium3." 
Elsewhere,  after  saying  that  "si  dominus  legatus  venit 
ad  civitatem  Perusii  et  hospitatur  in  domo  domini 
episcopi,"  the  bishop  does  not  from  the  fact  of  the 
legate's  presence  lose  his  own  jurisdiction,  Bartolus 
refers  to  another  text  to  show  that  "defensor  civitatis  non 
perdit  jurisdictionem  suam  per  praesentiam  praesidis4." 

1  Comment,  on  Codex,  Part  i.  (C.  i.  2.  12,  Nova  const.  Fred.  II, 
Cassa  et  Irrita),  p.  42,  §  3. 

2  Comment,  on  Dig.   Vet.  Part  n.  (D.  xn.  1.  1),  p.  5,  §  21.     Cf. 
Comment,  on  Infort.  Part  n.  (D.  xxxni.  10.  9),  p.  253,  in  the  same 
matter.     Examples  can  be  multiplied  on  other  matters  as  well— "  Non 
creditur  nunciis  sedis  Apostolicae  vel  Principis  nisi  habeant  literas," 
in  Comment,  on  Codex,  Part  i.  (C.  i.  15.  1),  p.  93,  §  2.     Or  vide  Com- 
ment, on  Codex,  Part  n.  (C.  vn.  62.  6),  p.  227,  §  4.     Comment,  on  Dig. 
Nov.  Part  n.  (D.  XLV.  1.  136,  §  Cum  quis),  p.  157,  §  1. 

3  Comment,  on  Dig.  Vet.  Part  i.  (D.  in.  1.  1,  §  De  Qua  re),  p.  322, 
§  1.     In  the  same  Commentary  (D.  i.  16.  12),  p.  131,  §  2:   "Legati 
cardinales  scilicet  qui  mittuntur  ab  ecclesia  Eomana  tenent  locum 
proconsulis,"   which  is  not  inconsistent  with  the  correspondence  of 
the  whole  College  to  the  Senate.     And  in  D.  i.  11.  1,  p.  109,  the 
"praefecti   praetorio   aequiparantur   cardinalibus   et   episcopis,    quod 
est  notabile  propter  multa  et  ideo  nota  earn." 

4  Comment,  on  Codex,  Tres  libri  (C.  xn.  41.  3),  p.  140.     Cf.  Com- 


II]  THE   EMPIRE   AND   THE  PAPACY  75 

But  if  we  continue,  we  find  that  these  two  powers 
are  considered  not  merely  as  separate  jurisdictions,  but 
rather  as  separate  jurisdictions  in  separate  territories. 
"Quaedam  sunt  territoria,  quae  sunt  separatae,  nee 
tamen  sub  eodem  domino,  ut  territoria  Imperatoris  et 
Papae1."  Bartolus  is  here  discussing  whether  "  citatio 
verbalis  "  can  be  made  "  extra  territorium  citantis."  Cino, 
says  Bartolus,  decided  that  it  could,  but  against  this 
stands  a  decretal,  to  which  Cino  said,  contemptuously, 
that  no  answer  was  to  be  given,  but  that  it  might  pass 
with  the  other  errors  of  the  canonists2.  Bartolus,  how- 
ever, who  will  not  speak  of  the  canonists  in  this  way, 
offers  a  solution.  "Quaedam  territoria  sunt  distincta, 
sub  uno  tamen  domino  sunt  omnia,  ut  Imperium  Roma- 
num  est  divisum  per  praesidatus.  Tune  unus  praeses 
potest  citare  in  provincia  alterius,  quae  tamen  est  sub 
eodem  domino;  ita  loquitur  hie.  Quaedam  sunt  terri- 
toria quae  sunt  separata,  nee  tamen  sub  eodem  domino, 
ut  territoria  Imperii  et  Papae,  et  tune  non  potest  fieri 
citatio  de  uno  territorio  ad  aliud.  Ita  sustineo  istud 
decretalem." 

The  reference  to  the  decretal  "  Pastoralis  Cura  "  and 
to  Cino  shows  that  Bartolus  has  in  mind  the  famous 
dispute  which  occasioned  this  decretal  of  Clement  V. 

went,  on  Authenticum  (Collatio  n.  Ut  jud.  sine  quoquo  suflr.  fiant. 
Omnes  dignitates,  §  Illud  autem),  p.  33,  §  102,  "  Imperator  potest  unire 
duas  provincias....Et  sic  Papa  potest  duos  episcopatus  unire." 

1  Comment,  on  Codex,  Part  i.  (C.  i.  3.  31),  p.  75. 

2  Ibid.:    "  Secundo  nota  ex  ista  §  'Verum  si  apparitor'  (i.e.  in 
this  law  C.  i.  3.  32)  quod  citatio  verbalis  possit  fieri  extra  territorium 
citantis.    Et  ita  determinat  Cynus  in  quadam  disputatione  quam  fecit. 
Sed  de  hoc  est  casus  in  contrarium  (extra,  de  re  jud.  in  c.  pastoralis 
in   Cleraentinis).      Ad   hanc   decretalem    dicit   Cynus   non   est   dare 
responsum,  sed,  dicit,  pertranseat  cum  aliis  erroribus  Canonistarum." 


7(j         THE  EMPIRE  AND  THE  PAPACY        [CH. 

The  Emperor  Henry  VII  had  declared  war  on  Robert, 
king  of  Naples,  the  leader  of  the  Papalist  party  in 
Italy.  Clement  intervened  and  ordered  the  suspension 
of  hostilities,  on  the  ground  that  Henry  was  bound  by 
his  oath  of  fealty  to  respect  the  vassals  of  the  Church, 
such  as  the  Pope  claimed  the  king  of  Sicily  to  be. 
Henry  of  course  refused  to  recognise  himself  as  bound 
by  any  oath  of  fealty  to  the  Pope  and  summoned  Robert 
to  appear  before  him  at  Pisa.  Robert  not  appearing, 
Henry  declared  him  guilty  of  treason,  sentenced  him  to 
be  deprived  of  his  crown  and  put  him  to  the  ban  of 
the  Empire.  The  Emperor  issued  his  constitution 
"Ad  Reprimendum"  denning  treason,  and  the  Pope 
replied  with  this  decretal  "Pastoralis  Cura."  Henry 
soon  after  died ;  but  the  decretal  was  included  among 
the  Clementines,  while  the  constitution  was  placed  as 
"  Collatio  XI."  in  the  Authenticum,  and  glossed  by  Bar- 
tolus  himself.  The  legal  question  at  issue,  whether 
citation  is  valid  "extra  territorium1,"  continued  to  be 
widely  discussed,  and  Bartolus  considers  it  again  in  his 
Commentary  on  the  Digest*.  He  discusses  whether  a 

1  There  was  also  a  question  whether  the  citation  of  Kobert  was 
valid  as  being  "ad  locum  suspectum."     Vide  Comment,  on  Dig.  Nov. 
Part  n.  (D.  L.  7.  4),  p.  666. 

2  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLVIII.  17.  1),  p.  528.    "  Facit 
ad  quaestionem  illam  utrum  jtidex  istius  civitatis  (Perugia)  possit 
citare  aliquem  extra  territorium  suum  existentem  per  suum  nuncium 
vel  per  literas.     Decretalis  dicit  quod  non...ubi  Papa  reprobat  senten- 
tiam  Imperatoris  latam  Pisis,  ubi  per  edicta  citaverat  regem  Kobertum 
existentem  in  terns  ecclesiae,  et  sic  in  alieno  temtorio.     Dicit  enim 
Papa,  quod  ipse  Papa  debet  requiri  ab  Imperatore  ut  citaret  regem  in 
suo  territorio;   non  autem  potuit  ipse  Imperator  citare.     Cynus  dis- 
putavit  istam  quaestionem  Senis  (Siena)  et  dicit  quod  ista  citatio,  quae 
sit  verbo  vel  per  edicta,  potest  fieri  de  eo,  qui  est  in  alieno  territorio.... 
Citatio  vero  talis,  capiendo  personam,  non  posset  fieri.... Sed  ad  illam 


II]  THE   EMPIRE  AND  THE   PAPACY  77 

judge  of  Perugia  can  cite  anyone  outside  the  territory 
of  Perugia.  The  decretal  "Pastoralis  Cura"  says  no; 
and  this  time  Bartolus  definitely  mentions  the  dispute 
between  the  Emperor  Henry  and  king  Robert.  Again 
he  gives  Cino's  opinion  and  records  his  contempt  for 
the  canonists.  For  himself,  however,  he  has  always 
defended  the  decretal,  offering  as  a  sort  of  apology 
that  he  is  "in  terris  Ecclesiae";  and  so,  he  says,  the 
decretal  is  true  ade  jure."  His  solution  is  the  same 
as  that  given  in  the  passage  quoted  above.  In  the 
case  of  judges  whose  jurisdictions  are  separate,  yet 
all  dependent  "ab  uno  principe,  ut  diversi  praesides 
diversarum  provinciarum  constituti  a  Principe  vel  ab 
uno  rege;  tune  unus  potest  citari1  in  territorio  alterius 
verbo... quasi  hoc  videatur  permissum  ab  illo  Principe, 
qui  eos  constituit...Quidam  sunt  habentes  jurisdic- 
tiones  separatas  et  distinctas,  ita  quod  una  ab  alia  non 
dependet,  nee  sunt  sub  eodem  domino,  ut  Papa  et 
Imperator;  tune  unus  non  potest  citare  in  territorio 
alterius.  Ita  loquitur  decretalis  Cura  Pastoralis,  sed 
debet  requirere  ilium  judicem,  in  cujus  territorio  est 
(i.e.  the  accused)  ut  ilium  citet."  Comparing  these  two 
quotations  we  see  that  Bartolus,  accepting  the  decretal 
of  Clement  V,  considers  that  the  kingdom  of  Naples 
was  within  the  "terrae  Ecclesiae,"  and  that  therefore 
the  Emperor  could  not  cite  king  Robert  there,  without 
the  permission  of  the  Pope.  Of  course  the  Emperor 
claimed  that  Naples  was  a  part  of  the  universal  Roman 

decretalem,  elicit  ipse,  non  potest  dari  responsum  in  pace,  sed  pertran- 
seat  cum  aliis  erroribus  canonistarum.  Ita  dicit  ipse.  Ego  consuevi 
tenere  illam  decretalem,  tamquam  existens  in  terris  Ecclesiae,  dicens 
earn  esse  veram  de  jure." 

1  Sic.     "Citare"  is  obviously  meant. 


78  THE    EMPIRE  AND  THE  PAPACY  [CH. 

Empire,  though  he  also  claimed  that  Robert  was  bound 
to  appear  before  him,  being  his  direct  vassal  in  regard 
to  certain  lands  held  in  Piedmont;  and  Cino  and  the 
lawyers  on  Henry's  side  brought  arguments  to  prove  that 
citation  "extra  territorium1"  is  valid,  therefore  in  part 
acknowledging  the  Pope's  claim  over  Naples.  How- 
ever it  is  with  the  views  of  Bartolus  that  we  are  here  con- 
cerned, and  they  are  clear.  The  territories  of  the  Pope 
and  of  the  Emperor  are  distinct  like  their  jurisdictions. 
This  territory  of  the  Church  is,  as  we  saw  above2, 
still  a  part  of  the  Roman  Empire  and  its  inhabitants 
a  part  of  the  Populus  Romanus,  since  it  was  granted 
out  of  the  Empire  by  the  Emperor  to  the  Church. 
And  thus  it  may  be  said  that  the  world  is  divided 
between  these  two  territories;  what  is  not  in  the  terri- 
tory of  the  Church,  must  be  in  the  territory  of  the 
Empire,  except  a  few  towns  like  Perugia,  which  are 
freed  by  privilege  from  both3. 

1  Unfortunately  Cino's  disputatio  held  at  Siena  at  the  very  time  of 
the  difference  between  Henry  and  Clement,  and  which  Bartolus  has 
mentioned,  is  lost.    According  to  Bartolus  Cino  maintained  the  validity 
of  citation  extra  territorium  "quae  fit  verbo,"  but  not  "capiendo 
personam."     But  it  seems  that  he  also  denied  that  Naples  was  in 
"  the  territory  of  the  Church."    Vide  Chiapelli,  Vita  e  Opere  GiuridicJie 
di  Cino  da  Pistoia,  pp.  126-30.     On  the  question  of  the  Pope's  claim 
of  an  oath  of  fealty  from  the  Emperor,   vide   Hugelmann,   "Die 
deutsche  Konigswahl  im  Corpus  Juris  Canonici"  (no.  98  of  Gierke's 
Untersuchungen),  p.  112  and  ff. 

2  Vide  above,  p.  26. 

3  "Facit  haec  lex  quod  civitas  Perusina  non  subsit  Ecclesiae  nee 
Imperio.     Et  si  dicas,  quidquid  non  subest  Imperio,  est  sub  Ecclesia, 
concede,  nisi  civitas  aliqua  non  subsit  Ecclesiae  ex  privilegio  concesso. 
Sed   civitas   Perusina  est  hujusmodi :    nam  Imperator  donavit  earn 
Ecclesiae,  seu  permutavit  cum  ea :  et  ex  privilegio  Ecclesiae  liberavit 
earn."     Vide  Comment,  on  Codex,  Tres  libri  (C.  x.  31.  61),  p.  44. 
There  is  a  note  on  this  passage  by  Scalvanti,  "  Un  opinione  del  Bartolo 


Jl]  THE   EMPIRE   AND   THE   PAPACY  79 

This  territorial  conception  of  the  Empire  and  Papacy 
does  not  of  course  exclude  the  conception  of  the  two 
supreme  powers,  each  with  its  own  sphere  of  temporal 
and  spiritual  matters  respectively.  For  example,  in  the 
question  of  legitimation  Bartolus  draws  two  distinctions. 
As  far  as  "  temporalia  "  are  concerned,  the  Emperor  can 
legitimate ;  not,  as  regards  "  spiritualia."  But,  even  as 
regards  "temporalia,"  the  Emperor  cannot  legitimate 
those  who  are  not  his  subjects,  that  is  to  say  in  the 
territory  of  the  Church;  nor  can  the  Pope  legitimate,  as 
regards  "temporalia,"  in  the  territory  of  the  Empire1. 

We  see  how  the  two  conceptions  meet  one 
another.  The  Emperor  legitimates  as  regards  "  tempo- 
ralia," the  Pope  as  regards  "  spiritualia."  The  Pope  also 
legitimates  as  regards  "temporalia"  in  his  distinct  terri- 
tory, but  here  the  correspondence  breaks  down.  Bar- 
tolus cannot  maintain  that  the  Emperor  can  legitimate 
as  regards  "  spiritualia"  in  the  territory  of  the  Emperor. 
Consequently,  though  the  universal  activity  of  the 


sulla  liberta  Perugina"  (in  Bolletino  della  E.  Deput.  di  storia  patria 
per  rUmbria,  vol.  n.  p.  59  and  ff.). 

1  Comment,  on  Codex ,  Part  i.  (C.  v.  5.  6,  Auth.  Ex  complexu), 
p.  534,  §  5:  "Quaerit  gl.  utrum  illi  spurii  possint  legitimari  per 
principem.  Gl.  dicit  quod  sic  et  bene....Quod  potest  esse  verum 
quantum  ad  temporalia,  sed  quantum  ad  spiritualia  non.  Nee  Papa 
quantum  ad  temporalia  potest  in  terris  Imperil."  Cf.  Comment,  on 
Dig.  Vet.  Part  n.  (D.  xxm.  2.  57),  p.  476:  "Nota  quod  Imperator 
potest  legitimare  filios....Quod  sine  dubio  est  verum  quo  ad  tempo- 
ralia ;  sed  quo  ad  spiritualia  secus.  Nee  Imperator  legitimat  quo  ad 
temporalia  inter  non  sibi  subditos."  In  Consilium  75,  p.  50,  §  4,  on 
the  question  whether  "legitimatio  quod  fieret  ab  Imperatore  vel  ab 
alio  habente  potestatem  ab  ipso  valeat  in  terns  Ecclesiae  immediate 
subjectis,"  B.  does  not  decide,  but  gives  Innocent's  decision  against 
its  validity,  Jac.  de  Belvisio's  for,  whose  opinion  "videtur  sequi 
Joh.  Andreae." 


80         THE  EMPIRE  AND  THE  PAPACY       [CH. 

Emperor,  in  temporal  matters,  is  limited,  by  the  con- 
ception of  these  "jurisdictiones  et  territoria  distincta," 
to  the  territory  of  the  Empire,  the  universal  spiritual 
activity  of  the  Pope  must  reach  beyond  his  own  distinct 
territory  and  be  universally  valid. 

All  this  is  further  illustrated  by  Bartolus'  treat- 
ment of  the  Canon  Law.  Canon  Law  was,  with  Roman 
Law,  the  fundamental  material  with  which  he  worked, 
though  we  have  seen  that  he  considered  it  as  dependent 
on,  and  therefore  in  a  sense  inferior  to,  the  Civil  Law. 
He  did  not,  like  Baldus  and  other  legists,  write  any 
commentaries  upon  it.  But  he  cited  it,  as  decisive, 
authoritative,  as  he  did  the  Justinian  Law  Books ;  he 
did  not  merely  adduce  it  as  an  illustration,  in  the 
manner  in  which  he  cited  "statuta."  He  had  none  of  the 
hatred  which  Cino1  and  some  other  legists  felt  for  the 
canonists.  We  have  seen  him  defend  a  decretal  and 
the  canonists  from  Cino's  contempt.  He  may  often 
have  disagreed  with  the  canonists,  but  he  was  always 
respectful  to  their  opinions;  and  generally,  where 
"  spiritualia "  were  under  discussion,  he  was  ready  to 
stand  by  their  judgment2. 

Where  Canon  Law  itself,  apart  from  its  commen- 
tators, is  concerned,  it  is  in  spiritual  matters  always  to 
be  preferred  to  the  Civil  Law.  Just  as  the  Pope's 
jurisdiction  in  spiritual  matters  is  universal,  while  the 
Emperor's  temporal  jurisdiction  is  limited  to  the  terri- 
:  tory  of  the  Empire,  so  Canon  Law,  in  so  far  as  it  relates 

1  Vide,  for  the  mutual  hatred  of  Cino  and  the  Canonists,  Chiapelli, 
op.  cit.  p.  130  and  p.  142  and  ff.     Later  writers  reprove  him,  Baldus 
among  them.     Vide  also  Gierke,  Deutsche  Genossenscliaftsrecht,  vol. 
m.  p.  354  and  note  2. 

2  For  Bartolus  and  the  canonists,  vide  Appendix  B,  below. 


II]  THE   EMPIRE  AND   THE   PAPACY  81 

to  "  spiritualia,"  is  of  universal  validity  above  the  Civil 
Law,  while  Civil  Law,  even  in  temporal  matters,  bows 
to  the  Canons  in  the  territory  of  the  Church.  "Quaero 
ergo  quando  lex  contradicit  canoni,  vel  econtra,  cui  sit 
stanclum.  Gl.  hie  tangit,  et  videtur  quod  sit  standum 
canoni... Tu  die:  aut  loquimur  in  spiritualibus  et  per- 
tinentibus  ad  fidem,  et  stamus  canoni. .  .Aut  loquimur  in 
temporalibus ;  et  tune  aut  in  terris  subjectis  Ecclesiae: 
et  sine  dubio  stamus  decretalibus.  Aut  in  terris  sub- 
jectis Imperio :  et  tune  aut  servare  legem  est  inducere 
peccatum,  ut  quod  praescribat  possessor  malae  fidei: 
et  tune  stamus  canonibus...Aut  non  inducit  peccatum: 
et  tune  stamus  legibus1." 

The  abstract  rule  here  laid  down  is  confirmed  by 
frequent  decisions  of  Bartolus  himself.  Thus  in  dis- 
cussing "An  quando  quis  dicit  judicem  suspectum, 
sit  inferenda  causa," — "omnes  nostrae  glossae,"  says 
Bartolus2,  "et  doctores  juris  civilis  dicunt  quod  non,  et 
illud  consului  in  quadam  civitate  Imperii.  Canonistae 
contra...unde  in  terris  Imperii  tenetur  opinio  istius 
glossae."  Again,  "de  jure  canonico,"  he  says3,  dis- 
cussing a  law  of  the  Code,  "ista  lex  est  correcta,  quia 
instantia  litis  non  perit  triennio.  Ideo  ilia  observatur 
in  terris  Ecclesiae,  haec  vero  in  terris  Imperii."  Finally 
we  may  give  an  example  in  which  "  spiritualia "  are 
concerned.  Bartolus  is  considering4  "relicta  ad  pias 

1  Comment,  on  Codex,  Part  I.  (C.  i.  2.  12),  p.  41,  §  2.     It  is  note- 
worthy  that  in  this  passage  all  the  authorities  given  by  Bartolus  are 
from  the  Canon  Law.     I  have  not  thought  it  necessary  to  transcribe 
them,  but  have  marked  their  omission  by  dots. 

2  Comment,  on  Infort.  Part  n.  (D.  xxxvi.  1.  4),  p.  421,  §  2. 

3  Comment,  on  Codex,  Part  i.  (C.  m.  1.  11),  p.  305,  §  1. 

4  Comment,  on  Codex,  Part  i.  (C.  i.  2.  1),  p.  32,  §§  79-81. 

w.  6 


82  THE    EMPIRE   AND   THE    PAPACY  [CH. 

causas."  "Quaero  an  ea  quae  supra  dicta  sunt  in  dis- 
ponente  ad  pias  causas  in  mortis  articulo  sint  vera 
etiam  in  quolibet  disponente  constitute  in  non  mortis 
articulo,  ita  quod  si  Imperator  disponeret  contrarium, 
non  valeret.  Respondeo  in  dispositionibus  factis  ad 
pias  causas,  sive  per  constitutum  in  mortis  articulo, 
sive  non,  nulla  requiritur  juris  civilis  solemnitas...dum 
tamen  talis  dispositio  non  repugnet  bonis  moribus  seu 
pietati...Et  etiam  si  Imperator  constitueret  contrarium, 
non  valeret,  et  omnes  leges  statuentes  contrarium  non 
essent  servandae.  Quod  probo,  quia  leges  factae  super 
rebus  pertinentibus  ad  pia  loca  vel  piis  actibus  ddpu- 
tatis  non  valent  nisi  authoritate  ecclesiastica  fuerint 
confirmatae...Praeterea  in  his  quae  spiritualia  sunt  vel 
in  quorum  observatione  emergunt  peccata,  jura  canonica 
praevalent  legibus."  Bartolus  then  goes  on  to  show 
,  that  "relicta  ad  pias  causas"  are  a  spiritual  matter, 
in  that  remission  of  sin  is  thereby  obtained.  In  this 
matter,  therefore,  "praevalent  canones  legibus."  He 
mentions  two  extra vagants  to  show  that  this  is  "jure 
canonico  expressum" — "in  quibus,  licet  specialiter  ex- 
primatur  de  numero  testium,  tamen  generaliter  dicit 
quod  talia  relicta  non  debent  judicari  secundum  leges 
humanas,  sed  secundum  sacros  canones  et  jura  divina1." 
Further  the  "dicta  Apostoli"  prevail  over  the  "dicta 
Imperatoris,"  and  Bartolus  quotes  S.  Paul  (Galatians) 
and  the  Gloss  to  the  Magister  Sententiarum  (Peter 
Lombard)  to  prove  that  "relicta  ad  pias  causas"  are 

1  Note  also  §  83  at  the  end  of  the  Commentary  on  this  law:  "Ex 
quibus  conclude  quod,  non  obstante  aliqua  lege  communi,  municipal! 
vel  imperiali,  facta  vel  fienda,  relicta  ad  pias  causas  debent  judicari 
secundum  canones  et  jura  divina  et  naturalia,  seu  gentium,  et  non 
secundum  leges." 


II]  THE   EMPIRE  AND  THE   PAPACY  83 

not  bound  by  the  "  solemn! tates  "  of  Civil  Law.  "Item 
ex  eo  quod  glossa  (i.e.  to  the  Sentences)  dicit  quod  est  in 
authoritate  canonum,  apparet  quod  omnes  debent  illud 
observare,  sive  in  terris  Ecclesiae,  sive  Imperii" — mean- 
ing, as  is  clear  from  all  that  goes  before,  that  it  must  be 
obeyed  both  in  the  territory  of  the  Church  and  of  the 
Empire,  not  because  it  is  in  the  Canons,  but  because  it 
is  a  spiritual  matter,  in  that  it  concerns  the  remission 
of  sin1. 

Provided,  then,  that  we  remember  the  two  distinct 
conceptions  of  these  two  powers,  the  Papacy  and  the 
Empire,  which  we  may  call  the  universal  and  the  terri- 
torial conceptions,  the  views  of  Bartolus  on  their  relations 
are  so  far  logical  and  consistent;  though,  as  we  have  seen, 
the  exact  balance  between  the  two  powers  is  destroyed  i 
in  favour  of  the  Papacy  by  the  fact  that  the  universal 
spiritual  jurisdiction  of  the  Pope  and  the  Canons,  unlike 
the  universal  temporal  jurisdiction  of  the  Emperor  and 
the  Civil  Law,  is  never  restricted  to  one  territory. 

In  all  this  Bartolus  was  not  merely  constructing 
theories;  he  was  writing  with  his  eyes,  as  usual,  fixed  i 
upon  Italy,  and  interpreting  very  closely  the  actual 
conditions  there  existing.  In  the  first  place,  in  Italy, 
as  in  the  rest  of  western  Europe,  the  validity  of  the 
Canons  over  secular  laws  was,  in  spiritual  matters, 
universally  recognised.  Canon  Law  was  administered 
all  over  western  Europe  in  its  own  spiritual  courts. 
The  validity  of  Civil  Law  was  not  nearly  so  universal. 

1  Cf.  Comment,  on  Dig.  Nov.  Part  i.  (D.  XLI.  3.  5),  p.  293,  §  8: 
"De  jure  vero  canonico  superveniens  mala  fides  usucapionem  vel 
praescriptionem  interrumpit,  cui  juri  canonic!  est  standum  ideo  quia 
tangit  peccatum." 

6—2 


84         THE  EMPIRE  AND  THE  PAPACY       [CH. 

Outside  of  Italy  and  the  Pays  du  droit  ecrit  in  France, 
Roman  Law  was  not  yet  anywhere  received.  In  Italy 
itself,  Civil  Law  was  not  the  only  temporal  law  under 
which  men  lived.  The  clergy  did  not,  here  as  else- 
where. Among  laymen  there  were  still  some  living 
under  Lombard  Law1.  Naples  had  its  laws.  The  cities 
had  their  statutes.  We  shall  examine  later  in  this  essay 
the  relation  of  these  to  Roman  Law,  and  we  shall  see 
how  the  Civil  Law  occupied,  as  it  were,  an  international 
position  in  Italy,  supplementing  and  correcting  the 
Statuta.  But  on  the  other  hand,  though  the  Barons 
of  England  might  declare  that  they  would  have  no 
changes  in  the  laws  of  England,  and  though  Wyclif  at 
the  end  of  this  century  might  plead  that  English,  not 
Roman  Law,  should  be  taught  at  Oxford2,  these  facts 
themselves  are  eloquent  testimonies  that  men  were 
looking  ever  more  favourably  on  Roman  Law,  were 
tending  to  regard  it  everywhere  as  the  temporal  law, 
the  most  divine  and  reasonable  of  temporal  laws  and  so 
superior  to  all  local  laws. 

Then  again,  territorially,  Canon  Law  was  actually 
the  law  of  the  Church  lands  in  Italy,  for  laymen  and 
clerks  alike;  or  rather  it  occupied  in.  the  lands  of  the 
Church  the  same  position  as  Roman  Law  in  the  rest 
of  Italy — an  "international"  position  to  conflicting,  or 
supplementary  to  insufficient,  local  legislation.  There 
were  both  pontifical  and  legatine  constitutions  for  the 
states  of  the  Church;  where  they  failed,  it  was  the 

1  Vide  Fertile,  Storia  del  diritto  italiano,  vol.  n.  Part  2,  pp.  63-9. 
He  quotes  a  passage  on  p.  67,  note  29,  from  Lucas  de  Penna,  a  con- 
temporary of  Bartolus,  saying  that  in  Naples  "  multi  utuntur  eo  jure." 

2  Vide  Maitland,  English  Laiv  and  the  Renaissance,  Note  20,  pp, 
52-4. 


II]  THE  EMPIRE   AND  THE   PAPACY  85 

Canon  Law  that  supplemented  them;  the  Civil  Law 
only  where  the  Canon  Law  itself  was  insufficient;  so 
that  in  case  of  difference  between  the  two  laws,  the 
Canon  Law  prevailed  over  the  Civil  Law1. 

There  was  thus  ample  warrant  for  taking  Canon 
Law  both  as  a  universal  spiritual  law  and  as  the  terri- 
torial law  of  the  territories  of  the  Church.  But  in  fact 
even  these  two  distinctions  did  not  quite  cover  all  cases. 
A  matter  might  be  both  spiritual  and  temporal,  and  be 
cognisable  before  both  a  lay  and  a  clerical  court.  Bartolus 
is  quite  aware  of  the  difficulty  and  allows  for  it;  but 
the  fact  that  there  were  cases,  in  which  it  was  uncertain 
which  court  and  which  law  should  have  cognisance  of 
them,  or  which  were  cognisable  before  both  Courts  and 
laws,  does  not  destroy  the  general  distinction  between 
the  two  laws  which  Bartolus  makes. 

His  view  of  the  Canon  Law  is  also  important 
because  it  marks  the  end  of  a  period  in  the  relations 
between  the  Canons  and  Civil  Law.  The  violent 
hostility  was  over  on  both  sides.  Roman  Law  ceased 
to  be  suspected  by  Popes  and  kings ;  and  the  great 
lawyers,  who  followed  Bartolus,  accepted  the  Canon 
Law  as  he  did.  The  world  was  preparing  for  the  great 
reception  of  Roman  Law,  and  all  the  theories  of  Bartolus 
tended,  as  we  shall  see,  to  make  that  reception  possible. 

His  attitude  to  the  canonists  is  well  worth  noting. 
The  enormous  influence  which  he  was  to  wield  over 
the  next  centuries  was  bound  to  be  greatly  ad- 
vanced by  the  fact  that  his  Imperialism — in  some 
regards  extreme — was  tempered  by  an  equally  extreme 

1  Vide  Fertile,  op.  cit.  vol.  n.  Part  2,  pp.  72-4,  and  p.  92,  note 
104. 


86  THE   EMPIRE   AND  THE   PAPACY  [CH. 

tenderness  of  giving  offence  to  the  Church  and  its  laws. 
The  enmity  still  felt  for  Cino  by  later  canonists,  like 
Panormitanus,  would  have  been  a  great,  very  great, 
obstacle  in  the  way  of  his  influencing  later  thought, 
had  his  reputation,  and  perhaps  we  may  say,  his  genius 
(as  a  lawyer),  been  equal  to  those  of  Bartolus.  But  the 
two  were  of  different  epochs;  and  the  new  epoch  of 
concord  between  the  two  laws  began  with  Bartolus. 

Except  for  the  inherent  superiority  of  "  spiritualia," 
Bartolus  has  so  far  maintained  the  clear  separation  of 
the  Empire  and  Papacy,  extending  that  separation  to 
jurisdictions,  territories  and  laws.  But,  living  in  the 
fourteenth  century,  Bartolus  was  bound  to  consider  the 
matter  further.  The  Papacy  did  not  claim  separation,  but 
insisted  on  its  superiority  in  either  sphere  and  over  all  the 
world.  "Porro  subesse  Romano  Pontifici  omni  humanae 
creaturae  declaramus,  dicimus,  diffinimus  et  pronunci- 
amus  omnino  esse  de  necessitate  salutis,"  Pope  Boniface 
had,  nearly  fifty  years  earlier,  declared.  That  Bartolus 
had  no  desire  to  handle  the  question  of  superiority  is 
very  certain.  He  was  significantly  silent  about  the  great 
struggle  between  John  XXII  and  Lewis  of  Bavaria,  of 
which  he  was  a  contemporary :  and  one  cannot  help 
feeling  that  that  silence  is  intentional1.  The  greater 

1  No  one  could  be  more  shy  of  speaking  out  than  Bartolus  on  this 
whole  topic  of  the  relations  of  the  Papacy  and  Empire.  We  may 
however  note  two  interesting  passages  in  which,  not  the  Pope,  but  the 
Eoman  Court,  comes  in  for  blame.  The  first  relates  to  simony. 
Vide  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLVIII.  14.  1),  p.  517:  "Nota 
ex  hac  lege  quod  in  curia  Komana  cessat  lex  Julia  ambitus,  quia  haec 
omnia  pertinent  ad  Papam,  et  hoc  quo  ad  ipsum  Papam.  Sed  utinam 
hoc  observaretur  quo  ad  ipsos  qui  sunt  adhaerentes  Papae.  Et  ideo 
sciatis  quod  decretistae  fecerunt  multas  constitutiones,  tamen  in 
tractatu  de  simonia,  quae  est  idem  quod  ambitus,  nullam  novam 


II]  THE   EMPIRE    AND   THE    PAPACY  87 

part  of  his  theories  on  the  relations  of  the  Empire 
and  Papacy  were  based  on  questions  connected  with 
Henry  VII.  His  struggles  were  long  over;  he  had 
been  on  the  eve  of  a  breach  with  the  Papacy,  but  his 
death  had  averted  it ;  his  grandson,  Charles  IV,  was  the 
approved  and  obedient  ally  of  the  Avignon  Popes  and 
their  candidate  against  the  excommunicated  Lewis. 

We  have  quoted  above,  when  considering  the  de 
jure  lordship  of  the  world,  which  Bartolus  ascribes  to 
the  Emperor,  from  a  passage  in  his  Commentary  on  the 
Constitution  Ad  Reprimendum  of  Henry  VII.  After 
giving  various  explanations  of  the  fact  that  the  de  jure 
and  the  de  facto  lordship  of  the  Emperor  do  not 
correspond,  he  finally  offers  another,  as  the  opinion  of 
"  Holy  Mother  Church."  We  shall  quote  the  passage 
in  full: — "Tertio,  inhaerendi  opinioni  S.  matris  Ecclesiae, 
primo  fait  Imperium  Babylonis.  Secundo  fait  Im- 
perium  Persarum  et  Medorum.  Tertio  fuit  Imperium 
Graecorum.  Quarto  fuit  Imperium  Romanorum.  Ultimo 
adveniente  Christo  istud  Romanorum  Imperium  incepit 
esse  Christi  Imperium,  et  ideo^  apud  Christi  vicarium 
est  uterque  gladius,  scilicet  spiritualis  et  temporalis. 
Christus  enim  est  lapis  abscissus  sine  manibus,  cujus 
regnum  non  dissipabitur,  de  quo  prophetavit  Daniel 
(cap.  II.),  ubi  haec  omnia  Imperia  describuntur  ex- 
presse.  Die  ergo  quod  ante  Christum  Imperium 
constitutionem  f ecerunt.  Eatio :  quia  simonia  non  punitur,  ut  debet. ' ' 
The  other  relates  to  delays  in  the  hearing  of  cases— Comment,  on  Dig. 
Nov.  Part  n.  (D.  XLV.  1.  72),  p.  78,  §31 :  "Licet  enim  tempus  instantiae 
sit  certum  quia  durat  triennio,  tamen  tempus  litigii  est  omnino  incertum. 
Potest  enim  esse  quod  durabit  anno,  aliquando  biennio  et  aliquando 
perpetuo,  ut  in  curia  Komana,  et  ideo  quia  expectare  finem  judicii 
esset  expectare  regem  Sassonum."  Is  "to  expect  the  king  of 
Saxony"  an  Italian  proverb? 


I 


\ 

88  THE   EMPIRE   AND   THE   PAPACY  [CH. 

Romanorum  dependebat  ab  eo  solo  (i.e.  the  Emperor), 
et  Imperator  recte  dicebat  quod  dominus  mundi  esset, 
et  quod  omnia  sua  sunt.  Post  Christum  vero  Imperium 
est  apud  Christum  et  ejus  vicarium,  et  transfertur  per 
Papam  in  principem  saecularem.  Unde  si  dicimus 
omnia  sunt  Imperii  Romani,  quia  nunc  est  Christi, 
verum  est  si  referamus  ad  personam  Christi.  Si  vero 
referamus  ad  personam  Imperatoris  secularis,  non  pro- 
prie  dicitur  quod  omnia  sunt  sua  vel  sub  sua  jurisdiction^ 
quia  non  sunt  terrae  Ecclesiae.  Illas  enim  sibi  reservit 
Papa,  in  quo  principaliter  est  Imperium..  In  hac  ergo 
constitutione  si  se  retulit  ad  Imperium  (i.e.  the  Emperor), 
vel  si  se  retulit  ad  personam  suam,  locutus  est  caute. 
Non  enim  dicit  quod  totius  orbis  jurisdictio  sit  sua, 
sed  quod  totius  orbis  regularitas  in  eo  requiescat.  Nam 
et  terras  Ecclesiae  ipse  habet  certo  modo  regulare, 
scilicet  defendendo  eas  et  servando  in  devotione 
Ecclesiae,  ut  juravit  (in  c.  I.  extra,  de  re  jud.  in 
Clementinis).  Et  hoc  pro  nunc  transitorie  dico,  quoniam 
opus  per  se  requireret  quae  dico.  Quare  sic  credo  tenere 
Ecclesiam,  sic  credo  Imperatorem  sentire ;  et  si  male 
hoc  vel  aliud  intelligerem,  sum  paratus  me  corrigere." 

We  shall  see  in  a  later  part  of  this  essay  that 
Bartolus  has  almost  unquestionably  drawn  this  theory, 
which  he  gives  "adhaerendo  opinioni  S.  matris  Ec- 
clesiae," from  the  continuation  of  the  unfinished  treatise 
by  Aquinas,  the  De  Regimine  Principum.  Here  let  us 
merely  note  the  points  in  which  this  theory  contradicts 
former  theories,  which  we  have  seen  Bartolus  give  on 
his  own  authority,  not  as  the  opinion  of  the  Church. 
In  discussing  who  compose  the  Populus  Romanus, 
we  saw  the  territory  of  the  Church  considered  as  a 


II]  THE   EMPIRE   AND  THE   PAPACY  89 

portion  of  the  Empire  granted  by  the  Emperor  to  the 
Pope  and  clergy,  who  do  not  thereby  cease  to  be  "  cives 
Romani."  We  shall  see  the  same  view  as  to  the  origin 
of  the  territory  of  the  Church,  when  we  come  to  the 
opinion  of  Bartolus  on  the  Donation  of  Constantine. 
Here,  on  the  contrary,  the  "  territorium  Ecclesiae  "  is 
a  portion  of  the  whole  Empire,  which  has  now  become 
the  "Imperium  Christi,"  reserved  by  the  Pope,  as 
Christ's  vicar;  the  rest  of  it  he  transfers  to  the  secular 
prince.  Then,  whereas  above  he  has  maintained  that 
to  deny  the  universal  lordship  of  the  Emperor  is 
perhaps  heresy,  as  against  the  teaching  of  the  Church 
and  the  example  of  Christ,  who  Himself  recognised 
the  Emperor  as  "dominus,"  here  Bartolus  says  ex- 
pressly that  it  is  only  true  to  say  that  "omnia  sunt 
Imperii  Romani,"  if  we  refer  "  ad  personam  Christi,"  in 
whom,  and  in  His  vicar  the  Pope,  "  principaliter  est 
Imperium."  And  thirdly  it  is  noticeable  how  in  this 
passage  Bartolus  explains  this  constitution  of  Henry  VII 
by  maintaining  that  the  Emperor  does  not  say  "  quod 
totius  orbis  jurisdictio  sit  sua,  sed  quod  totius  orbis 
regularitas  in  eo  requiescat."  The  words  of  the  constitu- 
tion itself,  upon  which  Bartolus  bases  this  interpretation, 
are — "  Ad  reprimendum  multorum  facinora,  qui,  ruptis 
totius  debitae  fidelitatis  habenis,  adversus  Romanian 
Imperium,  in  cujus  tranquillitate  totius  orbis  regularitas 
requiescit...."  Bartolus'  interpretation  is  quite  unsatis- 
factory. These  words  of  the  constitution  contain  nothing 
about  jurisdiction,  and  certainly  no  surrender  of  it ;  the 
thought  is,  as  a  matter  of  fact,  identical  with  Dante's — 
the  necessity  of  the  Roman  Empire  for  the  consummation 
and  maintenance  of  peace,  which  can  only  be  secured 


90  THE   EMPIRE   AND   THE    PAPACY  [CH. 

while  the  Roman  Empire  is  intact.  Besides  we  have 
seen  Bartolus  himself  explain  the  universal  dominion 
of  the  Emperor  as  meaning  universal  jurisdiction,  and 
in  one  place1  we  have  seen  him  actually  deny  the 
necessity  of  explaining  this  universal  dominion  as  a 
"  regularitas,"  not  indeed  because,  in  that  place,  he 
maintained  it  to  be  jurisdiction,  but  rather  a  universal, 
not  particular,  ownership. 

Let  us  now  turn  to  another  passage,  in  the  Commen- 
tary on  the  Digest,  immediately  following  a  discussion 
on  the  question  of  "  citatio  extra  territorium,"  which  we 
have  already  noticed.  It  was  decided  that  neither  the 
Pope  nor  Emperor,  whose  territories  and  jurisdictions 
are  distinct,  can  cite  in  the  territory  of  the  other — 
"tune  unus  non  potest  citare  in  territorio  alterius. 
Sed  debet  requirere  ilium  judicem,  in  cujus  territorio 
est,  tit  ilium  citet,  ut  hie  dicitur."  He  continues  in 
a  passage  which  is  doubly  interesting  from  its  mention 
of  Dante — "Et  hoc  prout  tenemus  illam  opinionem, 
quam  tenuit  Dantes,  prout  illam  comperi  in  uno  libro 
quern  fecit,  qui  vocatur  Monarchia :  in  quo  libro  dis- 
putavit  tres  questiones.  Quarum  una  fait,  an  Imperium 
dependeat  ab  Ecclesia  ?  Et  tenuit  quod  non :  sed  post 
mortem  suam  quasi  propter  hoc  fuit  damnatus  ab 
haeresi.  Nam  Ecclesia  tenet  quod  Imperium  dependeat 
ab  Ecclesia  pulcherrimis  rationibus  quas  omitto.  Ten- 
endo  istud  quod  Imperium  dependet  ab  Ecclesia : 
respondeo  alio  modo,  et  dico,  quod  unus  judex  potest 
citare  in  territorio  alterius  judicis,  cui  non  subest.... 
Sed  in  territorio  illius  judicis  majoris  a  quo  habet 

1  In  this  very  commentary  on  the   constitution  of  Henry  VII, 
vide  above,  p.  24. 


Il]  THE   EMPIRE   AND   THE   PAPACY  91 

jurisdictionem,  propter  ejus  reverentiam  non  potest 
citare....Non  habetis  hie  alia1."  Here  the  argument 
is  very  unsatisfactory.  Bartolus  has  laid  down  the 
rule  (repeated  by  him  elsewhere)  that  a  judge  can  cite 
in  a  territory  outside  his  jurisdiction,  if  the  territory 
be  not  distinct, — i.e.  if  both  his  territory  and  the 
territory  from  which  he  cites  are  under  one  superior.  If 
the  territories  are  distinct,  i.e.  under  different  superiors, 
citation  cannot  take  place.  "  And  this,"  he  continues, 
"so  far  as  we  hold  Dante's  opinion."  Of  course  he  does 
not  mean  Dante's  opinion  of  the  question  of  citation, 
for  that  problem  does  not  enter  the  Monarchia.  He 
can  only  mean — this  is  true  if  we  hold  Dante's  opinion 
that  the  Emperor  is  independent  of  the  Pope,  though 
Dante's  view  of  the  independence  of  the  Emperor  was 
quite  a  different  thing  from  the  distinct  jurisdictions 
and  territories  of  Bartolus.  To  Dante  the  Emperor  was 
supreme  over  all  the  world  in  temporal  matters,  the 
Pope  in  spiritual;  he  limited  the  power  of  neither 
territorially,  and  would  certainly  not  have  accepted 
Bartolus'  opinion  that  the  universal  temporal  juris- 
diction of  the  Emperor  was  invalid  in  the  "  lands  of  the 
Church."  But  for  these  views,  Bartolus  says,  Dante 
was  almost  condemned  as  a  heretic,  for  the  Church 
holds  that  the  Emperor  is  subject  to  herself — "  pulcher- 
rimis  rationibus  quas  omitto."  And  so,  accepting  the 
Church's  opinion,  Bartolus  gives  quite  a  new  answer  to 

1  One  might  be  inclined  to  translate  this  ' '  Non  habetis  hie  alia ' ' 
by  a  Johnsonian  "There's  an  end  on't."  But  as  a  matter  of  fact  it 
is  a  very  usual  way  with  Bartolus  of  ending  any  discussion,  as  a 
glance  at  his  Commentaries  will  show.  There  are  variants  sometimes, 
such  as  "Hie  est  finis,"  "Hie  non  sunt  alia "  ;  but  this  form  is  most 
usual. 


92         THE  EMPIRE  AND  THE  PAPACY        [CH. 

the  question  of  citation— "  alio  modo."  A  judge  can 
cite  in  the  territory  of  another  judge,  to  whom  he  is 
not  subject ;  but  in  the  territory,  of  his  superior  judge, 
from  whom  he  has  his  jurisdiction,  he  cannot  cite 
"propter  ejus  reverentiam1."  That  is  to  say,  the 
Emperor  is  here  considered,  with  regard  to  the  Pope, 
as  an  inferior  "  judex."  He  is  put  in  the  same  position 
as  those  inferior  "judices,"  who,  in  the  solution  of  this 
question  given  originally2,  were  allowed  to-  cite  "  extra 
territorium,"  because,  though  both  territories  were  dis- 
tinct, they  were  still  both  under  the  Emperor,  from 
whom,  as  superior,  both  the  "  judices"  of  these  territories 
held  their  jurisdiction.  But  now,  though  an  inferior 
"judex,"  he  cannot  cite  extra  territorium — "propter  ejus 
(the  Pope's)  reverentiam."  True,  this  is  given  as  -the 
opinion  of  the  Church — "  tenendo  istud  quod  Imperium 
dependet  ab  Ecclesia  " ;  but  it  is  given  as  accepted  by 
Bartolus,  not  merely  as  a  dialectical  objection  brought 
forward  to  be  refuted. 

1  As  regards  these  words  "propter  ejus  reverentiam"  Bartolus 
refers  to  what  he  has  said  in  his  Comment,  on  the  Dig.  Nov.  Part  i. 
(D.  xxxix.  2.  4,  §  Si  tarn  vicinum),  p.  78,  §§  3-4:  but  the  actual 
question  of  the  Pope's  superiority  is  not  discussed  there.  He  con- 
siders "an  superveniente  ma j ore  judice,  minor  debeat  silere."  He 
decides  that,  in  the  case  of  a  judex,  who  has  "  jurisdictionem  delega- 
tam  generaliter  in  aliquo  casu,"  on  the  appearance  of  the  major  judex, 
"interim  cessat  ejus  jurisdictio" ;  that  in  the  case  of  a  judex  who 
has  "jurisdictionem  ordinariam,"  the  "minor,"  as  regards  certain 
insignia,  and  the  like,  "defert  majori  et  non  utitur  eo  praesenti"  ;  but 
"circa  ea  quae  pertinent  ad  exercitium  jurisdictionis,  non  debet 
cessare."  All  this  is  very  little,  if  at  all,  to  the  point.  The  Emperor, 
even  if  the  Pope  is  his  superior,  cannot  have  "jurisdictio  delegata"; 
he  is  the  Princeps  of  the  Law  Books  himself,  from  whom  all  jurisdic- 
tion flows.  And  even  if  his  jurisdiction  were  "delegata,"  "defert 
majori"  only  as  regards  insignia  and  the  like,  not,  Bartolus  says 
definitely,  as  regards  jurisdiction.  2  Vide  above  p.  77. 


Il]  THE   EMPIRE   AND   THE  PAPACY  93 

We  have  this  substantially  repeated  elsewhere1. 
Bartolus  refers  once  more  to  Cino's  opinion  that  the 
decretal  Pastoralis  Cura  "  fait  compositum  per  errorem 
canonist  arum."  But,  he  says,  since  it  was  drawn  up  in 
a  general  council,  "ubi  est  copia  magna  intelligentium2," 
it  is  not  very  likely  to  be  an  error — "  unde  est  teme- 
raria  dicta  solutio."  He  then  gives  another  solution 
of  the  question  of  "  citatio  extra  territorium,"  that  of 
another  lawyer,  Paulus  de  Leazaria,  according  to  whom 
a  distinction  must  be  made,  whether  the  judge  is  judge 
over  the  cited  party  "  ratione  domicilii,"  or  "  ratione 
delicti  vel  contractus,  et  sic  per  accidens."  In  the  first 
case  the  judge  can  cite  "  extra  territorium,"  since  the 
cited  party  has  no  other  superior,  through  whom  he 
can  be  cited  ;  in  the  second  case  not.  Bartolus  agrees 
to  the  first  distinction,  but  not  to  the  second,  urging  the 
Canon  Law  and  this  constitution  "  Ad  Reprimendum  " 
itself  against  it.  For,  he  says,  it  is  quite  clear  that  in 
this  constitution  the  Emperor  asserts  that  his  citation 
of  king  Robert  "  existentem  extra  territorium "  was 
legitimate,  "  et  loquitur  hie  de  citatione  facta  a  quocun- 
que  qui  praeest  jurisdictions"  He  continues  :  "  Et  si 
dices,  hoc  Imperator  non  potuit,  concedo  in  terris 
Ecclesiae.  Die  ergo  quod  Papa  potest  citare  quemlibet 
ubicumque  existentem,  quia  ipse  est  vicarius  Ipsius, 
cujus  est  terra  et  plenitudo  orbis  ejus....Ita  per  uni- 
versum  Imperium  officialis,  qui  praeest  uni  provinciae, 
potest  citare  homines  existentes  in  qualibet  provincia 

1  Comment,  on  Const,  ad  Eeprimendurn  (ad  verb.  Per  Edictum), 
p.  280,  §§  9-11. 

2  Bartolus  considered  Clement  V  himself  "valde  bonus  jurista." 
Vide  Comment,  on  Dig.  Nov.  Part  i.  (D.  xxxix.  2.  13,  §  Si  alieno), 
p.  86,  §  11. 


94         THE  EMPIRE  AND  THE  PAPACY        [CH. 

Imperil,  quia  hoc  facit  author! tate  Imperatoris....Sed 
Imperator  vel  alms  princeps  saecularis  non  potest  citare 
quern  in  terris  Ecclesiae,  quia  etiam  illas  terras  sibi 
libere  reservavit  (i.e.  the  Pope)....Debet  ergo  scribere 
superiori  illius  loci  ubi  persona  citata  moratur."  Now 
here  Bartolus  goes  a  step  further  in  the  destruction  of 
his  originally  distinct  jurisdictions  and  territories.  The 
universal  temporal  jurisdiction  of  the  Emperor  is  already 
limited  to  the  territory  of  the  Empire,  while  the  uni- 
versal spiritual  jurisdiction  of  the  Pope  extends  beyond 
the  territory  of  the  Church.  Now  the  temporal  juris- 
diction of  the  Pope,  which  so  far  has  been  limited  to 
the  territory  of  the  Church,  is  also  made  universal — 
the  Pope  can  cite  "  quemlibet  ubicunque  existentem." 
This  is,  in  effect,  an  avowal  of  the  complete  inferiority 
of  the  Emperor,  temporally  and  spiritually,  to  the  Pope. 
The  Pope  has  reserved  to  himself  the  territory  of  the 
Church,  and  therefore  transferred  the  rest  of  the  world, 
which  he  rules  as  God's  vicar,  to  the  Emperor,  in  such 
a  way,  however,  that  he  is  still  so  far  superior  of  all  the 
world,  as  to  be  able  to  cite  anywhere — even  in  the 
territory  of  the  Empire,  where  the  officials  act  "  authori- 
tate  Imperatoris." 

But  before  we  sum  up  all  these  contradictory  opinions 
on  the  relations  of  the  Papacy  with  the  Empire,  we 
must  consider  one  more  question,  that  of  the  validity 
of  the  pretended  Donation  of  Constantine.  Until  the 
Renaissance  men  were  concerned,  not  with  the  question 
of  its  historical  truth,  but  of  its  legal  validity.  Its  legal 
validity,  upheld  by  the  Church,  was  attacked  by  Im- 
perialists like  Dante  and  Occam,  by  many  of  the  French 
publicists  and  by  many,  if  not  most,  of  the  civil  lawyers. 


Il]  THE    EMPIRE    AND   THE   PAPACY  95 

Bartolus  sets  out  the  arguments  for  and  against 
its  validity1.  The  Emperor  could  not  prejudice  his 
successors — that  is  the  gist  of  the  argument  against. 
On  the  other  hand  "  ex  quadam  benignitate  et  speciali- 
tate  valet."  The  Emperor  was  lord  of  what  he  gave 
"  ratione  jurisdictionis ";  therefore  "saltern  jus  illud, 
quod  ipse  habuit,  donavit,  quod  facere  potuit."  A 
brother  not  only  may,  he  is  bound  "dotare  sororem." 
Therefore  not  only  may  the  Emperor,  he  is  bound  to 
dower  the  Church.  Finally  what  is  "in  signum  re- 
munerationis  non  dicitur  donatio."  If  this  is  so,  it 
follows  that  Constantine,  who  was  healed  by  the  Pope 
from  his  leprosy,  offered  the  Church  rather  a  remunera- 
tion than  a  donation  ;  and  a  remuneration  is  a  debt  in 
so  far  that  what  otherwise  is  forbidden  by  law  to  be 
alienated  may  be  alienated  for  that  purpose. 

Such  are  the  main  arguments,  supported  by  authori- 
tative texts  from  the  Law  Books.  But  these  are  not 
given  as  the  "  solutio,"  that  is  to  say  Bartolus'  own 
opinion.  So  far  he  has  only  been  giving,  in  the  dialectical 
manner,  the  arguments  on  either  side.  But  now — 
"Quid  dicendum?..,Videte  nos  sumus  in  terris  amicis 
Ecclesiae,  et  ideo  dico  quod  ista  donatio  valeat.  Sed 
si  quis  vellet  tenere  opinionem  quod  non  valuerit,  posset 
respondere  ad  contraria,  et  probare  opinionem  suam  per 
casum  legis  'Digna  vox.'  Et  dico  quod  est  verum,  quod 
potest  (i.e.  the  Emperor)  donare  ob  meritum  in  rebus 
particularibus.  Item  dotare  Ecclesiam  tamquam  sororem. 
Sed  ilia  donatio  fuit  respectu  jurisdictionis,  ut  haberet 
temporaliter  et  spiritualiter  jurisdictionem  (i.e.  the 

1  Comment,  on  Dig.  Vet.  Prima  Constitutio  (supr.  rubric.),  p.  4, 
§§  13-15. 


96  THE  EMPIRE   AND  THE   PAPACY  [CH. 

Pope).  Sed  lex  alibi  dicit,  quod  Imperium  illud,  si 
millies  Imperator  vellet  a  se  abdicare,  non  posset,  nisi 
superiori  dare  (ut  lex  Legatus  infra,  De  officio  praesidis1). 
Modo  si  hoc  est  verum,  donatio  ilia  non  valuit.  Ad 
contraria  est  responsum,  ut  dixi.  Ex  quo  sequitur  quod 

i  Papa  non  habet  jurisdictionem  aliquam.  Sed  volens 
favere  Ecclesiae,  dico  quod  ilia  donatio  valuit.  Et  ad 

1  legem  Legatus  respondeo,  quod  Imperator  et  Ecclesia 
processerunt  a  Deo  tamquam  a  causa  efficiente...Ergo 
donando  Ecclesiae  abdicat  a  se  et  dat  in  manibus 
superioris,  sicut  est  ipse  Deus.  Sed  Papa  est  vicarius 
Ejus,  et  sic  quasi  ipsi  Deo  donare  videtur." 

In  the  Commentary  on  the  Authenticum  the  Dona- 
tion is  again  discussed2.  Much  the  same  arguments 
are  adduced,  but  certain  new  points  make  it  well  worth 
quoting.  "Nota  quod  Imperium  et  Sacerdotium  pro- 
cesserunt a  Deo  et  eodem  tempore,  et  sic  dicit  G'lossa 
quod  istae  jurisdictiones  sunt  distinctae,  nee  Papa  in 
temporalibus,  nee  Imperator  in  spiritualibus  debet  se 
intromittere.. . .  Est  autem  Imperator  divinitus  consecutus 
Imperium  privilegio  et  po testate.... Circa  quod  vide  ut 

1  D.  i.  18.  20.     In  his  Commentary  on  this  law  (Dig.  Vet.  Part  i.), 
p.  141,  Bartolus  says:  "Nota  istam  legem  optimam.    Et  hie  est  casus 
secundum  Jac.  Buttrigarium,  quod  donatio  facta  a  Constantino  nihil 
valuit,  quia  a  se"  ipso  non  potuit  abdicare  nisi  in  manibus  populi 
Romani...Dixi  in  proemio  contrarium...Vide  Innocentium...et  multa 
pulchra  circa  istam  legem  vide."     The  law  itself  in  the  Digest  runs: 
"Legatus  Caesaris,  id  est  praeses  vel  corrector  provinciae,  abdicando 
se,  non  amittit  imperium."     In  his  Commentary  on  the  Dig.  Nov. 
Part  i.    (D.  XLI.  2.  17,  §  Differentia),  p.  270,  §  8,  Bartolus   says: 
"Aliquis  non  potest  renunciare  nisi  manibus  superioris,  ut  ab  eo 
abdicet  jurisdictio,"  and  refers  to  this  law  "  Legatus  "  and  to  Innocent, 
but  does  not  mention  the  Donation. 

2  Comment,  on  Authenticum  (Collatio  i.  Quomodo  oporteat  Episcop. 
§  Maxima  quidem),  p.  25,  §§  1-4. 


II]  THE   EMPIRE   AND   THE   PAPACY  97 

ibi  no  tat  Innocentius...ubi  videtur  tenere,  quod  juris- 
dictio  Papae  et  Imperatoris  sunt  distinctae  nisi  vacante 
Imperio:  quo  casu  unica  tamen  est  et  inseparata....Et 
sic  videtur  quod  Papa  utramque  gladii  habeat  potes- 
tatem,  et  ab  Ecclesia  Imperium  dependeat,  ut  habetur 
in  extravaganti  Bonifacii  quae  incipit  'Unam  Sanctam.' 
...Tenet  glossa  ista  quod  donatio  facta  a  Constantino 
Papae   Sylvestro    non    valet,   et    ita    determinat    Jac. 
Buttrigarius....Sed   contrarium   videtur   quod   donatio 
valuerit  et  tenuerit,  et  quod  per  successorem  non  possit 
revocari  tenet  glossa.... Et  idem  quod  ibi  tenet  Gul.  de 
Cunio... licet  illam  (i.e.  glossam)  non  allegat  (i.e.  Gul. 
de  Cunio),  sed   probat   per   multas   rationes,  et   inter 
alia   dicit   quod   haec   non   fuit    proprie    donatio,    sed 
quaedam   remuneratio,    attento    quod   Imperator   erat 
leprosus  sanatus  per  Papam  Sylvestrum.     Valebat  ergo 
donatio  tamquam  remuneratio.... Primum,  Imperium  et 
Sacerdotium  sunt  a  Deo,  ut  hie  ;  ergo  sunt  ut  frater  et 
soror. . . .  Ergo   Imperator   dans   Ecclesiae,   non   videtur 
donare  sed  do  tare  ;  sed  frater  tenetur  dotare  sororem.... 
Istam  opinionem  quod  donatio  teneat  et  non  possit  per 
Imperatorem  revocari  tenet  glossa... et  istud  teneamus  ' 
favore  Ecclesiae.     Sed  quaero,  retenta   opinione  quod 
donatio  non  valuerit,  an  Ecclesia  praescripserit  r3s  ab 
Imperatore  donatas.   Jac.  de  Belvisio  videtur  hie  tenere 
quod  non  per  multas  rationes,  et  idem  videtur  tenere 
Cynus.     Sed  contra  tenet  dominus  Paulus...et  die  ut 
ibi  per  eum." 

To  begin  with,  we  must  point  out  again  the  complete 
contradiction  between  these  views  and  the  view  of  the 
Empire  as  the  "  Imperium  Christi."  Here  the  territory 
of  the  Church  is  a  piece  cut  out  of  the  Empire  and 

w.  7 


98  THE  EMPIRE   AND   THE   PAPACY  [CH. 

granted  to  the  Church ;  in  the  other  view  the  Empire 
is  a  piece  cut  out  of  the  "Imperium  Christi,"  the 
territory  of  the  Church  being  the  rest  of  it,  which  is 
reserved  to  Christ's  vicar,  the  Pope.  Bartolus  does 
not  attempt  to  reconcile  the  two. 

Secondly  it  is  quite  clear  that  Bartolus  does  not 
really  believe  in  the  validity  of  the  Donation.  Nearly 
all  the  arguments  given  in  favour  of  it  are  given,  not 
as  his  own,  but  as  those  of  Innocent  or  Gulielmus  de 
Cunio  or  the  Gloss  to  the  Canon  Law.  He  confesses  that 
its  invalidity  can  be  maintained.  For  himself  he  wishes 
to  favour  the  Church,  since  he  is  "in  terris  Ecclesiae 
amicis1."  Therefore  he  says  that  the  Donation  is  valid. 
The  only  thing  admirable  in  such  a  discussion  is  the 
honest  avowal  of  so  dishonest  a  method  of  arriving  at 
a  conclusion.  Bartolus  is  so  obviously  not  saying  what 
he  means,  that  to  dissect  his  views  on  this  topic  further 
would  be  useless ;  but  it  is  very  significant  that,  having 
decided  for  the  validity  of  the  Donation,  Bartolus  brings 
in  prescription,  to  make  sure  that  the  territory  of  the 
Church  is  held  on  some  valid  title.  "  Plane  ludit2/' 

1  Cf.  above,  p.  77,  "tamquam  existens  in  terris  Ecclesiae." 

2  So  said  a  sixteenth  century  writer,  whom  Dr  Figgis  mentions — 
"I  tMnk  Francois  Hotman"  (Bartolus  and  European  Political  Ideas, 
p.  157,  note  1).     On  one  occasion  only  does  Bartolus  seem  to  speak  of 
the  Papal  supremacy  with  anything  at  all  like  conviction— the  passage 
is  in  one  of  the  additional  Consilia,  first  printed,  so  far  as  I  know,  in 
the  Venice  ed.  of  1596.     Vide  Cons.  vn.  p.  185  verso — "Unde  ego 
Bartolus  de  Saxoferrato  consulo  ut  supra  scriptum  est,  salvo  tamen 
semper  judicio  Summi  Pontificis  et  Sanctae  Matris  Ecclesiae  Komanae, 
et  sic  Sedis  Apostolicae  omnium  fidelium   Magistrae  et   Dominae, 
quibus  in  omnibus  me  subdo,  tamquam  fidelis...etiam  Imperatorem 
ipsum  hortando  et  rogando  ut  antequam  aliquid  in  praemissis  declaret, 
consulat  Beatissimum  Papam."     Cf.  §4:  "...ad  quern  (i.e.  the  Pope) 
Imperatores  et  Keges  et  omnes  Principes  et  Populi  totius  orbis  debent 


II]  THE   EMPIRE   AND   THE   PAPACY  99 

To  sum  up — the  Papacy  and  the  Empire  are 
considered  from  two  distinct  points  of  view.  In  the 
first  place  they  are  the  universal  governing  powers,  the 
spiritual  and  temporal  respectively,  of  the  world — at 
least  of  that  Populus  Romanus,  which,  as  we  have  seen, 
actually  consists  of  all  those  who  obey  the  Church. 
Both  are  of  divine  origin  and  of  contemporary  date;  they 
are,  as  it  were,  sister  and  brother.  But  this  conception 
is  modified  by  a  territorial  conception  of  their  relations. 
There  is  a  territory  of  the  Empire  and  a  territory  of  the 
Church,  and  the  two  are  distinct,  with  separate  and 
distinct  jurisdictions  and  administrations.  And  thus, 
combining  the  two,  we  arrive  at  this  conclusion — the 
Emperor  is  temporal  lord  of  the  territory  of  the  Empire, 
the  Pope  is  temporal  lord  of  the  territory  of  the  Church, 
but  the  Pope  is  also  spiritual  lord,  as  God's  vicar,  of 
both  the  territories  of  Empire  and  Church  alike.  And 
in  the  same  way  the  Civil  Law  is  the  law  of  the  terri- 
tory of  the  Empire,  the  Canons  are  the  law  of  the 
territory  of  the  Church,  but  the  Canons  are  also  the 
universal  law  of  both  territories,  as  far  as  regards 
spiritual  matters. 

As  to  the  origin  of  these  separate  territories  we 
have  two  irreconcilable  statements.  According  to  one, 
the  ^erritory  of  the  Church  is  cut  out  of  the  universal 
Empire  by  the  Donation  of  Constantine ;  according  to 
the  other,  the  territory  of  the  Empire  is  transferred  to 
the  Emperor  by  the  Pope,  as  Christ's  vicar ;  since  from 

ascendere  pro  interpretatione  et  decisione  omnium  dubiorum,  cum 
Dominus  noster  Jesus  Christus...dixerit  Petro,  Tu  es  Petrus"  etc. 
But  it  should  be  noted  that  the  question  at  issue  concerns  a  spiritual 
matter,  blasphemy. 


100  THE   EMPIRE   AND  THE   PAPACY  [CH. 

Christ's  coming  the  Empire  has  been  His.  Christ's 
vicar  transfers  it  to  the  Emperor,  but  reserves  to  him- 
self a  part,  which  is  the  territory  of  the  Church.  The 
first  view  implies  the  validity  of  the  Donation  of  Con- 
stantine.  Which  of  these,  or  whether  either  of  these, 
is  really  Bartolus'  own  opinion,  need  not  be  asked.  His 
whole  statement — and  it  occupies  no  inconsiderable 
space  in  his  political  thought — of  the  Papal  supremacy 
does,  one  may  feel  confident,  not  express  his  own  view, 
but  the  view  which  he  wants  to  give  on  opportunist 
grounds— "wishing  to  favour  the  Church,"  or  because  he 
is  in  a  place  that  is  "  friendly  to  the  Church."  In  its 
result  it  endorses  to  the  full  the  extremest  view  of 
Papalism.  His  own  thought  ends  with  the  division  of 
the  Empire  and  Papacy  into  distinct  and  separate  juris- 
dictions, administrations  and  territories,  qualified  by  the 
universal  spiritual  jurisdiction  of  tfee  Pope.  That  is 
his  own  doctrine ;  what  he  adds  is  "adhaerendo  opinioni 
S.  matris  Ecclejsiae." 

^The1  -high  place,  which  we  hope  to  show  Bartolus 
occupying  in  the  history  of  political  thought,  is  clearly 
not  dependent  on  his  theories  of  the  relations  of  the 
Empire  and  Papacy.  But  before  we  pass  on  to  con- 
sider topics,  which  show  Bartolus  in  his  true  light  as 
a  political  thinker,  we  ought  to  cast  a  glance  back  at 
our  previous  inquiries  in  this  section.  The  theories  of 
Bartolus  on  this  topic  may  not  be  valuable  in  themselves, 
but  they  have  a  distinct  value  as  illustrating  the  course 
of  medieval  thought.  We  may  leave  on  one  side  all 
that  Bartolus  has  said  "  favore  Ecclesiae,"  and  consider 
merely  the  conception  of  the  Empire  and  Papacy  as 
distinct  and  separate  jurisdictions  or  powers. 


II]  THE   EMPIRE   AND  THE   PAPACY  101 

Bartolus,  we  note,  evidently  uses  "Papa,"  "Ecclesia" 
and  "  Sacerdotium  "  as  convertible  terms— nor,  in  this, 
is  he  by  any  means  unique.  Dr  Figgis1  has  recently 
reminded  us  that  "in  common  parlance  the  Church 
in  the  Middle  Ages  meant  not  the  'congregatio  fide- 
lium' — though,  of  course,  no  one  would  have  denied 
that  to  be  the  right  meaning — not  the  whole  body  of 
baptised  Christians  as  distinct  from  those  who  were 
not,  but  rather  the  active,  governing  section  of  the 
Church."  We  cannot  have  a  better  conclusion  to  our 
inquiries  than  by  attempting  some  criticism  of  this  very 
illuminating  paper. 

Dr  Figgis  in  this  paper  considers  the  distinction  of 
Church  and  State  as  two  societies,  and  maintains  that 
this  distinction  "  is  either  very  primitive,  dating  from 
the  days  of  persecution,  or  else  very  modern,  dating 
from  the  religious  divisions  of  Europe."  This  thesis  in 
itself  we  are  far  from  attempting  to  dispute.  Where 
we  venture  to  disagree  with  Dr  Figgis  is  when  he 
comes  to  trace  the  growth  of  this  conception  of  Church 
and  State  as  two  societies :  he  traces  it  back  through 
the  Reformation  to  the  growth  of  national  States,  the 
decay  of  feudalism  and  the  Holy  Roman  Empire,  and 
the  "analysis  of  political  forms,  begun  by  S.  Thomas 
on  the  Aristotelian  basis,  [which]  set  on  foot  the  habit 
of  reasoning  about  political  societies."  What  we  would 
suggest  is  that  we  must  go  further  back  than  this,  to 
the  entry  of  Roman  Law  into  medieval  political  thought 
in  the  twelfth  century. 

"The   Code   of  Justinian,"   says   Dr   Figgis,   "was 

1  "Respublica  Christiana"  (in  Transactions  of  Royal  Historical 
Society,  1911),  pp.  63-88. 


102 


THE   EMPIRE   AND  THE   PAPACY  [CH. 


compiled  subsequently  to  the  De  Civitate  Dei  of  S.  Augus- 
tine. The  whole  spirit  of  both  is  to  identify  Church 
and  State.  The  Pagan  State  was  also  a  Church,  and 
the  medieval  Church  was  also  a  State;  the  Church  and 
the  State  in  theory."  This  is  perfectly  true,  but  it 
surely  passes  over  a  point  of  difference,  which  cannot  be 
unimportant,  that  whereas  in  Justinian  the  State  absorbs 
the  Church,  in  S.  Augustine  the  Church  absorbs  the 
State.  Now  up  till  the  twelfth  century  medieval 

i  political  thought  was  dominated  by  S.  Augustine,  not 
Justinian,  and  consequently  the  one  society  of  which 
men  conceived  was  a  Church,  not  a  State.  Men 
might  talk  of  "  Respublica  et  Ecclesia,"  but  there  was 
no  antithesis.  There  was  a  single  Christian  society — the 
Populus  Christianus — and  as  often  as  not,  in  discussing 
the  relations  of  the  two  governmental  powers  in  that 
society,  i.e.  the  Imperium  or  Regnum  and  the  Sacerdo- 
tium,  men  named  the  single  Christian  society  "Ecclesia" 
rather  than  "  Respublica."  Then  came  the  Investiture 
struggle  and  the  revival  of  Roman  Law.  We  saw  that 
for  a  moment  it  seemed  as  if  the  secular  State  was  to 
return  to  western  Europe  as  the  sinful  Civitas  Terrena. 
But  only  for  a  moment.  The  Papalists  in  the  main 
clung  to  the  conception  of  the  single  Christian  society. 
The  secular  State  returned  to  western  Europe  as  the 
lawyers'  Imperium  Romanum.  Now  of  course  it  is 
undoubtedly  true  that  this  was  a  Christian  Empire  and 
might  be  conterminous  with  Christendom:  but  the 
point  of  importance  was  that,  whereas  up  till  now  men 

!  thought  of  Christendom  primarily  as  a  Church,  after 
the  revival  of  Roman  Law  they  began  to  think  of  the 
single  society  primarily  as  a  State.  Bartolus  might  find 


II]  THE   EMPIRE   AND   THE   PAPACY  103 

that  the  Populus  Romanus  was  practically  identical 
with  western  Christendom,  but  the  fact  remains  that 
western  Europe  was  thought  of  as  the  Populus  Romanus 
rather  than  as  the  Populus  Christianus. 

'It  may  be  said  that  we  are  here  insisting  on  an 
unimportant  distinction ;  that  whether  the  single  society 
was  a  State-Church  or  a  Church-State  is  of  little  impor- 
tance compared  with  the  fact  that,  in  any  case,  it  was  a 
single  society  and — be  it  State  or  Church — a  Christian 
society.  But  the  point  which  we  wish  to  make  is  that, 
while  the  medieval  lawyer,  and  those  influenced  by  the 
lawyer's  theories  after  the  Bolognese  revival,  thought  of 
the  Christian  society  primarily  as  the  Imperium  Roma- 
num  or  Populus  Romanus,  and  therefore  primarily  as 
a  universal  State,  the  conception  broke  down  when 
they  came  to  consider  the  relations  of  this  State  to  the 
Papacy  or  clergy.  They  did  not — and  could  not,  in 
view  of  the  course  of  history  and  thought  in  the  six 
hundred  years  and  more  between  them  and  Justinian — 
accept  the  absorption  of  the  Church  in  the  State,  as 
presented  by  the  Corpus  Juris.  As  a  result  they  were 
driven  to  insist  on  the  separation  and  distinction  of  the 
Ecclesia  and  Imperium. 

To  this  it  may  be  said  that  the  separation  and  dis- 
tinction for  which  they  plead,  are  not  the  separation  and 
distinction  of  Church  and  State,  but  of  the  ecclesias- 
tical and  secular  governments  of  the  one  society.  "The 
conflicts  between  the  two  powers,"  says  Dr  Figgis, 
"are  habitually  •  spoken  of  as  struggles  between  the 
Sacerdotium  and  the  Regnum;  although  the  wider 
terms  Respublica  and  Ecclesia  are  not  unknown,  it  is 
surely  reasonable  to  interpret  them  by  the  former." 


104  THE   EMPIRE   AND   THE    PAPACY  [OH. 

We  would  venture  to  express  this  differently.  We 
would  say  that  in  the  early  Middle  Ages,  that  is  to  say, 
up  to  the  Investiture  struggle — and  perhaps  inclusive 
of  it — the  cdnflict  is  habitually  considered  as  between 
the  Sacerdotium  and  Regnum  or  Imperium,  and,'  in 
nine  cases  out  of  ten  at  least,  as  taking  place  in  the 
Ecclesia,  rather  than  in  the  Respublica.  Only  in  the 
later  Middle  Ages  are  Respublica  and  Ecclesia  used  as 
convertible  terms  for  Regnum  or  Imperium  and  Sacer- 
dotium respectively:  and  the  conclusion  we  would  draw 
is  that,  when  this  happens,  the  conception  of  the  single 
society  is  breaking  up. 

So  long  as  men  merely  place  the  Imperium  or 
Regnum  and  Sacerdotium  in  antithesis,  there  is  no 
question,  and  cannot  be,  of  more  than  one  society; 
but  when  they  begin  to  use  terms  like  Respublica 
and  Ecclesia,  which  do  not  properly  correspond  to  the 
other  terms,  it  means  that  there  is  confusion — un- 
conscious of  course — in  men's  minds,  which  indicates  an 
age  of  transition  from  one  conception  to  the  other. 

To  this  we  maintain  Bartolus  is  witness.  No  doubt 
his  territorial  conception  of  the  Empire  and  Papacy  is 
not  to  be  insisted  on  too  much,  and  is  to  be  referred  in 
great  part  to  the  influence  of  local  Italian  conditions. 
But  no  man  could  have  entertained  that  conception  as 
Bartolus  did — for  it  enters  into  almost  all  his  thought 
on  the  relations  of  the  Empire  and  Papacy — if  he  had 
had  a  really  clear  conception  of  both  as  but  two  "powers" 
in  one  society.  And  similarly  no  man  could  have  used 
"Papa,"  "Ecclesia,"  and  "Sacerdotium"  in  the  way  in 
which  Bartolus  used  them,  if  the  conception  of  Ecclesia, 
with  the  Pope  at  its  head  and  representing  it,  over 


II]  THE   EMPIRE   AND  THE   PAPACY  105 

against  the  Imperium,  with  the  Emperor  at  its  head, 
had  not,  as  yet  unconsciously  indeed,  been  making 
itself  felt. 

We  have  attempted  to  controvert  one  or  two  pas- 
sages in  Dr  Figgis'  paper,  not,  be  it  repeated,  the 
paper  itself.  The  Middle  Ages,  as  Dr  Figgis  main- 
tains, did  not  arrive  at  the  conception  of  Church  and 
State  as  two  societies.  "Before  the  modern  world  of 
politics  could  arise,"  he  has  said  elsewhere,  "it  was 
needful  not  merely  to  deprive  the  Emperor  of  any 
shadowy  claim  to  supremacy,  but  the  Pope  must  be 
driven  from  his  international  position1."  But  what  we 
wish  to  show  in  this  essay  is  that  modern  politics  did  not 
begin  with  the  return  of  Aristotle  to  western  Europe 
in  the  thirteenth  century,  but  with  the  Bolognese 
revival  of  Roman  Law  at  the  end  of  the  eleventh.  Our 
modern  State  did  not  spring  ready-made  from  the 
Renaissance,  nor  our  modern  conception  of  Church  and 
State  from  the  Reformation.  Both  were  evolved  by 
a  long  process  in  the  Middle  Ages,  or  rather  processes. 
For  the  modern  State  is  not  merely  the  73-0X19,  it  is  also 
"sibi  Princeps2,"  while  Dr  Figgis  himself  shows  how 
late  died  the  conception  of  the  single  society,  the  Res- 
publica  Christiana.  The  sum  of  our  disagreement  with 
Dr  Figgis  is  thus,  mainly,  that  we  would  date  the 
break-up  of  the  conception  of  the  single  society  from 
the  entry  of  Roman  Law,  not  of  Aristotle,  into'  political 
thought. 

There  is  one  other  point  which  may  well  be  considered 
here.  "The  word  Churchman,"  says  Dr  Figgis,  "means 

1  From  Gerson  to  Grotius,  p.  19. 

a  We  shall  consider  this  phrase  at  length  later.          . . 


106  THE  EMPIRE   AND  THE  PAPACY  [CH. 

to-day  one  who  belongs  to  the  Church  as  against 
others.  In  the  Middle  Ages  there  were  no  others,  or, 
if  there  were,  they  were  occupied  in  being  burnt." 
Here  again,  we  would  suggest,  we  have  to  separate 
the  early  and  the  later  Middle  Ages.  We  cannot  pass 
by  the  Crusades,  which  had  brought  Christian  Europe 
once  more  into  touch  with  non-Christian  peoples.  The 
political  literature  of  the  later  Middle  Ages  shows  a 
constantly  widening  outlook  as  regards  these  latter — a 
constantly  growing  tendency  to  think  that,  caeteris 
paribus,  non-Churchmen,  other  than  incorrigible  heretics, 
ought  not  to  be  occupied  in  being  burnt1.  Bartolus 
himself,  for  example,  we  shall  later  see  much  concerned 
to  prove  the  justice  of  "our"  wars  with  the  Saracens 
and  Turks.  It  would  be  immensely  interesting  to  trace 
the  slow  growth  of  this  sentiment  of  toleration  in  the 
later  Middle  Ages ;  it  cannot  be  attempted  here.  But 
we  may  consider  this.  Grotius  made  possible  modern 
international  law  by  his  assumption  of  a  universal  law 
of  nature,  and  under  that  law  he  took  the  great  step  of 
including  the  Turk.  Now  already  in  the  Middle  Ages 
we  shall  see  Engelbert  of  Admont  maintaining  that  all 
men,  as  men,  are  subject  to  the  Ji^s  Gentium,  and 
therefore  are  under  the  Empire ;  and  we  may  compare 
with  this  how  Albericus  de  Rosate  says  that  the  Jews 
are  subject  to  the  Empire,  but  not  to  the  Church2. 

1  Among  the  many  interesting  discussions  in  later  medieval  writers 
on  the  relations  of  the  Empire  and  Papacy  to  the  Jews  and  other 
unbelievers,  especially  interesting  are  Oldradus,  Quaestio  CCLXIV.  and 
Augustinus  Triumphus,  Summa  de  Eccles.  Pot.,  Quaestio  xxm. 

2  Comment,  on  Codex,  Part  i.  (C.  i.  4.  3),  p.  42,  §  1 :   "Ergo  judaei 
subsunt  Eomano  Imperio  et  legibus,  sed  Romanae  Ecclesiae  non"; 
and  cf.  a  long  and  interesting  passage  in  Lucas  de  Penna,  Comment, 
on  Codex,  Tres  libri  (C.  xi.  71.  1),  p.  637. 


Il]  THE   EMPIRE   AND   THE   PAPACY  107 

Bartolus  indeed,  as  we  have  seen,  draws  a  sharp  line 
between  the  Christian  Populus  Romanus  and  the 
Populi  extranei,  who  none  the  less  include  the  Greek 
Christians.  But  when  men  could  talk  as  Albericus  de 
Rosate,  there  can  be  no  doubt  that  the  conception  of  a 
single  Christian  society  was  beginning  to  give  way. 


II.       THE    EMPIRE    AND    THE    REGNA 

"Bartolus,"  says  Dr  Figgis1,  "never  worried  about 
the  ultramontane,  barbarian  peoples";  and  this,  if 
somewhat  overstated2,  is  true.  His  eyes  and  his  heart 
were  fixed  on  Italy,  and  not  even  on  Italy  as  a  whole. 

1  Figgis,  Bartolus  and  European  Political  Ideas,  p.  159. 

2  It  is  overstated  somewhat,  because  Bartolus  is  always  ready  to 
consider  a  foreign  nation,  and  its  customs,  by  way  of  illustration. 
Vide  a  curious  example  in  the    Comment,   on  Dig.   Nov.   Part  n. 
(D.  XLIX.  16.  3),  p.  639 :  "  Miles  non  suspenditur,  sed  decapitatur.     Et 
ita  servatur  in  Italia.      Sed   in  Francia  servatur  contrarium:    quia 
quilibet,  etiam  nobilis,  suspenditur:  nee  habetur  ilia  mors  ita  igno- 
miniosa,  sicut  in  Italia."    Cf.  Comment,  on  Infort.  Part  n.  (D.  xxxvm. 
17.  1),  p.  540 :  "  Dicit  Petrus  de  Bella  Pertica  quod  erat  consuetude  in 
Anglia,  quod  si  forensis  decederet,  succederet  Ecclesia  major."     In 
Comment,  on  Dig.  Vet.  Part  n.  (D.  xm.  7.  18,  §  Si  nuda),  p.  266,  he 
notes:  "Kegi  Franciae  fuit  datus  comitatus  Tolosae  ita  quod  ipse  est 
rex  et  comes,  non  quod  comitatus  Tolosanensis  emciatur  de  regno,  sed 
comitatus  regni,  et  tune  debet  regi  secundum  leges  et  consuetudines 
suas."     Still  that  in  general  Bartolus'  eyes  are  fixed  on  Italy  and  its 
problems  is  incontestable.      They  only  wander  beyond  the  Alps  to 
face  such  a  problem  as  the  "  translatio  Imperii "  to  the  Germans,  or 
to  fetch  illustrations  such  as  these.     But  the  word  "  barbarian  "  does 
certainly  not,  I  think,  express  Bartolus'  attitude  towards  the  ultra- 
montane peoples.     It  is  true  that  the  Empire,  since  the  "translatio," 
"  semper  decrevit  in  oculis  nostris,"  but  "  omnes  Christian!  dicuntur 
fratres  nostri,"  and  all,  in  spite  of  national  differences,  are  a  part  of 
the  Populus  Komanus. 


108        THE  EMPIRE  AND  THE  REGNA        [CH. 

It  was  those  parts  of  Italy  which  he  knew  and  whose 
problems  were  actually  before  him — Lombardy,  Tuscany, 
the  March  and  central  Italy  generally — with  which  he 
was  concerned.  Kings,  after  all,  were  far  away,  in  Sicily, 
Naples  or  beyond  the  Alps,  while  tyrants  were  near  at 
hand;  and  it  was  in  the  city-states,  whether  still  free  or 
fallen  under  a  tyrant,  that  Bartolus  saw  the  problems 
of  his  day  made  visible.  The  surroundings  of  each 
individual  lawyer  stamp  their  character  on  his  works ; 
and  the  works  of  Bartolus  are  those  of  a  man  who  lived, 
taught  and  thought  among  the  Italian  cities  of  the 
fourteenth  century. 

Now,  of  course,  the  problem  presented  by  the  Regna 
was  in  many  ways  identical  with  that  presented  by  the 
Civitates.  In  both  cases  the  problem,  put  in  its  lowest 
terms,  was  to  adapt  the  theory  of  one,  omnipotent 
world-State  to  a  world  of  States.  To  acknowledge 
that  France  or  Florence  were  de  facto  independent 
was  not  enough.  Even  to  acknowledge  their  inde- 
pendence as  de  jure,  left  over  problems  for  solution. 
Suppose  the  king  of  France  de  jure  independent — 
is  he  then  the  Princeps  of  the  Law  Books  ?  The  rather 
vague  term  Princeps  could  be,  and  often  was,  applied  to 
others  besides  the  Emperor;  but  it  was  none  the  less  only 
after  the  work  of  many  generations  of  lawyers,  that 
the  identification  of  the  Princeps  with  any  indepen- 
dent sovereign  power  could  be  made  in  so  many 
words.  The  independence  of  the  king  of  France,  even 
when  accepted  both  de  facto  and  de  jure1,  was  not 

1  Bodin,  we  shall  see  in  a  later  part  of  this  essay,  said  that 
Oldradus  was  the  "first  of  his  age"  to  declare  the  king  of  France 
de  jure  independent.  Many  of  the  lawyers  rest  this  independence  on 


Il]  THE   EMPIRE  AND  THE  EEGNA  109 

completely  fitted  into  the  lawyer's  theories,  until  in  the 
middle  of  the  fourteenth  century  they  could  say  that 
the  "rex  in_regno  suo  est  Imperator  regni  sui."  With 
the  history  of  this  phrase  we  shall  be  much  concerned 
in  a  later  part  of  this  essay.  Here  we  have  only  to 
note  that  we  shall  look  for  it  in  vain  in  Bartolus.  But 
we  shall  find  this  solution,  and  all  it  means,  applied  by 
Bartolus  time  after  time  to  the  Civitas.  The  Civitas 
which  Bartolus  calls  "  sibi  princeps  "  is  in  precisely  the 
same  position  as  the  Rex,  who  is  "Imperator  regni 
sui";  and  the  reason  that  Bartolus  did  not  apply  this 
solution  to  the  Bex  is  simply  that  the  problems,  which 
made  this  solution  necessary,  rarely  presented  themselves 
to  him  except  in  connection  with  the  Civitas. 

It  is  with  the  Civitas,  therefore,  that  we  shall  be 
concerned  for  the  remainder  of  our  study  of  Bartolus' 

special  exemption,  as  we  saw  Bartolus  do,  when  discussing  the  extent 
of  the  Populus  Eomanus.  Cf.  Lucas  de  Penna,  Comment,  on  Codex, 
Tres  libri  (C.  xi.  51.  1),  p.  525:  "  Imperium  est  potestas,  jussio, 
perpetuum  regnum.  Huic  autem  Imperio,  scilicet  Eomano,  omnes 
gentes  subesse  deberent....Sed  sunt  aliqui  reges  liberi,  ab  Imperio 
exempti,  qui  vel  jugum  nunquam  susceperunt,  vel  susceptum  re- 
jecerunt...eos  enim  vocat  Imperator  socios  et  amicos....Potissime 
liber  et  exemptus  est  rex  Francorum,  qui  superiorem  in  temporalibus 
non  recognoscit....Item  rex  Siciliae."  (Lucas  de  Penna  is  a  Nea- 
politan.) Cf.  Nicholas  Spinellus  (also  a  Neapolitan)  whose  Lecturae 
on  Dig.  Book  xxvu.  are  printed  in  most  editions  of  Bartolus'  Comment, 
on  the  Infortiatum.  Vide  Comment,  on  Infort.  Part  i.  (D.  xxvu.  1.  6, 
§  Grammatici),  p.  209,  §  2 :  "  Nota  Principem  Komanum  esse  dominum 
totius  orbis....Nec  obstat  C.  de  Summa  Trin.  L.  Cunctos,  ubi  videtur 
dicere  quod  sunt  alii  non  subjecti...quia  ibi  loquitur  de  facto.  Nam 
de  facto  aliquae  provinciae  non  sunt  subjectae,  sed  de  jure  omnes 
sibi  subjectae  sunt.  Et  ita  dicit  Petrus  (de  Bella  Pertica)  in  d.  L. 
Cunctos.... Quod  credo  verum  nisi  per  aliquod  tempus  sit  secuta  prae- 
scriptio....Praeterea  hoc  non  videtur  verum,  cum  enim  Francia  ab 
ejus  dominio  sit  subtracta  et  rex  Franciae  sit  exemptus.... Credo  enim 
regem  Franciae  non  subjectum  esse  Imperio." 


110  THE    EMPIRE   AND   THE    REGNA  [CH. 

own  thought.  We  have  to  show  the  various  steps  by 
which  we  arrive  at  this  solution;  and  we  have  to  con- 
sider the  Civitas  after  it  has  become  "  sibi  princeps  " ; 
we  shall  attempt  in  later  pages  to  show  what  the 
solution  m fans  and  its  place  in  medieval  thought, 
whether  applied  to  the  Civitas  or  Kegnum.  Before, 
however,  we  pass  on  to  the  cities,  we  may  glance  at 
some  of  the  few  passages  in  which  Bartolus  treats  of 
the  kings  and  their  kingdoms. 

The  division  of  the  world,  according  to  Bartolus, 
is  "de  jure  gentium,"  and  he  distinguishes  between 
divisions,  such  as  the  Provincia  or  Regnum,  where 
men  dwell  together,  "  sed  in  aedificiis  separatis,"  from 
those,  such  as  the  Civitas,  Castrum  or  Villa,  where  they 
dwell  together  "in  aedificiis  in  unum  collatis1."  Else- 
where he  talks  of  the  "regia  potestas"  as  "de  jure 
gentium2,"  and  he  must  have  a  similar  thought  in 
mind,  when  he  says,  as  we  have  seen  above,  that  every 
king  holds  his  office  mediately  or  immediately  from 
(ind,  but  that  the  elective  "rex  universalis "  is  more 
divine  than  the  hereditary  under-kings,  who  are  "magis 
ex  constitutione  hominum." 

Then  we  have  seen  these  kings  retained  in  the 
Populus  Romanus,  their  independence  being  considered 
as  grounded  on  concession  from  the  Emperor,  whom 
therefore,  Bartolus  argues,  they  must  recognise  as  de 
jure  lord  of  the  world.  We  may  infer  from  this  that 
their  internal  independence  is  therefore  de  jure;  and 
\ve  have  also  seen  that  the  universal  dominion  of 

Vide  below,  p.  124,  note  1. 

-  Vide  Comment,  on  Di<i.  Vet.  Part  n.  (D.  xii.  6.  33),  p.  175,  §  12. 
Tract.  lifi>riic».  Quaestio.ni.  1,  §  '2,  p.  331. 


[RE    AND   THE    REGNA 


111 


universal  propriety.     The 
is,  but  "singulae  res"  are 
domini  praediorum  suo- 
that,  even  if  the 
have,  as  such, 
ilar  laws  for  their 
ror  makes  uni- 
ipra   legem2." 
ley  have  the 
•rium  " — and 


eade 

jud. 

vel  rex 

injustice. 

Princeps  or 

shows  how 

"  restitutio  famae,i 

rex,  princeps  vel  po 

nosceret,  tune  quo 


seems  to 
But  such 

refects  "qui 
—can  make 
ilar  validity 
fit  dominus 
d  in  parte, 
'art  i.  (D.  i. 

3  dominus 

».t.  on 

•irt  r. 

as  vivere, 

),  p.  600, 
"Sed  si 

rem  non 
juia  est 

[.   (Ut 


110  THE   EMPIRE  AND  THE   REGNA  [CH. 

own  thought.  We  have  to  show  the  various  steps  by 
which  we  arrive  at  this  solution ;  and  we  have  to  con- 
sider the  Civitas  after  it  has  become  "  sibi  princeps  " ; 
we  shall  attempt  in  later  pages  to  show  what  the 
solution  means  and  its  place  in  medieval  thought, 
whether  applied  to  the  Civitas  or  Kegnum.  Before, 
however,  we  pass  on  to  the  cities,  we  may  glance  at 
some  of  the  few  passages  in  which  Bartolus  treats  of 
the  kings  and  their  kingdoms. 

The  division  of  the  world,  according  to  Bartolus, 
is  "de  jure  gentium,"  and  he  distinguishes  between 
divisions,  such  as  the  Provincia  or  Regnum,  where 
men  dwell  together,  "sed  in  aedificiis  separatis,"  from 
those,  such  as  the  Civitas,  Castrum  or  Villa,  where  they 
dwell  together  "in  aedificiis  in  unum  collatis1."  Else- 
where he  talks  of  the  "regia  potestas"  as  "de  jure 
gentium2,"  and  he  must  have  a  similar  thought  in 
mind,  when  he  says,  as  we  have  seen  above,  that  every 
king  holds  his  office  mediately  or  immediately  from 
God,  but  that  the  elective  "rex  universalis"  is  more 
divine  than  the  hereditary  under-kings,  who  are  "magis 
ex  constitutione  hominum." 

Then  we  have  seen  these  kings  retained  in  the 
Populus  Romanus,  their  independence  being  considered 
as  grounded  on  concession  from  the  Emperor,  whom 
therefore,  Bartolus  argues,  they  must  recognise  as  de 
jure  lord  of  the  world.  We  may  infer  from  this  that 
their  internal  independence  is  therefore  de  jure;  and 
we  have  also  seen  that  the  universal  dominion  of 

1  Vide  below,  p.  124,  note  1. 

2  Vide  Comment,  on  Dig.  Vet.  Part  n.  (D.  xii.  6.  38),  p.  175,  §  12. 
Cf.  Tract.  Repraes.  Quaestio.in.  1,  §  2,  p.  331. 


II]  THE   EMPIRE   AND   THE    REGNA  111 

the  Emperor  does  not  mean  universal  propriety.  The 
world,  as  a  "  universitas,"  is  his,  but  "singulae  res"  are 
not.  The  kings  are  de  jure  "domini  praediorum  suo- 
rum."  Moreover  we  must  remember  that,  even  if  the 
kings  are  only  "majores  judices,"  they  have,  as  such, 
wide  powers.  They  can  make  particular  laws  for  their 
particular  kingdoms,  just  as  the  Emperor  makes  uni- 
versal law1.  They  are  thus  "judices  supra  legem2." 
And  finally  as  Praesides  Provinciarum,  they  have  the 
right  to  exercise  "  merum  et  mixtum  imperium  " — and 
how  much  that  implies  we  shall  see  later. 

Occasionally  Bartolus   goes   further   and   seems  to 
place    the    Princeps    and   Rex    together3.      But   such 

1  "Majores  judices  "—senators,  praetors,  praetorian  prefects  "qui 
aequiparantur  regibus,   qui  sunt   hodie   per  mundum "— can  make 
statutes;    but,  as  such,  these  laws  have  only  a  particular  validity 
and  do  not  exclude  Imperial  laws.     "  Sicut  Princeps,  qui  est  dominus 
totius  facit  legem  universalem,  ita  isti,  qui  sunt  domini  in  parte, 
faciunt  statuta  in  parte."     Vide  Comment,  on  Dig.  Vet.  Part  i.  (D.  i. 
1.  9),  p.  28,  §§  8-12. 

2  "...Judices  supra  legem,  ut  Papa  vel  Imperator  vel  alius  dominus 
cujus  dictum  habetur  pro  lege  in  territorio  suo."     Vide  Comment,  on 
Codex,  Part  i.  (C.  n.  10.  1),  p.  211.     Of.  Comment,  on  Codex,  Part  i. 
(C.  i.  14.  4),  p.  87 :  "  Aequum  et  dignum  est  Principem  legibus  vivere, 
et  quemlibet  habentem  imperium." 

3  Vide  e.g.  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLIX.  2.  1),  p.  600, 
§  3,  where,  discussing  a  question  of  appeal,  Bartolus  says:   "  Sed  si 
esset  aliquis  rex  vel  dominus,  qui  in  temporalibus  superiorem  non 
recognosceret,  tune  putarem  in  eo  idem  quod  in  Principe,  quia  est 
eadem  ratio."      Again,  Comment,  on  Authenticum,  Collatio  n.  (Ut 
jud.  sine  quoquo  suffr.  §  Omnes  Dignitates),  p.  33.     If  the  "  Princeps 
vel  rex"   extort  anything  from  their  subjects,  the  subjects  suffer 
injustice.      "Non   obstat   quod   superiorem  non  habent "    (i.e.   the 
Princeps  or  Rex).     But  vide  below,  p.  155,  a  passage  which  clearly 
shows  how  little  Bartolus  is  concerned  with  the  Regna.     Discussing 
"restitutio  famae,"  as  belonging  to  the  Emperor,  he  says,  "Si  esset 
rex,  princeps  vel  populus,  qui  Imperatorem  in  dominum  non  recog- 
nosceret, tune  quo  ad  seipsos,  restitutio  famae  valeret " :  but  then, 


112  THE   EMPIRE   AND  THE   REGNA  [CH. 

passages  are  few  and  far  between.  All  we  can  really  say 
is  that  Bartolus  does  recognise  the  independence  of  the 
kingdoms — and  presumably  as  de  jure ;  that  he  grounds 
that  independence  on  concession;  but  that  he  leaves 
the  Emperor  above  as  the  "rex  universalis1."  His 
thought  is  thus  fragmentary  upon  this  topic.  The 
problem  is  there,  and  the  elements  of  a  solution;  but 
the  solution  is  not  applied,  as  we  shall  see  it  applied  in 
the  case  of  the  Civitas. 


III.      THE   EMPIRE   AND    THE    CIVITATES 

For  Aquinas,  Egidius  Romanus  and  in  general  all 
those  who  took  Aristotle's  Politics,  as  introduced  to  the 
later  Middle  Ages  by  Aquinas  himself,  as  the  basis  of 
their  political  speculation,  the  State  was  the  Civitas  or 

quite  forgetting  the  Rex  or  Princeps,  he  continues,  "  Quia  talis  appel- 
latur  populus  liber... et  apud  eosmet  dicitur  esse  imperium  sui  ipsius." 
Still  more  significant  is  another  passage  on  the  same  subject  (vide 
below,  p.  156) :  "  Quaero,  quis  possit  super  infamia  dispensare?  Re- 
spondeo  textus  dicit  quod  solus  Princeps  vel  senatus....Idem  dicimus 
de  Papa,  quia  potest  cum  infamibus  dispensare.  Idem  in  collegio 
cardinalium,  vacante  pastore.  Secus  in  regibus  et  principibus." 
After  which  he  goes  on  to  allow  the  right  to  independent  cities 
"  superiorem  non  recognoscentes."  Bartolus  obviously  does  not 
intentionally  pass  over  the  Rex  or  Princeps  in  these  two  cases;  he 
is  simply  not  concerned  with  them ;  and  thus,  even  when  he  mentions 
them  along  with  the  Civitates,  disregards  their  existence  when  he 
comes  to  the  crucial  point. 

1  Vide,  e.g.  Comment,  on  Codex,  Part  i.  (C.  i.  2.  5),  p.  36:  "Ad 
quos  pertinet  imponere  collectas  de  jure  communi?  Respondeo  ad 
reges";  and  he  goes  on  to  say  also  to  "duces  et  barones  in  suo 
ducatu  et  civitates  non  pedisequas,  quae  merum  imperium  praescrip- 
serunt."  Then  cf.  Comment,  on  Dig.  Vet.  Part  i.  (D.  in.  4.  1,  §  Quod 
si  nemo),  p.  367:  "Pro  utilitate  vero  publica  totius  Imperii  non 
posset  imponere  collectam  aliquis  nisi  Princeps." 


II]  THE    EMPIRE   AND   THE   C1VITATES  113 

Regnum.  The  Imperium  was  clearly  out  of  place  in 
political  theories  derived  from  Aristotle.  That  a  place 
was  found  for  the  Imperium  we  shall  see  in  the  next 
chapter.  But  the  Aristotelians  started  from  the  Civitas 
or  Regnum,  and  if  they  went  on  to  form  a  hierarchy  of 
political  communities,  beginning  with  the  Civitas  and 
culminating  in  the  Imperium,  the  difference  between 
one  form  of  community  and  another  was  still  only  one  of 
degree  of  perfection,  for  all  alike  came  under  the  rubric 
of  the  self-sufficient  and  complete  community1. 

The  lawyers  viewed  the  Civitas  and  Regnum 
differently,  because  they  followed  a  tradition  that  went 
back  nearly  two  hundred  years  behind  Aquinas.  To 
the  lawyer  the  State  was  as  essentially  the  Imperium,  as 
to  the  Aristotelian  it  was  the  Civitas  or  Regnum.  The 
Glossators,  taking  their  texts  literally,  had  found  no 
place  for  independent,  sovereign  kings  and  cities ;  the 
kingdom  was  a  Roman  Province,  the  city  a  Roman 
Municipium,  and  both  must  fall  under  the  common 
heading  of  the  "  universitas2."  But  already  under  the 
Glossators  necessity  drove  the  lawyers  to  develope  their 
political  theories.  Hard  facts  made  it  quite  impossible 
to  force  independent  and  powerful  France  into  the 
position  of  a  mere  Roman  Province,  or  an  independent 
(and  Guelph)  city  like  Florence  into  that  of  a  mere 
Roman  Municipium.  At  a  real  solution  of  the  difficulty, 
such  as  we  shall  find  in  Bartolus  himself,  the  Glossators 
did  not  arrive;  but  a  great  step  towards  such  a  solution 
was  taken,  when  the  conception  of  the  " universitas"  was 

1  We  shall  consider  the  Aristotelians  in  detail  in  the  next  chapter. 

2  Vide  Gierke,  Deutsche  Genossenschaftsrecht,  vol.  in.  p.  199. 
w.  8 


114  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

enlarged  so  as  to  include  the  Empire  itself1.  In  this 
way  the  difference  between  the  Imperium,  Kegnum  and 
Civitas  became,  for  the  lawyer  also,  one  of  degree ;  but 
at  the  same  time  the  difference  of  quality  remained. 
The  Empire  as  a  world-embracing  "  universitas "  has 
powers  and  rights,  which  do  not  belong  to  the  "  larga 
universitas,"  which  is  a  Province,  or  the  "  minus  larga 
universitas,"  which  is  a  Civitas,  and  the  same  distinc- 
tion holds  good  between  the  Provincia  and  the 
Civitas  themselves2.  Thus,  while  the  Civitas  was  to 
the  Aristotelian  the  State,  to  the  lawyer  it  was,  strictly, 
merely  a  "  universitas," — and,  we  may  say,  the  lowest  in 
the  scale  of  communities,  which  could  be  said  normally 
to  have  in  itself  the  elements  of  an  independent  political 
life.  As  a  "universitas,"  the  existence  of  the  Civitas 
as  a  community,  with  a  limited  jurisdiction  over  its 
members,  was  secured.  It  was  brought  under  the  rubric 
of  those  corporations  recognised  as  licit  in  general ;  there 
is  thus,  Bartolus  says,  nothing  to  prevent  a  "  people  " 
from  settling  down  in  a  place  and  forming  a  Civitas. 
It  could  do  so  "de  jure  gentium,"  provided  only  that  it 
did  not  tend  "ad  injuriam  vel  emulationem  alterius3." 

1  The  Glossators  did  not  allow  this  in   so  many   words,   says 
Dr  Gierke,  though  they  do  not  reject  such  a  conception,  vide  op. 
cit.  p.  198:  "  Allerdings  hatten  wohl  schon  die  Glossatoren  die  spater 
gelaufige  Anschauungsweise,  nach  welcher  das  Eeich  selbst  nur  die 
oberste  und  umfassendeste  'universitas'  ist,  kaum  reprobirt.     Aus- 
driicklich  aber  vollziehen  sie  eine  solche   Subsumtion  noch  nicht. 
Vielmehr  bleiben  sie  in  der  Theorie  bei  dem  in  den  Quellen  vorge- 
fundenen  unvermittelten  Gregensatz  zwischen  dem  Eeich  und  alien 
iibrigen  Verbanden  stehen,  etc." 

2  Thus  we  shall  find  that  Merum  et  Mixtum  Imperium  belong  to 
the  "larga  universitas"  "  de  jure  communi,"  not  to  the  "minus 
larga." 

3  Vide  Comment,  on  Dig.  Vet.  Part  i.  (D.  m.  4.  1),  p.  365:  "  Omne 


II]  THE   EMPIRE   AND   THE   C1VITATES  115 

Now,  however,  when  we  remember  the  assumption 
running  through  the  thought  of  Bartolus,  that  many, 
if  not  most  of  the  Civitates,  are  independent,  we  realise 
at  once  that  the  theory  is  as  yet  quite  inadequate. 
We  need  not  take  great  cities  like  Perugia  or  Florence. 
Take  a  small  city  like  Todi,  where  Bartolus  began 
his  active  life  as  assessor.  Unless  theory  was  to  be 
entirely  out  of  touch  with  fact,  the  officials  of  Todi 
could  not  be  classed  as  mere  "  defensores  civitatis  " ; 
its  independent  political  life  could  not  be  explained 
by  its  classification  as  a  mere  "  collegium  licitum."  In 
other  words,  the  problem  was  to  assure  to  the  Civitas 
rights  and  privileges  which,  strictly,  were  applicable 
only  to  higher  political  units — some  only  to  the  Civitas 
Romana,  some  to  the  officials  of  Rome  and  provincial 
governors,  some  only  to  the  Emperor  himself.  These 
we  may  most  conveniently  consider  under  four  heads : — 
(1)  the  right  to  be  considered  a  Respublica ;  (2)  the 
rights  connected  with  the  Fiscus;  (3)  the  right  to  /. 
exercise  Merum  et  Mixtum  Imperium  ;  (4)  the  right 
to  make  laws. 

collegium  est  improbatum  nisi  appareat  specialiter  approbation.... 
Quaero,  quae  collegia  sunt  approbata?...Item  dicit  gl.  congregatio 
cujuslibet  civitatis,  castri  vel  villae,  quod  est  novum  quid.  Videtur 
ergo  quod  si  aliqua  gens  vellet  se  ponere  in  uno  loco  et  facere  civitatem, 
castrum  vel  villam,  quod  hoc  potest.  Videtur  enim  hoc  permissum 
de  jure  gentium.... Et  crederem  hoc  esse  verum  nisi  tenderet  ad 
injuriam  vel  emulationem  alterius  castri  vel  villae."  Cf.  Comment, 
on  Dig.  Nov.  Part  n.  (D.  L.  16.  2),  p.  685,  §  7:  "  Et  nos  possemus 
intrare  in  istam  quaestionem  quando  possent  ex  se  homines  con- 
stituere  civitates,  an  possint  sua  authoritate,  an  requiratur  authoritas 
superioris.  Et  dicit  Innocentius  quod  homines  sua  sponte  possunt 
sine  authoritate  superioris.... Et  ibi  dicit  ipse,  non  intelligas  de  ea  quae 
habet  episcopum,  sed  in  aliis  quae  non  habent  episcopum,  quia  istud 
est  in  Italia,  quando  habent  episcopum,  est  civitas." 

8—2 


116  THE   EMPIRE   AND   THE   CIVITATES  [CH. 


(1)  The  Glossators  had  reserved  the  term  ^ 
publica  "  properly  "  only  for  the  city  of  Rome  of  their 
day,  an  assumption  so  plainly  untenable  (even  though  it 
was  something  more  than  an  academic  theory,  as  is  shown 
by  the  attempts  of  Arnold  of  Brescia  and  Rienzi)  that 
they  were  compelled  to  agree  that  at  least  "improperly" 
the  term  might  be  applied  to  other  Civitates  as  well1. 
Bartolus,  however,  fully  developes  this  grudging  ad- 
mission. "Secundum  glossam  die  quod  respublica 
proprie  sumendo  intelligitur  de  republica  Romanorum, 
improprie  autern  quandoque  sumitur  pro  qualibet  alia 
civitate2."  He  offers,  however,  another  explanation  as 
well,  namely  that  Respublica  may  be  applied  to  a 
Ci  vitas  "  ratione  adjuncti,"  as  in  the  case  of  this  law, 
where  the  "respublica  Heliopolitanorum  "  is  mentioned3. 
But  this  explanation  is  clearly  only  applicable  to  laws 
such  as  this,  where  the  term  Respublica  is  definitely 
qualified  by  an  "adjunct"  other  than  the  name  of 
Rome4.  In  general  the  term  Respublica  occurs  un- 


1  Vide  Gierke,   Deutsclw   Genossenschaftsrecht,   vol.   in.   p.    201 : 
"  Allerdings  gestehen  die  Glossatoren  den  Namen  des  offentlichen 
Gemeinwesens  den  engeren  Verbanden  im  Princip  nicht  zu.      Sie 
behaupten,  indem  sie  an  dem  betreffenden  Quellenausspriichen  haften, 
dass  '  eigentlich '  nur  auf  das  Eeich  und  die  Stadt  Eom  die  Begriffe 
'  respublica,'  '  jus  publicum,'  '  bona  publica  '  anwendbar,  alle  anderen 
Gemeinheiten  '  loco  privatorum  '  seien. ' ' 

2  Comment,  on  Codex,  Part  n.  (C.  vm.  18.  3),  p.  291. 

3  The  law  runs :    ' '  Cum  rempublicam  Heliopolitanorum  propter 
emolumentum  sententiae  in  rerum  tarn  heredis  quam  hereditariarum 
possessionem  missam  esse  proponas  etc." 

4  One  may  compare  a  passage  in  the  Commentary  on  the  Codex, 
Tres  libri  (C.  xi.  48.  1),  p.  103:   "  Cives  Romani  habitantes  in  urbe 
effugiunt  onus  capitationis....Potest  etiam  intelligi  in  civibus  aliarum 
civitatum  habitantibus  intra  urbem,  et  hoc  patet  ex  generalitate  hujus 
literae,  quae  dicit,  '  in  orientalibus  quoque  '  " — referring  to  the  words 


II]  THE    EMPIRE   AND   THE   CIVITATES  117 

qualified,  and  in  no  such  case  does  Bartolus  refuse  to 
apply  it  to  any  Ci vitas.  "  Quaerit  glossa  de  qua 
republica  loquitur  haec  lex,"  he  says  of  a  law  in  the 
Code1.  "  Respondeo  quod  loquitur  de  republica  Ro- 

manorum Sed  tune  quaerit  quid  in  aliis  civitatibus. 

...Finaliter  videtur  tenere  glossa  quod  aliae  civitates 
restituuntur2."  We  may  say,  therefore,  that  the  term 
Respublica  is  applicable  to  any  Civitas.  But  the  older 
tendency  to  limit  the  term  to  the  actual  city  of  Rome 
was  not  yet  dead ;  it  could  not  be  merely  disregarded. 
Bartolus  goes  on  to  point  out  that  certain  of  the 
"  Ultramontani "  held  the  contrary — "nam  civitas  con- 

tinetur   appellatione   reipublicae   improprie Sed   nos 

debemus  legem  intelligere  secundum  propriam  signi- 
flcationem."  On  the  other  hand,  he  says,  other  doctors 
support  the  Gloss3,  relying  on  this  law  and  on  C.  XI. 


of  the  law — "  Plebs  urbana  sicut  in  orientalibus  quoque  provinciis 
observatur  etc." 

1  Comment,  on  Codex,  Part  i.  (C.  n.  53.  4),  p.  286,  §§  1-2. 

2  This  particular  law  of  the  Codex  runs :    ' '  Eespublica  minoris 
jure  uti  solet;  ideoque  auxilium  restitutionis  implorare  potest."    The 
question  in  dispute  then  is  whether  only  the  Eespublica  Eomanorum 
can  enjoy  the  right. 

3  We  note  that,  according  to  Bartolus,  some  of  the  Ultramontani 
are  clinging  to  the  old  view,  which  we  ascribed  to  the  Glossators. 
The    Gloss,   of    course,   means    to    Bartolus   the    Glossa   Magna  of 
Accursius,  which  marks  the  close  of  the  period  of  the  Glossators.     In 
the  end,  we  have  seen,  the  Glossators  had  conceded  that  "  improprie  " 
the  term  Eespublica  might  be  applied  to  other  Civitates  than  Eome ; 
these  Ultramontani  are  now  going  back  and  say  that  we  have  no 
business  to  understand  laws  "improprie."      Bartolus  himself  again 
maintains  the  applicability  of  the  term  to  any  Civitas  in  Comment,  on 
Codex,  Part  i.   (C.   iv.   31.   3),   p.   476:    "  Quaero   de  qua   republica 
loquitur  hie.      Quidam   dicunt   de   republica   Eomanorum.      Veritas 
est  quod  idem  in  qualibet  alia  civitate.     Ita  videtur  sentire  glossa." 


118  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

29.  31,  "quae  loquuntur  generaliter."  Finally  Bartolus 
gives  other  reasons  to  show  that  the  opinion  of  the 
Gloss  is  correct2;  and  then,  it  is  worth  noting,  he 
follows  Jac.  Buttrigarius  in  holding  that,  as  regards 
"  restitutio,"  which  is  the  subject  of  this  law,  Castra 
and  Villae,  which  "  habent  multitudinem  hominum  et 
habent  regi  per  suos  administratores,"  are  on  the  same 
level  as  Civitates — "tune  in  eis  est  eadem  ratio  quae  in 
civitatibus." 

But  the  best  and  most  final  proof  that  Bartolus,  for 
his  part,  is  quite  determined  not  to  limit  the  term 
Respublica  to  any  narrow  interpretation,  is  that  he 
frequently  and  without  discussion  uses  the  term,  as 
applicable  either  generally  to  any  Civitas,  or  to  some 
particular  Civitas  other  than  Rome.  Thus  he  notes 
that  "  banniti,  qui  possunt  impune  offendi,  perdunt 
omnia  jura  civitatis  suae,"  and  that  the  statute,  by 
which  this  is  permitted,  "non  est  in  beneficium 
offendentis,  sed  favore  reipublicae3."  Again,  to  take 
an  example  in  which  a  particular  Civitas  is  concerned : 
"  Nota  quod  per  dissensiones  civiles  publica  res  laeditur, 
Hoc  facit  pro  prioribus  hujus  civitatis,  qui  habent 
arbitrium  super  bono  et  pacifico  statu  civitatis,  ut 
possint  facere  statuta  ut  tollatur  materia  brigarum  et 
dissensionum  inter  cives,  quia  per  hoc  reipublicae  con- 
sulitur4." 

1  Which  runs:  " Rempublicam  ut  pupillam  extra  ordinem  juvari 
moris  est." 

2  "  Praeterea  lex  debet  extend!  per  identitatem  rationis,  non  enim 
est  aliud  mens  legis  quam  ratio.... Sed  eadem  est  ratio  in  qualibet 
civitate  quae  est  in  republica  Romanorum,  quia  per  alios  reguntur, 
sicut  minores  reguntur  per  tutores  et  curatores  etc." 

3  Comment,  on  Infort.  Part  i.  (D.  xxiv.  3.  49),  p.  80,  §  5. 

4  Comment,  on  Difj.  Nov.  Part  n.  (D.  XLIX.  15.  21,  §  In  civilibus), 


ll]  THE    EMPIRE   AND   THE    CIVITATES  119 

(2)  We  have  purposely  abstained  from  quoting  one 
of  the  most  important  passages  on  this  question  in  the 
commentaries  of  Bartolus,  because,  while  we  have  been 
able  to  produce  quite  sufficient  evidence  to  illustrate 
his  position,  it  was  better  to  reserve  this  particular 
passage  until  we  came  to  the  question  of  the  Fiscus. 
Bartolus  distinguishes  in  this  passage1  between  the 
Fiscus  and  the  Respublica.  The  Fiscus  or  Camera 
Imperialis  is  "  quidquid  ad  commodum  pecuniarium 
Imperii  pertinet";  other  things,  "quae  ad  jurisdictions 
et  honores  Imperii,  et  non  ad  commodum  pecuniarium 
et  bursale  pertinent,  continentur  nomine  reipublicae  et 
non  fisci."  The  Fiscus  is  thus  denned  as  essentially 
Imperial ;  so  is  the  Respublica.  But  the  Respublica 
we  have  already  seen  conceded  to  the  Civitates.  Bartolus 
now  considers  the  relations  between  the  Fiscus  and  the 
Respublica;  and,  amplifying  his  treatment  of  the  latter, 
he  gives  the  term  four  meanings.  First  the  Respublica 
may  stand  for  "  the  whole  universal  Empire."  Secondly 
it  may  stand  for  the  "respublica  Romanorum."  Thirdly 
for  the  Respublica  of  any  Civitas.  Lastly  for  the 
Respublica  of  any  Municipium2. 

p.  636.  Cf.  Comment,  on  Codex,  Part  i.  (C.  n.  7.  2),  p.  208:  "  Nota 
ex  hac  lege,  et  tene  menti,  quod  advocatus,  qui  habet  aliquod  officium 
in  civitate,  non  potest  ire  extra  civitatem.  Secundo  nota  quod  potest 
esse  advocatus,  praeterquam  contra  rempublicam.  Ex  quo  habes,  quod 
qui  salarium  habet  ex  republica,  non  debet  esse  advocatus  contra  rem- 
publicam. Et  sic  facit  quod  doctores  hujus  civitatis  salariati  non 
possunt  esse  advocati  contra  rempublicam  hujus  civitatis."  Cf.  also 
Comment,  on  Dig.  Nov.  Part  n.  (D.  L.  9.  4),  pp.  670-1,  §§  18-9. 

1  Comment,   on  Codex,    Tres   libri    (C.   x.   1,   sup.   rubric.),   p.   1, 
§§  3-7. 

2  In  the   Commentary  on  the  Authenticum  it  would  at  first  sight 
seem  as  if  Bartolus  for  once  does  not  extend  the  term  Kespublica  to 
the  Civitates.     He  says,  discussing  again  the  relations  of  Fiscus  and 


120  THE   EMPIRE  AND  THE   CIVITATES  [CH. 

According  to  the  first  meaning  of  Respublica,  the 
Fiscus  is  to  the  Respublica  as  species  to  genus — "posito 
fisco,  ponitur  respublica,  sicut  posito  homine,  ponitur 
animal,  non  econtra."  That  is  to  say,  the  Fiscus  is  con- 
tained in  the  universal  Respublica,  is  a  specific  branch 
of  the  general  administration  of  the  Empire.  But  if 
Respublica  be  taken  as  meaning  the  "respublica 
Romanorum  " — then,  in  so  far  as  once  the  "  respublica 
Romanorum  "  itself  had  "  regimen  universale,"  this  con- 
nection between  the  two  terms  holds  good ;  but  if  we 
take  the  "respublica  Romanorum"  as  something  separate 
from  the  universal  Roman  Empire— T"ut  in  jurisdictione 
quam  habebat  (i.e.  the  respublica  Romanorum  in  a 
limited  sense)  infra  centesimum  lapidem...et  in  aliis 
juribus  quae  infra  territorium  suum  habet" — then  there 
is  no  connection  between  Respublica  and  Fiscus. 
Finally,  if  Respublica  be  taken  "  pro  republica  alterius 
civitatis  vel  municipii,  sine  dubio  non  est  idem  cum  fisco." 

So  far  then,  though  the  Respublica  has  been  granted 
both  to  Civitates  and  Municipia,  the  Fiscus  is  being 

Kespublica :  ' '  Nota  quod  respublica  accipitur  pro  toto  universal!  Im- 
perio.  Aliquando  accipitur  pro  republica  Komanorum  seu  fisci. 
Aliquando  accipitur  pro  civitate  Eomana."  He  then  cites  laws  for 
and  against  the  Republic  and  Fiscus  being  considered  "idem,"  but 
does  not  decide.  If,  however,  we  continue  the  passage,  we  see  that 
here  too  Bartolus  is  really  extending  the  Respublica  to  any  Ci vitas. 
"  Secundo  ex  hac  glossa  nota,"  he  says,  "  quod  lex  finalis  C.  de  SS. 
Eccl.  (C.  i.  tit.  2)  non  habet  locum  in  municipio  seu  castro;  quod 
apparet,  quia  ista  glossa  ex  casu  quo  respublica  ponitur  pro  municipio 
allegat  glossam  legis  '  Sed  et  hi,'  §  penult.  D.  de  publ.  (D.  xxxix.  4.  13). 
Sed  quando  ponitur  pro  civitate,  allegat  glossam  legis  finalis  C.  de 
SS.  Eccl.  Intellige  ergo  legem  illam  in  civitate  tantum,  et  quod  ille 
lex  non  habet  locum  in  municipio  tenet  glossa  expresse  in  lege  '  Sed 
et  hi. '...In  contrarium  quod  ilia  lex  habeat  locum,  posset  forte  esse 
verum,  cum  illud  sit  beneficium  Principis  etc."  Comment,  on  Authent. 
Collatio  i.  (De  Haeredibus  et  Falcidia,  sup.  rubric.),  pp.  1-2,  §§  2-3. 


II]  THE   EMPIRE   AND   THE   CIVITATES  121 

retained  as  a  something  essentially  connected  with  the 
"  whole  universal  Empire."  But  it  is  clear  that  in  the 
actual  state  of  Italy,  where  the  Imperial  authority  was 
almost  annihilated,  and  where  the  Civitates,  whether 
still  free  or  under  a  tyrant,  did  actually  form  indepen- 
dent States,  it  was  of  the  utmost  importance  that  the 
term  Fiscus,  and  the  rights  connected  with  it,  should 
be  made  applicable  to  each  of  these  independent 
authorities.  This  Bartolus  does  by  recurring  to  the 
ever-present  distinction  between  Civitates  which  do, 
and  those  which  do  not,  acknowledge  a  superior.  "Nota 
glossam,"  he  says  in  the  Commentary  on  the  Digest1, 
<(  quae  dicit  quod  bona  vacantia  non  applicantur  alteri 
civitati,  sed  fisco.  Et  verum  dicit  in  civitatibus 
quae  recognoscunt  superiorem.  Sed  in  his  quae 
non  recognoscunt  superiorem,  de  jure  vel  de  facto,  ut 
civitates  Tusciae,  est  ipsamet  civitas  fiscus.  Vocatur 

enim  populus   liber Et  ideo  in  Marchia,  et  in  aliis 

provinciis  Ecclesiae,  omnia  quae  dicuntur  de  fisco,  in- 
telliguntur  de  Ecclesia.  In  illis  vero  civitatibus,  quae 
non  recognoscunt  aliquem  in  dominum,  quae  dicuntur 
de  fisco,  intelliguntur  de  suo  communi."  Again,  "  Ad- 
verte,  ista  glossa  dicit  quod  civitates  non  possunt  habere 
bonorum  possessionem  nisi  ex  testamento ;  quia  quando 
bona  sunt  vacantia,  debentur  fisco,  non  civitati.... Et  hoc 
puto  verum  in  civitatibus  quae  Principem  recognoscunt. 
Sed  si  civitas  Principem  non  recognoscit,  tune  ipsa  est 
camera  sui  ipsius,  et  sic  sibi  bona  vacantia  quaerentur, 
et  ita  de  facto  observatur2."  We  see,  then,  that  Bartolus 

1  Comment,  on  Dig.  Vet.  Part  i.  (D.  v.  3.  22,  §  Ait  Senatus),  p.  540. 

2  Comment,  on  Infort.  Part  n.  (D.  xxxvu.  1.  3,  §  A  municipibus), 
p.  472,  §  2. 


122  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

provides  a  solution  on  his  wonted  basis  of  fact.  The 
Church  and  the  Civitates  do  not,  in  fact,  recognise  the 
Emperor  as  superior.  Therefore,  where  the  Law  Books 
speak  of  the  Fiscus,  in  the  "  territory  of  the  Church  " 
the  Church  itself  must  be  read  for  Fiscus,  in  each  inde- 
pendent Civitas  the  Civitas  itself  must  be  considered 
the  Fiscus.  The  Fiscus  is  not,  indeed,  in  the  relation  of 
species  to  genus,  as  regards  the  Church  or  Civitas,  as  it 
is  to  the  "whole  universal  Empire";  but  where  a  power,, 
such  as  the  Church  or  a  Civitas,  withdraws  itself  from 
the  "  whole  universal  Empire,"  by  not  recognising  the 
Emperor  as  superior,  that  power  must  be  its  own 
Fiscus1. 

(3)  If  we  except  the  cities  within  the  territory  of 
the  Church,  all  Civitates  are  de  jure  a  part  of  the 
Empire2,  and  de  jure  the  Emperor  is  their  superior3. 

1  Cf.  Comment,  on  Codex,  Tres   libri  (C.  x.  10.  1),   p.  18,   §  7: 
"  Quaero  utrum  pro  delictis  civitas  possit  accipere  bona?      Glossa 
dicit  quod  non....Secus  puto  in  civitatibus  quae  de  jure  vel  de  facto 
hodie    non   recognoscunt  superiorem,    et   sic  populus  est  liber,    ut 
notatur  in  L.  Hostes  D.  de  Capt.  et  postl.  (D.  XLIX.  15.  24)  quod 
ipsamet  civitas  sit  fiscus,  et  sic  possit  capere  bona  vacantia,  et  etiam 
ex  delicto,  sicut  fiscus."     Also  Comment,  on  Dig.  Nov.  Part  n.  (D. 
XLIX.  14.  2),  p.  619,  §2:    "  In  eo  quod  dicit  (i.e.  the  Gloss),  quod 
civitatibus  non  deferuntur  bona  vacantia... dicit  veritatem   de  jure 
communi.     Sed  debetis   scire,    quod  quaedam    sunt    civitates    quae 
non  recognoscunt  superiorem,  et  sic  populus  liber  est,  et  sic  ipsemet 
sibi  fiscus... et  tune  bona  vacantia  acquiruntur  sibi,  et  fisco."     Also 
Comment,  on  Codex,  Part  i.  (C.  i.  1.  1),  p.  19,  §  50. 

2  Vide  e.g.  Comment,  on  Infort.  Part  n.  (D.  xxxvi.  1.  26),  p.  433: 
"Civitatibus,  quae  non  sunt  hostes  Imperii,  potest  fideicommissum 
relinqui,  et  agere  poterunt  per  suos  syndicos....Innuit  quod  quaedam 
civitates  non  sunt  sub  Imperio. . . .  Solutio :  Intelligo,  sub  Imperio  omnes 
sunt  de  jure,  de  facto  non.     Sunt  tamen  quaedam,  quae  etiam  sub 
Imperio  de  jure  non  sunt,  ut  civitates  donatae  Ecclesiae.     Tenet  enim 
Ecclesia  quod  talis  donatio  valuit." 

3  Just  now,  indeed,  in  the  question  of  the  Fiscus,  we  saw  that 


II]  THE    EMPIRE   AND   THE   CIVJTATKS  123 

Their  independence  is  de  facto,  and  so  far  Bartolus 
acknowledges  that  to  these  cities,  as  in  fact  independent, 
may  be  ascribed  the  rights  connected  with  the  terms 
Respublica  and  Fiscus,  which  de  jure  do  not  belong  to 
them.  But  more  still  was  needed  to  establish  their 
complete  independence. 

"  Quaero  unde  hoc  est,"  asks  Bartolus1,  "quod  video, 
quod  omnes  rectores  civitatis  et  castrorum  hodie  per 
Italiam  exercent  ea  quae  sunt  meri  vel  mixti  imperil2." 
In  answer,  he  says  that  there  are  three  kinds  of  "  uni- 
versitates."  "  Una  est  larga,  quae  facit  provinciam 
et  haec  de  jure  communi  habet  merum  et  mixtum 

imperium Secunda  universitas  est  minus  larga,  quae 

constituit  civitatem,  et  huic  de  jure  communi  cohaerent 
jurisdictiones  tantum,  usque  ad  certam  quantitatem  et 
in  levioribus  criminibus,  sed  merum  et  mixtum  imperium 
non  habent  magnum "  Bartolus  then  makes  certain 

Bartolus  mentions  cities  which  "  de  jure  vel  de  facto"  do  not 
recognise  a  superior.  Presumably  those  who  de  jure  do  not  recog- 
nise a  superior,  must  be  freed  by  concession,  such  as  Perugia — vide 
above,  p.  78.  In  general  Bartolus  consistently  maintains  that  de  jure 
the  Emperor  is  superior  of  all  the  Italian  cities. 

1  Vide  Comment,   on  Dig.   Nov.  Part  i.   (D.   xxxix.  2.   1),   p.   69, 
§3. 

2  Cf.   Cotisilium,  i.   189,   p.   119,  §  1:    "  Nos  habemus  triplicem 
universitatem  habitationum  et  praediorum :   unam  largam  quae  facit 
provinciam,  et  haec  universitas  habet  jurisdictionem  et  mer.  et  mixt. 
imperium  de  jure  communi.... Secunda  universitas  minus  larga  quae 
constituit  civitatem,  et  huic  universitati  cohaeret  jurisdictio  tantum 
usque  ad  certam  quantitatem  in  levioribus  criminibus,  sed  merum  et 
mixtum  imp.  non  habet..  .Fallit  in  quibusdam  civitatibus  in  quibus 
est  hoc  specialiter  concessum  a  jure,  ut  Komae...et  in  aliis  civitatibus 
quae  hoc  habent  ex  consuetudine  vel  privilegio Ex  his  causis  juris- 
dictio  dicitur  cohaerere  loco  seu  territorio.      Tertia  universitas  est 
minima  ut  castrum,  villa,  vicus...et  huic  universitati  nulla  cohaeret 
jurisdictio,  sed  alterius  civitatis  jurisdictioni  subesse  dicitur,"  etc. 


124  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

exceptions — some  cities,  as  for  example  Rome,  have 
Merum  et  Mixtum  Imperium  "  de  jure  communi,"  others 
by  privilege  or  prescription,  others  merely  de  facto. 
"  Est  tertia  universitas  minima,"  he  continues,  "  ut 
castrum,  villa  et  similia :  et  ista,  si  quidem  subsunt 
alicui  civitati  vel  alteri  castro  magno,  nullam  juris- 
dictionem  habent,  sed  civitas,  cui  subsunt,  habet 
jurisdictionem  in  eis";  he  goes  on  to  say  that  they 
too  may,  by  special  privilege  or  in  special  circumstances, 
have  limited  Jurisdictio  and  even  Merum  et  Mixtum 
Imperium. 

With  this  we  may  compare  a  passage  to  which  we 
have  referred  above1.  The  division  of  the  world  is  said 
to  be  "de  jure  gentium."  Bartolus  distinguishes  two 
kinds  of  division — that  of  the  Provincia  or  Regnum  on 
the  one  hand,  where  men  dwell  together  "  in  aedificiis 

1  Vide  Comment,  on  Const.  Qui  Sint  Eebelles  (ad  verb.  Lombardiae) , 
p.  285,  §§  2-6 :  "  Sed  pro  hujus  declaratione  sciendum  est  quod  divisio 
orbis  terrarum  de  jure  gentium  est....Et  haec  divisio  fuit  eorum  qui 
habitant  simul  in  aedificiis  in  unum  collatis,  et  sic  communiter 
habemus  tria  nomina,  scilicet  civitas,  castrum  et  villa.... Quaedam 
divisio  est  eorum  qui  habitant  simul,  sed  aedificiis  separatis,  et  haec 
appellatur  provincia  vel  regnum,  vel  sunt  alia  nomina  universalia 
significantia  separationem  linguarum,  ut  in  Italia,  Alemania,  Francia, 
Graecia,  et  similia... de  quorum  quolibet  videamus.  Villa  in  Francia 
idem  est  quod  civitas.  Nos  autem  dicimus  villas  aedificia  sine  muris 
vel  fossis,  quae  villae  seu  vici  nullam  habent  jurisdictionem  de  jure 
communi,  sed  subsunt  alicui  civitati.... Castrum  dicitur  quasi  casaalta 
seu  fortis  et  munita  muris  seu  vallo...et  similiter  non  consueverunt 
habere  jurisdictionem  de  jure  communi,  sed  sunt  sicut  vici.... Habent 
tamen  quosdam  magistratus,  qui  illic  ponuntur  a  civitatibus  quibus 
subsunt.... Civitas  vero  secundum  usum  nostrum  appellatur  ilia  quae 
habet  episcopum;  ante  tamen  quam  essent  episcopi  erant  civitates. 
Et  civitati  competit  potestas  eligendi  sibi  de  jure  communi  defensores, 
qui  habeant  jurisdictionem,  non  autem  merum  imperium  vel  mixtum.... 
Fallit  in  urbe  Eomana...et  in  aliis  quae  habent  ex  privilegio  vel  ex 
consuetudine...." 


Il]  THE   EMPIRE   AND   THE   CIVITATES  125 

separatis,"  and  that  of  the  Civitas,  Castrum  or  Villa, 
where  men  dwell  together  "  in  aedificiis  in  unum  col- 
latis."     According  to  the  Italian  usage  of  the  terms, 
the  Villa  and  the  Castrum  are  dependent  upon  some 
Civitas  and,  "de  jure  communi,"  have  no  Jurisdictio 
nor  magistrates  appointed  by  themselves.     "  Secundum 
usum  nostrum"  the  Civitas  is  a  city  with  a  bishopric, 
but  Bartolus  points  out  that  there  were  cities  before 
there  were  bishops.    The  really  distinguishing  mark  of  a 
Civitas  is  that  it  has  the  right,  "de  jure  communi,"  to 
elect  its  own  "  defensores  "  who  have   Jurisdictio,  but 
not  Merum  et  Mixtum  Imperium.    "  Et  quia  secundum 
canones  episcopi  debent  ordinari  in  dictis  locis,  ubi  sunt 
dicti  officiales...ideo  insurrexit  consuetudo  quod  locus 
habens  episcopum  sit  civitas,  tamen  vero  sine  episcopo 
dicitur  civitas   eo   quod   habet  officiales  praedictos  et 
jurisdictionem.     Et  sic  patet  quod  licet  ex  causa  una 
civitas  privetur  episcopo,  non  tamen  per  hoc  desinit 
esse  civitas."     He  then  goes  on  to  consider  whether  the 
Castra,  "  quae  sunt  per  Italiam  et  habent  dictas  juris- 
dictiones,"  are  to  be  called  Civitates.    If  they  were  once 
Civitates,  but  no  longer  have  a  bishopric,  "  proprie  " 
they   are   still   Civitates.     In  other  cases,   either  this 
Jurisdictio  was  granted  to  them,  "  ut  civitati  aut  ut 
castro  aut  simpliciter  dicendo  tali  terrae  vel  tali  comi- 
tatui.      Primo    casu    erit   civitas,  nam   civitatem  facit 
Princeps  eo  ipso  quod  sibi  scribit  ut  civitati1... Nam 
dicendo  quod  sit  civitas,  videtur  sibi  concedere  omnia 

1  Cf.  Selden,  Table  Talk  (p.  23) :  "  What  makes  a  city?  Whether 
a  Bishoprick  or  any  of  that  nature?  'Tis  according  to  the  first 
charter  which  made  them  a  corporation.  If  they  are  incorporated 
by  name  of  Civitas,  they  are  a  City,  if  by  the  name  of  Burgum,  then 
they  are  a  Burrough . ' ' 


126  THE   EMPIRE  AND  THE  CIVITATES  [CH. 

privilegia  civitatis....Secundo  casu  non  erit  civitas,  sed 
castrum  habens  privilegia  civitatis....Tertio  casu  erit 
civitas,  quia  large  interpretatio  facienda  est  in  conces- 
sione  hujus  beneficii." 

Thus  it  is  not,  properly  or  historically,  the  bishopric 
that  makes  the  Civitas,  though  it  may  be  "in  usu 
communi1."  The  distinguishing  mark  between  the 
Provincia  and  the  Civitas  is  the  right  to  exercise  Merum 
et  Mixtum  Imperium.  There  may  be  Civitates  enjoying 
the  right,  but  they  are  not  the  normal  cases.  Normally 
the  Civitas  has  the  right  to  choose  its  own  "defensores," 
who  are  not,  like  the  Praesides  Provinciarum,  "  majores 
judices,"  and  therefore  have  only  a  limited  Jurisdictio. 
In  the  same  way  there  may  be  Castra  with  this  limited 
Jurisdictio  or  even  with  Merum  et  Mixtum  Imperium : 
they  too  are  exceptional.  Normally  the  Castrum,  like 
many  of  the  small  Civitates,  is  dependent  on  some 
Civitas.  "Isti  enim,"  says  Bartolus  in  his  Tract,  de 
Regimine  Civitatis*,  explaining  why  he  omits  to  discuss 
these  "parvi  populi,"  "  vel  alteri  civitati  subsunt...vel 
alteri  civitati  vel  regi  confoederantur  aliquo  foedere, 
ita  quod  alterius  majestatem  venerentur...ut  videmus 
in  civitatibus3  et  castris  quae  sub  protectione  civitatis 

1  Cf.  Comment,  on  Infort.  Part  i.  (D.  xxvu.  1.  6,  §  Est  autem), 
p.  199 :   "  Olim  nescio  qualiter  vocabant  antiqui  civitatem.     Sed  hodie 
secundum  constitutionem  civitas  ilia  dicitur  quae  habet  episcopum  et 
adhuc  non  vidi  illam  constitutionem."     Comment,  on  Infort.  Part  n. 
(D.  xxx.  1.  76,  §  Vicis),  p.  54:  "In  usu  vero  communi  dignitas  epis- 
copalis  quae  est  in  loco  facit  civitatem.    Et  ita  videtur  sentire  Federicus 
Imperator  in  constitutione  ilia  de  pace  Constantiae." 

2  P.  420,  §  26. 

:J  Such  in  Bartolus'  own  day  were  Assisi,  Spoleto,  Gubbio,  etc., 
all  of  which  were  actually  Civitates.  The  two  latter  he  himself 
mentions  as  dependent  on  Perugia  in  Comment,  on  Dig.  Nov.  Part  i. 
(D.  XLIII.  18.  1,  §  Si  tibi  fundum),  p.  466,  §  5. 


Il]  THE   EMPIRE    AND   THE    CIV1TATES  127 

hujus  Perusinae  sunt.  Sicut  enim  corpus  humanum 
debile  et  parvum  non  potest  per  se  regi  sine  auxilio 
tutoris,  et  curatoris,  ita  isti  populi  parvi  per  se  nullo 
modo  regi  possunt,  nisi  alteris  submittantur  vel  alteri 
adhaereant."  We  too  may  follow  Bartolus  in  omitting 
these  small  dependent  cities.  It  is  not  they,  but  the 
flourishing,  independent  city-states  of  Italy  which  offered 
the  problems,  in  the  solution  of  which  Bartolus  was  to 
play  so  great  a  part.  But  it  is  now  necessary  to  inquire 
more  closely  into  the  meaning  of  these  terms,  Jurisdictio 
and  Merum  et  Mixtum  Imperium. 

It  must  be  clear,  to  begin  with,  that  the  medieval 
lawyers  are  using  the  terms  Jurisdictio  and  Im- 
perium in  a  manner  that  a  mere  reference  to  Roman 
law,  whether  Justinian  or  ante-Justinian,  will  not 
explain.  Their  use  of  the  terms  is  of  course  based  on 
such  definitions  as  that  given  in  D.  II.  1.  31,  but  such 
definitions  are  not  sufficient  to  explain  the  medieval 
use  of  these  terms.  To  understand  that  we  must  turn 
back  for  a  little  into  the  history  of  communal  inde- 
pendence in  Italy. 

The  turning-point  in  that  history  was  the  Investiture 
struggle.  Up  to  that  point  the  power  of  the  king  of 
Lombardy,  or  Italy,  over  the  north-Italian  towns,  had 
found  its  safeguard,  first  in  the  authority  of  the  counts, 
and  later,  when  the  counties  began  to  be  split  up,  in 
the  authority  of  the  bishops  and  lay  nobles,  to  whom 


1  Which  runs:  "Imperium  aut  merum  aut  mixtum  est.  Merum 
est  imperium  habere  gladii  potestatem  ad  animadvertendum  facinorosos 
homines,  quod  etiam  potestas  appellatur.  Mixtum  est  imperium,  cui 
etiam  Jurisdictio  inest,  quod  in  danda  bonorum  possessione  consistit. 
Jurisdictio  est  etiam  judicis  dandi  licentia." 


128  THE   EMPIRE   AND   THE   C1V1TATES  [CH. 

the  rights  of  the  counts  were  gradually  transferred. 
We  must  try  to  avoid,  in  the  space  of  these  few  pages, 
any  of  the  most  controversial  points  in  the  early  history 
of  the  Italian  towns.  Of  all  things,  perhaps,  it  is  most 
needful  to  remember  the  golden  rule  of  medieval 
history,  that  generalisations  on  the  history  of  medieval 
cities  are  only  permissible  on  the  understanding  that 
they  are  generalisations,  and  that  each  individual  city 
has  its  individual  history  with  details  of  its  own,  by 
which  it  conforms,  either  more  or  less,  to  the  general- 
ised standard.  With  this  in  mind  we  need  not  be 
afraid  of  overestimating  the  importance  of  the  part 
played  by  the  bishops  in  the  history  of  the  Italian 
cities.  The  movement  by  which  they  stepped  into 
the  place  of  the  counts  was  not  universal,  but  it  was 
general*  It  was  not  a  single  step,  but  a  gradual  ex- 
tension of  privileges.  It  was  not  the  only  path  that 
led  to  communal  independence,  but,  if  not  the  most 
important,  it  was  one  of  the  most  important1. 

"In  the  tenth  and  eleventh  centuries,"  says  Mr  Fisher, 

"when  the  Emperors  paid  but  flying  visits  to  Italy,  the 

Italian  bishops  were  the  mainstay  of  German  influence 

south    of    the   Alps2."     These    bishops   were   in   very 

v  great  numbers  Germans3;  they  were  appointed  by  the 

1  Vide  Fertile,  Storia  del  diritto  italiano,  vol.  n.  Part  i.  p.  19: 
"La  signoria  vescovile  non  fu  dunque  causa  unica  e  diretta  della 
liberta  communale,   ma  la  age  void  e  favori;  non  causa  universale, 
perche  in  molte  citta  il  vescovo  non  ebbe  dominazione  temporale." 
Vide  also  Bethmann-Hollweg,  Der  Civilprozess  des  Gemeinen  Eechts, 
vol.  v.  Abtheilung  2,  pp.  199-209.     He  too  notes,  like  Fertile,  that 
there  is  not  "eine  allgemeine  Massregel,"  in  the  transference  of  the 
Comitatus  to  the  bishop. 

2  Fisher,  The  Medieval  Empire,  vol.  n.  p.  230.     Vide  also  p.  149. 

3  Ibid.  p.  230:  "From  950-1060,  a  period  of  imperfect  records, 


II]  THE   EMPIRE    AND   THE    CIVITATES  129 

Emperors;  and  by  the  eleventh  century,  when  the 
process  of  transferring  to  them  the  authority  of  the 
counts  was  completed,  they  stood,  we  must  remember, 
in  direct  feudal  relations  to  the  king-emperor.  Then 
came  the  great  reform  movement.  The  policy  of  ruling 
Italy  by  Germans  reached  its  height  in  the  direct 
appointment  by  Henry  III  of  three  German  Popes. 
Yet  from  this  very  act  sprang  the  forces  which  were  to 
destroy  the  German  influence  in  Italy.  The  Papacy 
once  purified,  the  party  of  reform  was  ready  to  purify 
the  whole  Church.  The  Cluniac  movement  of  reform ; 
the  beginnings  of  Italian  nationalism ;  theocratic  theo- 
ries, some  of  which  ~were  as  old  as  the  ninth  century 
and  the  papacy  of  Nicholas  I, — all  these  causes  com- 
bined to  produce  the  Investiture  struggle  after  the  early 
death  of  Henry  III. 

In  that  struggle  the  Lombard  bishops  were  for  the 
most  part  staunch  supporters  of  the  Emperor,  while  the 
Papacy  naturally  threw  itself  into  alliance  with  the 
popular  party  of  reformers,  who  were  in  opposition  to 
their  bishops.  The  struggle  ended  with  the  Concordat 
of  Worms.  Theoretically  the  Concordat  did  not  affect 
the  feudal  relations  between  the  bishops  and  the 
Emperor1.  But  in  fact  it  broke  the  connection  between 
them ;  since,  though  the  Emperor  might  still  invest  the 
bishop  with  the  insignia  of  his  delegated  temporal 
authority,  the  election  of  the  bishops  passed  out  of  his 

we  can  prove  the  presence  of  47  German  bishops  in  Italian  sees,  and 
the  number  should  probably  be  more  than  doubled." 

1  Vide  the  text  of  the  Concordat,  consisting  of  the  "Privilegium 
Imperatoris ' '  and  ' '  Privilegium  Pontificis ' '  in  Monumenta  Germaniae 
Historica,  Constitutiones  et  Ada  Publica  Imperatorum  et  Regum, 
vol.  i.  pp.  159-61. 


w. 


130  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

hands1.  And,  secondly,  the  opposition  of  the  populace, 
fanned  by  the  Papacy  and  the  whole  reform  movement, 
had  shaken  the  internal  authority  of  the  bishops'  govern- 
ment. "The  Gregorian  movement,"  says  Mr  Fisher, 
"shook  the  Imperial  control  over  the  bishops;  the 
communal  movement  destroyed  their  powers2." 

We  repeat  again  that  communal  independence  did 
not  come  into  existence  only  through  the  destruction  of 
the  connection  between  the  Emperor  and  the  bishops, 
but  to  a  very  great  extent  it  did.  At  least,  that  com- 
munal independence  existed  as  a  fact  after  the  Investi- 
ture struggle  is  indisputable.  For  our  purpose,  then, 
which  is  concerned  rather  with  this  independence  as 
completed,  than  with  its  origins,  we  pass  straight  on  to 
the  next  struggle — that  between  the  Hohenstaufen  and 
the  cities  themselves,  which  was  again  involved  with  the 
struggle  between  the  Empire  and  the  Papacy. 

Before  we  pass  on,  however,  we  must  observe  one 
change  of  great  importance.  The  term  Comitatus, 
used  to  designate  the  jurisdiction  of  the  counts,  and 
of  the  bishops  and  others,  who  succeeded  them,  passed 
with  independence  to  the  Civitates  themselves.  We 

1  Vide  "  Privilegium  Pontificis,"  p.  161.     The  bishops  and  abbots 
of  the  "Teutonicum  regnum"  were  indeed  to  be  elected  "in  praesentia 
tua,"  but  it  was  the  power  of  influencing  the  election  of  Italian 
bishops  which  was  lost,  and  with  it  the  control  over  Italy.     The 
"electus"   was    to    receive  the    "regalia  per  sceptrum"   from  the 
Emperor — « '  et  quae  ex  his  jure  tibi  debet,  faciat. ' '     But  the  investiture 
of  the  spiritual  office  was  wholly  resigned — vide  the  "Privilegium  Im- 
peratoris"  :  "Ego  Henricus  etc....dimitto  Deo  et  sanctis  Dei  apostolis, 
Petro  et  Paulo,  sanctaeque  catholicae  Ecclesiae  omnem  investiturain 
per  anulum  et  baculum,  et  concede  in  omnibus  ecclesiis,  quae  in  regno 
vel  imperio  meo  sunt,  canonicam  fieri  electionem  et  liberam  consecra- 
tionem"  (p.  159). 

2  Fisher,  loc.  cit. 


II]  THE    EMPIRE   AND   THE   CIVITATES  131 

hear  of  the  Comitatus  of  the  Ci vitas1.  But  now,  from 
the  eleventh  century  onwards,  with  the  almost  general 
disappearance  of  the  counts  and  their  successors,  and 
still  more  under  the  influence  of  the  great  revival 
in  Roman  Law,  a  new  term  appeared,  derived  from 
Roman  Law — Jurisdictio.  Later  appeared  another 
term  of  Roman  Law — the  subject  of  our  present 
inquiry — Merum  et  Mixtum  Imperium,  with  special 
reference,  says  Ficker,  to  criminal  jurisdiction2. 

Now  the  significance  of  this  lies  in  the  fact  that 
we  have  here  the  Comitatus,  which  is  a  feudal  term,  / 
implying  feudal  relations  and  rights,  supplanted  by 
terms  of  Roman  Law.  The  revival  of  Roman  Law 
was  a  part,  the  most  important  part,  of  a  general  anti- 
quarian revival,  which  set  men's  eyes  and  hearts  fixed 
back  on  the  old  Roman  Empire.  But  though  the 
feudal  king  of  Germany  or  Italy  might  be  merged  into 
the  Princeps  of  Roman  Law,  Feudal  Law  could  not  be 
swallowed  up  by  Roman  Law.  Roman  Law  had  to 
accept  feudalism.  It  incorporated  the  Libri  Feudorum 
in  the  Corpus  Juris  as  a  tenth  Collation  in  the 
Authenticum.  And  while  it  translated  many  of  the 
terms  of  feudalism  into  terms  of  Roman  Law,  the 
Roman  meaning  of  these  terms  was  partly  lost  in  the 
feudal  meaning  of  the  terms  which  they  translated3. 

In  the  struggle  for  independence  between  Frederick  I 
and  the  cities  yet  another  term  became  prominent — the 

1  Vide  Savigny,  op.  cit.  vol.  in.  pp.  127-8  and  the  quotation  from 
Otto  of  Freisingen  in  note  b,  p.  108.    Ficker,  Forschungen  zur  Reiches- 
wid  Eechtsgeschichte  Italiens,  vol.  i.  p.  238. 

2  Vide  Ficker,  op.  cit.  vol.  i.  p.  247. 

3  Cf.  Gierke,  Deutsche  Genossenschaftsrecht,  vol.  in.  p.  200. 

9—2 


132  THE   EMPIRE   AND   THE    CIVITATES  [CH. 

Regalia.  Here  again  we  are  at  the  meeting  of  feudalism 
and  Roman  Law. 

The  term  Regalia  was  common  in  the  eleventh  cen- 
tury, and,  for  long  after,  the  question  of  the  rights  con- 
tained in  it  was  the  subject  of  interminable  dispute.  In 
1158,  at  the  Diet  of  Roncaglia,  Frederick  I  issued  his 
Constitutio  de  Regalibus1,  which  was  incorporated  in  the 
Libri  Feudorum.  It  was  over  the  rights  here  claimed 
that  the  struggle  between  Frederick  and  the  Italian 
cities,  which  fills  his  reign,  and  which  continued  under 
his  successors,  was  fought  out. 

In  drawing  up  this  list  of  Regalia  Frederick  had 
relied  on  the  Roman  lawyers  of  Bologna ;  and  Placentin, 
one  of  the  Glossators,  and  after  him  many  modern 
historians,  notably  Sismondi,  have  accused  them  of 
sacrificing  the  freedom  of  Italy  to  the  absolutist  prin- 
ciples of  Roman  Law2.  But,  as  Savigny  was  the  first 
to  point  out,  the  greater  number  of  the  Regalia  are 
in  part  contrary  to,  in  part  foreign  to,  the  law  of 


1  It  may  be  well  to  give  this  definition  of  the  Regalia.     Vide 
Monumenta  Germaniae  Historica,  vol.  cit.  pp.  244-5.     It  runs  thus: 
"Regalia  sunt  hec :     Arimannie,  vie  publice,  flumina  navigabilia, 
et  ex  quibus  fiunt  navigabilia,  portus,  ripatica,  vectigalia  que  vulgo 
dicuntur  tholonea,  monete,  mulctarum  penarumque  compendia,  bona 
vacantia,   et  que  indignis   legibus    auferuntur,   nisi   que    spetialiter 
quibusdam  conceduntur,  et  bona  contrahentium  incestas  nuptias,  et 
dampnatorum  et  proscriptorum  secundum  quod  in  novis  constitutioni- 
bus  cavetur,  angariarum  et  parangariarum  et  plaustrorum  et  navium 
prestationes,  et  extraordinaria  collatio  ad  felicissimam  regalis  numinis 
expeditionem,  potestas  constituendorum  magistratuum  ad   iustitiam 
expediendam,  argentarie,  et  palatia  in  civitatibus   consuetis,  pisca- 
tionum    redditus    et    salinarum,    et    bona    committentium    crimen 
maiestatis,  et  dimidium  thesauri  inventi   in  loco  cesaris,  non  data 
opera,  vel  in  loco  religiose;  si  data  opera,  totum  ad  eum  pertinet." 

2  Vide  Savigny,  vol.  iv.  pp.  171-8. 


II]  THE   EMPIRE   AND   THE   CIVITATES  133 

Justinian1.  The  Regalia  are  the  feudal  rights  of  the 
Lombard  king — and  as  such,  said  Savigny,  indubitably 
Frederick  had  a  legal  right  to  them.  It  was  the  new 
Hohenstaufen  conception  of  the  Emperor  as  Princeps 
of  the  Law  Books,  and  the  new  life  of  Roman  Law, 
which  obscured  the  really  feudal  nature  of  these  rights 
both  to  contemporaries  and  to  future  ages.  To  succeed- 
ing ages  in  particular  Frederick  appeared  at  Roncaglia 
as  Emperor;  the  king  of  Italy  was  lost  in  the  Impe- 
rator  Romanorum.  Consequently  the  rights,  which  he 
claimed,  must  also  appear  as  rights  due  to  the  Princeps 
of  Roman  Law.  The  greater  number  of  those  rights 
were  won  back  for  the  cities  by  the  peace  of  Constance. 

1  Savigny,  ibid.,  asks  (p.  174) — "1st  es  denn  aber  in  der  That 
romisches  Eecht,  was  jener  Bestimmung  der  Eegalien  zu  Grunde  liegt? 
Fur  die  meisten  und  wichtigsten  Punkte  lasst  sich  geradezu  das  Gegen- 
theil  behaupten. ' '  Vide  also  Blondel,  Etude  sur  les  Droits  Regaliens  et 
la  Constitution  de  Roncaglia  (in  Melanges  Paul  Fabre,  pp.  236-57),  for 
a  detailed  study  of  the  question.  Of  the  Constitutio  de  Regalibus  he  says : 
'^Ce  document  est  surtout  propre  amontrer  1'importance  respective  des 
anciennes  conceptions  germaniques  en  matiere  de  souverainete  et  des 
principes  du  droit  romain,  dont  les  juristes  qui  entouraient  a  ce  moment 
Frederic  ler,  etaient  imbus"  (p.  236).  Blondel  quotes  the  list  of  Re- 
galian  rights,  as  given  in  the  Constitutio  itself  and  other  contemporary 
documents  (pp.  245-7).  He  believes  the  influence  of  the  Bolognese 
jurists  on  the  Emperor  has  been  overestimated :  "  Placentin  lui-meme 
se  contente  de  leur  reprocher  un  abus  du  droit  romain,  au  sens  que  le 
droit  romain,  d'apres  lui,  n'a  pas  ete  suivi,  et  j'estime  en  effet,  qu'on 
peut  retrouver  dans  les  dispositions  de  la  diete  de  Roncaglia  des 
principes  germaniques  dissimules  sous  des  apparences  romaines,  mais 
qui  ont  plus  d' importance  au  fond  que  le  droit  romain  proprement  dit " 
(p.  248).  And  cf .  again  p.  251 :  "  S'il  est  certain  que  Frederic  chercha 
a  tirer  le  meilleur  parti  possible  des  principes  du  droit  romain,  il  n'est 
pas  douteux  que  la  plupart  des  droits,  qui  sont  revendique"s  par  lui 
comme  droits  regaliens,  ne  sont  pas  d'origine  romaine."  Vide  also 
Pomtow,  Ueber  den  Einfluss  der  altromischen  Vorstellungen  vom  Staat 
auf  die  Politik  Kaiser  Friederichs  I  und  die  Anschauungen  seiner  Zeit, 
pp.  40-52. 


134  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

But  the  struggle  continued;  and  when  the  Roman 
character  of  the  Empire  was  conceived  still  more 
emphatically  by  Frederick  II,  the  true  origin  of  these 
rights  was  but  the  more  liable  to  be  obscured. 

This  digression  has  necessarily  been  somewhat  long, 
and  we  must  now,  therefore,  pass  on  to  Bartolus  himself. 
When  we  come  to  his  commentaries,  we  find  that  the 
term  Regalia  occupies  but  a  very  small  place  in  his 
discussions  on  the  independence  of  the  Civitas.  On 
the  other  hand  the  peace  of  Constance  is  quite  often 
mentioned  by  Bartolus;  but  nearly  always  in  the 
question  whether  thereby  the  cities  can  exercise  Merum 
et  Mixtum  Imperium1.  The  conclusion  is  clear.  We 
see  that  the  independence,  for  which  the  cities  fought 
in  the  struggle  over  the  Regalia,  is  conceived  by 
Bartolus  as  preeminently  bound  up  with  the  right  to 
exercise  Merum  et  Mixtum  Imperium2.  Consequently 
these  terms  must  be  interpreted  by  us,  not  merely  in 
the  light  of  their  original  meaning  in  Roman  Law,  but 
also  bearing  in  mind  their  connection  with  the  rise 
of  communal  independence  and  the  struggles  which 
followed  between  the  cities  and  the  Emperor. 

"Regularly"  or  "de  jure  communi,"  we  have  seen, 
the  Civitas,  as  a  "universitas  minus  larga,"  does  not 
have  Merum  et  Mixtum  Imperium,  but  only  a  limited 

1  The  terms  Merum  et  Mixtum  Imperium  never  occur  in  the  peace 
of  Constance.     Vide  the  text  of  the  peace  in  Monumenta  Germaniae 
Historica,  vol.  cit.  pp.  411-8. 

2  On  one  occasion  at  least  Bartolus  seems  to  include  Merum  et 
Mixtum  Imperium  among  the  Kegalia.     Vide  Comment,  on  Dig.  Nov. 
Part  n.  (D.  XLIX.  14.  2),  p.  619:  "Quaedam  sunt  civitates  quae,  licet 
recognoscant  superiorem,  tamen  habent  merum  et  mixtum  imperium 
ex  principis  concessione  et  habent  alia  regalia,  ut  sunt  quae  ponuntur 
in  Feudis,  tit.  Quae  sint  regalia...." 


ll]  THE    EMPIRE   AND   THE   CIVITATES  135 

Jurisdictio1.  On  the  other  hand,  we  have  seen  that 
some  Civitates  are  recognised  as  exercising  Merum  et 
Mixtum  Imperium,  whether  by  concession2,  prescrip- 
tion or  usurpation.  "Scitis,"  he  says3,  "quod  civitates 
Italiae  communiter  non  habent  merum  imperium,  sed 
usurpaverunt.  Dico  tamen  si  civitas  vellet  se  defendere 
et  merum  et  mixtum  imperium  exercere,  quod  habet 
necesse  allegare  concessionem  Principis.  Item  longissi- 
mum  tempus,quo  dicta  civitas  merum  imperium  exercuit, 
isto  casu  posito  quod  non  probaretur  de  concessione  Prin- 
cipis. Tamen  si  probaret  se  exercuisse  merum  imperium, 

1  It  is  important  to  keep  in  mind  that  Jurisdictio  is  a  double  term. 
There  is  first  "Jurisdictio  in  genere "  of  which  "imperium"  and 
"Jurisdictio   simplex"   are   both  species.     "Imperium"   is  further 
subdivided    into    "merum  imperium"   and    "mixtum   imperium." 
Finally  "merum  imperium,"  "mixtum  imperium"  and  "Jurisdictio 
simplex"  are  all  subdivided  into  six  grades.     I  have  attempted  to 
explain  this  in  greater  detail  in  Appendix  C,  below.     It  is  of  course 
only  "Jurisdictio  simplex"  which  the  "rectores  civitatum"  have  de 
jure.      Cf.  with   the  passages  already  quoted   Comment,   on   Codex, 
Part  n.  (C.  vi.  33.  3,  §  Sin  autem),  p.  96,  §  13:   "Quaero  quis  sit 
competens  judex.      Dicit  gl.  quod  competens  judex  insplcitur  circa 
dua.     Primo  circa  jurisdictionem ;   quia  est  necesse   quod   sit  talis 
judex  qui  habeat  merum  imperium;  non  enim  potest  hoc  expediri 
per  magistratum  municipalem  " ;  Comment,  on  Authenticum  (Collatio 
n.  De  Incestis  Nuptiis,  §  Pro  Incestis),  p.  37;  Comment,  on  Codex, 
Parti.  (C.  i.  4.  16,  Authentic.  Praesides),  p.  80:  " Defensores civitatum 
de  jure  communi  non  habent  nee  merum  nee  mixtum  imperium  nisi 
in  causis  pecuniariis  usque  ad  centum  aureos,"  where  one  would  have 
thought  that  "causae  pecuniariae  usque  ad  centum  aureos"  would 
have  fallen  under  the  heading  of   "Jurisdictio  minima,"   the  last 
grade  of  "Jurisdictio  simplex" — vide  Appendix  C,  below. 

2  Especially  as  contained  in  the  peace  of  Constance.     Vide,  e.g. 
Comment,   on   Codex,   Tres  libri  (C.   xi.   29,   supr.   rubric.),   p.    87: 
"  Glossa  dicit  quod   sunt   quaedam    civitates    in    Lombardia,   quae 
habent  merum  et  mixtum  imperium  ex  constitutione  Federici  de  pace 
Constantiae." 

3  Vide  Comment,  on  Codex,  Part  i.  (C.  n.  3.  28),  Antiqua  Lectura, 
p.  160,  §5. 


136  *THE   EMPIRE   AND   THE   CIVITATES  [CH. 

valet."  Bartolus  then  refers  to  a  law  of  the  Digest 
(D.  II.  1.  3).  But  before  we  turn  to  his  commentary 
on  that  law,  we  must  consider  one  or  two  points  in 
the  foregoing  passage.  Bartolus  begins  by  saying  that, 
if  the  Civitates  exercise  Merum  et  Mixtum  Imperium, 
they  do  so  by  usurpation.  If  they  wish  to  prove 
a  title  to  justify  so  doing,  they  must  prove  a  con- 
cession from  the  Emperor.  Failing  that  they  must 
prove  prescription  and  "longissimum  tempus."  Yet, 
he  concludes,  all  the  same  if  they  prove  that  they  have 
exercised  it,  it  is  valid;  which  is  but  to  say,  if  they 
prove  that  they  have  usurped  it,  it  is  valid.  This  seems 
a  rather  lame  conclusion.  But  in  truth  it  is  a  fine 
example  of  Bartolus'  aim  and  method,  of  his  absolute 
adherence  to  fact.  He  saw  that  it  was  neither  possible 
nor  desirable  to  deny  the  Italian  cities  this  right. 
Hence,  however  contrary  it  be  to  the  letter  of  the  law, 
it  must  be  accepted.  If  concession  or  prescription  can 
be  proved,  so  much  the  better ;  if  not,  usurpation  must 
be  accepted  as  a  valid  title  to  the  right,  and  put  on 
a  level  with  concession  and  prescription.  Let  us  con- 
sider some  more  examples. 

Bartolus  referred  us  to  D.  n.  1.  3.  In  his  com- 
mentary on  that  law  he  asks1 — "Quibus  judicibus 
competat  merum  imperium?  Respondeo,  quandoque 
aliquis  praeest  alicui  universitati,  quae  facit  provin- 
ciam :  tune  habet  merum  imperium  de  jure  communi... 
Quandoque  quis  praeest  alicui  universitati,  quae  facit 
non  provinciam,  sed  civitatem :  et  tune  de  jure  com- 
muni regulariter  non  habet  merum  imperium  neque 
mixtum.  Fallit  in  civitate  Romana...fallit  etiam  in 
1  Comment,  on  Dig.  Vet.  Part  i.  p.  164,  §  7. 


Il]  THE   EMPIRE   AND   THE   C1VITATES  137 

multis  aliis  civitatibus  quae  habent  immunitatem  ex 
concessione  facta  per  Principem,  ut  in  extravag.  de  pace 
Constantiae.  Item  fallit  in  multis  aliis,  quae  habent 
hoc  ex  praescriptione  vel  consuetudine,  ut  videbitis. 
Quae  praescriptio,  qualiter  procedat,  dicemus  (in  lege 
More1)  infra,  et  ideo  hie  non  euro  dicere  qualiter  pre- 
scribatur."  Here  we  have,  to  begin  with,  the  distinction 
between  the  Provincia  and  the  Civitas.  The  government 
of  the  Civitas  does  not  have  Merum  Imperium — if  it 
has,  it  must  be  based  on  concession  or  prescription. 
Bartolus  defers  discussing  prescription  until  he  comes 
to  a  later  law — D.  II.  1.  5 — and  before  we  pass  on  to 
his  commentary  on  that  law  it  may  be  well  to  give 
one  or  two  more  examples  of  concession,  noticing 
especially,  first  how  frequently  the  concession  is  referred 
to  the  peace  of  Constance,  secondly  how  frequently  it  is 
bracketed,  as  a  title  to  the  right  to  exercise  Merum  et 
Mixtum  Imperium,  with  usurpation. 

Thus  "defensores  civitatum  de  jure  communi  non 
habent  nee  merum  nee  mixtum  imperium,  nisi  in  causis 
pecuniariis  usque  ad  centum  aureos.  Hodie  vero  sunt 
quaedam  civitates  in  Lombardia,  et  etiam  in  Tuscia, 
quae  habent  ex  privilegio  ab  Imperio,  quaedam  ex 
ilia  constitutione  de  pace  Constantiae,  quaedam  ex 
usurpatione2." 

Secondly,  we  should  refer  again  to  a  passage  which 
is  especially  interesting,  in  that  Bartolus  mentions  the 

1  D.  ii.  i.  5. 

2  Vide  above,  p.  135,  where  the  first  sentence  has  already  been 
quoted.     Cf.   Comment,   on  Dig.   Vet.  Part  i.  (D.  iv.  4.  17,  §  Nunc 
videndum),  p.  438:  "  Sunt  multae  civitates  quae  habent  immunitatem 
et  merum  et  mixtum  imperium  ex  constitutione  Federici  Imperatoris, 
aliae  ex  usurpatione." 


138  THE    EMPIRE   AND   THE   CIVITATES  [CH. 

Regalia  along  with  Merum  et  Mixtum  Imperium. 
"Quaedarn  sunt  civitates,  quae  licet  recognoscant  supe- 
riorem,  tamen  habent  merum  et  mixtum  imperium  ex 
Principis  concessione,  et  habent  alia  regalia  (ut  sunt 
quae  ponuntur  in  Feudis,  tit.  Quae  sint  regalia)1." 
We  see  then  that  the  exercise  of  Merum  et  Mixtum 
Imperium  does  not  necessarily  imply  that  those  who 
exercise  it  do  not  recognise  the  Emperor  as  superior. 
On  the  other  hand,  we  have  seen  that  Bartolus  again 
and  again  does  refer  to  such  Civitates,  as  not  recog- 
nising a  superior.  This  recognition  of  a  superior, 
however,  Bartolus  only  mentions,  we  now  see,  in  the 
case  of  those  who  exercise  Merum  et  Mixtum  Imperium 
by  concession.  The  very  acceptance  of  a  right  by 
concession  acknowledges  a  superiority  in  the  conceder ; 
we  may  compare  Bartolus'  argument  that  the  kings  of 
France  or  of  England,  if  they  withdraw  themselves 
from  the  Empire  by  concession,  on  that  very  account 
acknowledge  themselves  to  be  a  part  of  the  Populus 
Romanus. 

As  to  prescription,  Bartolus,  in  a  passage  given 
above,  deferred  discussing  it  until  he  came  to  a  later 
law — D.  ii.  1.  5.  There,  however,  he  again  puts 
off  the  subject.  "Quaerit  glossa — quis  dat  ordinariam 
jurisdictionem?  Respondet,  lex,  Princeps,  consuetude, 
populus,  universitas  et  similia...Hoc  quod  dicit  de 
consuetudine,  intelligas  de  consuetudine  illius  populi, 
qui  posset  illam  jurisdictionem  dare  expresse  statuendo. 
Si  enim  intelligeres  de  praescriptione,  scilicet  an  prae- 
scriberet  jurisdictionem,  ista  esset  longa  quaestio...et 

1  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLIX.  14.  2),  p.  619. 


Il]  THE    EMPIRE   AND   THE    CIVITATES  139 

ponit  earn  Cynus...et  Gulielmus... Alias  tibi  dicam,  non 
potui  modo  cogitare,  quia  profunda  quaestio  est1." 

In  another  passage,  quoted  above,  we  have  seen 
that  Bartolus  practically  accepts  prescription  as  a  title 
to  a  de  facto  exercise  of  Merum  et  Mixtum  Imperium. 
The  cities  of  Italy,  he  said,  "communiter"  do  not  have 
Merum  Imperium,  but  have  usurped  it.  If  they 
wish  however  to  defend  their  exercise  of  it,  they  must 
prove  concession;  failing  that  prescription — "longissi- 
mum  tempus,  quo  dicta  civitas  merum  imperium  exer- 
cuit" — though  he  adds  that  if  they  prove  merely  that 
they  have  exercised  it — "valet."  Elsewhere  we  have 
seen  it  put  on  a  level  with  concession2,  and  we  may 
therefore  say  that  Bartolus  accepts  prescription,  but 
not  without  some  doubts. 

Both  his  general  acceptance  and  his  doubts  come 
out  in  an  important  reservation,  which  he  makes  more 
than  once,  that  the  Civitates  cannot  prescribe  Merum 
et  Mixtum  Imperium  during  a  vacancy  of  the  Empire. 
Thus,  in  a  most  important  passage  in  the  Commentary 

1  Comment,  on  Dig.  Vet.  Part  i.  (D.  n.  1.  5),  p.  169,  §9. 

2  Vide  above,  p.  137.     This  is  the  first  of  the  passages  in  which 
Bartolus  deferred  discussing  the  question.    One  may  compare  Comment, 
on  Authenticum,  Collatio  in.  (De  Defensoribus  Civitatum,  §  Jusjuran- 
dum),  p.  40,  §5,  where  he  says:   "Nota  ergo  ex  hac  glossa  quod 
merum  et  mixtum  imperium  potest  consuetudine  praescribi."     He 
cites  several  texts  from  the  Law  Books,  adding  however  that  Azo 
holds  that  "civitates,  quae  habent  privilegia,  habent  usurpationem, 
non  consuetudinem,  quod  dicit  per  consuetudinem  non  potest  mero  et 
mixto  Imperio  praescribi."     He  refers  to  what  he  will  say  on  a  law 
of  the  Tres  libri  (C.  xn.  60.  8),  vide  p.  146,  §2,  where  however  we 
merely  find:    "  Secundo  nota  quod   consuetude  dat  jurisdictionem 
ordinariam,  sicut  lex,"  after  maintaining  that  a  statute  cannot  take 
away  jurisdiction,  which  is  given  by  Consuetude,  though  it  can  that 
given  by  Lex. 


140  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

on  the  Codex1,  he  says  that  if  a  Civitas  is  held  by  a 
tyrant,  and  another  city  occupies  "de  territorio  illius 
vel  de  jurisdiction  illius,"  the  "patientia  illius  tyranni, 
qui  est  in  possessione  vi  aut  clam,  non  inducit  jus  prae- 
scribendi  illius  jurisdictions,"  because,  as  Bartolus  has 
explained,  if  "aliquis  possidet  vi  aut  clam  vel  precario, 
contra  eum  non  possumus  praescribere,  quia  nullum 
jus  habet  in  re,  et  ejus  scientia  non  constituit  me  in 
quasi  possessione:  merito  non  praescribo."  Therefore 
the  Civitates  cannot  prescribe  Merum  et  Mixtum  Im- 
periurn  during  a  vacancy  of  the  Empire.  "Et  ideo 
etiam  videtur  quod  civitates  quae  usae  sunt  mero  et 
mixto  imperio,  vacante  Imperio,  non  praescribunt  juris- 
dictionem,  nee  sunt  possessione  nee  fuerunt:  quia  pos- 
sessio  illius  jurisdictionis  non  est  aliud  quam  patientia 
et  scientia  Principis,  contra  quern  praescribitur.  Sed 
ubi  non  est  scientia,  non  dicitur  patientia,  merito  non 
dicitur  quasi  possessio.  Ista  dico  inducendo  in  argu- 
rnentum,  non  determinando." 

Although  Bartolus  says  here  that  he  is  merely 
adducing  this  conclusion  as  an  argument,  presumably 
to  prove  what  he  has  maintained  in  the  case  of  the 
tyrant,  he  points  to  the  same  conclusion  elsewhere.  In 
one  case2  it  almost  leads  him  to  say  that  no  city  in 
Italy  has  prescribed  Merum  et  Mixtum  Imperium. 
After  saying  that  "quasi  possessionem  servitutis  non 
possum  habere  nisi  te  sciente3,"  he  continues:  "Et  ideo 


1  Comment,  on  Codex,  Part  i.  (C.  in.  34.  1),  p.  365,  §§  6-10. 

2  Comment,  on  Dig.  Nov.  Part  i.  (D.  xxxix.  3.  1,  §  Denique  ait), 
p.  126. 

3  "...Quasi  possessionem  servitutis  non  possum   habere  nisi  te 
sciente,  quia  quasi  possessio  servitutis  non  est,  nisi  domini  patientia... 


II]  THE   EMPIRE   AND   THE   CIV1TATES  141 

forte  dicerem  quod  in  Italia  nulla  civitas  est,  quae 
praescripserit  merum  vel  mixtum  imperium :  quia  in 
incorporalibus  requiritur  quasi  possessio,  sciente  ad- 
versario.  Sed  Imperator  jam  est  longum  tempus  quod 
non  fuit1."  He  goes  on  to  ask  whether  in  such  circum- 
stances the  "scientia  Papae"  is  sufficient,  but  does 
not  answer  the  question — "  cogitabitis."  Nor  does  he 
answer  whether  "  in  marchia,  vel  duchia  sufficitne 
scientia  ducis  vel  marchionis,  ad  praescribendum  merum 
vel  mixtum  imperium.  Cogitabitis.  Nam  Cynus...ubi 
tractat  materiam  meri  vel  mixti  imperii  nihil  de  hoc 
dicit:  nee  etiam  Gulielmus."  We  may  supplement 
this  by  another  passage  from  the  same  Commentary  on 
the  Digestum  Novum2.  Bartolus  is  discussing  whether 

et  ideo  est  necesse  quod  dominus  sciat.  Sed  possessionem  tui  fundi 
possum  habere,  te  ignorante." 

1  Presumably  this  must  have  been  written  or  spoken  before  the 
conclusion  of  the  schism  between  Lewis  of  Bavaria  and  Charles  of 
Bohemia.     Bartolus  would  not  of  course  have  acknowledged  Lewis, 
whom    the   Church   had  excommunicated,   though  we  noticed  his 
significant  silence  thereon.     Otherwise  he  must  mean  that  it  is  a 
long  time  since  there  has  been  an  Emperor  in  Italy  who  could  have 
"scientia."     The  first  interpretation  seems  more  obvious,  and  is  con- 
firmed by  the  mention  of  the  "imperium  schismaticum "  in  the  next 
passage  to  be  quoted. 

2  Comment,  on  Dig.  Nov.  Part  i.  (D.  XLI.  3.  5),  p.  295,  §§  22-6. 
The  whole  passage  is  worth  quoting,  if  only  for  the  very  interesting 
reference  to  the  great  plague  of  1348 :  ' '  Quaero  an  ista  usucapio  vel 
praescriptio  aliquo  casu  dormiat.     Certe  de  praescriptione  dormienti 
non  habemus  bene  expressum  de  jure  civili,  nisi  in  praescriptione  tri- 
ginta  annorum...tamen  de  jure  canonico  videtur  quod  talis  praescriptio 
dormiat  tempore  hostilitatis  et  exercitus,  si  tantus  esset  exercitus, 
quod  jura  in  civitate  non  reddantur....Verum  tamen  Innocent,  dicit 
quod  illud  est  verum  etiam  de  jure  civili ;  nihil  tamen  allegat.     Quod 
potest  esse  verum.... Habemus  hodie  casum  expressum  in  ilia  con- 
stitutione   extravaganti  Federici   Imperatoris,   de   pace   Constantiae, 
§  Possessiones....Idem  forte  dicendum  esset  ex  eadem  equitate,  quod 


142  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

"usucapio  vel  praescriptio  aliquo  casu  dormiat."  He 
finds  various  cases  in  which  it  does— "et  ideo  pos- 
semus  forte  dicere,  quod  vacante  Imperio  non  currit 
(i.e.  prescription)  contra  Imperium,  licet  Ecclesia  in 
administratione  succedat....Et  sic  civitates  non  prae- 
scripserunt  mixtum  et  merum  imperium.  Item  non 
currit  praescriptio  tempore  schismatis...quod  est  argu- 
mentum  pro  Imperio  schismatico,  quod  contra  ipsum  non 
currat  praescriptio.  Praedicta  omnia  quae  dixi  respiciunt 
praescriptionem  incoeptam.  Quae  autem  impediant 
praescriptionem  inchoari,  hoc  non  examine." 

We  may  say,  then,  that  Bartolus,  with  a  little 
hesitation  only  as  regards  prescription,  fully  recognises 
the  exercise  by  the  Civitates  of  Merum  et  Mixtum 
Imperium.  It  was  now  necessary  to  go  one  step  fur- 
ther. Merum  et  Mixtum  Imperium  is  a  right  of  the 
"  praeses  provinciae  "  and  the  "  majores  judices  " — sena- 
tors, praetors  and  praetorian  prefects,  "qui  aequiparantur 
regibus,  qui  sunt  hodie  per  mundum1."  Therefore  the 
Civitas,  which  actually  exercises  this  right,  must  be 
considered  a  Provincia,  its  "  defensores  "  must  become 
"majores  judices2."  In  the  Commentary  on  the  Tres 

tempore  mortalitatis  instantis  de  anno  Domini  1348,  prout  scitis,  erat 
tanta  pestilentia,  quod  jura  non  reddebantur  in  civitatibus,  et  morie- 
bantur  infiniti  homines,  quod  tempore  illo  usucapio  dormiebat...et 
fuit  ilia  hostilitas  Dei  fortior  quam  hostilitas  hominum.  Itemreperio 
quod  dormit  praescriptio  contra  Ecclesiam  vacantem...et  licet  Ecclesia 
habeat  oeconomum,  tamen  vacare  dicitur,  ut  hie.  Et  ideo  possemus 
forte  dicere,  etc." — as  above. 

1  Comment,  on  Dig.  Vet.  Part  i.  (D.  i.  1.  9),  p.  28,  §8.     He  refers 
here  to  D.  i.  11.  1:  "ut  plene  solet  dici" — but  has  nothing  on  this 
topic  in  his  own  commentary  on  that  law. 

2  Vide  Comment,  on  Codex,  Tres  libri  (C.  x.  8.  1),  p.  17,  §  4: 
"Bectores  civitatum   habent  hodie  vim  majorum  judicum."     Vide 


II]  THE   EMPIRE   AND   THE   CIVITATES  143 

libri1,  we  have  a  discussion  on  the  nature  of  a  Civitas. 
"De  jure  antique,"  says  Bartolus,  a  distinction  was  made 
between  "  maximae,"  "  magnae  "  and  "  parvae  civitates." 
"  Maximae  civitates "  were  cities  having  other  cities, 
exercising  Merum  Imperium,  under  them;  they  were 
"civitates  metropolitanae."  "Magnae  civitates"  were 
those  cities  under  them,  which  exercised  Merum  Im- 
perium. "  Parvae  civitates "  enjoyed  only  Jurisdictio 
— "  solam  jurisdictionem,  quae  datur  defensoribus  civi- 
tatum."  All  these  Civitates,  which  "  suberant  uni 
praesidi  aut  uni  metropolitano,"  formed  a  province. 
But  nowadays,  Bartolus  adds,  "quaelibet  civitas,  habens 
distinctum  territorium,  quae  superiorem  non  recognoscit, 
potest  dici  provincia,  ut  notat  glossa2." 

Thus  we  arrive,  by  a  circuitous  route,  at  the  equality 
of  .the  Provincia  and  Civitas,  from  which  the  Aristotelian 
started  as  almost  axiomatic.  But  it  still  remained  for 

also  Comment,  on  Constit.  Qui  Sint  Eebelles  (ad  verb.  Lombardiae), 
p.  286,  §8:  "Quandoque  sit  appellatio  provinciae  eo  respectu  quod 
sit  sub  una  jurisdictione;  et  tune  contingit  quod  quaelibet  civitas 
habeat  separatam  jurisdictionem,  nee  est  unus  praeses  cui  subest, 
quaelibet  civitas  habetur  pro  provincia."  Cf.  also  Comment,  on  Codex, 
Part  ii.  (C.  vn.  33.  12),  p.  167:  "Nota  glossam  super  verbo  'id  est  in 
provincia ' :  in  provinciis  vero  quae  adhuc  reguntur  hodie  per  praesidem, 
habet  locum  haec  lex.  In  locis  vero,  in  quibus  civitas  habet  sua 
regimina,  habet  locum  quod  dicit  hie  notabilis  glossa,  quam  vide." 

1  Comment,  on  Codex,  Tres  libri  (C.  xi.  21.  1),  p.  83,  §§  1-5. 

2  Cf.  Comment,  on  Constit.  Qui  Sint  Kebelles  (ad  verb.  Lombardiae), 
p.  286,  §7,  where  the  distinction  is  between  "maximae,"  "majores" 
and  "minores  civitates."     There  is  a  difficulty  in  the  passage  above 
in  explaining  why  the  "magnae  civitates,"  which  were  under  the 
"maxima  civitas"  or  "metropolis,"  and  therefore  themselves  were 
"de  jure  antiquo"  not  provinciae,  should  have  enjoyed  Merum  Im- 
perium  which    "regularly"    the   Civitas   does   not   enjoy.     In   this 
passage   however  only   the    "maximae    civitates"    have    Merum    et 
Mixtum  Imperium ;  the  "majores  civitates"  only  Mixtum  Imperium; 
the  "minores"  Jurisdictio  Simplex. 


144  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

the  lawyer  to  go  one  step  further  and  to  raise  his 
Civitas  to  the  level,  of  the  Empire  itself:  that  step 
we  have  yet  to  consider.  But  before  we  pass  on, 
let  us  sum  up  the  thought  of  Bartolus  on  the  very 
important  topic  with  which  we  have  been  occupied, 
and  then  briefly  touch  on  the  fourth  point  of  inquiry, 
which  we  proposed  to  consider,  namely  the  right 
of  the  Civitas  to  legislate.  We  may  sum  up  the 
foregoing  pages  thus.  The  right  to  exercise  Merum  et 
Mixtum  Imperium  is  recognised.  This  is  done  in  two 
ways.  Either  the  city,  with  its  "distinct  territory," 
is  considered  a  Provincia,  in  which  case  its  officials 
are  "majores  judices"  and  rightly  exercise  Merum  et 
Mixtum  Imperium;  or  the  right  depends  on  concession 
— for  example,  the  cities  which  were  a  party  to  the  peace 
of  Constance  enjoy  the  right  by  that  peace.  Failing 
concession,  prescription  must  be  pleaded,  which,  except 
during  the  vacancy  of  the  Empire,  seems  valid.  Finally, 
in  some  cases  the  exercise  of  Merum  et  Mixtum  Im- 
perium, although  mere  usurpation,  is  recognised.  This 
is  all  typical  of  the  methods  of  Bartolus.  He  starts  from 
the  fact  that  the  cities  do  exercise  Merum  et  Mixtum 
Imperium — and  then  proceeds  to  find  what  right  he 
can  to  account  for  the  fact.  If  he  fails,  he  finally 
returns  to  the  fact ;  acknowledges  that  it  is  mere  usur- 
pation— but  allows  it. 

(4)  The  first  of  the  six  grades  of  Merum  Imperium 
is  the  "potestas  condere  legem,"  and  this  is  said  to 
belong  only  to  the  Princeps  and  Senate1.  But  we  have 
also  seen  that,  when  Bartolus  came  to  discuss  the 
legislative  right  of  the  Senate  and  of  the  Populus 
1  Vide  the  diagram  in  Appendix  C,  below. 


Il]  THE   EMPIRE   AND   THE   CIVITATES  145 

Romanus,  he  decided  that  that  right  no  longer  existed, 
though  he  seemed  not  disinclined  to  allow  a  universal 
validity  to  the  customs  of  the  Populus  Romanus.  We 
remarked,  when  we  were  considering  this  topic,  that  we 
ought  not  to  dismiss  this  discussion  as  purely  academic. 
Twice  at  least  the  question  had  entered  into  the  actual 
facts  of  medieval  history.  On  the  other  hand,  we  need 
not  hesitate  to  say  that  the  whole  question  was  but 
part  of  an  antiquated  political  theory,  which  allowed 
the  rights  of  sovereignty  "  properly "  only  to  Rome 
itself.  That  theory  Bartolus  has  given  up.  The  im- 
portant thing  now  was,  not  to  decide  whether  the 
Senate  or  Populus  Romanus  had,  or  had  not,  any 
longer  the  right  to  make  laws  of  a  universal  validity, 
but  to  investigate  the  problems  presented  by  the  local 
and  varying  customs  and  statutes  of  the  Italian  cities, 
their  validity  and  their  relation  to  the  "jus  commune  " 
and  to  each  other. 

These  communal  customs  and  statutes  date  in 
great  number  from  the  thirteenth  century,  and  were 
the  natural  outcome  of  communal  prosperity  and  in- 
dependence1. The  customs  were  the  "  legal  rules 
deduced  from  the  practical  life  of  the  people,  which  the 
legislators  had  not  done  more  than  collect  from  the 
mouth  of  the  people  and  reduce  to  writing2."  The 
statutes,  on  the  other  hand,  were  legislative  declarations, 
sometimes  directed  to  modify  the  popular  customs,  but 
more  often,  says  Fertile,  to  regulate  the  political  con- 
ditions of  the  commune3;  though  originally  they  had 

1  Vide  Fertile,  Storia  del  diritto  italiano,  vol.  n.  Part  2,  pp.  118- 
52. 

2  Ibid.  p.  120.  3  Ibid.  p.  121. 

w.  10 


146  THE    EMPIRE   AND   THE   CIVITATES  [CH. 

been  nothing  more  than  the  oath  taken  by  the  communal 
officers,  directions  as  to  their  duties  and  the  rules  which 
they  were  to  follow1.  Usually  these  two  sources  of 
municipal  law — customs  and  statutes — were,  at  the 
time  of  codification,  united  into  one  body;  but  this 
practice  was  not  universal2. 

The  Glossators  had,  not  perhaps  without  some 
difficulty,  found  a  place  for  these  statutes  and  customs 
within  their  political  theories3.  The  right  to  legislate 
could  be  based  on  texts  in  the  Law  Books  which  de- 
fine "jus  civile,"  in  contrast  to  "jus  gentium,"  as  "jus 
quod  quisque  populus  ipse  sibi  constituit4."  Statutes 
and  customs  are  both  brought  under  the  rubric  of  "jus 
municipale,"  the  one  being  law  "  redactum  in  scriptis  " 
and  made  by  express  consent,  the  other  unwritten  and 
made  by  tacit  consent5.  The  right  to  legislate,  so  far 
as  concerns  its  own  internal  arrangements,  is  recognised 
as  belonging  to  any  "collegium  approbatum6" — and  in 

1  Fertile,  op.  cit.  p.  135.     Thus,  originally,  they  began  with  the 
word  "juro";  in  the  thirteenth  century  the  change  to  "statuimus" 
marks  the  change  in  their  character  from  an  oath  taken  by  its  officers 
to  the  legislative  enactment  of  the  commune  itself. 

2  Ibid.  pp.  119-20. 

3  Vide  Gierke,  Deutsche  Genossenschaftsrecht,  vol.  in.  pp.  215-7. 

4  Ibid.  p.  215,  note  85.     Gierke  quotes  from  the  Glossa  Magna, 
which  on  the  words  "jus  civile"  says — "Statuta  terrarum,  quae  jura 
municipalia  dicuntur." 

5  Vide  the  Comment,  on  Dig.  Nov.  Part  i.  (D.  xxxix.  4.  16),  p.  159, 
§  20,  though  we  shall  see  (below,  p.  399)  that  the  Eepetitio  is  probably 
by  Signorolus  de  Homodeis,  not  by  Bartolus:  a  statute  is  "jus  quod 
proprium  unusquisque  populus  sibi  constituit  et  in  scriptis  redigit... 
Per  hoc  separatur  a  consuetudine.     Nam  jus  municipale  est  duplex, 
redactum  in  scriptis  et  non  redactum." 

6  Vide  Bartolus,  Comment,  on  Dig.  Vet.  Part  i.  (D.  i.  1.  9),  p.  27, 
§  6 :  "  Quaero  utrum  collegia  possint  facere  statuta :  videtur  dieendum, 
quod  collegia  licita  et  approbata  in  his  in  quibus  habent  jurisdictionem, 


II]  THE    EMPIRE   AND   THE    CIVITATES  147 

fact  the  statutes  of  many  corporations,  other  than  the 
cities,  have  come  down  to  us1.  Hence,  if  it  is  said  that 
only  the  Emperor  can  make  law,  that  refers  to  "  general 
laws."  Laws  and  Senatusconsulta — by  "laws"  meaning 
here  Imperial  laws — cannot  suffice,  says  Bartolus,  for 
all  purposes — "  quod  nota  propter  statuta  quae  quotidie 
fiunt  in  civitate  ista2. 

The  law,  in  fact,  on  which  Bartolus  commented, 
was,  we  must  always  remember,  in  no  sense  the  pure 
Koman  Law  of  Justinian's  Law  Books.  There  is  much 
besides — the  Canon  Law,  the  post-Justinian  additions 
to  the  Corpus  Juris,  such  as  the  constitutions  of  the 
two  Fredericks  and  the  two  books  De  Feudis,  and 
lastly  the  statutes  and  customs  of  the  Italian  cities. 
These  last  differ  from  the  Corpus  Juris,  both  in  its 
Justinian  and  post-Justinian  contents,  and  from  the 
Canon  Law,  in  that  they  are  not  authoritative,  because 
not  of  general  application,  not  authoritative,  that  is 
to  say,  universally.  But  a  random  glance  at  any 
page  of  Bartolus  would  show  the  large  part  played 
by  both  statute  and  custom,  not  merely  as  illustrations, 
but  in  the  actual  elaboration  of  a  law  which,  while 
Roman  in  basis,  was  to  be  practically  effectual  for  the 
Italy  of  his  day. 

The  right  to  legislate  was  not  denied ;  what  was 
disputable  was  the  limits  within  which  the  legislation 
of  the  Civitas  was  valid.  This  is  a  large  question  and 

et  quo  ad  ea  quae  ad  ipsos  collegiatos  pertinent,  possunt  facere 
statuta."  So  Comment,  on  Codex,  Part  i.  (C.  iv.  18.  2),  p.  405: 
"  Negotiatores  possunt  facere  statuta  inter  se." 

1  Vide  Fertile,  op.  cit.  vol.  n.  Part  2,  pp.  142-7. 

2  Comment,  on  Authentic.  Collatio  vi.    (Quibus  modis  naturales 
efficiuntur  legitimi,  §  Recte),  p.  79,  §  1. 

10—2 


148  THE   EMPIRE   AND   THE   C1VITATES  [CH. 

one  that  only  in  part  comes  within  the  scope  of  the 
history  of  political  thought.  But  to  make  our  present 
survey  as  complete  as  possible,  we  ought  to  consider 
this  topic  in  one  or  two  of  its  more  important  aspects. 

In  the  first  place  the  scope  of  the  statutes  is  merely 
local.  "Civitas  non  potest  facere  statuta  de  his  qui 
suae  jurisdictionis  non  sunt1."  The  statute  is  "quaedam 
conventio  civium2,"  and  will  ordinarily  bind  only  those 
citizens.  In  certain  cases  it  will  bind  foreigners  residing 
within  the  territory  of  the  legislating  Civitas.  With 
this,  however,  we  have  not  to  deal.  The  whole  question 
of  the  "  collisio  statutorum  "  leads  us  away  from  politics 
to  the  early  history  of  private  International  Law.  For 
our  purpose  we  may  say  that  the  statute  is  a  law  of 
purely  local  validity,  binding,  in  general,  only  the 
citizens  whose  law  it  is.  But  we  may  remark,  before 
we  proceed  to  another  point  more  properly  political, 
that  probably  on  no  topic  has  Bartolus  received  so  much 
praise  from  modern  authorities  as  for  his  systematic 
treatment  of  the  "collisio  statutorum3." 

1  Comment,  on  Codex,  Part  i.  (C.  in.  13.  2),  p.  326. 

2  Comment,  on  Infort.  Part  i.  (D.  xxvm.  1.  3),  p.  257,  §  4. 

3  Vide    esp.    Meili,    Bartolus   als   Haupt  der   Ersten   Schule   des 
Internationalen  Strafrechts.     Vide  p.  5:    "Bartolus   (a   Saxoferrato) 
ist  derjenige  italienische   Jurist  der  mittelalterlicher  Jurisprudenz, 
welche  die  Materie  der  collisio  statutorum  originell,  exakt  und  mit 
Geist  behandelt  hat,  und  man  darf  ohne  Ubertreibung  sagen,  dass 
er  ein  kleines  System  des  Internationalen   Privat-   und   Strafrechts 
aufgestellt  hat."      Cf.   p.    9.      "Was  die  italienische   Theorie  der 
strafrechtlichen    collisio    statutorum    und    besonders    auch  die  von 
Bartolus  in  meinen  Augen  ganz  besonders  charakterisiert,  ist  ihre 
Grossziigigkeit,  die  nun  so  bemerkenswerter  erscheint,  als  die  juris- 
tischen  Vorgange  sich  im  Kleinen  abspielten.     Die  Theorie  ist  aber 
auch  geradezu  umfassend;  denn  sie  beleuchtet  die  meisten  Fragen, 
welche  auch  die  Neuzeit  beschaftigen."     Also  noteworthy  is  at  that 


Il]  THE    EMPIRE   AND   THE    CIV1TATES  149 

On  the  other  hand  the  collision  of  the  statutes  with 
the  "jus  commune"  concerns  us  more  closely,  and  we 
may  see  what  rules  Bartolus  lays  down  for  such  cases 
of  conflict1. 

We  have  seen  above  that  statutes,  no  less  than 
laws,  are  subject  to  the  higher  laws — the  "jus  divinum," 
"jus  naturale"  and  "jus  gentium."  Further  statutes, 
which  as  regards  "  spiritualia "  are  contrary  to  the 
Canons,  are  of  course  invalid ;  and  we  may  note 
that  statutes  contrary  to  the  liberties  of  the  Church 

Dr  Meili  denies  that  Bartolus  is  the  real  author  of  the  division  of 
statutes  into  Eeal,  Personal  and  Mixed,  which  he  refers  to  Argentraeus 
(ob.  1590).  Vide  pp.  6-8  and  p.  48.  "Das  sehr  zweifelhafte 
Verdienst  dieser  Klassification  kommt  einzig  und  allein  dem  fran- 
zosischen  Juristen  Argentraeus  zu"  (p.  .7).  Sir  W.  Kattigan,  in  his 
article  on  Bartolus  (No.  3  "Great  Jurists  of  the  World"  in  the 
Journal  of  the  Society  of  Comparative  Legislation,  1903),  also  gives 
great  praise  to  Bartolus  on  this  topic.  Vide  pp.  236-8. 

.  l  Numerous  examples  of  such  conflict  are  given  by  Bartolus  in 
the  course  of  his  Commentaries.  We  may  give  some  examples. 
Comment,  on  Infort.  Part  i.  (D.  xxvi.  10.  3,  §  Tutores),  p.  194:  "fit 
sic  nota  quod  de  jure  communi  non  debet  quis  poni  in  carcere  pro 
debito,  nisi  quando  nbn  habet  bona  sufficientia  pro  debito,  quando 
satis  placet.... Statuta  et  consuetudines  Tusciae  statuerunt  aliter." 
Comment,  on  Codex,  Part  11.  (C.  vni.  14.  1),  p.  274:  "...licet  Veneti 
servent  contrarium."  Comment,  on  Dig.  Nov.  Part  i.  (D.  XLIII.  8.  2, 
§  Tractatum),  p.  433:  "Nota  quod  isti  pontes  qui  fiunt  per  viam  de 
jure  non  possunt  fieri :  tamen  in  Italia  in  quibusdam  terris  est  statutum 
quod  possint  fieri  et  in  quibusdam  est  consuetude."  Comment,  on 
Dig.  Nov.  Part  n.  (D.  XLVIII.  8.  1,  §  Divus),  p.  490:  "...Domini, 
quidquid  ipsi  dicant,  veritas  est  ipsa,  per  Italiam  maleficia  puniuntur 
secundum  statuta,  non  secundum  leges."  Comment,  on  Codex,  Part  n. 
(C.  vi.  38.  2),  p.  110,  §  2:  "Tamen  in  civitate  ista  est  ista  consuetude 
in  vinea:  quando  vendita  vinea,  cedunt  ea  quae  sunt  instrumenta 
vineae,  quod  de  jure  communi  non  est."  Cf.  for  some  other  interest- 
ing examples,  Comment,  on  Codex,  Part  i.  (C.  n.  59.  2),  p.  95,  §  1; 
Comment,  on  Infort.  Part  11.  (D.  xxxiv.  2.  1,  §  Cui  certum),' 
p.  268. 


150  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

are  similarly  invalid1,  even  where  Imperial  laws  seem 
valid2. 

Now  let  us  consider  the  general  rules  to  be  observed 
between  the  conflicting  "jura  municipalia"  and  the  "jus 
commune." 

In  his  commentary  on  the  law  Omnes  Populi, 
Bartolus  asks3  whether  "super  his,  quae  disposita  vel 

1  Vide  Comment,  on  Codex,  Part  i.  (C.  i.  2.  12,  Auth.  Cassa  et 
Jrrita),  p.  42,  §§  3  and  5.     Such  statutes  are  those  "contra  privilegia 
concessa  ecclesiis  seu  ecclesiasticis  personis  per  Principem  seu  Papam." 
Cf.  Comment,  on  Codex,  Part  i.  (C.  n.  3.  30),  p.  164,  §  6,  and  Consilium 
i.  187,  p.  117.    However  in  Comment,  on  Codex,  Part  i.  (C.  1. 1. 1),  p.  13, 
§29,  Bartolus  distinguishes  as  follows:    "Aut  statute  sunt  directo 
super  ecclesiis  vel  rebus  ecclesiasticis :  et  non  valent,  quia  non  pertinent 
ad  jurisdictionem  concedentis....Aut  statute  sunt  facta  simpliciter :  et 
tune  aut  redundant  contra  ea  quae  sunt  concessa  ecclesiis  vel  clericis 
in  privilegium  et  non  valent... aut  contra  ea  quae  competunt  ecclesiis 
vel  clericis,  non  in  privilegium,  sed  ut  cuilibet:  et  tune  ligant  clericos 
et  sunt  servanda  in  foro  episcopali,  dum  tamen  sint  honesta." 

2  Vide  Comment,  on  Codex,  Tres  libri  (C.  x.  19.  8),  p.  31:  "Lex 
Imperialis,  quae  prohibet  emere,  comprehendit  etiam  Ecclesiam.... 
Statutum  vero  civitatis  hoc  non  posset,  quia  esset  contra  libertatem 
ecclesiarum."     On  some  other  topics  too  the  field  of  legislation  open 
to  the  Statutes  seems  restricted  by  a  definite  prohibition  as  "ultra 
vires"— thus  vide  Comment,  on  Codex,  Part  i.  (C.  i.  2.  17),  p.  67,  §  19 : 
"Licet  lex  Imperialis  et  communis  possit  ad  pendentes  lites  extendi," 
yet  "statute"  and  " ref ormationes  civitatum"  not. 

3  Vide  Comment,  on  Dig.  Vet.  Part  i.   (D.  i.  1.  9),  p.  33,  §26: 
"Quandoque  lex  resistit  statute,   prohibendo  ne   fiat,  et  tune  non 
valet  statutum.     Nam  ideo  valet  statutum,  quia  Princeps  permisit 
...secus  ergo  si  prohibeat. . . . Quandoque  lex  non  resistit  statute:   et 
tune  quaedam  glossa  videtur  dare  talem  doctrinam :  aut  contra  talem 
legem  aut  jus  potest  venire  per  pactum,  et  poterit  per  statutum.     Aut 
non  per  pactum,  et  tune  nee  per  statutum.... Aliae  glossae  videntur 
dicere  contrarium,  quod  talis  aequiparatio  pacti  ad  statutum  non  sit 
bonum....Pro  quibus  glossis  concordandis,  die  quod  quandoque  pro- 
hibitum  est  fieri  per  pactum,  quia  contra  bonos  mores,  et  tune  procedit 
argumentum :  quia  tune  nee  per  statutum. . .  .Ratio,  quia  lex  et  statutum 
debent  esse  sancta  et  honesta.... Ergo  si  continent  aliquid  inhonestum, 
non  valent.     Aut  est  prohibitum  fieri  per  pactum  alia  ratione,  puta 


Il]  THE    EMPIRE   AND   THE   CIVITATES  151 

prohibita  sunt  a  jure  civili  communi,  possint  fieri  statuta 
aliter  statuendo  ? "  Bartolus  answers  that  a  statute  can- 
not contradict  the  "jus  commune"  by  ordaining  that 
which  the  "jus  commune"  forbids;  but  it  can  ordain 
that  which  is  not  expressly  forbidden,  provided  that  it 
accords  with  "  boni  mores "  and  public  utility,  and  is 
within  the  limits  of  the  jurisdiction  which  the  people 
can  exercise. 

Similarly  with  custom.  Either,  says  Bartolus1, 
a  custom  is  contrary  to,  or  goes  beyond,  law.  If  it 
goes  beyond  law,  "constat  earn  debere  servari."  If, 
however,  it  is  contrary  to  law,  we  must  distinguish  one 
case  from  another.  Custom  contrary  to  Divine  or 
Natural  Law,  or  to  the  Law  of  Nations,  is  not  to  be 
observed.  If  it  is  contrary  to  Civil  Law — that  is  to 

publicae  utilitatis,  vel  alterius  juris  subtilitatis...tunc  tale  argumentum 
procedit.  Ita  loquuntur  aliae  glossae....Et  istis  casibus  non  dicit 
statutum  contra  legem,  licet  disponat  aliter  quam  lex....Praedicta  vera, 
quando  fit  statutum  de  his  quae  ad  populi  jurisdictionem  spectant. 
Si  vero  fierent  in  causis  majoribus,  quae  sibi  solus  Princeps  reservavit, 
ut  in  venia  aetatis  concedenda...et  in  similibus,  tune  statutum  non 
valet,  quia  non  est  ad  populi  jurisdictionem." 

i  Vide  Comment,  on  Codex,  Part  n.  (C.  vm.  53.  2),  p.  333,  §  45: 
4 '  Concludo  quod  aut  consuetude  est  contra  legem  aut  praeter  legem.  In 
secundo  casu  constat  earn  debere  servari.... Primo  casu  consuetudo  est 
contra  jus  naturale,  et  non  debet  servari.... Aut  contra  legem  divinam, 
et  idem  facit....Aut  contra  jus  gentium,  et  idem.... Aut  est  contra  jus 
civile.  Et  tune  aut  est  expresse  reprobata  per  legem,  et  non  valet.... 
Aut  non,  et  tune  aut  est  inducta  per  consensum  erroneum  contra  legem, 
et  tune  non  valet... aut  ex  certa  scientia;  et  tune  aut  precedit  legem; 
et  tune  quidam  distinguunt  quod  aut  apparet  ex  tenore  dictae  legis  ejus 
latorem  sensisse  vel  scivisse  consuetudinem  localem,  et  tollit  ipsam; 
aut  non,  et  tune  non,  sed  ilia  lex  succumbit....Ego  autem  sic  dico... 
quod  aut  dicta  consuetudo  est  contra  legem  et  lex  sequens  contraria 
illi  consuetudini  tollit  earn... aut  praeter  legem,  et  tune  non;  sed  lex 
succumbit  illi.  Aut  consuetudo  est  generalis,  et  vincit  legem  genera- 
lem...aut  est  specialis  et  localis,  et  vincit  earn  specialiter  in  eo  loco." 


152  THE   EMPIRE  AND    THE   CIVITATES  [CH. 

say,  a  general  custom  contrary  to  the  "jus  commune" 
and  a  particular  custom  contrary  to  the  "jus  civile 
particulare,"  i.e.  a  statute — then,  if  it  is  expressly  dis- 
approved by  the  law,  it  is  not  to  be  kept.  If  it 
is  not  expressly  disapproved,  then  we  must  distinguish 
again  whether  it  is  "inducta  per  consensum  erro- 
neurn  contra  legem,"  in  which  case  it  is  invalid;  or 
whether  it  is  induced  "ex  certa  scientia,"  in  which 
case,  if  the  custom  precedes  the  law,  Bartolus,  re- 
jecting the  opinion  of  some,  who  distinguish  between 
cases  where  the  legislator  knew  of  the  existence  of  the 
custom  or  did  not,  maintains  that  its  validity  depends 
again  on  whether  it  is  "  contra  "  or  "  praeter  legem." 
If  "  contra,"  the  law,  coming  after  the  custom,  revokes 
the  custom;  if  "praeter,"  the  law  is  swallowed  up  in 
the  custom.  The  general  rule  therefore,  as  regards  both 
custom  and  statute,  is  that  they  are  both  essentially 
inferior  to  the  "jus  commune";  but  just  as  the  "jus 
commune"  or  a  statute  can  amplify  the  higher  Laws 
of  God,  Nature  or  Nations,  so  custom  and  statute  can 
amplify,  not  contradict,  the  "jus  commune1." 

In   this  way  the  field  of  legislation   left   open  to 
statute   and   custom   was   very   large2.      Bartolus   has 

1  Cf.  in  this  connection  the  question  of  the  interpretation  of 
statutes.     Vide  especially  Comment,  on  Dig.  Vet.  Part  i.  (D.  i.  1.  9), 
pp.  41-6,  §§  53-65.     It  was  on  this  question  that  Kaynerius  of  Forli 
combated  both  Bartolus  and  Signorolus  deHomodeis  (vide  below,  p.  399). 

2  We  may  note  here  that,  where  in  criminal  matters  a  statute 
imposes  a  different  penalty  from  the  Jus  Commune,  the  new  penalty 
of  the  statute  does  not  revoke  the  old  penalty  of  the  Jus  Commune. 
Vide  Comment,  on  Codex,  Part  n.  (C.  ix.  19.  3),  p.  349:  "Et  per  hoc 
dico  quod  si  statutum  pro  homicidio  imponat  poenam  pecuniariam, 
non  propterea  tollitur  poena  legis  Corneliae.     Tamen,"  he  adds,  "si 
qiiis  condemnetur  vigore  statuti,  quod  imponit  poenam  pecuniariam, 


Il]  THE    EMPIRE    AND   THE   CIVITATES  153 

said  that  a  statute  can  ordain  that  which  is  not  ex- 
pressly forbidden  by  the  "jus  commune,"  provided  that 
it  is  "de  his  quae  ad  populi  jurisdictionem  spectant." 
Certain  topics  the  Emperor  has  reserved  to  himself — 
various  "causae  majores."  We  must  consider  this 
restriction  more  closely. 

Bartolus,  we  have  seen,  allows  the  right  to  make 
statutes  to  any  approved  and  licit  corporation  "in  his 
in  quibus  habent  jurisdictionem,  et  quo  ad  ea  quae  ad 
ipsos  collegiatos  pertinent."  Now  as  regards  the  cities, 
we  must  remember  that  they  vary  in  the  extent  of 
jurisdiction  which  they  exercise — from  the  Castrum 
or  Villa,  which  has  no  jurisdiction,  and  the  ordinary 
Ci vitas  with  a  limited  jurisdiction,  "de  jure  communi," 
to  the  Civitas,  who  owns  no  superior  and  has  "  merum 
et  mixtum  imperium."  With  regard  to  the  right 
of  these  three  classes  of  cities  to  legislate  Bartolus 
makes  an  important  distinction1.  The  Civitas  with  no 
jurisdiction  can  make  a  statute  "  pertinens  ad  adminis- 
trationem  rerum  ipsius  populi" — provided  the  statute 
does  not  fall  under  the  heading  of  "  ambitiosa  decreta ' 
— on  its  own  authority  and  without  the  intervention  of 
the  superior ;  but  a  statute  "  pertinens  ad  causarum 
decisionem "  it  can  only  make  by  authority  of  the 
superior — otherwise  the  statute  is  invalid.  Similarly 
the  Civitas  with  a  limited  jurisdiction  can  only  make 
statutes  "in  his  in  quibus  habent  administrationem, 
seu  jurisdictionem... in  aliis  non  sine  superioris  aucto- 
ritate."  It  is  thus  only  the  Civitas,  which  has  "  all 

tollitur  condemnatio,  quae  resultat  ex  lege,  quia  senatus  voluit  ne 
quis  ob  idem  crimen  in  duabus  legibus  fiatreus." 

1  Vide  Comment,  on  Dig.  Vet.  Part  i.  (D.  i.  1.  9),  pp.  27-9,  §§  3-14. 


154  THE    EMPIRE   AND   THE   CIVITATES  [CH. 

jurisdiction  "  and  owns  no  superior — the  Ci vitas  that  is 
a  "populus  liber" — which  can  make  statutes  "prout 
sibi  placet1."  Of  these  it  may  be  said  that  they  have 
the  same  power  "  in  his  quae  sunt  ex  forma  statuti,"  as 
the  Princeps  "  in  his  quae  sunt  de  jure  communi2." 

Now  from  this  it  was  but  a  small  step  to  say  that 
such  a  Civitas  was,  within  its  own  boundaries,  the 
Princeps  himself.  We  have  already  referred  to  this 
final  step  in  the  process  of  raising  up  the  Civitas  from 
its  original  dependence  to  an  independent  position,  as 
a  sovereign  State.  We  have  followed  that  process  step 
by  step,  and  if  the  final  step  is  not  a  large  one,  it  is 
none  the  less  one  of  the  greatest  importance.  We 
must  realise  that  it  is  not  a  solution  offered  once  or 
twice  by  Bartolus,  but  one  consistently  and  systemati- 
cally adopted.  To  show  this,  and  to  illustrate  this  step 

1  Cf.  Comment,  on  Codex,  Tres  libri  (C.  x.  63.  5),  p.  64:    "  ...Qui- 
libet  populus  potest  sibi  facere  statutum....Solutio:  dicit  Gul.  quod 
illud  est  verum  in  his  quae  privatam  utilitatem  respiciunt.     In  his 
vero  quae  respiciunt  publicam  utilitatem  principaliter,  non  possunt. 
Sed  ego  dico  aliter  in  L.  Omnes  Populi  (D.  i.  1.  9).     Nam  quidam  est 
populus  liber,  qui  habet  omnem  jurisdictionem,  et  tune  potest  facere 
legem  et  statutum  prout  sibi  placet... ubi  ponitur  exemplum  in  populo 
Bomano.     Quidam  sunt  populi  qui  non  habent  jurisdictionem  de  jure 
communi,   ut  civitates  quae  non  habent  merum   imperium;    item 
provincia  tota,  quae  licet  habeat  merum  imperium,  tamen  a  praeside 
appellatur  ad  superiorem;    et  tune  eorum  statuta  non  valent,  nisi 
confirmentur  a  superioribus,  ut  hie.     Et  ita  fit  in  istis  civitatibus 
marchiae  et  ducatus,  nam  non  admittuntur  eorum  statuta,  nisi  appro- 
bata  per  superiorem." 

2  Comment,  on  Codex,  Part  n.  (C.  ix.  51.  13),  p.  356,  §  12:   "Si 
infamia  esset  irrogata  de  jure  communi,  fateor  quod  statutum  non 
possit  restituere...Sed  si  infamia  esset  irrogata  ex  forma  statuti,  non 
de  jure  communi,  tune  puto  quod  per  statuta  possit  fama  restitui. 
Quam  enim  potestatem  habet  Princeps   in  his  quae  sunt  de  jure 
communi,  eandem  videtur  habere  populus  in  his  quae  sunt  ex  forma 
statuti." 


II]  THE   EMPIRE   AND   THE   CIVITATES  155 

generally,  we  cannot  do  better  than  to  collect  a  number 
of  examples ;  these  we  may  most  conveniently  arrange 
under  the  different  divisions  of  the  commentaries  from 
which  they  are  taken. 

(1)     From  the  Commentary  on  the  Digest : — 

Dig.  Vet.  Part  T.  (D.  n.  1.  1) :  Bartolus  is  discussing 
the  "  aequiparatio "  of  "jurisdictio"  to  "dominium." 
"Et  ista  aequiparatio  de  jurisdictione  ad  dominium 
probatur  sic:  Princeps  habet  omnem  jurisdictionem... 
et  ex  hoc  dicitur  dominus  totius  mundi...sicut  quilibet 
judex  dicitur  princeps  civitatis,  vel  territorii,  cui  praeest. 
...Et  recte  potest  dici  dominus  totius  illius  territorii 
universaliter  considerati1." 

Dig.  Vet.  Part  I.  (D.  ill.  1.  1,  §  De  Qua  Re) :  "  Nota 
quod  ad  famam  solus  Princeps  et  senatus  potest  re- 
stituere  et  eodem  modo  Papa  et  collegium  cardinalium. 
...Sed  quaero  an  populus  per  statutum  possit  quern 
restituere  famae.  Hie  videtur  casus  quod  non.  Quod 
est  verum  in  infamia,  quae  irrogatur  ex  forma  alicujus 
statuti,  quae  per  aliud  statutum  contrarium  posset 
tolli....Idem  de  aliis  regibus  et  principibus  qui  recog- 
noscunt  Imperatorem  in  dominum.  Sed  si  esset  rex, 
princeps  vel  populus,  qui  Imperatorem  in  dominum 
non  recognosceret,  tune  quo  ad  seipsos  restitutio  famae 
valeret,  quia  talis  appellatur  populus  liber... et  apud 
eosmet  dicitur  esse  imperium  sui  ipsius2." 

Dig.  Vet.  Part  I,  (D.  IV.  4.  3)  :  After  saying  that 
"  per  statuta  civitatum  non  possit  concedi  minoribus 
administratio  bonorum  suorum,  quia  hoc  Princeps  re- 
servavit  sibi,"  Bartolus  continues — "Civitates  tamen 
quae  Principem  non  recognoscunt  in  dominum,  et  sic 
1  p.  160,  §§  15-6.  2  iv  322- 


156  THE   EMPIRE    AND   THE   CIVITATES  [CH. 

earum  populus  liber  est...possent  hoc  forte  statuere; 
quia  ipsamet  civitas  sibi  princeps  est1." 

Dig.  Nov.  Part  I.  (D.  XLII.  1.  57) :  "  Sed  quid  si  una 
civitas  vellet  dare  jurisdictionem  uni  pupillo  vel  infant i, 
ut  earn  exerceat  per  curatorem  vel  tutorem  ?  Re- 
spondeo:  faciat  de  hoc  primo  statutum....Si  enim 
civitas  non  posset  dispensare,  ilia  lex  non  habet  dubium. 
Quod  sine  dubio  obtinet  in  civitatibus,  quae  non  recog- 
noscunt  dominum  in  temporalibus ;  quia  tune  populus 
liber  est  et  utitur  omni  jurisdictione  Imperiali2." 

Dig.  Nov.  Part  i.  (D.  XLIII.  6.  2) :  "  Istae  duae  leges 
sunt  contra  homines  hujus  civitatis,  qui  habent  domos 
suos  supra  muros  civitatis,  quod  non  licet  sine  permissione 
Principis,  ut  hie  videtis.  Tamen  ipsi  habent  permis- 
sionem  a  populo  et  communi  hujus  civitatis,  et  dicunt 
quod  est  populus  nemini  subditus :  ideo  hie  populus  est 
princeps  in  hac  civitate,  ideo  potest  permittere3." 

Dig.  Nov.  Part  II.  (D.  XLVIII.  1.  7) :  "  Quaero  quis 
possit  super  infamia  dispensare  ?  Respondeo,  textus 
dicit,  quod  solus  Princeps  vel  senatus....Idem  dicimus 
de  Papa  in  terris  Ecclesiae :  quia  potest  cum  infami- 
bus  dispensare.  Idem  in  collegio  cardinalium,  vacante 
pastore :  secus  in  regibus  et  principibus — Quaero 
utrum  civitas  una  possit  infamiam  irrogare,  vel  super 
infamia  dispensare  ?  Videtur  quod  non :  quia  civitas 
una  non  potest  facere  statutum  super  his,  quae  non 
sunt  suae  jurisdictionis...  .Sed  causa  infamiae  non  est 
de  jurisdictione  civitatis,  cum  sit  reservata  Principi.... 
Solutio:  dicerem  cum  quaelibet  civitas  Italiae  hodie, 
et  praecipue  in  Tuscia,  dominum  non  recognoscat,  in  se 
ipsa  habet  liberum  populum,  et  habet  merum  imperium 

1  p.  430.         .  2  p.  378,  §  14.  3  p.  431. 


II]  THE    EMPIRE    AND   THE    CIVITATES  157 

in  se  ipsa,  et  tantam  potestatem  habet  in  populo, 
quantam  Imperator  in  universe1." 

Dig.  Nov.  Part  II.  (D.  XLVIII.  19.  4):  "Nota  hunc 
textum,  quod  relegate  seu  misso  in  exilium  non  potest 
dare  judex  licentiam  veniendi,  vel  quod  revertatur :  sed 
solus  Princeps  potest,  et  non  alius.  Et  quod  hie  dicit, 
ex  aliqua  causa,  intelligatis  quia  causa  justa  est  voluntas 
Principis.  Et  idem  intelligo  in  istis  civitatibus  Italiae, 
quia  ipsae  sunt  principes  sibi  ipsis ;  quia  possunt  exuli 
dare  licentiam  revertendi2." 

Dig.  Nov.  Part  II.  (D.  XLIX.  1.  1,  §  Si  quis  in  appel- 
latione) :  "  Pone,  quod  est  civitas,  quae  non  recognoscit 
superiorem,  et  quae  eligit  ipsa  sibi  rectorem,  nee  habet 
alium  officialem  :  quis  erit  judex  appellationis  ?  Re- 
spondeo:  ipse  populus,  seu  ordo,  qui  ipsum  officialem 
facit :  quia  solus  reperitur  superior  ipsi  populo,  et  sibi 
princeps  est....Et  hoc  colligitur  ex  lege  2 — '  Exactis 
deinde  regibus  consules  constituti  sunt  duo  ' — supra,  De 
orig.  juris  (D.  I.  2.  2),  ubi  populus  Romanus  liber  faciebat 
officiales,  et  ab  eis  erat  jus  appellandi,  nisi  expresse 
esset  inhibitum3." 

1  p.  423,  §§  13-14. 

2  p.  552,  §  4.     Bartolus  goes  on  to  extend  the  power  of  granting 
"licentiam  veniendi" — "Idem  puto  de  omnibus  civitatibus,   quae 
habent  licentiam   condendi   statuta  in   istis  negotiis  magnis.     Nam 
ipsae  possunt   facere  leges,   ut  exules  revertantur:    tune   habebunt 
licentiam  revertendi  auctoritate  legis  et  auctoritate  Principis,  qui  sibi 
(i.e.  the  civitatibus).  concessit,  quod  possint  facere  leges  et  statuta.... 
Item  dico  quod  quilibet  judex  potest  dare  licentiam  revertendi  exuli 
ex  causa  justa,  ut  puta,  si  est  accusatus  de  maleficiis,  propter  quod 
praesentia  accusati  requiritur." 

3  p.  580,  §  10.     In  the  next  paragraph,  he  continues :  "Quaere,  in 
aliqua  civitate  est  collegium,  quod  facit  sibi  rectorem,  cui  dat  juris- 
dictionem....Quis  erit  proximus  superior,  ad  quern  appellabitur?    Ke- 
spondeo  ille,  qui  est  judex  ipsius  universitatis,  ut  rector  civitatis... 


158  THE    EMPIRE   AND   THE   CIVITATES  [CH. 

Dig.  Nov.  Part  II.  (D.  L.  9.  4):  "Quaero,  posito  quod 
decuriones  ipsi  non  possint  donare,  ut  dictum  est :  an 
populus  totus  possit  donare  ?  Puto  quod  sic ;  quod 
apparet,  quia  pot  est  de  donando  legem  facere...quod 
sine  dubio  procedit  in  illis  civitatibus,  quae  de  facto  in 
temporalibus  non  recognoscunt  superiorem,  et  sic  ipsi  in 
se  habent  imperium1." 

(2)     From  the  Commentary  on  the  Code : — 

Codex,  Tres  libri  (C.  x.  46.  1) :  "  Sed  quaero,  cum 
decuriones  non  possunt  concedere  immunitatem,  quis 
poterit  concedere  ?  Dicit  glossa  quod  Imperator,  et 
idem  puto  quod  consilium  magnum  et  adunantia  gene- 
ralis,  quae  habet  plenum  imperium ;  quia  forte  est 
civitas,  quae  non  recognoscit  superiorem2." 

Codex,  Tres  libri  (C.  xi.  32.  3)  :  "  Nota  ex  secunda 
parte,  quod  in  utraque  Roma  requiritur  auctoritas 
Imperialis  in  venditione.  Et  per  hoc  dico  quod  in 
civitatibus,  quae  in  temporalibus  non  recognoscunt 
superiorem,  ut  est  civitas  Perusina,  sic  populus  est  liber 
...quod  venditio  rerum  immobilium  possit  fieri  auc- 
toritate  ejus  consilii,  apud  quod  est  omnis  potestas. 
Illud  enim  vicem  Imperatoris  gerit  in  civitate  ilia3." 

We  may  also  quote  one  or  two  other  passages,  in 
which  we  find  the  same  conception  of  the  "populus 
liber,"  although  we  do  not  have  it  directly  stated  that 
they  are  Imperator  or  Princeps  to  themselves.  Thus  in 

Praedicta  vera,  quando  civitas  propriam  legem  habebat,  secundum 
quam  aliud  judicatur." 

1  P-  669,  §  7.     And  vide  more  examples  from  the  commentary  on 
this  same  law,  below,  p.  184,  n.  3. 

2  p.  54,  §  2.     He  refers  to  the  passage  last  quoted  (i.e.  on  D.  L. 
9.4). 

P-  89,  §  2. 


Il]  THE   EMPIRE   AND   THE   CIVITATES  159 

the  Commentary  on  the  Code1 :  "  Si  quis  facit  contra 
preceptum  legis,  peccat  mortaliter....Qui  non  obedierit 
Principi  morte  morietur.  Et  alibi  dicit  Paulus  (ad 
Romanes  XIII)  'Omnis  anima  subdita  sit  Principi'... 
Cum  ergo  superior  populus  vel  princeps  hoc  praecipiat, 
si  quis  facit  contra  legem,  peccat  mortaliter."  Now 
though  Bartolus  does  not  say  in  so  many  words  that 
this  "  superior  populus "  is  "  sibi  princeps,"  yet  it  is 
bracketed  by  him  with  the  Princeps,  to  disobey  whom 
is,  on  S.  Paul's  authority,  a  mortal  sin. 

Again — "  Quaero  hie  primo,  quis  possit  collectam 
imponere.  Respondeo,  aut  imponitur  propter  neces- 
sitatem  civitatis,  et  possunt  ipsi  civitates  imponere — 
Aut  imponitur  ob  publicam  utilitatem,  et  non  potest 
imponi  sine  expressa  licentia  Principis....Unde  si  quae- 
dam  civitas  vellet  imponere  collectam,  ut  dpnaret 
Principi,  non  posset  de  jure,  sed  de  facto  sic.  Praedicta 
vera  sunt  in  civitate,  quae  recognoscit  superiorem ;  sed 
si  essent  civitates  liberae,  et  non  recognoscentes  superi- 
orem, possent  imponere  quomodo  sibi  placeret2." 

Again,  on  the  first  law  of  the  fifth  title  of  the  Code, 
Book  III — "Ne  quis  in  sua  causa  judicet  vel  sibi  jus 
dicat" — Bartolus  says3:  "Rubrica  summat  legem.  Hoc 

1  Comment,  on  Codex,  Part  i.  (C.  n.  28.  1,  Authent.  Sacramenta) , 
p.  265,  §  15. 

2  Comment,  on  Codex,  Tres  libri  (C.  x.  62.  1),  p.  61,  §  24.     Cf.  a 
passage  in  the  Comment,  on  Codex,  Part  n.  (C.  vi.  33.  3),  p.  94:  "Ad 
evidentiam  primae  partis  (i.e.  of  this  law)  debes  scire,  quod  sicut 
hodie  Florentini  et  alii  Italic! ,  quando  sunt  guerrae,  ipsi  imponunt 
magnas  gabellas,  ita  fecit  divus  Adrianus  qui  statuit,  ut  quandocunque 
haeres  scriptus  mitteretur  in  possessione,  solveret  vicesimam  partem 
haereditatis   fisco,   quod   idem  est   ac    si   diceret — Solvat  duodecim 
denarios  pro  libra." 

3  Comment,  on  Codex,  Part  i.  (C.  m.  5.  1),  p.  315,  §  1. 


160  THE   EMPIRE   AND   THE   C1VITATES  [CH. 

intellige  verum,  nisi  in  judicibus,  qui  non  recognoscunt 
superiorem.  Tune  enim  ipsimet  judicant  causas  suas. 
...Et  ita  videmus  de  facto  in  civitatibus  quae  non 
recognoscunt  superiorem."  And  for  a  final  example 
we  may  note  how  on  the  words  of  the  Digest  (D.  XLIL 
1.  45) — "De  amplianda  vel  minuenda  poena  damnatorum 
post  sententiam  dictam  sine  principali  auctoritate  nihil 
est  statuendum" — Bartolus  says1:  "Et  quod  hie  dicit, 
sine  jussu  principis,  idem  puto  hodie  in  civitatibus 
quae  non  recognoscunt  superiorem.  Nam  populus  hujus 
civitatis  potest  minuere  poenam." 

We  have  introduced  this  last — and  we  may  call  it 
crowning — step  in  the  political  theories  of  Bartolus, 
while  considering  the  legislative  power  of  the  Civitas. 
As  "  sibi  princeps "  the  Civitas  will  now  be  able  to 
legislate  by  statute  on  all  topics  which  the  Emperor  has 
reserved  to  himself.  But  this  is  only  one  of  the  effects 
of  this  step.  In  general  it  means  that  the  Civitas  is 
now  an  independent  sovereign  State.  The  theory  of  the 
Civilians  had  begun  by  seeing  but  one  State,  namely 
the  Empire.  Bartolus,  we  must  always  remember,  has 
not  yet  given  up  the  de  jure  lordship  of  the  Emperor; 
but  he  has  now  recognised  that  where,  whether  de  jure 
or  de  facto,  there  is  an  independent  political  body, 
that  body  must  be  recognised  as  sovereign  and  en- 
dowed, within  its  particular  boundaries,  with  all  the 
marks  and  privileges  of  the  one  universal  Empire. 

But  there  is  one  important  reservation  to  be  made 
here,  before  we  leave  this  topic.  The  Civitas  is  now 
"sibi  princeps"  and  can  legislate  "prout  sibi  placet,"  so 

1  Comment,  on  Dig.  Nov.  Part  i.  (D.  XLII.  1.  45,  §  De  Amplianda), 
Bale  ed.  p.  373,  §  1. 


II]  THE    EMPIRE   AND   THE   CIVITATES  161 

long  as  its  legislation  does  not  run  counter  to  the 
higher  laws  of  God,  Nature  and  Nations,  to  the  "jus 
commune,"  to  the  Canon  Law,  at  least  in  spiritual 
matters,  and  to  the  liberties  and  privileges  of  the 
Church ;  while  we  have  seen  that  statutes  can  amplify 
these  higher  laws,  though  they  cannot  contradict  them. 
But  though,  putting  aside  these  reservations,  the  inde- 
pendent Civitas  can  legislate  at  will,  its  laws  are  still 
"statuta";  the  limits,  within  which  they  are  valid, 
are  wider  than  in  the  case  of  cities  without,  or  with 
a  limited,  jurisdiction,  but  the  laws  of  all  alike  are 
nothing  more  than  statutes,  not  what  we  should  call 
sovereign  law.  Dr  Gierke 1  has  pointed  out  the  great 
importance  of  the  distinction  between  the  statute 
"pertinens  ad  causarum  decisionem"  and  the  statute 
"pertinens  ad  administrationem  rerum  ipsius  populi." 
But  Bartolus  himself  does  not  carry  through  this 
distinction  to  a  separation  of  the  sovereign  legislation 
of  an  independent  Civitas  from  the  legislation  of 
a  mere  corporation.  All  Bartolus  himself  says  is  that 
the  Civitas  with  full  jurisdiction  can  make  statutes  of 
the  first  class  "per  se,"  while  the  Civitas  without  full 
jurisdiction  can  do  so  only  by  authority  of  the  superior. 
The  right  to  legislate  is  thus  not  the  result  of  inde- 
pendence, not  an  act  of  sovereign  power.  The  right  to 
legislate  belongs  to  all  corporations — political  and  non- 
political  alike;  the  greater  or  less  degree  of  independence 
enjoyed  by  the  Civitas  only  widens  the  scope  within 
which  legislation  is  valid  without  the  authority  of  a 
superior. 

We  shall  be  concerned  in  later  pages  of  this  essay  to 
1  Vide  Deutsche  Genossenschaftsrecht,  vol.  in.  pp.  387-8. 

W.  11 


162  THE    EMPIRE   AND   THE   C1VITATES  [CH. 

estimate  more  fully  both  the  origin  and  the  significance 
of  this  final  step  by  which  the  Civitas  becomes  a  State. 
So  far  we  have  seen  the  State  come  into  existence; 
we  have  now  to  treat  of  the  State  as  existing.  It 
is  still  necessary,  however,  to  make  one  preliminary 
inquiry.  We  have  repeatedly  remarked  that  the 
political  thought  of  Bartolus  is  eminently  practical, 
that  his  theories  at  once  reflect  and  interpret  the  actual 
Italian  conditions  of  his  time.  But  it  might  well  be 
asked  whether  his  thought,  however  praiseworthy,  has 
not  after  all  been  out  of  touch  with  these  conditions. 
It  may  be  said  that,  while  the  whole  trend  of  his 
thought  has  so  far  been  to  free  these  Civitates  from  an 
Empire  which  was  a  shadow,  in  reality  they  were  fast 
falling  under  the  power  of  tyrants,  indeed  were  for  the 
most  part  already  fallen.  We  must  therefore  see  how 
Bartolus  handles  this  subject  of  tyranny. 

It  is  certainly  true  that  all  northern  and  central 
Italy  was  fallen,  or  falling,  beneath  the  power  of 
tyrants;  tyranny  is  as  much  the  characteristic  of  the 
Italian  communes  in  the  fourteenth  century,  as  the 
rise  of  the  "popolo"  and  the  struggles  of  the  factions 
are  characteristic  of  the  thirteenth.  The  towns  that 
remained  free  -were  a  mere  handful,  and  even  in  these 
the  still  violent  strife  of  the  factions  threatened  sooner 
or  later  to  bring  in  the  tyrant.  Even  Florence  had  had 
its  first  taste  of  tyranny  under  the  Duke  of  Athens. 

Bartolus  fully  realises  this.     "Hodie  Italia  est  tota 

plena  tyrannis1,"  he  cries  out ;    and  he  joins  his  grief 

for  the  state  of  Rome  itself,  which,  with  the  Popes  at 

Avignon,  was  a  nest  of  petty,  and  therefore  all  the  more 

1  Tractatus  de  Regimine  Civitatis,  p.  421,  §  29. 


II]  THE   EMPIRE  AND  THE   C1VITATES  163 

noxious,  tyrants,  to  that  of  all  Italian  literature  from 
Dante  to  S.  Catherine.  "Est  Septimus  modus  regiminis," 
he  says  in  his  Tract,  de  Regimine  Civitatis1,  "qui  est  in 
civitate  Romana,  nunc  pessimus" — the  regimen  of  many 
tyrants,  not  one  of  whom  is  strong  enough  to  prevail 
against  the  rest;  so  monstrous  that  Aristotle  has  no 
name  for  it;  yet  allowed  by  God,  to  show  the  frailty  of 
mundane  glory — "Civitas  enim  Romana,  caput  morum, 
caput  politiarum,  ad  tantam  monstrositatem  circa  sui 
regimen  venit,  quod  verius  dici  potest  quod  non  est 
regimen,  nee  regiminis  formam  habet2."  And  "Deus 
scit  quando  super  venit  Justus  dominus3." 

And  so  to  face  this  terrible  problem  Bartolus 
composed  a  special  treatise4.  He  adopts  a  definition 
of  S.  Gregory,  "  quae  pro  lege  servanda  est,"  by  which 
<c  proprie  tyrannus  is  dicitur,  qui  communi  reipublicae 

1  Tractatus  de  Regimine  Civitatis,  p.  418,  §  5:    "Est  septimus 
modus  regiminis,  qui  est  in  civitate  Komana,  nunc  pessimus.     Ibi 
sunt  multi  tyranni  per  diversas  regiones  adeo  fortes,  quod  unus  contra 
alium  non  prae valet.     Est  enim  regimen  commune  totius  civitatis 
adeo  debile,  quod  contra  nullum  ipsorum  tyrannorum  potest,  nee 
contra  quern  adhaerentem  ipsis  tyrannis,  nisi  quatenus  ipsi  patiuntur; 
quod  regimen  Aristoteles  non  posuit ;  est  enim  res  monstruosa.     Quid 
enim,  si  quis  videret  unum  corpus  habens  unum  caput  commune 
debile,  et  multa  alia  capita  communia  fortiora  illo,  et  invicem  sibi 
adversantia?     Certe  monstrum  esset.     Appelletur  hoc  regimen  mon- 
struosum.    Hoc  enim  divina  permissione  factum  est,  ut  ostendat  quod 
omnis  gloria  mundi  caduca  est." 

2  Cf.  Lucas  de  Penna,  Comment,  on  Codex,  Tres  libri  (C.  xi.  12. 
1),  p.  403:  "Haec  civitas  (Eome)  multa  sortita  est  nomina... quorum 
pauca  in  effectu  vera  sunt  hodie.     Item  dicitur  gloriosissima....Item 
augustissima....Item  caput  omnium  civitatum....Sed,  ut  praedixi,  ex 
praedictis   nominibus  hodie   pauca   vel  nulla  conveniunt;    potius  ei 
congruit  illud  Esaiae  (C.   1)— 'Quomodo   facta  est  meretrix  civitas 
fidelis,  plena  judicii.'  " 

3  Vide  below,  p.  171,  n.  2.  4  Tract,  de  Tyrannia,  pp.  321-7. 

11—2 


164  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

'  non  jure  principatur1,"  and  so  there  may  be  a  tyrant  in 
the  "  communi  reipublica  Romanorum,"  or  in  a  single 
province,  or  in  a  city,  or  in  a  household2,  or  lastly  a  man 
may  be  a  tyrant  of  himself3.  But  here,  as  ever,  the  real 
interest  of  Bartolus  is  in  the  Ci vitas4;  and  so,  following 
S.  Gregory's  definition — "tyrannus  civitatis  est  qui  in 
civitate  non  jure  principatur5."  Here  Bartolus  draws 
certain  distinctions.  There  is  the  "tyrannus  mani- 
festus "  and  the  "  tyrannus  velatus  et  tacitus  " ;  the 
"tyrannus  ex  parte  exercitii,"  and  the  "tyrannus  ex 
defectu  tituli " ;  finally  the  "  tyrannus  velatus "  is 
sometimes  tyrant  "propter  titulum,"  sometimes  "propter 
defectum  tituli6." 

First  as  to  the  "  tyrannus  manifestus  jex  defectu 
tituli."  Such  a  tyrant  may  arrive  at  power  in  various 
ways.  He  may  make  himself  rector  of  a  city  which 
has  no  "jus  eligendi7,"  or,  in  a  city  which  has  that 
right,  he  may  force  the  citizens  to  elect  him,  and  then 
he  too  is  a  tyrant  "  ex  defectu  tituli,"  since  the  juris- 
diction, thus  transferred  through  fear,  is  not  valid8. 
Bartolus  then  asks  a  question  of  cardinal  importance — 
whether  what  is  done  by  such  tyrants  "  ex  defectu 
tituli "  or  during  the  time  of  their  tyranny  is  valid. 
As  to  the  acts  of  the  tyrants  themselves — "  ea  quae 

1  §  2.  2  This  is  discussed  at  length  in  §  11.  3  §  5. 

4  We  may  pass  over  §§  8-11.     The  rest  deal  with  the  Civitas— 34 
out  of  45  paragraphs. 

5  §  12.  e  Ibid.  7  §  13. 

8  §  14.  In  §  15  he  describes  the  many  ways  in  which  this  can  be 
brought  about.  E.g.,  "  si  exercitus  fiat  contra  civitatem  sine  consensu 
superiorum....Si  cum  gente  forensi  pugnando  expugnavit  civitatem." 
If  "cum  hominibus  ejusdem  civitatis  facto  rumore  et  seditione  se 
faciat  eligi  in  dominum,"  then,  as  elected  "per  metum,"  his  title  is 
invalid,  and  he  is  still  "tyrannus  manifestus  ex  defectu  tituli." 


Il]  THE    EMPIRE   AND   THE    CIVITATES  165 

fiunt  per  ipsos  tyrannos  tamquam  jurisdictiones  ha- 
bentes  " — they  are  "ipso  jure  nulla1."  Equally  null 
are  the  acts  of  officials  appointed  by  the  tyrants. 
Whether  the  acts  of  officials,  not  directly  appointed  by 
the  tyrant,  but  by  the  city  itself,  "  patiente  tyranno," 
are  also  invalid,  is  more  doubtful.  There  is  much  to 
be  said  on  both  sides2.  Against  their  validity  may  be 
urged  that  during  a  tyranny  no  official  can  be  said  to 
be  freely  elected.  Further,  a  decretal  is  cited  as  lay- 
ing down  that  "  tempore  schismatis  non  potest  agi  vel 
prescriptio  currere.  Sed  tempore  tyranni  potest  dici 
tempus  schismatis.  Scindit  enim  tyrannus  et  separat 
communionem  universalis  Imperii."  On  the  other  hand 
"insurgeret  iniquitas,"  if  it  were  held  that,  where  a 
tyranny  lasts  a  long  time,  "  omnia  celebrata  et  acta 
in  eorum  curiis"  were  null.  Finally  Bartolus  dis- 
tinguishes those  acts  which  the  people  does  itself,  and 
would  have  done  even  had  there  been  no  tyrant — "  ut 
decisiones  quarundarum  causarum  contrariarum  quas 
quilibet  tyrannus  patitur  ire  sub  regulis  j  ustitiae  " — 
from  those  which  would  not  have  been  done,  had  there 
been  no  tyrant :  the  former  are  valid,  the  latter  not3. 
Then  as  regards  contracts4.  If  the  Civitas  itself 
gives  or  grants  anything  to  the  tyrant,  the  contract  is 
"  ipso  jure  "  null.  So,  contracts  between  the  tyrant  and 
individual  subjects  are  null.  As  to  contracts  between 
the  tyrant  and  non-subjects,  if  they  are  to  the  detri- 
ment of  the  Civitas,  they  are  null;  if  they  are  in 
its  favour,  then  also  they  are  probably  null,  though 
Hostiensis  decides  the  contrary.  Lastly  there  are 

1  §  16.  2  §  17.  3  §§  18-9.  4  §§  20-2. 


166  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

certain  acts  which   do   not   come  under  the    head  of 
contracts ;  here  again  we  have  similar  distinctions1. 

Then  we  come  to  the  tyrant  "ex  parte  exercitii," 
and  since  he  has  a  just  title,  he  is  "less  properly" 
called  a  tyrant2.  Still  tyrant  he  is.  Bartolus  gives 
ten  examples  from  Plutarch3  of  the  tyrannical  acts  of 
such  tyrants,  the  most  important  of  which,  as  proof  of 
tyranny,  are,  according  to  Bartolus4,  the  sixth,  keep- 
ing the  city  divided,  and  the  seventh,  pauperizing 
his  subjects.  Then  as  to  the  validity  of  his  acts5. 
A  process  instituted  by  him  against  a  rebel  is  null, 
since  no  one  need  appear  before  a  judge  notoriously 
hostile;  other  processes  are  valid,  so  long  as  his  sub- 
jects tolerate  him.  If,  however,  a  process  is  instituted 
by  which  the  tyrant  himself  is  to  be  deprived  by  his 
superior,  and,  if  the  sentence  is  such  that  he  is  de- 
clared "ipso  jure"  deprived  of  his  jurisdiction,  "vel 
dicitur  servus  vel  infamis,"  then  acts  of  the  tyrant 
done  after  the  process  was  begun  are  null ;  but  if  he 

1  Vide  §§  23-5.     Bartolus  asks  whether  in  such  a  case — i.e.  when 
"non  contrahit  tyrannus,  sed  distrahit  per  se  vel  suos  officiates  "- 
"solutionem  eorum  quae  reipublicae  debebantur  recipiendo,  an  sint 
liberati  solventes,"  and  draws  various  distinctions  on  the  lines  laid 
down  for  contracts.     §  26  however  must  be  noted  in  detail :  "  Quan- 
doque   tales   tyranni   non   contrahunt,  nee   distrahunt,  et   patiuntur 
bona  et  jura  civitatis  deperire  et  praescribi:   tune  puto  quod  contra 
civitatem  non  praescribatur....Dico  etiam,  quod  si  aliqua  jurisdictione 
competenti  ipsi  civitati  tyrannus  uteretur,  non  autem  a  civitate,  sed 
ab  altero  recognosceret :    quod  quantum  ad  se,  videtur  uti  nomine 
alieno :  sed  quantum  ad  civitatem,  videtur  uti  nomine  suo  si  per  ilium 
usum  civitas  retinet  jus  suum." 

2  §  27.  3  §§  28-30. 

4  §  30:  "Omnia  ergo  praedicta  sunt  signa  ad  probandum  tyranni- 
dem:  sed  principaliter  ilia  duo,  scilicet  servare  civitatem  in  divisione 
et  depauperare  subditos,  et  eos  affigere  in  personis  et  rebus." 

5  §§  35-7. 


II]  THE   EMPIRE    AND   THE   CIVITATES  167 

is  deprived  by  the  sentence  itself  (not  •"  ipso  jure"), 
then  "  interim  gesta  per  eum  valent,  quia  interim 
dignitatem  retinet."  And  so  with  contracts  etc. l :  they 
are  valid  so  long  as  they  are  made  while  he  still  retains 
his  dignity — unless  they  are  to  the  detriment  of  the 
city,  as,  for  example,  if  he  forces  the  people  to  grant 
him  "  plus  jurisdictionis." 

Lastly,  as  to  the  "  tyrannus  tacitus  et  velatus  " — 
"  ut  est  ille  qui  sub  quodam  velamine  non  juste  prin- 
cipatur  in  civitate2."  Such  veiled  tyranny  can  be 
brought  about  in  two  ways : — (1)  when  anyone  has 
conceded  to  him  jurisdiction  for  a  certain  time,  and 
after  that  time  has  it  confirmed3;  and  (2)  when  the 
tyrant  has  himself  appointed  to  some  quite  minor  post, 
as  vexillifer  or  gonfalonier  or  captain  of  mercenaries, 
and  governs  despotically  under  cover  of  that  office4. 
As  regards  the  first,  "  de  jure  communi"  the  pro- 
curing of  such  jurisdiction  is  illegal;  but  in  the  case 
of  an  independent  Civitas — "si  poneres  quod  tanta 
esset  potestas  dicti  populi  quod  posset  contra  dictam 
legem  dispensare  " — it  must  be  considered  whether  the 
tyrant  has  so  strengthened  himself  during  his  first 
period  of  power,  that  the  confirmation  of  it  may  be 
said  to  be  forced  from  the  citizens  through  fear.  He 

1  §  37:    "...Si  aliquis  est  in  nobili  potestate  et  habet  justum 
titulum,  licet  respectu  exercitii  sit  tyrannus,  tamen  habet  beneficium 
...donee  in  dignitate  toleratur...secus  si  esset  defectus  tituli....Item 
dico  quod  postquam  talis  habens  titulum  devenit  ad  tyrannidem  per 
modum  exercitii,  si  aliquid  sibi  plus  jurisdictionis  concedi  fecerit  a 
populo,  non  valeret,  quasi  populus  per  metum  faceret....Item  omnis 
contractus,  quern  faceret  de  ipsam  ci  vita  tern  submittendo,  vel  obligando 
earn,  non  valeret;   non  enim  loco  domini  est,  cum  ipsam  civitatem 
spoliat  sua  libertate." 

2  §  38— end.  3  §  38.  4  §  41. 


168  THE    EMPIRE   AND   THE    CIVITATES  [CH. 

then  falls  under  the  heading  of  tyrants  "  ex  defectu 
tituli,"  elected  "per  metum1."  In  the  second  type  of 
veiled  tyranny,  proof  that  this  "  regimen  "  is  tyranny  is 
difficult,  though  public  fame  will  suffice2.  The  answer 
to  the  question  whether  acts  done  during  this  sort  of 
tyranny  are  valid,  is  the  same  as  in  the  question  of 
acts  done  by  officials  elected  by  the  people  themselves 
during  a  tyranny,  which  we  have  examined  above3.  If, 
however,  it  is  only  a  fraction  of  the  people  who  are 
abused  by  this  tyranny,  while  in  general  the  city  is 
well  governed,  then  the  tyrant  is  not  a  tyrant  "  sim- 
pliciter  loquendo,"  since  by  his  government  "  communis 
utilitas  attenditur,  quod  directo  est  oppositum  tyranni " 
—though  as  regards  "  extrinsecos  "  and  "  inimicos,"  he 
may  still  be  considered  a  tyrant4.  For  any  government, 
in  which  only  the  public  good  is  sought,  is  a  rarity ; 
complete  absence  of  self-interest  is  not  to  be  expected 
in  human  princes5.  "  Illud  tamen  dicimus  bonum 
regimen  et  non  tyrannicum  in  quo  plus  praevalet 
communis  utilitas  et  publica  quam  propria  regen- 
tium;  illud  vero  tyrannicum  in  quo  propria  utilitas 
attenditur.  Et  istud  dicit  Egidius  in  III0  libro  De 
regimine  principum  (cap.  XL)  et  istud  est  precipue 
attendendum  quando  tractatur  de  probando  an  aliquis 
sit  tyrannus6."  Bartolus  finally  adds  a  third  species 


2  §  41:    "Sed  hoc  qualiter  poterit  probari,  cum  tails  sit  velatus 
tyrannus,  et  per  se  non  facit,  in  palatiis  raro  intrant,  sed  suis  scriptis 
et  nunciis  regimina  obediunt?    Respondeo  dura  probatio  est.... Item 
quod  ille  talis,  qui  habet  ilium  titulum  est  potentior  homo,  qui  sit  in 
civitate,  et  est  publica  fama  quod  facit  praedicta  fieri,  satis  puto 
probatam  tyrannidem." 

3  §  42.  4  Ibid>  5  §  43j  e  §  44. 


II]  THE   EMPIRE   AND   THE   CIVITATES  369 

of  veiled  tyranny — when  the  tyrant  has  no  title,  but 
yet  "omnia  procedunt  secundum  velle  suum."  As  re- 
gards the  "  probatio  "  of  this  species  of  tyranny  and  the 
validity  of  acts  done  under  it,  the  answer  is  the  same 
as  in  the  case  of  previous  species1. 

In  order  to  complete  our  analysis  of  this  treatise, 
a  few  points  still  remaining  may  be  touched  upon. 
We  notice  that  throughout  Bartolus  is  providing  both 
for  the  Civitas  that  does,  and  for  the  Civitas  that  does 
not,  recognise  a  superior.  In  certain  cases  this  difference 
has  been  followed  by  different  consequences.  In  the 
same  way  the  tyrant  himself  may  have  a  superior,  and 
this  is  very  likely  to  be  the  case  with  tyrants  "ex  parte 
exercitii,"  such  as  dukes  and  counts.  These  the  superior 
must  depose2. 

Secondly  we  have  to  note  the  exceedingly  interesting 
way  in  which  every  conclusion  drawn  by  Bartolus  is 
supported  by  the  authority  of  the  Law  Books  or  the 
Canons.  Bartolus  does  not  attack  tyranny  on  general 
or  ethical,  but  on  strictly  legal,  grounds.  Nothing 
shows  this  better  than  the  various  penalties  to  which 
Bartolus  holds  the  tyrant  amenable.  Tyrants  "ex 
defectu  tituli"  are  amenable  to  the  Lex  Julia  Majes- 
tatis3;  while  tyrants  "ex  parte  exercitii"  fall  under 
the  Lex  Julia  de  Vi  Publica,  the  Lex  Julia  de  Ambitu 
and  many  other  laws ;  perhaps  even  "  in  poenam  capi- 
talem."  And  without  doubt  "  si  existans  in  tali  tyran- 
nide  quoquo  modo  publice  vel  occulte  machinatur  contra 
Principem  vel  ejus  officialem,  ipso  jure  sunt  rebelles 
Imperii,  et  dignitatem  pendunt :  secundum  legem 
novam  Theodosii  Imperatoris4." 

1  §  45.  2  §  31.  3  §  32.  4  §  33. 


170  THE   EMPIRE    AND   THE   CIV1TATES  [CH. 

There  was  however  one  way  in  which  the  tyrant 
might  obtain  a  lawful  title  for  his  government,  an 
expedient  frequently  resorted  to  both  by  the  Popes 
and  by  the  Emperors  of  this  period  in  their  dealings 
with  tyrants.  The  tyrant  might  be  made  an  Imperial 
or  Papal  vicar;  nothing  could  better  illustrate  the 
practical  aim  of  this  treatise  than  Bartolus'  handling 
of  this  point1.  We  cannot  think,  says  Bartolus,  that 
the  Pope  or  the  Emperor  would  acknowledge  the 
obvious  tyrant  and  legalise  his  tyranny  without  good 
cause ;  and  so  he  approves  it  on  the  grounds  of  ex- 
pediency— just  as  a  sailor  throws  overboard  the  less 
valuable,  that  he  may  save  the  more  precious,  goods. 

1  §34.  Bartolus'  words  are  well  worth  quoting:  "Quid  dicimus 
de  his,  quae  videmus  feeisse  summum  Pontificem  et  Imperatorem  et 
legates  (the  Pope  was  of  course  still  at  Avignon)?  Nam  quosdam 
quos  clare  cognoscebant  esse  tyrannos,  quos  per  tyrannidem  detine- 
bant,  et  eos  episcopos,  scilicet  sedis  apostolicae,  vel  Imperii  constitue- 
bant  vicarios ;  ut  fecit  Clemens  VI  in  civitate  Bononiensi  de  domino 
Thaddaeo  de  Populis  et  ejus  filiis.  Hoc  idem  fecit  Carolus  Imperator 
cum  tyrannis  in  Lombardia.  Hoc  idem  dominus  legatus  cum  multis 
tyrannis  fecit  in  Marchia  Anconitana.  Eespondeo,  praesumendum 
est  quod  tanti  domini  hoc  sine  magna  causa  non  faciunt.  Et  potest 
esse  duplex  causa.  Prima,  propter  aliqua  magna  et  ardua,  quae  eis 
expedire  incumbat.  Sicut  enim  diligens  nauta  projicit  viliora,  ut 
sal  vet  pretiosiora...sic  etiam  dominus  Justus  cum  uno  tyranno  per- 
transit,  et  eum  vicarium  facit,  ut  ea  quae  sunt  magna  et  ardua, 
reformare  posset.  Secunda  ratio  posset  esse  charitas  et  dilectio 
eorum,  qui  sunt  sub  tyranno.  Sicut  enim  videmus  naturaliter 
physicos  facere,  quando  una  innrmitas  non  potest  sine  magno  peri- 
culo  personae  curari,  tune  ipsi  procurant  sustentare  naturam,  ne 
innrmitas  procedat  ulterius,  ex  quo  sequitur  quod  natura  semet  ipsam 
adjuvat;  ita  quandoque  rectus  Princeps  facit,  videns  quod  quandoque 
unus  tyrannus  non  potest  deponi  sine  magno  exterminio  eorum  qui 
sunt  sub  tyranno,  propter  bona  eorum  ipsum  tyrannum  facit  vicarium, 
ut  ex  hoc  ille  tyrannus  minus  timeat,  minus  populum  gravet;  et 
interim  casus  occurrit,  per  quern,  suadente  justitia,  sine  populi  detri- 
mento  deponetur  tyrannus  etc." 


II]  THE    EMPIRE   AND   THE   CIVITATES  171 

And  often  it  is  for  the  good  of  the  tyrant's  subjects ; 
since  to  depose  him  at  once  might  mean  the  exter- 
mination of  many  of  them ;  therefore  the  tyrant  is 
made  vicar,  "  ut  ex  hoc  ille  tyrannus  minus  timeat, 
minus  populum  gravet,"  until  later,  in  the  course  of 
events,  the  tyrant  may  be  deposed  without  danger 
to  his  subjects ;  for  if  after  receiving  the  title  he 
acts  tyrannically,  he  is  still  a  tyrant  "ex  parte  exercitii." 
And  so  we  see  that  Bartolus  has  in  no  sense  shut 
his  eyes  to  the  fact  of  tyranny.  He  has  not  been  con- 
structing a  merely  academic  theory  of  the  independence 
of  the  Ci vitas,  while  in  fact  that  Ci vitas,  in  the  majority 
of  cases,  was  falling  or  had  fallen  into  dependence.  On 
the  contrary  he  has  treated  both  the  Civitas  and  the 
tyrant  from  a  distinctly  practical  point  of  view. 
Tyranny,  he  says  again  elsewhere1,  is  the  worst  of  all 
forms  of  government,  and  no  proof  of  this  is  needed. 
It  is  something  not  normal  in  the  life  of  the  Civitas, 
something  monstrous,  that  must  be  taken  into  con- 
sideration, so  long  as  it  lasts,  but  must  not  be  accepted 
as  final.  The  independence  of  the  Civitas  must  therefore 
be  established,  because  the  tyranny  will  pass — though 
God  knows  when2.  Just  for  this  reason,  therefore,  it  was 
important  to  decide  how  far  the  acts  of  tyrants,  while 

1  De  Reg.  Civitatis,  p.  421,  §  27:  "Tyrannus  autem  est  pessimus; 
hoc  autem  est  ita  manifestum,  quod  demonstratione  non  eget." 

2  Cf.   Comment,  on  Codex,  Part  i.   (C.  i.  2.  15),  p.  65:    "Nota 
quod  omnia  facta  tempore  tyrannidis,  superveniente  justo  domino, 
debent  cassari  et  irritari,  quod  nota.     Sed  Deus  scit  quando  super- 
venit  Justus  dominus."     We  have  seen  however  that  all  the  acts  are 
not  to  be  considered   invalid.     With  this   should   be  compared  an 
interesting  passage  in  the  Comment,  on  Dig.  Nov.  Part  n.  (D.  L.  13.  1, 
§  Divus),  p.   680,  §  15;    which  brings  out  how  Bartolus  looks  on 
tyranny  as  an  episode,  liable  to  appear  anywhere,  as  a  not  normal 


172  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

the  tyranny  lasts,  are  valid.  When  Bartolus  tells  us 
that  tyrants  fall  under  the  Lex  Julia  Majestatis  or  the 
Lex  Julia  de  Vi  Publica,  it  may  indeed  seem  that  he  is 
merely  playing  with  Roman  texts  in  a  fanciful  and 
very  unpractical  manner.  But  such  reasoning  would 
strike  the  fourteenth  century  very  differently.  The 
medieval  mind  needed  authority,  and  it  was  no  small 
victory  for  freedom,  when  a  great  lawyer  gave  out  as 
authoritative  that  the  tyrant  was  amenable  to  these 
laws.  This  however  is  but  a  small  part  of  the 
treatise.  As  a  whole  it  is  a  thorough  and  highly 
meritorious  attempt  to  examine  the  nature  of  tyranny, 
to  find  a  standard  for  judging  the  validity  of  its 
acts,  and,  above  all,  to  provide  that  both  the  pass- 
ing away  of  tyranny,  and  the  tyranny  itself,  while  it 
lasted,  should  be  attended  with  as  few  difficulties  as 
possible. 

change  in  the  "status"  of  the  Ci vitas:  "Quaere,  aliquis  est  electus 
potestas  hujus  civitatis.  Post  acceptum  officium,  antequam  vadat, 
ci vitas  mutat  statum  et  ibi  insurgit  quidam  tyrannus,  vel  aliqua 
secta,  ita  quod  exercitium  justitiae  non  remanet  liberum  potestati,  an 
debeat  habere  salarium.  Respon.  sic  integrum.  Videtur  enim  stare 
per  ipsam  civitatem  vel  per  casum  fortuitum  in  ipsa  civitate  contin- 
gentem,  ut  supra  dictum  est  (i.e.  in  the  commentary  on  this  para- 
graph). Juste  enim  timet  qui  non  vult  accedere  sub  ipso  tyranno.... 
Item  secundum  mores  nostrae  civitatis  turpe  et  verecundum  est 
accedere  ad  ilium  locum,  ubi  quis  non  possit  justitiam  libere  exercere: 
ideo  videtur  non  posse  accedere,  cum  honeste  non  possit.... Et  eadem 
ratione  dico  quod  si  durante  officio  insurgit  tyrannus  in  civitate,  vel 
aliqua  secta,  vel  aliquid  fit  ex  quo  rector  non  potest  remanere  sine 
verecundia,  quod  potest  reverti  et  debet  habere  totum  salarium,  Ita 
fuit  observatum  Bononiae  in  persona  domini  Jacobi  de  Gabrielibus, 
quando  venit  legatus.  Et  idem  fuit  observatum  Pisis.  Istud  an 
possit  remanere  sine  verecundia,  vel  non,  debet  intelligi  secundum 
mores  civitatis  nostrae.... Unde  illud  quod  reputaretur  verecundum 
apud  bonos  et  graves  homines,  illud  deberet  timeri." 


Il]  THE   EMPIRE   AND   THE   CIVITATES  173 

But  it  may  be  objected  that  Bartolus  is  here  funda- 
mentally wrong.  Tyranny,  it  may  be  said,  was  not 
a  mere  passing  phenomenon;  the  day  of  the  free  city 
in  Italy  was  over;  and  the  tyrant  was  there  to  stay, 
and  to  lead  straight  on  to  Macchiavelli's  "Principe." 
That  is  all  undoubtedly  true.  But  we  stand  on  this 
side  of  the  Renaissance,  and  can  realise  the  truth. 
Bartolus  lived  in  the  fourteenth  century,  when  tyranny 
was  still  spasmodic,  rising  and  falling  in  the  play  of 
factions,  supplanting  free  government,  and  being  itself 
supplanted  either  by  another  free  government  or  by 
a  new  tyranny;  while  the  bands  of  mercenaries,  which 
in  the  next  century  were  to  be  at  once  the  mainstay 
and  the  ruin  of  the  tyrants,  were  a  still  newer  phe- 
nomenon, the  great  importance  of  which  only  began 
with  the  Italian  expeditions  of  John  of  Bohemia1. 

With  all  reason,  then,  according  to  the  actual  con- 
ditions of  his  time,  Bartolus  does  not  accept  tyranny  as 
more  than  an  episode.  If  the  city  owns  a  superior,  the 
tyrant  usurps  both  the  rights  of  the  Civitas  and  of  the 
superior,  and  is,  if  possible,  to  be  deposed;  where  that 
is  impossible,  it  may  often  be  expedient  to  legalise  the 
tyranny  in  the  form  of  a  vicariate.  If  the  city  owns 
no  superior,  it  is  the  people  itself  whose  rights  are 
Usurped. 

We  shall  therefore  for  the  rest  of  our  analysis  follow 
Bartolus  in  leaving  out  of  account  the  fact  that  actually 

1  Problems  connected  with  the  mercenaries  occur  quite  frequently 
in  Bartolus;  e.g.  in  the  Tract.  Repraesalium,  Quaest.  v.  5,  p.  334, 
§  12,  he  says  that  mercenaries  are  considered  citizens  of  the  place 
where  they  are  earning  their  hire.  And  in  the  Tract,  de  Tyrannia, 
§  41,  one  of  the  methods  of  the  "tyrannus  velatus"  is  to  get  himself 
appointed  "capitaneum  stipendiariorum  vel  gentis  armigerae." 


174  THE   EMPIRE   AND  THE   CIVITATES  [CH. 

the  majority  of  Civitates  were  under  the  power  of 
tyrants,  viewing  tyranny  as  a  non-normal  episode  in 
the  life  of  the  Civitas,  which  leaves  the  rights  of 
the  Civitas  itself  unimpaired.  What  remains  to  be 
considered  we  may  now  divide  under  two  heads.  So 
far  we  have  the  independent  Civitas,  and  considered 
in  its  relations  to  the  Empire,  we  have  seen  it  recog- 
nised as  "sibi  princeps."  Now,  continuing,  we  shall 
consider  it  from  the  point  of  view  of  (i)  its  internal 
government ;  (ii)  its  external  relations  with  other 
political  bodies. 

(i)  The  treatise  De  Regimine  Civitatis1  might  be 
called  the  one  piece  of  writing  by  Bartolus,  in  which 
the  purely  theoretical  political  interest  is  predominant, 
though  even  here  he  gives,  as  the  reason  for  composing 
the  treatise,  that  such  considerations  are  necessary  to 
the  jurist;  and  though,  as  was  natural,  he  depends,  as 
regards  the  theoretical  divisions  of  polities,  on  Egidius 
Romanus  and  the  Aristotelians,  he  is  continually  giving, 
in  his  usual  manner,  practical  examples  from  the  history 
of  his  time  and  from  his  own  experiences. 

Nothing  could  better  illustrate  the  character  of 
the  political  thought  of  Bartolus  than  the  opening 
paragraph  of  this  treatise.  "Quia  haec  est  ultima  pars 
Tyberis,  et  sic  in  urbe  Romana,  quae  caput  est  mundi: 
ideo  circa  modum  regendi  civitatem  aliqua  videamus." 
His  first  inquiry  is — "Quot  modis  regitur  ci vitas?" 
"Ex  legibus  nostris  colliguntur  tres  modi  regendi  boni 
et  tres  ejus  contrarii.  Aliquos  modos  apertius  declarat 
Aristoteles  (3  Politia)  et  ibi  eos  modos  suis  nominibus 
nominat.  Nos  vero  et  de  illis  nominibus  mentionem 
1  pp.  417-21. 


Il]  THE    EMPIRE   AND   THE   CIVITATES  175 

faciemus,  et  nomina  secundum  praesens  tempus  con- 
gruentius  inseremus.  In  urbe  quidem  Romana,  ex- 
pulsis  regibus,  tres  modi  fuerunt  regendi."  We  notice 
how  in  all  this  the  traditions  of  the  Roman  lawyers  are 
meeting  the  new  Aristotelianism.  According  to  the 
former,  the  material  for  investigation  is  "leges  nostrae" 
— Justinian's  Law  Books ;  and  as  a  result  the  Civitas, 
whose  government  is  under  discussion,  will  be  the  Civi- 
tas— Rome.  According  to  the  latter,  the  material  for 
investigation  is  the  Civitas  in  general,  the  TroTu?.  And 
thus  from  the  fusion  of  these  two  lines  of  thought,  we 
get  the  curious  method  pursued  in  the  opening  para- 
graphs of  this  treatise.  Taking  the  history  of  Rome, 
after  the  expulsion  of  the  kings,  he  divides  it  into  three 
periods,  each  of  which  corresponds  to  one  of  the  Aristo- 
telian divisions — IToXtreta,  Aristocracy  and  Monarchy, 
or  their  bad  forms  of  Democracy,  Oligarchy  and  Tyranny. 
Finally  to  each  of  these  Bartolus  applies  "nomina 
secundum  praesens  tempus  congruentius." 

There  are  thus  six  "modi  regiminis,"  three  good 
and  three  bad1.  The  seventh,  unknown  to  Aristotle, 
that  of  the  numberless  petty  Roman  tyrants  of  his 
day,  Bartolus  holds  no  "  regimen,"  but  a  monstrosity2. 

Then  comes  the  question,  which  is  the  best  form  of 
government?  It  is  an  investigation,  says  Bartolus, 
very  necessary  to  the  jurist3.  The  question  is  investi- 
gated by  Aristotle,  but  "clarius"  by  Egidius  Romanus, 
"qui  fait  magnus  philosophus  et  in  theologia  magister"; 
hence  Bartolus  will  follow  him,  and  not  Aristotle,  whose 
words  "juristis,  quibus  loquor,  non  saperent4." 

According  to  Egidius,  then,  "regimen  ad  populum" 
1  §  4.  2  §  5.  3  §  6.  See  above,  pp.  19-20.  4  §  7. 


176  THE   EMPIRE  AND   THE   CIVITATES  [CH. 

is  good,  if  it  fulfils  its  end;  aristocracy  is  better;  but 
monarchy  is  best1. 

Bartolus  next  proceeds  to  set  forth  at  length  the 
reasons  advanced  by  Egidius,  the  dialectical  "oppo- 
sitions" advanced  against  these  reasons  by  Egidius 
himself,  and  his  final  reply  to  these  objections2.  To 
these  Bartolus  appends  some  considerations  of  his  own3, 
and  then  comes  to  the  most  remarkable  and  original 
part  of  his  treatise.  He  makes  a  triple  division 
of  cities  or  peoples4 — the  city  or  "  gens  magna  in 
primo  gradu  magnitudinis,"  the  city  or  "gens  major 
in  secundo  gradu  magnitudinis,"  and  the  city  or 
"gens  maxima  in  tertio  gradu  magnitudinis";  each 
of  these  grades  is  made  to  correspond  with  the  three 
divisions  of  Roman  history. 

The  city  or  "gens  magna  in  primo  gradu  magni- 
tudinis "  should  not  be  governed  either  by  a  monarchy 
or  by  an  aristocracy5.  When  the  Ci. vitas  Romana  was 
"in  primo  gradu  magnitudinis,"  it  expelled  its  kings. 
It  cannot  support  the  expenses  of  monarchy,  and  the 
monarchy  itself  tends  to  become  a  tyranny.  Neither 
is  aristocracy  good.  Either  the  "multitude  populi  de 
illorum  paucorum  regimine  indignabitur,"  as  happened, 
says  Bartolus,  at  Siena6,  or  civil  discords  ensue,  "ut 
saepe  vidimus  in  civitate  PisarumV  No,  the  best 

1  §  7.  2  §§  8-9.  3  §§  10-4.  4  §  15.  5  §  16. 

6  §  16:  "Fuit  enim  (at  Siena)  annis  fere  octoginta  quidam  ordo 
hominum  divitum,  regentium  civitatem  bene   et  prudenter:   tamen 
quia   populi  multitude  indignabatur,    oportebat  eos  praestare    cum 
magna  fortia  militari.     Qui  ordo  depositus  est  in  adventu  Caroli  IV 
illustrissimi  Imperatoris  tune  regnantis.    Ipsius  Principis  factum  com- 
probat,  quod  talis  regendi  modus  in  talibus  civitatibus  non  est  bonus." 

7  Ibid.:   "Aliud  inconveniens  potest  sequi:  quia  ilia  pauca  (sic), 


Il]  THE   EMPIRE   AND   THE   C1VITATES  177 

form  of  government  for  such  cities  is  "regimen  ad 
populum."  Proof  is  to  be  found  in  the  flourishing  state 
of  Rome  when  it  was  so  governed1,  and  in  the  flourish- 
ing state  of  Perugia  to-day — "quae  isto  jure  regitur 
in  pace,  et  unitate  crescit,  floret" — where  its  rulers 
are  elected  "secundum  vices"  and  remain  under  the 
supervision  of  the  electors2.  And  often,  says  Bartolus, 
the  event  proves  that  what  was  done  by  the  popular 
Council,  though  disapproved  by  the  wise,  was  rightly 
done3.  This  regimen  is  "magis  Dei  quam  hominum," 
and  Bartolus  heard  the  Emperor  Charles  IV  com- 
mend it4.  Finally  he  makes  two  important  reservations. 
First  that  "  regimen  ad  populum  "  means,  not  that  the 
government  is  managed  directly  by  the  people,  but 
that  the  "jurisdictio "  is  with  them — "  istud  autem 
regimen  est  sic  dictum,  quando  jurisdictio  est  apud 
populum  seu  multitudinem,  non  autem  quod  tota 
multitude  simul  aucta  regat,  sed  regimen  aliquibus 
per  tempus  committit  secundum  vices  et  secundum 
circulum5."  The  second  reservation  is  that  when  he 
says  that  the  "  regimen  "  is  in  the  multitude,  he  means 
"exceptis  vilissimis  " ;  similarly  too  powerful  magnates 
may  also  be  excluded6.  Bartolus  takes  every  pre- 
caution in  restraining  his  Democracy.  "In  dictis  civi- 
tatibus,  si  honores  et  munera  secundum  gradus  debitos 

ut   naturaliter  evenit,   poterint   inter   se   dividi:    ex   quo   civitatibus 
occurrunt  rumores,  seditiones,  incendia  et  civilia  proelia:    ut  saepe 
vidimus  in  civitate  Pisarum." 
1  Ibid.  2  §  17. 

3  Ibid. :   "  Et  saepe  visum  est  per  consilium  hominum  communium 
deliberari  quaedam,  quae  a  sapientibus  et  prudentibus  malefacta  visa 
sunt:   eventus  vero  manifestavit  esse  prudentissima  facta." 

4  §  18.     At  Pisa  1355.  5  Ibid.  6  §  19. 

w.  12 


178  THE    EMPIRE   AND   THE   CIV1TATES  [CH. 

distribuuntur,  bonum   est  regimen   et  ad   superiorem 
spectat  reformation" 

We  now  come  to  the  "major  gens"  or  "populus 
in  secundo  gradu  magnitudinis2."  For  these  govern- 
ment "per  paucos"  is  best.  So  Rome,  when  she 
had  increased  to  the  second  grade  of  greatness,  was 
governed  by  her  senators.  As  modern  examples  Bar- 
tolus  gives  Venice  and  Florence,  explaining  that  their 
rulers  may  be  said  to  be  "pauci"  with  respect  to 
the  size  of  these  cities,  though  compared  with  other 
cities  they  are  "  multi."  It  is  better  that  they  should 
not  be  too  few,  as  thus  they  remain  more  united. 
This  is  the  best  "  regimen  "  for  the  city  in  the  second 
grade  of  greatness — but,  says  Bartolus,  there  is  no  hard 
and  fast  rule.  If  a  "  gens  "  or  "  populus  "  is  accustomed 
to  some  other  "  regimen,"  then  that  other  "  regimen " 
is  preferable,  and  should  be  preserved3. 

Thirdly  we  have  the  "  gens  "  or  "  populus  maximus 
in  tertio  gradu  magnitudinis4."  This  last  grade  hardly 
refers  to  the  Civitas5,  but  if  there  does  exist  so  great 
a  city,  it  will  be  best  governed  by  monarchy.  So  in 
the  case  of  Rome — "  aucto  multum  Imperio  Romano,  et 
captis  multis  provinciis,  deventum  fuit  ad  unum,  scilicet 

1  §  19.  2J20. 

3  §  21 :    "  Praedicta  vera  nisi  de  antique  regendi  modo  civitatis 
aliud  appareat.     Potest  enim  esse  quod  una  gens  vel  populus  ita 
assuefacti  sunt  certo  modo  regendi,  quod  eis  quasi  in  naturam  con- 
versum  est,  et  aliter  vivere  nescirent :  tune  antiquus  modus  regiminis 
servandus  est." 

4  §§  22-5. 

5  "Hoc  autem  (i.e.  the  tertius  gradus  magnitudinis)  fere  posset 
contingere  in  civitate  una  per  se;    sed  si  esset  civitas,  quae  multum 
aliis  civitatibus  et  provinciis  dominaretur,  huic  genti  bonum  est  regi 
per  unum."    §22. 


Il]  THE   EMPIRE   AND   THE   CIVITATES  179 

ad  Principem."  In  favour  of  monarchy  are  also  all 
the  arguments  of  Egidius,  which  Bartolus  has  already 
examined.  Besides,  in  so  great  a  multitude  there  will 
necessarily  be  many  good  men  to  advise  and  help 
the  king  to  govern  justly — "et  sic  de  facto  com- 
muniter  videmus,  quod  tanto  melius  gens  vel  populus 
regitur,  quanto  sub  majori  vel  potentiore  rege  regitur." 
Monarchy  includes  both  the  Empire  and  particular 
kingdoms,  duchies,  counties,  etc.1.  All  kings  are  elected 
mediately  or  immediately  by  God;  but  "reges  particu- 
lares  sunt  magis  ex  constitutione  hominum":  therefore, 
unlike  the  Empire,  their  kingdoms  go  by  succession. 
It  is  only  with  regard  to  these  particular  kingdoms 
that  we  can  accept  the  statement  of  Egidius  that  suc- 
cession is  preferable  to  election ;  for  the  Empire  must 
go  by  election,  which  is  a  more  divine  method  than 
succession2.  Bartolus  then,  in  a  passage  which  we 
have  already  noticed,  considers  the  translation  of  the 
Empire  from  the  Romans  to  the  Germans.  The  "populi 
parvi"  he  does  not  discuss.  They  are  either  subject  to, 
or  allied  with,  some  greater  power,  and  therefore  not 
independent3. 

Finally   Bartolus   considers   the   three   bad   "modi 
regiminis4."    Of  these  tyranny  is  the  worst,  for  through 

1  §  3:  "  Tertius  regendi  modus  est  per  unum...et  istud  secundum 
Aristotelem  appellatur  regnum.     Nos  vero,  si  iste  est  dominus  univer- 
salis,  appellamus  Imperium...si  vero  particularis,  aliquando  appellatur 
regnum,  aliquando  ducatus,  marchia  vel  comitatus....Ducatus  vero 
communi  nomine  appellamus  regimen  domini  naturalis:    et  hoc,  si 
dictus  dominus  in  communem  et  bonum  finem  tendit.     Si  vero  tendit 
in  malum  finem  et  in  proprium  commodum,  secundum  Aristotelem 
appellatur  tyrannis.     Sic  etiam  secundum  leges  et  mores  appellatur." 

2  §§  23  and  24. 

3  §  26.  4  §  27-9. 

12—2 


180  THE   EMPIRE   AND   THE    CIVITATES  [CH. 

it,  more  than  any  other,  "ab  intentione  communis  boni 
receditur"1— except  for  that  seventh  and  monstrous 
regimen,  "quod  est  nunc  in  urbe  Romana,"  to  which 
Bartolus  here  returns.  And  he  ends  with  a  salutary 
warning  to  the  cities.  "  Item  advertendum  est, 
quod  regimen  plurium  malorum  vel  regimen  populi 
perversi  non  diu  durat,  sed  de  facili  in  tyrannidem 
unius  deducitur.  Hoc  enim  de  facto  saepius  vidimus. 
Hoc  etiam  permissione  divina  est,  cum  scriptum  sit: 
'Qui  regnare  facit  hypocritem  propter  peccata  populi' 
(Job  xxxiv.  cap.),  et  quia  hodie  Italia  est  tota  plena 
tyrannis." 

From  our  analysis  of  this  treatise  it  is  clear  that 
Bartolus,  while  unwilling  to  lay  down  any  general 
statement  that  this  or  that  mode  of  government 
is  absolutely  the  best,  is  of  opinion  that,  for  the 
majority  of  the  Italian  cities  at  least,  government  by 
the  people  is  best.  His  view  of  the  comparative 
value  of  any  form  of  government  is  certainly  signifi- 
cant, it  may  be  even  original.  But  for  the  ordinary 
Civitas,  with  which  we  are  here  concerned,  "regimen 
ad  populum"  is  the  best;  while  we  saw  that  Bartolus 
was  careful  to  point  out  that  this  does  not  mean  that 
the  people  itself  directly  conducts  the  government, 
but  that  it  commits  the  government  to  its  officials 
"secundum  vices  et  secundum  circulum." 

1  "Omnes  philosophi  dicunt  quod  tyrannis  est  pessimus  prin- 
cipatus;  tenet  enim  ultimum  gradum  malitiae."  In  the  government 
of  many,  even  if  bad,  some  part  of  it  may  tend  to  the  common  good : 
"sed  si  unus  est  tyrannus,  etiam  totum  recedit  a  communi  bono. 
Praeterea  sicut  virtus  unita  in  bonum  est  melior,  ita  unita  in  deterius 
est  deterior.  Tyrannus  autem  est  pessimus.  Hoc  autem  est  ita 
manifestum  quod  demonstratione  non  eget."  (§  27.) 


II]  THE   EMPIRE   AND   THE   CIVITATES  181 

The  sovereign  power  resides  with  the  people  as  a 
whole,  collected  in  their  Adunantia  Generalis,  Arenga 
or  Parlamentum ;  the  government  resides  in  the 
Concilium  which  they  elect  and  which  is  then  their 
representative.  Discussing  the  election  of  syndics  and 
officials1,  Bartolus  says  that  this  belongs  to  the  Con- 
cilium— there  is  no  need  for  the  Adunantia  to  make 
the  elections,  since  the  Concilium,  once  elected  by  the 
people  in  its  Adunantia,  "repraesentat  totum  populum2." 
Similarly  statutes  passed  by  the  Concilium  are  "jus 
civile,"  no  less  than  statutes  passed  by  the  whole  people 
in  its  Adunantia,  since  the  Concilium  "repraesentat 
totum  populum3." 

Bartolus  identifies  this  Concilium  with  the  "ordo 
decurionum4,"  as  the  "ordo  per  quern  regitur  civitas"; 

1  Comment,  oil  Codex,  Tres  libri  (C.  x.  31.  2),  p.  37,  §  8:  "Item 
nota  quod  de  jure  communi  ad  concilium  civitatis  spectat  facere 
electiones  officialium  et  syndicorum....Et  sic  non  erit  opus  arenga 
vel  adunantia  generali.  Arenga  tamen  seu  parlamentum  illud,  ubi 
non  est  aliquis  superior,  habet  ab  initio  concilium  eligere....Istud 
concilium  sic  electum  postea  repraesentat  totum  populum."  Cf. 
Comment,  on  Infort.  Part  n.  (D.  xxxvi.  1.  26),  p.  433:  "  Quaero 
qualiter  constituatur  syndicus  a  civitate.  Glossa  notabiliter  dicit,  vel 
fiat  per  adunantiam  generalem  totius  populi,  vel  per  concilium  seu 
ordinem  per  quam  regitur  civitas.  Vel  forte  aliquis  qui  est  syndicus 
ex  lege  vel  ex  consuetudine  sicut  est  hie :  nam  unus  ex  judicibus 
capitanei,  eo  ipso  quod  est  judex  illius  tribunalis,  est  syndicus 
civitatis." 

'2  The  phrase  occurs  repeatedly.  Cf.  Comment,  on  Dig.  Vet.  Part  n. 
(D.  xii.  1.  27),  p.  51,  §  2:  "...Ipsa  civitas  seu  concilium,  quod  totam 
civitatem  repraesentat."  So  cf.  Comment,  on  Dig.  Vet.  Parti.  (D.  i. 
1.  9),  p.  29,  §  16.  Cf.  also  Comment,  on  Dig.  Vet.  Part  i.  (D.  i.  3!  31) , 
p.  60,  §  10. 

3  Comment,  on  Dig.   Vet.  Part  i.   (D.  i.  1.  9),  p.  29,  §  16.      The 
same  rules  apply  to  the  procedure  of  making  statutes  whether  by  the 
Populus  itself  or  the  Concilium,  which  represents  the  whole  Populus. 

4  Vide  e.g.   Comment,  on  Codex,  Part  i.   (C.  iv.  32.  5),  p.  483: 


182  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

and  a  theory  which,  "while  professedly  taken  from  the 
Roman  law  of  the  Decuriones,  is  really  drawn  from  the 
constitutions  of  the  medieval  Italian  city1,"  was  elabo- 
rated in  such  a  way  as  to  restrict  the  competence  of  these 
representatives  of  the  people  strictly  within  the  limits 
of  the  powers  conferred  upon  them  by  the  represented 
people.  The  governing  officials — whether  they  be 
called  Decuriones,  Priores,  Antiani — have  a  certain 
"arbitrium3,"  within  which  they  act  as  the  representa- 
tives of  the  people,  and  beyond  which  they  can  only 
act  by  express  command  of  the  people. 

In  the  elaboration  of  this  theory,  Bartolus,  according 
to  Dr  Gierke,  took  a  leading  part;  we  can  therefore 
not  do  better,  in  order  to  give  a  clear  example  of 
his  democratic  handling  of  the  internal  government 
of  the  Civitas,  than  to  analyse  his  theory  of  the 
relations  of  the  government  to  the  whole  people,  as 
developed  by  him  in  his  commentary  on  the  law  of 
the  Digest  relating  to  the  "ambitiosa  decreta"  of  the 
Decuriones. 

"  Advertatis  quia  concilium  civitatis  aequiparatur  ordini  decurionum  : 
conciliarii  decurionibus." 

1  Vide  Gierke,  Deutsche  Genossenschaftsrecht,  vol.  in.  pp.  394-5. 

2  Vide  e.g.  Comment,  on  Dig.  Nov.  Part  n.  (D.  L.  1.  3),  p.  647,  §  8 : 
"...Si  priores  habent  arbitrium  super  publica  utilitate  communis,  quod 
ipsi  non  possunt  statuere  nisi  de  his  quae  pertinent  ad  publicam  utili- 
tatem  principaliter."    Ibid. :  "  Nota.. .quod  ad  decuriones  pertinet  dare 
tutores,  quod  intelligo  quando  eis  specialiter  esset  permissum,  alias 
non  possent."     Vide  also  how  Bartolus  interprets  the  words  of  the 
law  against  the  "ambitiosa  decreta"  of  the  Decuriones— "  Sed  etsi 
salarium  alicui  decuriones  decreverint,  decretum  id  nonnumquam  ullius 
erit  momenti:  ut  puta  si  ob  liberalem  artem  fuerit  constitutum  vel 
ob  medicinam:    ob  has  enim  causas  licet  constitui  salaria "   (D.  L. 
9.  4).     In  Comment,  on  Dig.  Nov.  Part  n.  (D.  L.  6.  2),  p.  664,  he 
asks  who  can  grant  immunity  from  financial  burdens.     He  answers, 


Il]  THE   EMPIRE   AND   THE   CIVITATES  183 

It  may  be  well  to  give  the  actual  words  of  the 
law 1 :  "  Ambitiosa  decreta  decurionum  rescind!  debent, 
sive  ali quern  debitorem  dimiserint  sive  largiti  sint. 
Proinde,  ut  solent,  sive  decreverint  de  publico  alicujus 
vel  praedia  vel  aedes  vel  certain  quantitatem  praestari, 
nihil  valebit  hujusmodi  decretum.  Sed  etsi  salarium 
alicui  decuriones  decreverint,  decretum  id  nonnumquam 
ullius  erit  moment! :  ut  puta  si  ob  liberalem  artem 
fuerit  constitutum  vel  ob  medicinam :  ob  has  enim 
causas  licet  constitui  salaria."  There  could  be  no 
better  example  than  the  commentary  of  Bartolus  on 
this  law  of  the  way  in  which  the  Postglossators  handle 
the  texts  of  their  Law  Books. 

"  Habeo  istarn  legem  pro  difficili,"  says  Bartolus  in 
beginning  his  commentary2.  He  starts  from  the  nul- 
lity of  these  "  ambitiosa  decreta,"  but  his  preliminary 
discussions  need  not  at  present  detain  us3.  Then 
he  asks  an  important  question — by  whom  are  such 
"  decreta "  to  be  rescinded  ?  The  answer  is,  by  the 
superior,  where  there  is  one;  where  there  is  no  superior, 
by  the  "concilium  majus  civitatis4."  Again,  granted 

"doctoribus  et  medicis  potest  concedi  per  decuriones,  hoc  est  per 
ordinem  civitatis,  aliis  vero  non  posset  concedi  per  illos  et  sic  requi- 
reretur  adunantia  generalis." 

1  D.  L.  9.  4. 

2  Comment,  on  Dig.  Nov.  Part  n.  (D.  L.  9.  4),  pp.  669-73. 

:i  Vide  §§  1-5.  A  short  analysis  of  this  law  will  be  found  in  Gierke, 
op.  cit.,  vol.  in.  p.  295,  note  176.  I  have  thought  it  better,  however, 
here,  as  usual,  to  give  Bartolus'  own  words,  and  by  analyzing  this 
passage  in  detail,  to  give  at  once  a  succinct  view  of  his  democratic 
conception  of  the  relation  of  the  government  to  the  people. 

4  §  6 :  "  Respondeo,  rescindantur  a  superiore,  si  est,  ut  puta  a 
praeside ;  vel  si  non  est  praeses,  puto  quod  poterunt  rescindi  per 
concilium  majus  civitatis... et  net  hoc  ad  petitionem  cujuslibet  de 
populo,  condictione  ex  hac  lege  vel  officio  judicis." 


184-  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

that  the  Decuriones  cannot  donate,  can  the  whole 
people  ?  Yes,  says  Bartolus,  since  the  people  can  pass 
a  law  to  that  end,  at  any  rate  in  cities  which  are  "  sibi 
principes1." 

From  this  Bartolus  passes  on  to  consider  the 
limits  within  which  the  Decuriones  may  exercise  their 
"  arbitria."  "  Et  consueverunt  quandoque  habere  arbi- 
trium  super  bono  et  pacifico  statu  civitatis ;  quandoque 
super  abundantia  habenda  in  civitate,  quandoque  super 
custodia  civitatis,  quandoque  consueverunt  habere 
arbitrium  ut  pecunia  veniat  in  communi,  et  super 
multis  aliis,  quae  factorum  varietas  introduxit2."  From 
which  Bartolus  deduces  that,  by  virtue  of  such  "  arbi- 
trium," their  authority  is  confined  within  the  following 
limits3: — They  cannot  reinstate  exiles,  unless  the  right 

1  §  7 :  "  Posito  quod  decuriones  ipsi  non  possint  donare,  ut  dictum 
est:  an  populus  totus  possit  donare?    Puto  quod  sic,  quod  apparet: 
quia  potest  de  donando  legem  facere...quod  sine  dubio  procedit  in 
illis  civitatibus   quae   de    facto    in   temporalibus  non  recognoscunt 
superiorem,  et  sic  ipsi  in  se  habent  imperium." 

2  §8. 

;<  Vide  §§  8-16 :  ' '  Sciendum  est  ergo  quod  ex  virtute  dicti  arbitrii 
vel  alicujus  eorum  no'n  possunt  rebannire  exbannitos,  nisi  hoc  sibi 
expresse  permiserit  populus,  qui  in  civitate  sua  dicitur  princeps.... 
Item  non  possunt  aliquam  sententiam  condemnatoriam  tollere....Item 
non  possunt  executionem  alicujus  sententiae  suspendere  ultra  tempus 
trium  mensium....Et  sic  apparet  quod  decuriones,  qui  quandoque 
suspend unt  executionem  sententiae  in  tempora  prolixiora,  non  juri- 
dice  faciunt;  totus  autem  populus,  qui  in  poenis  a  se  impositis  loco 
Principis  habetur,  possit  hoc  facere....Item  non  possunt  ex  virtute 
dicti  arbitrii  vel  alicujus  eorum  mutare  ordines  et  regimina  civi- 
tatum....Nam  arbitrium  quod  habent  super  bono  et  pacifico  statu 
civitatis,  intelligitur  de  praesenti....Praedicta  vere  nisi  esset  eis 
specialiter  permissum.  Item  immobilia  civitatum  non  possunt 
alienare,  nisi  specialiter  hoc  eis  permittatur....Item  ex  vigore  dicti 
arbitrii  non  possunt  statuere  aliquid,  quod  sit  contra  statuta  et 
ordinem  factum  a  toto  populo,  a  quo  ipsi  auctoritatem  habent,  nisi 


Il]  THE   EMPIRE   AND   THE    CIVITATES  185 

is  specially  granted  to  them  by  the  people.  They  can- 
not revoke  a  condemnatory  sentence,  nor  suspend  the 
execution  of  any  sentence  beyond  three  months,  though 
the  whole  people  can  do  so.  They  cannot  alter  the 
"  ordines  et  regimina  civitatum,"  for  their  "  arbitrium 
super  bono  et  pacifico  statu  civitatis  "  onl}'  applies  "  de 
praesenti " ;  hence  to  make  such  alteration,  special 
permission  is  necessary.  They  cannot  pass  any 
statute  contrary  to  a  statute  or  order  of  the  whole 

de  novo  supervenisset  causa,  vel  causa  antiqua,  quae  esset  de  novo 
manifestata,  quam  tempore  legis  conditae  populus  ignorabat....Item 
ex  virtute  dicti  arbitrii,  vel  alicujus  eorum,  non  possunt  facere  statu- 
tum,  per  quod  jus  proprium  jam  quaesitum  alicui  auferatur;  licet 
enim  totus  populus  posset.... Et  ideo  ex  virtute  talis  arbitrii  non 
possunt  (i.e.  the  decuriones)  debitores  aliquorum  liberare  vel  similia 
facere.  Sed  juxta  praedicta  quaero,  an  debitoribus  possint  dilationem 
concedere  ex  virtute  alicujus  arbitrii  praedictorum.  Kespondeo,  non 
puto  ultra  tempus  trium  mensium  vel  ultra  illud  quod  alias  debitores 
habeant....Sed  an  possint  judicibus  civitatum  auctoritatem  tollere 
vel  interdicere  jurisdictionem  super  petitione  dictorum  debitorum, 
respondeo — si  quidem  judices  praedicti  non  habent  jurisdictionem 
ab  ordine  illo  (i.e.  the  decuriones),  sed  magis  a  majori  concilio,  ipsi 
(i.e.  the  decuriones)  non  possunt  jurisdictionem  illam  auferre.  Si 
vero  habent  ab  ordine  illo,  tune  auferre  possent,  cum  ipse  ordo 
remaneret  judex....Item  an  virtute  alicujus  arbitrii  de  praedictis 
possit  novas  gabellas  et  vectigalia  imponere  ?  Et  intelligo  praedictam 
quaestionem,  posito  pro  constant!  quod  civitas  ipsa  seu  populus  possit, 
prout  de  facto  videmus  facere,  licet  de  jure  non  possit.... Respondeo : 
si  quidem  in  ilia  civitate  vectigalia  et  gabellae  non  sunt  solitae  im- 
poni,  ordo  eas  imponere  non  potuit,  nisi  specialiter  sit  eis  permissum. 
Hie  enim  est  casus,  qui  reservatus  est  populo,  qui  in  sua  civitate 
imperium  habet,  seu  obtinet  vicem  Principis,  sicut  reservatur  Principi 
universali....Si  vero  civitas  consuevit  tempore  necessitatis  imponere 
gabellas,  tune  imponere  poterunt.  Hoc  enim  potest  venire  in  illo 
arbitrio,  quod  de  more  populi  est.... Item  an  possit  ex  virtute  alicujus 
arbitrii  de  praedictis  institui  nova  guerra.  Kespondeo :  potest  pro 
defensione  civium  et  suorum  jurium.  Alias  autem  pro  recuperatione 
rerum  perditarum  ex  intervallo,  ut  pro  invadendo  res  alterius,  non 
possent  sine  auctoritate  populi  vel  majoris  concilii." 


186  THE    EMPIRE   AND   THE   CIVITATES  [CH. 

people,  from  whom  they  hold  their  authority,  unless 
new  circumstances  have  arisen,  which  were  not  present 
when  the  people  originally  passed  their  statute.  Nor 
can  the  Decuriones  take  away  by  statute  "jus  proprium 
jam  quaesitum  alicui";  they  cannot  by  statute  liberate 
debtors,  nor  can  they  grant  a  "  dilationem  "  to  debtors 
beyond  three  months  or  whatever  may  be  the  customary 
period.  Nor  can  they  interpose  between  the  Judices 
of  the  city  and  debtors,  on  petition  of  the  latter,  unless 
these  Judices  receive  their  jurisdiction  from  the  order 
of  Decuriones  itself;  since  then,  indirectly,  the  order  is 
Judex.  But  if  the  Judices  hold  their  jurisdiction  from 
the  "concilium  majus,"  then  the  Decuriones  cannot 
interfere.  As  to  the  right  to  impose  "  novas  gabellas 
et  vectigalia,"  if  we  grant  that  the  people  itself  can  de 
jure  impose  these  taxes,  as  de  facto  they  do,  then 
whether  the  Decuriones  can  do  so  depends  on  custom. 
If  they  do  not  by  custom,  then  they  can  only  do  so 
by  special  permission ;  otherwise  the  right  is  reserved 
to  the  "populus  sibi  princeps."  War  may  be  waged 
by  the  Decuriones  only  in  defence  of  the  citizens  and 
their  rights;  offensive  war  requires  the  authority  of 
the  whole  people  or  the  "concilium  majus." 

Bartolus  now  propounds  five  general  rules1 : — 

(1)  "Quod    habentes    arbitrium    super    aliquo 
possunt   omnia   facere  quae  principal!  ter  spectant  ad 
id  super  quo  habent  arbitrium." 

(2)  "  Quod    possunt   statuere   et    facere   omnia 
antecedentia  propter  quae  ad  illud  perveniri  potest." 

(3)  "  Quod  possunt  statuere  et  facere  omnia  con- 
sequentia  sinequibusillud commode  explicarinon potest." 

1  Vide  S  17. 


ll]  THE    EMPIRE   AND   THE    CIVITATES  187 

(4)  "  Quod  non  possunt  aliquid  facere  vel  statuere 
super  eo,  quod  non  spectat  ad   id   super  quo  eis  est 
concessum  arbitrium." 

(5)  "  Quod  non  possunt  aliquid  facere  vel  statuere 
super  eo,  quod  est  accessorium  alterius,  quod  non  spectat 
ad  id,  super  quo  eis  est  concessum  arbitrium." 

Bartolus  now  reduces  these  five  general  rules  "  ad 
practicam,"  giving  examples  of  each,  from  which  we 
may  select  the  following : — 

(1)  "Arbitrium   super    bono    et   pacifico   statu 
civitatis  "  is  given  to  the  priors  of  Perugia.     Therefore 
in  virtue  of  such  "arbitrium"  they  can  compel  "homines 
habentes  insimul  inimicitias  "  to  keep  the  peace1.    This 
"  arbitrium   super  bono  et  pacifico  statu  civitatis  "  is 
very  wide,    Bartolus  remarks,  including   "  arbitrium  " 
over   "almost   everything."     However,  we   saw  above 
that  it  only  applies  "de  praesenti." 

(2)  Those   who   have    "arbitrium   super   abun- 
dantia "    can    decree    that    rustics    need    not    attend 
personally  in  the  city  as  witnesses  for  more  than  one 
day,  and  can  serve  "  ad  custodiam  civitatis  "  through 
a  substitute,  that  so  agriculture  may  not  be  impeded2. 

1  "Datum  est  prioribus  hujus  civitatis  arbitrium  super  bono  et 
pacifico  statu  civitatis.    Certe  hujus  vigore  poterunt  homines  habentes 
insimul  inimicitias  cogere  ad  pacem....Scias  ergo  quod  illud  arbitrium 
super  bono  et  pacifico  statu  est  multum  latum;   comprehendit  enim 
arbitrium  super  abundantia,  super  custodia,  quasi  super  omnibus." 
Vide  §§  18,  19. 

2  ' '  Habentes  arbitrium  super  abundantia  volunt  facere  statutum 
quod   rustic!   non  possunt   detineri   in  civitate  pro  testimonio  ultra 
unam   diem,   vel   quod   rustici   non  cogantur  personaliter  venire   ad 
custodiam   civitatis,    sed    possunt    servire    per   substitutum,    adjecta 
causa,  ut  cultura  agrorum  non  impediatur,  et  habeatur  abundantia  in 
civitate."     Vide  §§  20-2. 


188  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

(3)  "Ex  hoc   sequitur   quod  possunt   terminos 
certos    imponere    ad    implendum    quod    statuunt    et 
mandant  etc.1" 

(4)  "  Haec  regula  est  clarissima,"  says  Bartolus, 
and  he  gives  no  example 2. 

(5)  If  those,  who  have  "arbitrium  ut  pecunia 
veniat  in  civitate,"  decree  a  new  offence  and  affix  a 
penalty  to  it,  "  ut  si  quis  opposuerit  aliquam   excep- 
tionem,  et  non  probaverit,  puniatur  in  tantum,"  the 
decree  is  not  valid,  since  the  punishment  is  always 
"  accessoria  ad  delictum3." 

It  is  unnecessary  for  our  purpose  to  carry  the 
analysis  further. 

The  importance  of  this  very  democratic  conception 
of  the  internal  government  of  the  Civitas  is  obviously 
greatest  for  the  independent  city,  that  is  "  sibi  prin- 
ceps."  Yet  we  must  realise  that  Bartolus  himself  does 
not  advance  it  as  a  theory  applicable  merely  to  the 
independent  city.  "  Regimen  ad  populum "  is,  he 
considers,  the  best  form  of  government  for  the  city, 
"in  primo  gradu  magnitudinis,"  and  whether  the 
city  has  a  superior  or  not,  is  accidental.  We  saw 
above  that  Bartolus  allowed  any  city,  even  one  with 
no  jurisdiction,  to  make  statutes  pertaining  "  ad  ad- 
ministrationem  rerum  ipsius  populi,"  without  the 
authority  of  the  superior,  provided  that  they  were 
not  "ambitiosa  decreta."  So  here,  if  there  is  a  superior, 

1  Vide  §§  23-5.  2  Vide  §  26. 

:$  ' '  Habent  arbitrium  ut  pecunia  veniat  in  communi :  ideo  statuerunt 
aliquid  esse  delictum,  cum  prius  non  erat,  et  poenam  imposuerunt  ut 
si  quis  opposuerit  aliquam  exceptionem,  et  non  probaverit,  puniatur  in 
tantum.  Certe  hoc  non  valet;  nam  poena  semper  et  omni  respectu 
est  accessoria  ad  delictum."  Vide  §26. 


H]  THE   EMPIRE   AND   THE   CIVITATES  189 

it  is  he  who  will  rescind  the  "  ambitiosa  decreta"; 
where  there  is  no  superior,  the  people  will  do  so  itself, 
since  the  people  is  "  sibi  princeps,"  is,  if  one  can  say  so, 
its  own  superior. 

The  whole  trend  of  the  political  theories  of  Bartolus 
was  in  the  direction  of  a  separation  of  sovereign  and 
non-sovereign  bodies,  but  it  is  the  goal,  never  the 
starting-point,  of  his  theories.  Just  as  the  Civitas, 
whether  independent  or  dependent,  has,  as  a  corporation, 
the  right  to  legislate,  while  independence  only  widens 
the  range  within  which  its  legislation  is  valid  without 
the  consent  of  a  superior,  so  this  democratic  theory 
of  the  internal  government  of  the  city  is  not  based 
upon  the  independence  of  the  city,  but  upon  the 
conception  of  the  government,  as  a  representation  of 
the  Universitas — and  a  representation  rather  of  the 
whole  people,  of  "  omnes  ut  universi,"  than  of  a 
juristic  "person,"  distinct  from  the  sum  of  the  indi- 
viduals who  compose  it1. 

In  this  connexion  we  must  not  pass  over  the  treatise 
by  Bartolus,  De  Guelphis  et  Gebellinis.  It  exhibits  to 
the  full  his  continual  care  for  the  actual  problems 


1  Vide  Gierke,  Deutsclie  Genossemchaftsrecht,  vol.  in.  p.  394, 
which  must  be  considered  in  connection  with  what  he  has  said, 
pp.  362-8,  as  to  the  Postglossators'  conception  of  the  personality  of 
the  corporation.  Vide  especially  p.  366:  "Das  Resultat  war  dass 
man  die  Idee  der  Fiktion  festhielt,  aber  beziiglich  des  Inhalts  dieser 
Fiktion  unsicher  und  willkiirlich  zwischen  zwei  einander  wider- 
sprechenden  Auffassungen  schwankte,  von  denen  man  je  nach 
Bedurfniss  die  eine  oder  die  andere  herauskehrte.  Denn  bald  setzte 
man  als  Inhalt  der  Fiktion  die  Erzeugung  eines  kiinstlichen  In- 
dividuum  iiber  und  neben  einer  Summe  hiervon  unberiihenden 
Individuen,  bald  fand  man  in  ihr  nur  die  Behandlung  eine  in 
Wahrheit  vielheitlichen  Gesammtheit  als  einer  juristischen  Einheit." 


190  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

of  his  day.  No  thinker  was  ever  less  doctrinaire.  For, 
granted  that  the  Populus  was  the  origin  of  all  power, 
was  the  State  itself,  the  fact  remained  that  in  nearly 
every  State  the  people  was  divided  into  two  hostile 
parties,  often  each  with  a  recognised  organization  of 
its  own.  It  is  this  which  gives  point  to  the  remark 
that,  though  the  Concilium  can  come  together  un- 
summoned,  its  acts  will  only  be  valid  so  long  as  they 
are  not  to  the  prejudice  of  anyone  not  present1.  Now 
in  the  Italian  cities  of  the  Middle  Ages  we  may  be 
pretty  sure  that  there  usually  were  "  aliqui  absentes." 
One  party  was  usually  triumphant  at  the  complete 
expense  of  the  other,  triumphant  in  a  sense  that 
excluded  the  other  party  from  all  share  in  the  public 
life  of  the  city.  With  this  in  view  Bartolus  lays  down2 
that,  in  the  passing  of  statutes,  two  "  partes  "  must  be 
summoned  to  the  Adunantia  or  the  Concilium,  which 
represents  the  whole  people,  and  that  the  decision  rests 
with  the  majority.  But  what  if  one  "  pars "  has  ex- 
pelled the  other?  If  the  one  "pars"  is  absent  voluntarily, 
then  "  remanet  tota  potestas  in  praesentes."  But  if 
they  have  been  expelled,  then  either  they  had,  or  had 
not,  the  "jus  condendi  statuta,"  that  is  to  say,  they 
were  "  de  concilio  "  or  not ;  in  the  case  of  a  democracy, 
such  as  Bartolus  considers  best  for  the  average  city,  of 
course  they  would  be.  If  however  they  were  not,  and 

1  Vide  Comment,  on  Codex,  Tres  libri  (C.  x.  31.  2),  p.  37,  §  3: 
' '  Quaero  quid  si  non  apparet  concilium  convocatum  ?  Kespondeo  si 
quidem  essent  omnes  praesentes,  valeret  concilium  quando  non  est 
qui  laeditur  ex  hoc  convocati  non  sunt.  Sed  si  aliqui  essent  absentes, 
tune  non  valeret  concilium;  potuissent  enim  praesentia  eorum  ab- 
sentium  trahere  alios  in  suam  sententiam." 

a  Comment,  on  Dig.  Vet.  (D.  i.  1.  9),  pp.  29-30,  §§  16,  17. 


II]  THE    EMPIRE   AND   THE   CIVITATES  191 

therefore  had  no  share  in  the  "jus  condendi  statuta," 
their  absence  is  immaterial.  In  the  contrary  case, 
when  they  were  "  de  concilio,"  we  have  to  consider 
if  they  were  expelled  "  ex  justa  causa."  If  they  were, 
again  their  absence  is  immaterial — "quia  cum  non 
obediant  civitati  suae,  perdunt  onmia  jura  propria 
civitatis,"  among  which  is  the  "jus  condendi  statuta." 
If  they  were  not  expelled  "ex  justa  causa,"  then,  though 
perhaps  the  statutes  made  by  the  one  "  pars  "  will  bind 
that  "pars,"  they  cannot  prejudice  those  who  have  been 
unjustly  expelled1. 

Coming  to  the  treatise2  itself,  Bartolus  records 
the  state  of  affairs  at  Todi,  where,  we  remember,  he 
had  been  Assessor.  In  Todi  the  government  was 
divided  equally  between  the  two  parties.  Near  Rome 
— "  infra  centesimum  lapidem  ab  urbe  Romana  " — he 
realised  that  "  ea  quae  literaliter  scripta  sunt  de 
flumine  et  alveo,  allegorice  et  moraliter  dici  possunt 
de  his  quae  in  civitate  Tudentina  praecipue  fre- 
quentantur.  Nam  tota  nostra  vita  flumen  seu  aqua 
fluminis  est....Alveus  vero  super  quern  istae  aquae 
decurrunt  sunt  ilia  ad  quae  affection es  habemus....In 
ilia  vero  civitate  Tudentina  reperi  duas  affectiones ; 
quidam  enim  vocantur  Guelphi,  quidam  Gebellini ;  et 
ibidem  in  quolibet  officio  publico  debebant  esse  tot  de 
una  affectione,  quot  de  alia3."  The  origin  of  these 
"affectiones"  was  the  "magna  discordia  orta... inter 
Romanam  Ecclesiam  et  Federicum,  qui  vocatus  est  Bar- 
barossa,  tune  Romanorum  Imperatorem."  In  Germany 

1  "  Licet  statuta  facta  per  remanentes,  serventur  forte  quantum  ad 
eas...tamen  in  praejudicium  expulsorum  non  possunt." 
-  pp.  414-17.  3  Proem. 


192  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

certain  relatives  of  Frederick  were  named  "  domini  de 
Gebello,"  and  so,  when  the  discord  divided  Italy,  those 
siding  with  the  Emperor  were  called  "  Gebellini,  quasi 
adhaerentes  illo  domino  de  Gebello.  Alii  vero  adhae- 
serunt  Ecclesiae  et  vocati  sunt  Guelphi,  quasi  zelatores 
fidei1." 

Nowadays,  however,  these  terms  are  applied  quite 
apart  from  affection  to  the  Empire  or  to  the  Church-; 
and  the  rest  of  the  treatise  is  occupied  with  con- 
sidering various  problems  arising  from  the  existence 
of  these  two  parties,  illustrated,  as  is  usual  with 
Bartolus,  by  examples  drawn  from  the  city-life  of 
Italy.  Most  important  is  the  discussion  as  to  the 
lawfulness  of  these  factions,  and  whether  it  becomes  an 
honourable  man  to  belong  to  them.  Shortly,  they  are 
lawful,  so  far  as  they  tend  to  the  "  bonum  publicum3"  ; 
but  it  does  not  become  an  honourable  man  to  assume 
the  name  of  either  faction  "  nisi  ex  magna  causa4." 

1  §  1.     Bartolus  continues  by  giving  a  fanciful  "  figura  "  of  either 
party;  of  the  Ghibellines  from  the  Book  of  Kings — "  ubi  fuit  con- 
nictus  et  occisus  in  monte  gebello,  qui  interpretatur  locus  fortitudinis  "  ; 
of  the  Guelphs  from  Genesis—"  Guelpha  interpretatur  os  loquens,  ita 
Guelphi  interpretantur  confidentes  orationibus  et  in  divinis,  etc." 

2  §  2:   "  Videmus  enim  quam  plures,  qui  Guelphi  vocantur,  esse 
re  belles  Ecclesiae  et  alios  quam  plures,  qui  Gebellini  vocantur,  esse 
re  belles  Imperii :  sed  sicut  contingit  in  provinciis  et  in  civitatibus,  in 
quibus  sunt  divisiones  et  partialitates,  necesse  est  ut  dictae  paries 
aliquo  nomine  vocentur;    ideo  dicta  nomina  imponuntur  iamquam 
magis  communia  etc." 

3  §§  6-10. 

4  §§  9-10:   "  Dico  ergo  quod  assumere  dicta  nomina,  licet  signi- 
ficant divisionem  et  partialitatem,  tamen  si  fiat  ad  justum  et  debitum 
finem,  licitum  est.     Nam  et  Paulus  Apostolus,  sciens  quod  una  pars 
esset  Saduceorum,  altera  Phariseorum,  exclamavit  in  concilio,  Viri, 
fratres,  ego  Phariseus  sum,  filius  Phariseorum.     Multos  tamen  vidi 
Perusii  cum  contra  tyrannos  facerent  seditionem,  licet  sancto  et  justo 


Il]  THE   EMPIRE   AND   THE    CIVITATES  193 

Further,  we  have  discussions  of  problems  which  neces- 
sarily arose  with  regard  to  the  proof  of  adhesion  to 
either  faction.  Thus,  a  man  is  a  Guelph  by  birth,  but 
becomes  podesta  or  rector  of  a  Ghibelline  city — is  he 
Guelph  or  Ghibelline1  ?  This  was  not  merely  an  abstract 
legal  riddle ;  it  was  a  very  concrete  communal  problem. 
For  example — "statutum  est  Pisis  quod  nullus  Guelphus 
ad  officium  aliquod  remittatur2."  Now  suppose  a  Pisan 
becomes  rector  of  the  Guelph  city  of  Perugia.  Bartolus' 
answer  is  typically  practical :  he  is  a  Guelph  in  Perugia, 
a  Ghibelline  in  Pisa — "  cum  respectu  diversorum  potest 
quis  esse  diversarum  affectionum3."  We  take  this  as 
a  sample,  but  the  whole  treatise  illustrates  the  best 
qualities  in  the  mind  of  Bartolus — its  grasp  of  fact 
and  its  great  good  sense4. 

Finally,  we  may  well  quote   here   one   other  pas- 
sage5.    "  Valet,"  says  Bartolus,  "  quod  relinquitur  parti 

zelo  moverentur;    quia  praedicta  nomina  divisionem   et  scissuram 
important,    puto   quod   honesto   viro    non    deceat   aliquod    dictorum 
nominum  assumere,  nisi  ex  magna  causa." 
1  Vide  §  16.  2  §  14. 

3  §  16 :  "  Sed  si  poneres  unum  Pisanum  esse  rectorem  in  civitate 
Perusii,  cujus  status  Guelphus  est,  tamen  non  adversatur,  sed  ami- 
catur  civitati  Pisarum :  tune  licet  ille  talis  sit  Guelphus  Perusii ;  non 
tamen  per  hoc  dicitur  Guelphus  Pisis,  nee  statute  comprehenditur ; 
cum  respectu  diversorum  potest  quis  esse  diversarum  affectionum." 
Bartolus  considers  the  practice  obtaining  in  some  cities  of  having 
a  book,   in  which  the    "  aff  ectio  "   of   all  the  citizens  is  inscribed, 
"  odiosum  et  contra  equitatem." 

4  Vide  also  §§8-9,  where  he  maintains  that,  though  "  partialitas  " 
which  aims  at  altering  the  form  of  government  is  unlawful,  yet  in  the 
case  of  a  tyranny  it  is  lawful.     For  in  this  case  it  is  "  ad  utilitatem 
publicam."    "Pro  hoc  induce  Thomam  de  Aquino...  ubi  sic  ait,  regnum 
tyrannicum  non  est  justum."     But  such  "  partialitas  "  must  not  lead 
to  a  new  tyranny  or  to  a  great  injury  to  the  state. 

5  Vide  Comment,  on  Infort.  Part  n.  (D.  xxx.  1.  10),  p.  27. 

w.  13 


194  THE   EMPIRE   AND  THE   CIVITATES  [CH. 

civitatis  hoc  dicit.  Lambertus  de  Ramponibus  dicebat 
per  istum  textum  quod  pars  expulsa  de  civitate  potest 
facere  syndicum....Cynus  dicebat  contrarium,  quia  col- 
legium est  reprobatum  eo  ipso  quod  non  est  approbatum. 
...Credo  dom.  Lambert. dicere  verum  quod  posset  facere 
syndicum.  Arguit  pro  hoc  supra... ubi  pars  expulsa 
fecit  leges,  quae  approbatae  fuerunt.  Arguit  pro  hoc, 
quia  cuilibet  est  permissum  facere  collegium  ad  suam 
justitiam  consequendam....Unde  si  faciunt  syndicum 
ad  compromittendum  cum  intrinsecis,  ut  pacem  possint 
facere,  valet.  Et  ita  de  facto  observatur.  Quaero, 
quid  si  legatur  uni  parti  civitatis,  ut  sectae?  Re- 
spondeo  illud  non  valet,  quia  collegium  est  improba- 
tum,  quoniam  per  sectas  illas  in  damnum  reipublicae 

contenditur In  quibusdam  tamen  civitatibus  eorum 

statutis  talia  collegia  approbantur,  ut  in  civitate  ista, 
ubi  sunt  capitanei  partis  Guelphae.  Quaero;  una 
pars  est  expulsa  de  civitate,  pars  quae  remanet  intus 
submittit  civitatem  alteri,  et  etiam  pars  quae  est  extra, 
quaelibet  separatim:  an  valeat  ?  Arguendo  dico  videri 
quod  non,  quia  debent  conveniri  insimul....Et  hoc 
videtur  sensisse  Bonifacius  Papa  in  quibusdam  literis 
ad  perpetuam  rei  memoriam  concessis  civibus  Tuden- 
tinis,  ubi  jam  ille  casus  occurrit." 

We  see  that  the  parties  are  considered  as  "  collegia." 
This  is  important  in  two  ways.  In  the  first  place,  once 
recognise  them  as  "  collegia  approbata,"  and  as  such  you 
recognise  their  legality  and  internal  independence— 
their  right  to  have  their  own  officers  and  to  legislate 
for  themselves1  (inter  se).  Such  recognition  was 

1  Vide  Comment,  on  Dig.   Vet.  Part  i.   (D.  i.  1.  9),  p.  27,  §  6 : 
"Collegia  licita  et  approbata"  can  make  statutes  "in  his  in  quibus 


II]  THE    EMPIRE   AND   THE    CIVITATES  195 

essential  in  the  actual  state  of  Italian  politics.  But 
secondly,  if  they  are  "  collegia  approbata,"  they  must  be 
formed  "  ad  suam  justitiam  consequendam."  If  they 
are  merely  sects  "  ad  damnum  reipublicae,"  they  are 
not  licit.  And  so  we  see  that,  while  the  factions  are 
recognised,  they  are  recognised  only  so  far  as  is 
consistent  with  the  good  of  the  whole  State.  The 
two  parties  are  corporations,  but  parts  of  that  larger 
corporation,  which  includes  the  whole  people ;  and  thus 
even  though  both  parties  should  agree  separately  to 
something  detrimental  to  the  interests  of  the  whole 
State,  as,  for  example,  submitting  it  to  another  power, 
their  act  would  not  be  valid.  It  would  only  be 
valid  if  done  by  the  whole  Universitas  of  the  people, 
not  by  its  two  constituent  parts  separately,  though  in 
agreement.  The  factions  are  recognised1,  but  the 
"  bonum  publicum "  is  the  limit  of  their  lawfulness, 
(ii)  We  have  now  come  to  the  last  subject  of  inquiry 
in  our  attempt  to  reconstruct  the  political  thought  of 
Bartolus.  We  have  traced  the  independence  of  the 
Civitas  through  various  stages.  We  have  noted,  to 
begin  with,  the  acknowledgment,  which  runs  through- 
out his  thought,  that,  right  apart,  the  majority  of 
Italian  cities  do  not  in  fact  obey  the  Emperor  or 

habent  jurisdictionem  et  quo  ad  ea  quae  ad  ipsos  collegiatos  pertinent." 
So  a  part  or  quarter  of  a  city  can  make  statutes,  not  "ad  causarum 
decisionem,"  except  with  the  consent  of  the  whole  people,  but  "ad 
modum  expediendi  ea  quae  incumbunt  ipsi  parti  seu  quarterio." 
Such  a  quarter  is  a  "collegium  approbatum,"  but  "  jurisdictio " 
resides  only  "in  toto  populo  vel  concilio  quod  populum  reprae- 
sentat."  (§7.) 

1  In  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLVII.  22.  4),  p.  407,  §  10, 
all  "  sectae  et  colligationes  sunt  prohibitae  quae  non  fiunt  super  his, 
quae  habent  simul  tractare." 

13—2 


196  THE    EMPIRE   AND   THE   CIVITATES  [CH. 

regard  him  as  their  superior.  We  have  then  seen 
the  independence  of  these  cities  confirmed  in  four 
important  points — the  applicability  of  the  term  Res- 
publica,  the  rights  connected  with  the  Fiscus,  the 
exercise  of  Merum  et  Mixtum  Imperium,  and  the 
right  to  make  particular  laws  or  statutes.  Finally, 
we  have  seen  such  cities  acknowledged  to  be,  within 
their  own  limits,  the  Empire  itself  in  miniature,  to 
be  "  sibi  priricipes."  On  the  other  hand,  we  must  not 
forget  the  limitations  to  this  independence.  We  have 
seen  the  Civitates,  like  the  Regna  and  the  clergy, 
retained  within  the  Populus  Romanus,  and  this  was 
expressly  done  on  the  ground  that  they  must,  in  spite 
of  disobedience,  acknowledge  the  Emperor  as  de  jure 
"dominus  omnium" — otherwise  they  would  all  be 
heretics.  We  can  the  better  realise  the  possibility  of 
this  by  remembering  that  the  Empire  is  "  universitas 
quaedam1."  It  is  a  "universitas,"  embracing  the  world, 
but  individual  parts  are  also  "  universitates."  So  a 
particular  "universitas"  may  be  internally  independent, 
while  still  necessarily  a  part  of  the  "  world-universitas," 
its  whole;  and  this  internal  independence  itself,  grounded 
upon  concession,  prescription  or  usurpation,  can  be  ac- 
cepted as  a  fact,  without  destroying  the  theoretical 
universality  of  the  Empire.  Now  this  reasoning  may 
not  be  altogether  and  logically  satisfactory;  and  the 
result  is  here  and  there  an  inconsistency,  not  so  much 
perhaps  in  the  thought,  as  in  the  diction,  of  Bartolus. 
Thus,  as  we  have  noticed,  Bartolus  will  occasionally 

.  1  Vide  above,  p.  22:  "Mundus  est  universitas  quaedam;  unde 
potest  quis  habere  dictam  universitatem,  licet  singulae  res  non  sint 
suae." 


Il]  THE   EMPIRE    AND   THE   CIVITATES  197 

talk  of  cities  which  are  de  jure  not  "sub  imperio1." 
But  that  is  exceptional,  and  it  is  of  the  utmost  im- 
portance to  realise  that,  generally  and  regularly,  Bartolus 
is  conceding  independence  rather  of  the  Emperor,  than 
of  the  Empire. 

In  truth  the  Empire,  if  not  the  Emperor,  was 
still  necessary.  The  conception  of  the  "Civitas  sibi 
princeps "  provided  for  the  internal  independence  of 
the  State  and  made  possible  its  acceptance  of  Roman 
Law  without  the  conclusion  that  it  was  accepting  the 
law  of  the  Emperor.  But  this  still  left  problems  un- 
touched. In  the  first  place,  though  the  city  might 
be  "sibi  princeps,"  it  could  not  make  laws  that  had 
any  force  outside  the  limits  of  the  city.  The  universal 
Emperor  alone  could  make  general  laws ;  all  other 
legislating  powers  could  only  make  particular  laws  or 
statutes.  The  chance  of  the  Emperor  actually  making 
new  laws  was,  indeed,  remote ;  but  there  can  be  no  doubt 
that  Bartolus,  who  commented  on  the  two  constitutions 
of  Henry  VII,  in  honour  of  Charles  IV  and  his  grand- 
father, would  have  had  no  hesitation  in  accepting  laws 
from  Charles  IV,  and  placing  them  duly  in  the  Corpus 
Juris ;  for  though  the  Code  was  a  closed  book  since 
Accursius,  the  Authenticum  was  always  open2.  That, 

1  Vide  above,  p.  122,  notes  1  and  2. 

2  Vide  Comment,  on  Const.  Ad  Eeprimendum  (sup.  rubric.),  p.  261 : 
' '  Et  advertendum  est  quod  liber  Authenticorum  divisus  est  in  novem 
collationes.      Postea   supervenerunt  liber  Feudorum   quae   decimam 
collationem  vocamus.    Postea  supervenerunt  istae  constitutions  quas 
undecimam  collationem  appello,  ipsasque  glossare  volui  ego,  Bartolus 
de   Saxoferrato,   civis   Perusinus,   ut  multa  utilia   quae  in  eis  sunt 
omnibus   innotescerent,    et   etiam   ad   laudem   divinae   recordationis 
domini  Henrici   Imperatoris,   ipsarum  constitutionum  authoris,   avi 
illustrissimi  domini  d.  Caroli  IV  Imperatoris  nunc  regnantis,  cui  debito 


198  THE    EMPIRE   AND   THE   GIVITATES  [CH. 

however,  was  a  remote  possibility.  The  main  problem 
was,  granted  the  internally  "imperial"  authority  of 
the  city  (as  expressed  in  the  phrase  "sibi  princeps"), 
and  externally  the  non-recognition  of  the  Emperor  as 
superior,  what  was  to  take  the  place  of  the  Emperor, 
as  superior,  in  the  inter-communal  relations  of  one 
city  with  another  ?  Here,  therefore,  came  in  the  im- 
portance of  the  conception  of  the  Empire  as  a  "world- 
universitas,"  and  the  conception  of  the  law  of  the  Corpus 
Juris — Common  and  Imperial  Law — as  the  general  law 
of  that  whole  "universitas."  The  Emperor  might  not 
be  recognised,  but  the  Empire  remained.  The  cities, 
internally  independent,  were  externally  connected  to- 
gether into  one  all-embracing  body.  When  the  Emperor 
was  no  longer  recognised  as  superior,  his  place  was  taken 
by  Law. 

Bartolus,  we  must  repeat  again,  has  not  given  up 
the  de  jure  universal  lordship  of  the  Emperor  over  all 
those  "  gentes  "  who  form  the  Populus  Romanus,  and 
therefore,  whether  that  lordship  be  interpreted  as  a 
universal  jurisdiction  or  a  universal  "  regularitas,"  it 
follows  that  de  jure  there  can  be  properly  no  inter- 
national relationships  within  the  Populus  Romanus. 
If  we  now  refer  back  to  the  distinction  between  the 
Populus  Romanus  and  the  Populi  extranei,  we  see  that 
Bartolus  makes  this  distinction  when  considering  the 
question  of  war1.  Can  the  Civitates  declare  war  upon 
each  other?  Can  the  Civitas  have  its  "hostes"  and 

fidelitatis  adstringor :  quia  me  suorum  consiliariorum  et  domesticorum 
numero  aggregavit,  et  me  meosque  posteros  quos  legum  doctores  esse 
contingerat  legitimationis  et  cessionis  veniae  aetatis  aliisque  privilegiis 
et  gratiis  decoravit. ' ' 

1  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLIX.  15.  24),  pp.  637-9. 


Il]  THE   EMPIRE   AND   THE   CIVITATES  199 

do  the  "jura  captivitatis  et  postliminii "  hold  good  in 
such  wars  ? 

Of  course — the  contrary  would  be  very  surprising  in 
view  of  our  previous  inquiries — Bartolus  fully  allows 
these  rights  to  the  independent  Civitas.  "Nota  quod 
ille  qui  praeparat  exercitum  sine  jussu  superioris,  in- 
cidit  in  legem  Juliam  Majestatis.  Sed  hodie  civitates 
Italiae  possunt  licite  praeparare  exercitum  contra  sub- 
ditos  et  inimicos  suos,  cum  dominum  non  recognoscant1." 
But,  properly,  public  war  is  between  the  Populus  Roma- 
nus  and  those  of  the  Populi  extranei  with  whom  it  is 
not  in  friendship  or  alliance — notably  with  the  Turks 
and  Saracens2 — or  else  such  as  is  waged  by  the  Emperor 
on  his  rebellious  subjects.  In  these  wars  the  "jura 
captivitatis  et  postliminii"  hold  good  beyond  all  question. 
"Puto,"  says  Bartolus,  "quod  civitates  Italiae,  contra 
quas  Imperator  induxit  bellum,  ut  contra  civitatem 
Florentiae  et  similes,  sunt  vere  hostes  Imperii:  et  capti 
efficiuntur  servi,"  etc.3  It  is  only  if  we  put  aside 
all  doubt  that,  where  there  is  "contentio  inter  duas 
civitates,  quae  superiorem  non  recognoscunt,  ut  inter 
civitatem  Florentiae  et  civitatem  Pisanam,"  these  cities 
are  not  rebels  against  the  Empire — "pone  ut  tollem 
omnem  dubitationem,  quod  quaelibet  istarum  sit  hostes 
Imperii" — that  we  can  allow  the  right  of  war  between 
them4. 

1  Vide  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLVIII.  4.  3),  p.  459. 

2  Bartolus  distinguishes  those,  like  the  Tartars,  "with  whom  we 
have  peace,"  those,  like  the  Indians,  with  whom  we  have  no  dealings, 
and  those  like  the  Turks  and  Saracens,  with  whom  we  have  "guerram 
indictam."    The  "  we  "  shows  how  vividly  Bartolus  conceives  himself 
and  his  hearers,  or  readers,  as  members  of  the  Populus  Komanus. 

3  §14. 

4  He  adds  that  the  right  is  not  used  ' '  hodie ' '  among  Christians.   Cf . 


200  THE   EMPIRE   AND   THE   CIVITATES  [CH. 

What  this  really  amounts  to  is  that  Bartolus  allows 
war  between  the  de  facto  independent  Civitates  within 
the  Populus  Romanus,  and  this  is  further  illustrated 
by  his  treatment  of  the  "banniti."  The  "bannitus" 
is  "transfuga  et  hostis"  of  the  city  from  which  he  is 
banished,  and,  as  such,  loses  his  city  and  all  his  rights 
as  a  citizen — or  rather  all  those  which  "faciunt  pro  se." 
But  he  does  not  cease  to  be  a  member  of  the  Populus 
Romanus  or  Roman  Empire,  and  retains  all  the  "jura 
civitatis  Romanae,"  just  as  the  " bannitus"  of  the 
Empire  itself  retains  the  "jura  gentium1." 

Comment,  on  Dig.  Nov.  (D.  XLVII.  22.  4),  p.  409,  §§  10-11,  where  con- 
federacies are  allowed,  though  properly  illegal,  between  independent 
cities  and  other  powers.  "...Omnia  alia  collegia  et  omnes  aliae  sectae 
et  colligationes  sunt  prohibitae....Item  istae  ligae  quae  fiunt  inter 
civitates  et  principes  et  barones  non  valent....Nec  obstat  L.  Non 
dubito,  infra,  De  cap.  et  postlimin.,  ubi  dicitur  quod  civitates  in- 
vicem  foederantur  et  colligantur :  quia  istud  est  verum,  quando 
civitates  aliae  non  amicae,  vel  liberae,  foederantur  populo  Eomano 
habenti  imperium :  sed  plures  civitates,  vel  plures  barones,  qui 
essent  sub  uno  rege,  domino  vel  principe,  non  possunt  invicem 
facere  illam  foederationem.  Ista  enim  sunt  sodalitia  et  collegia 
prohibita....Et  ex  istis  colligitur,  quod  civitates  Tusciae  quae  non 
recognoscunt  de  facto  in  temporalibus  superiorem,  possunt  invicem 
simul  foederari  tanquam  liberae.  Sed  plura  castra  vel  villae,  quae 
essent  sub  una  civitate  vel  uno  domino,  hoc  non  possent,  ut  dictum  est. ' ' 
1  Vide  Quaestio  i.  §  20,  p.  205:  "  Eestat  videre  quae  perdat  talis 
exbannitus  propter  tale  exbannitamentum :  ad  quod  respondeo,  vos 
debitis  scire  quod  transfuga  et  hostis  civitatis  Eomanae  perdit  civi- 
tatem  Komanam  et  omnia  jura  civitatis  Eomanae;  retinet  tantum 
jura  gentium... hoc  verum,  scilicet  quod  perdit  jura  civitatis  Eomanae, 
in  quantum  respicit  suum  commodum :  sed  in  quantum  respicit  suum 
incommodum,  ipsius  jura  civitatis  Eomanae  eum  ligant  apud  nos.... 
Et  ita  dico  de  tali  exbannito;  nam  cum  ipse  sit  transfuga  et  hostis 
illius  civitatis  unde  exbannitus  est... dico  quod  per  exbannitamentum 
perdit  illam  suam  civitatem  et  omnia  jura  propria  civitatis  illius, 
unde  exbannitus  est,  prout  faciunt  pro  se....Jura  vero  gentium  et  jura 
communia  civitatis  Eomanae  seu  Eomani  imperii  non  perdit,  nam 


II]  THE   EMPIRE   AND   THE    CIVITATES  201 

The  basis  upon  which  Bartolus  rests  his  whole 
scheme  of  international  relations  is  the  unity  of  at 
least  western  Christendom  in  the  Populus  Romanus  or 
Roman  Empire,  even  though  the  effective  superiority 
of  the  Emperor  over  the  whole  Empire  is  de  facto 
wanting.  The  "jura  civitatis  Romanae"  remain  the 
"jura  communia."  We  see  at  once  that  we  are  still 
far  from  the  beginnings  of  modern  International  Law. 
Bartolus  certainly  leads  up  to  Albericus  Gentilis  and 
Grotius,  but  his  world  is  the  Roman  Empire,  where- 
as the  world  of  modern  international  law  is  a  world 
of  independent,  sovereign  States,  "a  society  bound 
together  by  a  natural  law,  which  makes  promises 
binding1."  Now  Bartolus  has  recognised,  as  we  have 
seen,  the  existence  of  these  higher  laws  above  all 
merely  human  laws,  including  the  "jus  commune,"  and 
even  allows  the  "bannitus  Imperii"  to  retain  the  "jura 
gentium2."  But  Grotius3  was  quite  correct  when  he  said 
of  the  medieval  civilians  (the  second  class  of  the  three 
into  which  he  divides  the  "juris  Romani  scientiam 
profitentes ") — that  "juris  divini  et  historiae  veteris 

non  est  transfuga  totius  Imperii,  sed  illius  civitatis  tantum."  Cf. 
Tract.  Bannitorum,  §  10,  p.  356,  and  Comment,  on  Dig.  Vet.  Part  i. 
(D.  iv.  5.  5,  §  Qui  deficiunt),  p.  454.  In  Comment,  on  Infort.  Part  i. 
(D.  xxvm.  1.  8,  §  Si,  p.  260),  the  Bannitus  from  a  Civitas  loses  the 
power  of  making  a  will  according  to  the  "jura"  of  his  Civitas,  not 
according  to  the  Jus  Commune. 

1  Vide  Figgis,  From  Gersbn  to  Grotius,  p.  212. 

2  Not,  however,  in  his  Tract.  Bannitorum,  §  10,  p.  356:  "  Debetis 
scire  quod  transfugae  et  hostes  populi  Komani  ultra  alias  civitates 
perdunt  civitatem  Eomanam  et  omnia  jura  gentium..... Jura  autem 
gentium,    item    jura    communia    civitatis    Eomanae    sunt    Imperii 
Romani."     He  allows  it,  however,  in  the  other  passages,  to  which 
we  have  referred  above. 

3  De  Jure  Belli  et  Pads,  Prolegomena. 


202  THE   EMPIRE    AND   THE   CIVITATES  [CH. 

incuriosa  (i.e.  this  class),  omnes  regum  populorumque 
controversias  definire  voluit  ex  legibus  Romanis,  as- 
sumtis  interdum  canonibus."  Bartolus  may  say  that  the 
"  bannitus  "  cannot  lose  the  right  of  self-defence,  which 
is  "de  jure  natural!1,"  or  may  say  that  reprisals  are  "de 
jure  gentium2,"  but  for  him  the  really  international 
law  is  still  the  Roman  "jus  commune."  We  have  to 
remember  that  here,  as  elsewhere,  Bartolus  is  writing 
with  his  eyes  fixed  on  Italy.  Had  he  carried  his  dis- 
tinction between  the  Populus  Romanus  and  the  Populi 
extranei  into  other  topics  besides  that  of  war,  he  would 
have  had  to  base  his  thought  upon  a  higher  law  than 
the  "jus  commune3."  But  his  world  is  the  Populus 
Romanus  or  Roman  Empire.  So  long  as  the  de  jure 
unity  of  western  Europe  in  the  one  Roman  Empire  was 
maintained,  the  medieval  Italian  lawyer,  who  lived  in 

1  Vide  Comment,  on  Infort.  Part  i.  (D.  xxiv.  3.  49),  p.  81 :  "  Quaero 
de  una  quaestione,  quam  disputavit  Jac.  Buttrigarius.     Pone  quod 
statuto  cavetur  quod  bannitus  non  audiatur,  nee  in  agendo,  nee  in 
defendendo....Sed  videndum  est  an  dictum  statutum  valeat,  scilicet 
quod  non  audiatur  nee  in  agendo,  nee  in  defendendo.     Certe  non, 
quia  leges  debent  esse  justae,  et  defensio  est  juris  naturalis,  quod  non 
potesttolli." 

2  Vide  below,  p.  206. 

3  Vide  a  very  interesting  passage  in  the  Comment,  on  Codex,  Part  i. 
(C.  i.  11.  6),  p.  84,  in  which  we  see  that  Bartolus  feels  the  need  for 
a  legal  ground  of  war,  even  against  the  Populi  extranei :   ' '  Ista  est 
bona  lex....Nota  quod  Judaeis  vel  Paganis  nulla  potest  fieri  violentia. 
Dices  tu,  qualiter  Ecclesia  indicit  bellum  contra  Saracenos  ? ' '    Because 
they  keep  "  terram  nostram,"  promised  to  the  seed  of  Abraham,  "  et 
debita  nobis,  quia  sumus  filii  Abrahae  secundum  Apostolum."     But 
why,  he  asks,  against  the  Turks,  "  qui  non  tenent  terram  nostram 
indicit  Ecclesia  bellum  ?    Kespondeo :  quia  non  possumus  aliter  ire  ad 
Saracenos.      Cum  ergo  contendunt  turbulentum  et  juri  contrarium, 
quia  non  permittunt  nos  ire  ad  illos  (i.e.  the  Saracens),  ideo  Ecclesia 
indicit  eis  bellum,  alias  non  indiceret." 


Il]  THE    EMPIRE   AND   THE   CIVITATES  203 

conditions  where  Roman  Law  was  actually  a  common 
law  above  the  conflicting  statutes  of  Italian  cities, 
naturally  went  to  that  common  law  for  rules  to  guide 
international  relations,  which  were  at  best  de  facto. 
De  jure  the  Emperor  was  universal  superior,  above  the 
conflicting  interests  of  particular  parties;  when  men 
had  given  up  the  de  jure  unity  of  Europe  under  a 
universal  Empire,  and  moreover  when  they  turned 
their  attention  from  inter-communal  to  properly  inter- 
national problems,  a  wider  and  higher  basis  than  the 
Roman  "jus  commune"  had  to  be  found  for  Inter- 
national Law. 

To  illustrate  Bartolus'  attitude  we  may  now  turn  to 
one  of  his  most  interesting  treatises — the  Tractatus 
Repraesaliarum :  its  opening  words  express  his  attitude 
so  exactly  that  we  shall  do  well  to  quote  them  in  full. 

"Repraesaliarum  materia,"  he  says,  "nee  frequens 
nee  quotidiana  erat  tempore  quo  in  statu  debito  Roma- 
num  vigebat  Imperium;  ad  ipsam  nam,  tanquam  ad 
summum  monarcham,  habebatur  regressus,  et  ideo  hanc 
materiam  legum  doctores  et  antiqui  juris  interpretes 
minime  pertractaverunt.  Postea  vero  peccata  nostra 
meruerunt  quod  Rornanum  Imperium  prostratum  j ace- 
ret  per  multa  tempora,  et  reges  et  principes  ac  etiam 
civitates,  maxime  in  Italia,  saltern  de  facto  in  tempo- 
ralibus  dominum  non  agnoscerent,  propter  quod  de 
injustitiis  ad  superiorem  non  potest  haberi  regressus, 
coeperunt  repraesalia  frequentari,  et  sic  effecta  est 
frequens  et  quotidiana  materia.  Ego  itaque,  Bartolus 
de  Saxoferrato,  civis  Perusinus,  minimus  legum  doctor, 
cum  speculationibus  ad  jus  civile  spectantibus  operam 
dans  ad  communem  utilitatem  et  maxime  universalis 


204  THE    EMPIRE   AND   THE   CIVITATES  [CH. 

studii  Perusini  super  ista  materia  libellum  composui1." 
We  see  how  very  clearly  Bartolus  realised  that,  the 
superiority  of  the  Emperor  being  no  longer  recognised, 
and  the  Roman  Empire  lying  prostrate,  new  problems 
had  arisen  which  had  to  be  faced,  as  new  problems, 
because  they  were  not  present  to  the  lawyers  of  former 
ages.  Is  it  really  true  to  say,  in  view  of  passages  like 
this,  that  the  civilians  were  ignorant  "that  the  world 
had  outgrown  the  Imperial  conception2 "  ? 

Bartolus  treats  the  subject  of  reprisals  in  a  very 
wide  sense,  as  being  often  equivalent  to  war;  in  fact 
"concedere  repraesalias  est  indicere  bellum3."  Hence 
since  "bellum  justum  non  potest  indicere  nisi  ille  qui 
superiorem  non  habet,"  the  grantor  of  the  reprisals 
must  be  one  who  owns  no  superior;  while  he,  against 
whom  the  reprisals  are  granted,  must  be  de  facto  not 
amenable  to  the  "superioris  copia4."  This  is  at  the 
root  of  his  whole  treatment  of  the  question — the  "su- 
perioris copia "  is  wanting.  "  Imperator  est  modo  in 
Alemannia  et  de  jure  est  superior,  tamen  de  facto  in 
partibus  istis  ei  non  paretur5."  The  cities  themselves 
must  take  his  place.  But  then,  remembering  that 

1  Tract.  Repraesaliarum,  Proem,  p.  327. 

2  Lane  Poole,  Illustrations  to  the  History  of  Medieval  Pol.  Thought, 
p.  246. 

3  Tract.  Repraesaliarum,  Quaestio  in.  2,  §  3,  p.  331.  4  Ibid. 
5  Ibid.  Quaestio  n.  5,  §  12,  p.  331.    Bartolus  gives  other  examples 

how  the  "  copia  superioris  "  may  be  wanting:  "  Pone,  in  Marchia  est 
rector  pro  sancta  matre  Ecclesia,  tamen  de  facto  nil  potest  propter 
occupationem  tyrannorum."  He  then  proceeds  to  consider  how  far  a 
tyrant  himself  may  be  considered  superior.  If  he  made  himself  tyrant, 
he  is  not  to  be  considered  superior.  But  if  he  was  "  electus  ab  haben- 
tibus  potestatem  facere,"  then,  even  though  he  was  elected  "  per 
vim  vel  metum,"  if  it  is  not  notorious,  "  sed  pro  vero  domino  se  gerit 
et  sic  reputatur  communiter,"  he  is  to  be  considered  superior. 


ll]  THE   EMPIRE   AND   THE   CIVITATES  205 

Bartolus  has  a  very  democratic  theory  of  the  source  of 
authority  in  these  cities,  we  realise  that  it  is  the  "sove- 
reign" people,  not  the  government,  who  will  grant  re- 
prisals, unless  the  power  of  so  doing  is  specially  granted 
the  government  by  statute1. 

Reprisals  to  be  lawful  require  two  necessary  con- 
ditions— the  authority  of  the  superior,  whoever  the 
superior  be,  and  a  just  cause2.  Where  the  city  is  its 
own  superior,  its  power  is  carefully  restricted.  "Par  in 
parem  non  habet  imperium  et  (quia)  non  potest  extra 
territorium  statuere  quae  sunt  jurisdictionis  alterius 
et  non  suae,  ut  dicunt  jura  vulgaria3."  It  can  only 

1  Ibid.  Quaestio  in.  2,  §  4,  p.  331:   "Si  est  aliqua  civitas  quae 
solum   de   facto   non   cognoscit   superiorem  et  regitur  per  populum 
secundum   suos   ordines  et  statuta,    quod  potestas   et  rector  illius 
civitatis  non  posset  concedere  repraesalias,  nisi  eis  specialiter  aliquo 
statute  esset  permissum.      Deberet  ergo  adiri  pro  repraesaliis  ipse 
populus  vel  ordo,  apud  quern  est  omnis  communis  potestas,  et  hoc 
puto  verum." 

2  Ibid.    Quaestio   i.   2,   §  4:    "Doctores  omnes  communiter    in 
sententiam  istam  inclinant  quod  si  quidem  contra  ilium  hominem 
vel  populum,  qui  justitiam  facere  et  debitum  reddere  negligit,  potest 
haberi  recursus  ad  superiorem,  tune  repraesaliae  sunt  licitae  duobus 
intervenientibus.     Primo  requiritur  superioris  auctoritas;    non  enim 
licet  alicui  sua  auctoritate  jus  sibi  dicere....Secundo  quod  superioris 
auctoritas  interponat  sibi  ex  justa  causa." 

8  Ibid.  Quaestio  i.  3,  §§  8-10.  Vide  especially  §  10:  "Si  vero 
statuta  riant  in  una  civitate  contra  aliam  terram  liberam  circa  reprae- 
salias concedendas,  tune  advertendum  quia  in  causis  concedendarum 
repraesaliarum  vertitur  justitia  facta  seu  justitia  denegata  a  terra 
contra  quam  repraesaliae  conceduntur;  et  circa  hoc  non  possunt  fieri. 
Non  enim  una  civitas  potest  facere  legem  super  alteram,  quia  par  in 
parem  non  habet  imperium,  et  quia  non  potest  extra  territorium  suum 
statuere  quae  sunt  jurisdictionis  alterius  et  non  suae,  ut  dicunt  jura 
vulgaria.  Secundo  vertitur  in  causa  si  superioris  copia  haberi  non 
potest;  et  circa  hoc  similiter  non  potest  fieri  statutum:  puta,  si 
statutum  diceret  quod  repraesaliae  concedantur,  nee  teneatur  quis 
ire  ad  superiorem.... Tertio  vertitur  in  causa  superioris  auctoritatis, 


206  THE    EMPIRE    AND  THE   CIVITATES  [CH. 

legislate  on  its  own  part  in  the  reprisals,  on  its  own 
part  as  the  superior  who  grants  the  reprisals,  not 
as  the  superior  to  whom  recourse  is  to  be  had  for 
justice  before  reprisals  be  granted1.  For  reprisals  are 
not  to  be  granted  lightly.  They  are  an  odious  and 
extraordinary  expedient2.  Elsewhere  Bartolus  doubts 
whether  the  right  to  grant  reprisals  is  really  to  be 
drawn  from  Civil  or  Canon  Law,  and  not  rather  from 
Divine  Law  or  the  Law  of  Nations,  according  to  which 
war  is  lawful.  But  then,  according  to  the  Law  of 
Nations,  "non  erat  actio  neque  istae  formulae  agendi, 
sed  omnia  expediebantur  manu  regia";  and  so  to-day, 
he  adds,  when  reprisals  "postulantur  de  jure  com- 
muni,"it  is  rather  the  "manus  regia  seu  potestas  regia," 
than  the  "officium  judicis,"  which  is  required3. 

scilicet  auctoritas  ipsius  civitatis  concedentis  repraesalias,  et  tune 
circa  hoc  potest  facere  statutum,  an  IIL  talibus  casibus  praedictis 
concedatur  et  quo  ordine.  Nam  cum  ista  causa  et  ista  instantia  sit 
sua,  potest  circa  hoc  statuere,  cum  quaelibet  ci vitas  statuta  facere 
circa  ordinationem,  quae  in  foro  ejus  agitur,  possit."  In  §§  8  and  9 
he  considers  the  case  of  statutes  against  subject  towns  or  villages  and 
cities  "  quae  submittunt  se  protectioni  civitatis  certis  pactis."  Against 
the  former  the  city  can  legislate  as  it  will,  but  not  against  the  latter, 
which  are  its  equals.  In  §§  11-14  he  considers  whether  such  statutes 
"circa  repraesalias"  passed  against  "  subditos "  can  be  enforced 
' '  extra  territorium . ' ' 

1  Tract.  Repraesaliarum,  Quaestio  n.  1.  §§  1-3,  2.  §  8  and  3.  §  9, 
pp. 329-30. 

2  Ibid.  Quaestio  n.  4,  §  11,  p.  330. 

3  Ibid.  Quaestio  in.  1.  §§  1-2,  p.  331:  "Ad  primum  quaeritur  quo 
jure  adeatur  quis  ut  repraesalias  concedat.     Kespondeo  si  quidem  per 
statuta  terrarum  vel  constitutiones  dominorum  aliquibus  est  coiicessa 
potestas,  et  tune  judex  adhibetur  conditione  ex  illo  statute  vel  constitu- 
tione,  vel  judicis  officium  implorabitur  secundum  quod  ex  illo  statuto 
vel   constitutione   praecipitur....Qualiter  autem   circa   hoc   statutum 
factum   est,   probabiliter   illud   ignore.... Si  vero   quaerimus   de   jure 
communi,  tune  advertendum  quod  de  istis  repraesaliis  concedendis 


Il]  THE   EMPIRE    AND   THE    CIVITATES  207 

That  is  to  say,  reprisals  are  not  "de  jure  communi," 
for  "de  jure  communi"  there  is  a  superior,  to  whom 
recourse  may  be  had.  None  the  less  it  is  to  the  "jus 
commune,"  and  in  less  degree  to  the  Canons,  that 
Bartolus  turns,  to  establish  the  orderly  working  of 
reprisals  between  the  Italian  cities.  Bartolus,  of  course, 
nowhere  lays  down  an  abstract  rule  that,  the  effective 
power  of  the  Emperor  being  gone,  all  cases  of  conflict 
are  to  be  settled  by  the  "jus  commune";  indeed  the 
conditions  which  made  those  rules  necessary  are  recog- 
nised as  being  rather  de  facto  than  de  jure.  But 
seeing  that  the  superiority  of  the  Emperor  was  de 
facto  gone,  he  did  actually  turn  to  the  Law  Books  and 
the  Canons  in  order  to  find  rules  which  might  regulate 
the  relations  of  the  cities,  one  with  the  other — a  work 
made  necessary,  as  he  says  himself  in  the  opening  of 
this  treatise,  for  no  other  reason  than  that  the  "  copia 
superioris,"  now  that  the  Roman  Empire  lay  prostrate, 
was  gone1. 

nulla  juris  civilis  constitutione  cautum  est;  et  rationes  et  jura  quae 
ad  hoc  cogunt  sunt  magis  de  jure  divino  et  de  jure  gentium,  quo  bella 
licite  permittuntur,  quam  de  jure  civili....Sed  illo  jure  gentium  non 
erat  actio  neque  istae  formulae  agendi;  sed  omnia  expediebantur 
manu  regia....Unde  dico  quod  etiam  hodie,  ubi  ex  causa  repraesaliae 
postulantur  de  jure  communi,  non  debetur  intentari  actio  vel  officium 
judicis  implorari,  sed  magis  debet  requiri  manus  regia  seu  potestas 
regia  secundum  instituta  juris  divini  et  gentium,  quod  a  jure  civili 
non  est  immutandum."  Cf.  Quaestio  i.  2.  §  5:  "...mini  videtur  quod 
jus  concedendi  repraesalias  non  jure  civili  vel  canonico  sit  inductum, 
sed  magis  jure  divino...et  gentium." 

1  In  conclusion  it  is  worth  pointing  out  that  the  granting  of 
reprisals  is  further  limited  by  a  long  list  of  persons  against  whom 
they  are  not  to  be  granted,  inter  alios  the  persons  of  women,  clerics, 
scholars  or  their  servants  or  parents  visiting  them,  ambassadors  and 
those  going  to  fairs.  Vide  Quaestio  vi.  6.  In  certain  circumstances, 
however,  exceptions  are  made. 


CHAPTER   III 

THE    PROBLEM    OF    THE    EMPIRE 

BARTOLUS,  we  may  repeat,  has  himself  given  us 
no  political  system.  His  legal  commentaries  provide 
us  with  the  disjecta  membra  of  a  system,  but  it  is 
we  who  have  had  to  construct  it.  We  ourselves  have 
had  to  choose  and  group  the  topics  of  our  inquiry.  In 
our  choice  of  topics  we  have  tried  to  be  as  complete, 
and  therefore  as  unarbitrary,  as  possible;  in  the  grouping 
of  these  topics  we  have  purposely  chosen  the  Empire  as 
the  centre  of  our  inquiries.  The  present  chapter  must 
attempt  to  justify  our  choice. 

Yet,  to  some  extent,  our  justification  has  already 
been  given  in  past  pages  of  this  essay.  The  Empire, 
as  we  have  seen,  was  for  the  medieval  civilian  the 
starting-point  of  his  political  thought — the  "  funda- 
mentum  totius  juris  nostri."  From  the  Law  Books, 
literally  interpreted,  the  Glossators  derived  a  single 
universal  State,  the  Roman  Empire,  which,  by  Justinian's 
day,  had  become  conterminous  with  Christendom.  Only 
beyond  the  hazy  borders  of  the  Christian-Roman  world 
could  other  States__exist.  Then,  when  the  Glossators 
were  succeeded  by  the  Postglossators,  there  took  place 


Ill]  THE    PROBLEM    OF   THE   EMPIRE  209 

a  change  of  method  and  of  aim,  but  there  was  no 
break  in  the  tradition.  The  Postglossators  might  be 
concerned  rather  to  submit  law  to  fact  than,  as  the 
Glossators,  fact  to  law— but  for  them,  no  less  than  for 
the  Glossators,  the  Empire  was  still  the  State.  If  they 
finally  succeeded  in  confirming  the  existence  of  States, 
it  was  only  as  a  result  of  a  long,  difficult  and  somewhat 
reluctantly  undertaken  process. 

The  problem  of  accommodating  theory  to  facts  faced 
the  political  thinker  and  the  publicist  no  less  than  the 
lawyer.  So  long  as  the  Hohenstaufen  Empire  had  been 
in  existence,  the  theory  of  the  universal  Roman  Empire, 
as  still  existing  with  all  its  pristine  authority  and 
claims,  received  at  any  rate  some  countenance  from 
the  political  ideals  and  aims  of  the  Hohenstaufen 
Emperors,  if  not  from  their  actual  power.  The  Roman 
Empire  that  had  existed  in  western  Europe  since 
Charlemagne's  day,  though  Roman  in  name  and  theo- 
retically but  the  continuation  of  the  old  Roman  Empire, 
had  in  fact  been  a  German  Empire,  ruling  Italy  from 
Germany  and,  in  great  part,  by  Germans1.  The 
Hohenstaufen  attempted  to  make  their  Empire  Roman 
in  fact  as  well  as  in  name.  They  have  often  been 
blamed  for  sacrificing  Germany  to  Italy  or  the  Empire2 
— and  blamed  unjustly.  "  To  to  regni  sui  tempore  nihil 
unquam  duxit  melius,  nihil  j  ucundius,  quam  ut  imperium 

1  Vide  Krammer,   Die  Reichsgedanke  des  staiiftschen  Kaiserhaus, 
pp.  1  and  ft'. 

2  Vide  e.g.  Blondel,  Etiule  sur  la  politique  de  V  Empereur  Frederic, 
II.  etc.  p.  376:   "On  a  eu  bien  raison  de  dire  qu'il  est  un  empereur 
remain  beaucoup  plus  qu'un  empereur  allemand  et  que  sa  politique 
vis-a-vis  du  pays  de  ses  ancetres  ressemble  a  une  politique  d 'abdication 
ou  de  mepris." 

w.  14 


210  THE   PROBLEM    OF   THE    EMPIRE  [CH. 

urbis  Romae  sua  opera  suoque  labore  pristina  polleret 
et  vigeret  auctoritate,"  says  Ragewin  of  Frederick  I1. 
It  is  the  keynote  of  the  Hohenstaufen  policy.  Their 
pplicy,  their  whole  political  outlook  was  shaped  by 
reminiscence  of  the  old  Empire ;  the  German  king  was 
necessarily  swallowed  up  in  the  Roman  Emperor.  Thus 
the  theories  of  the  civilians  and  the  ideals  of  the 
Hohenstaufen  met;  and  they  met  not  because  the 
medieval  civilians  were  all  Imperialists,  but  because 
the  common  foundation  of  the  theories  of  the  lawyer 
and  of  the  ideals  of  the  Emperor  was  to  be  found  in 
Justinian's  Corpus  Juris2. 

Thus,  when  the  Hohenstaufen  fell,  the  future  of 
the  Empire,  alike  in  theory  and  in  fact,  was  a  problem 
demanding  instant  solution.  In  Bartolus  we  have  had 
the  solution  of  this  problem  as  offered  by  the  greatest 
of  the  Postglossators — we  note  how  the  great  Gloss  of 
Accursius,  which  ends  the  period  of  the  Glossators, 
roughly  corresponds  in  point  of  time  with  the  fall  of  the 
Hohenstaufen  Empire.  We  are  now  to  turn  to  other 
thinkers  and  compare  their  solutions  with  that  of 
Bartolus. 

The  reality  of  this  problem  is  apt  to  be  obscured 
by  the  overshadowing  position  occupied  by  what  was, 
no  doubt,  the  political  problem,  alike  of  the  early  and 
of  the  later  Middle  Ages — the  relations  of  the  temporal 
and  the  spiritual  powers.  It  has  been  maintained  that 
"  only  one  great  question  came  into  prominence  in  the 
thirteenth  and  fourteenth  centuries  and  drew  to  itself 

1  Lib.  iv.  c.  86,  p.  276 ;  Pomtow,  Ueber  dem  Einflm*  der  altramisclien 
VorKtellungen  vom  Staat  auf  die  Politik  Kaiser  Friedrichs  I.  etc.  pp.  1-3. 

2  Vide  the  very  interesting  dissertation  of  Pomtow,  referred  to  in 
the  preceding  note,  especially  pp.  19-29,  53-61. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE 

whatever  power  or  interest  men's  minds  had  in  the 
theoretical  treatment  of  affairs  of  state1."  Now  that 
the  controversy  between  the  temporal  and  spiritual 
powers  was  not  the  only  important  controversy  of  these 
centuries,  the  following  pages  must  attempt  to  show ; 
we  shall  see  that  the  problem  of  the  Empire's  future 
can  exist  independently  of  the  controversy  between  the 
two  powers,  and  that,  in  other  cases,  it  affects  in  more 
ways  than  one  the  solutions  offered  in  this  great  con- 
troversy itself.  And  even  the  past  pages  of  this  essay 
may  perhaps  pretend  to  throw  doubt  upon  this  statement. 
If  it  be  true,  how  are  we  to  account  for  the  fact  that 
Bartolus  was  able  so  openly  to  trifle  with  this  very 
controversy,  and  devote  his  political  thought,  in  all  its 
most  valuable  aspects,  wholly  to  topics  in  which  the 
spiritual  power  does  not  enter  ?  Obviously,  only  by 
supposing,  either  that  Bartolus  was  quite  out  of  touch 
with  the  contemporary  thought  of  his  time,  or  that, 
as  a  political  thinker,  he  is  negligible.  We  borrow 
words  of  Bartolus — haec  solutio  non  multum  placet. 

In  this  chapter,  therefore,  we  shall  again  have  the 
Empire  as  the  centre  of  our  inquiries.  Nor  must  we 
presume  that  the  period,  which  lies  before  us,  had  any 
single  or  simple  theory  of  the  Empire ;  that,  for  example, 
taken  as  a  whole,  it  had  any  axiomatic  belief  in  the 
divine  nature  or  the  necessity  of  the  Roman  Empire. 
We  shall  find  it  much  concerned  to  know  what  the 
Empire  had  been,  what  it  was,  and  was  to  be ;  we  shall 
find  the  theories  of  each  individual  thinker  coloured  by 
conditions  of  which  account  must  be  taken  in  each 
individual  case — his  nationality,  the  material  on  which 
1  Vide  Pollock,  History  of  the  Science  of  Politics,  pp.  33-4. 

14—2 


212  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

his  thought  is  based  and  his  intellectual  environment 
generally. 

But  before  we  turn  to  the  political  literature  of  the 
new  period,  we  must  briefly  consider  the  political  con- 
ditions under  which  it  opens.  This  we  may  most 
conveniently  do  under  three  heads.  The  struggle 
between  the  Hohenstaufen  and  the  Papacy,  each  with 
its  rival  political  theories,  was  in  general  a  struggle 
for  supremacy  in  Christendom.  But  in  particular  it 
was  a  struggle  for  supremacy  in  Italy.  However  wide 
the  Papal  claim  to  universal  obedience  might  be,  its 
special  claim  over  Rome  itself  and  central  Italy  was 
never  forgotten.  Marriage  had  brought  the  Hohen- 
staufen the  possession  of  southern  Italy;  as  Emperors 
they  demanded  the  subjection  of  northern  Italy.  We 
must  see,  then,  what  problems  the  fall  of  the  Hohen- 
staufen presented  for  solution:  (1)  in  southern  Italy, 
(2)  in  northern  Italy,  (3)  in  western  Europe  generally. 

(1)  The  Norman  power  in  southern  Italy  had  been 
regarded  since  the  Investiture  struggle  as  the  chief 
support  of  the  Papacy  in  Italian  politics.  The  kingdom 
of  Sicily  was  considered  a  fief  feudally  dependent  upon 
the  Popes.  The  acquisition  of  this  power  by  its  most 
dangerous  enemy — dangerous  in  particular  from  its 
claims  over  northern  Italy  and  even  over  Rome  itself— 
threatened  the  very  existence  of  the  Papacy,  as  a 
political  power.  Therefore  the  Papacy's  first  step,  after 
the  fall  of  the  Hohenstaufen,  was  to  provide  itself,  as  of 
old,  with  a  defender  in  south  Italy.  Such  a  defender 
was  a  pressing  necessity  while  Frederick's  descendants, 
and  especially  Manfred,  were  alive;  for  they  were  the 
heirs  of  Frederick,  of  his  policy  and  his  claims.  And 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  213 

such  an  ally  was  found,  after  fruitless  negotiations  with 
England,  in  Charles  of  Anjou,  the  brother  of  S.  Lewis 
of  France.  The  problem  still  remained  to  keep  this 
ally  obedient  to  the  Pope,  and  yet  powerful  enough  to 
protect  him.  The  problem,  in  the  old  days  of  the 
Normans,  had  not  always  been  easy  to  solve.  It  would 
be  no  easier  now.  The  Normans  had  been  a  strong, 
but  isolated,  power.  Charles  was  a  French  prince, 
and  France,  since  the  fall  of  the  Hohenstaufen,  was, 
beyond  dispute,  the  strongest  monarchy  in  Europe. 

(2)  It  was  by  utilising  the  resolution  of  the  majority 
of  the  north  Italian  cities  not  to  submit  to  any  real 
acknowledgment  of  the  Imperial  claims  to  their  obedi- 
ence, that  the  Papacy  was  able  to  secure  its  victory 
over  the  Hohenstaufen.  Consequently  its  object  must 
now  ,be  to  keep  southern  and  northern  Italy  apart,  and 
to  build  up  a  strong  Papal  state  between  the  two.  This 
was  not  easily  done.  The  hold  of  the  Popes  over  Rome 
itself  was  by  no  means  secure.  Urban  IV  made  serious 
efforts  to  prevent  the  election  of  Charles  of  Anjou  as 
Senator.  None  the  less  he  was  compelled  to  give  way, 
fearing  that,  if  not  Charles,  Peter  of  Aragon,  Manfred's 
son-in-law,  would  be  elected.  The  history  of  Charles' 
Senatorship  is  very  instructive.  The  Popes  were  driven 
to  accept  him,  because  only  through  him  could  they  keep 
a  hold  on  Rome  and  exclude  their  direct  enemies.  At 
the  same  time  they  saw  well  enough  that  the  Senator- 
ship,  combined  with  the  kingdom  of  Sicily,  was  on  the 
high  road  to  making  Charles  the  real  master  of  Italy1. 

1  On  this  subject  vide  Gregorovius,  History  of  the  City  of  Rome  in 
the  Middle  Ayes,  vol.  v.  Part  2,  pp.  349-53,  368-71,  401-2,  423,  447- 
9,  483-502. 


214  tHE   PROBLEM   OF   THE    EMPIRE  [CH. 

The  death  of  Manfred  relieved  the  Papacy  from  a 
pressing  danger,  but  did  not  weaken  the  domination  of 
Charles.  Though  he  was  now  bound  by  an  oath  never 
to  unite  his  Sicilian  crown  to  that  of  Germany,  or  to 
the  Empire,  or  to  the  "  dominium  "  of  Lombardy  and 
Tuscany1,  he  was  none  the  less  in  1268  appointed  by  the 
Pope  Imperial  vicar  in  Tuscany.  The  fall  of  Charles 
from  his  great  position  in  Italy  came  from  an  unex- 
pected quarter,  some  fourteen  years  later,  with  the 
Sicilian  Vespers.  But  already  the  election  of  Rudolf 
of  Habsburg  to  the  Empire  had  considerably  changed 
the  political  conditions  of  Europe. 

(3)  The  end  of  the  long  Interregnum,  which  had 
lasted  since  Frederick  IFs  death — or,  in  the  eyes  of  his 
enemies,  his  deposition — came  when  Gregory  X  bade 
the  electors  proceed  at  once  to  the  election  of  a  suitable 
king  of  the  Romans,  with  the  threat  that,  did  they 
not  do  so,  he  would  himself  nominate  one.  Gregory 
doubtless  thought  that  he  had  found  in  Rudolf  the 
solution  of  many  problems.  The  great  object  of  his 
reign  was  the  re-opening  of  the  Crusades,  and  to  that 
end  he  wanted  Europe  at  peace  under  its  traditional 
leaders,  an  Emperor  and  a  Pope.  Gregory,  unlike  his 
two  immediate  predecessors,  was  an  Italian.  Up  till 
now  one  has  rarely  had  to  consider  the  nationality  of 
individual  Popes.  The  German  nationality  of  those 
Popes  whom  Henry  III  had  given  to  the  Church  was, 
indeed,  a  factor  not  to  be  disregarded.  Bonizo  of  Sutri, 
the  partisan  of  Gregory  VII,  thought  the  election  of 
the  German  Clement  II  a  necessity,  but  contrary  to 

1  Vide  below,  p.  218. 


Ill]  THE   PROBLEM   OF   TtfE   EMPIRE  215 

the  Canons1.  But  Leo  IX,  the  third  of  these  German 
Popes,  was  a  man,  like  most  of  his  successors2  until  the 
middle  of  the  thirteenth  century,  in  whom  nationality 
counted  for  little.  Now  it  was  very  different.  Nation- 
ality was  dimly  felt  in  the  eleventh  century;  it  was 
a  great  force  in  the  last  half  of  the  thirteenth  century. 
Now  we  have  always  to  bear  in  mind  the  nationality, 
not  only  of  the  Popes,  but  of  the  cardinals.  The 
college  of  cardinals  was  definitely  divided  into  a  French 
and  a  Roman  or  Italian  party — a  division  that  leads  us 
straight  on  to  the  Avignon  exile,  the  great  Schism,  the 
Conciliar  Movement,  and  so  even  to  the  Reformation. 
For  the  moment  it  became  one  of  the  first  objects  of 
Charles  of  Anjou's  policy  to  secure  the  election  of 
French  Popes. 

After  the  death  of  Clement  IV  he  was  for  some 
years  unsuccessful :  the  first  of  these  non-French  Popes 
was  Gregory  X.  But  Charles  of  Anjou  aimed  not  only 
at  a  French  Pope.  Just  before  the  election  of  Rudolf 
he  made  a  determined  effort  to  induce  Gregory  to 
nominate  as  Emperor  Philip  III  of  France,  his  nephew3. 
The  plan  was  not  a  random  stroke  of  ambition.  The 
French  looked  back  to  Charlemagne,  the  king  of  the 
Franks,  as  to  their  national  hero.  The  strange  silence 
of  the  French  chansons  on  the  Imperial  coronation  of 

1  Vide  Bonizo,  "Liber  ad  Amicum,"  Lib.  v.  (in  Jaffe,  Momimenta 
Gregoriana],  p.  629. 

2  Hardegen,    Imperialpolitik   Konig   Heinrichs   II.  von  England, 
however,  considers  the  English  nationality  of  Adrian  IV  a  matter  of 
great  importance. 

:?  This  attempt  has  been  examined  at  length  by  Heller,  Deutscli- 
ld nd  und  Frankreich  in  ihren  politischen  Beziehungen  vom  Ende  des 
Interregnums  MX  znm  Tode  Rudolfs  von  Habuburg,  pp.  24-56. 


216  THE   PROBLEM   OF   TH*E    EMPIRE  [CH. 

Charlemagne  has  been  noted1 ;  and  it  has  been  main- 
tained that  the  policy  of  the  French  kings,  from  long 
before  Philip  III,  and  down  to  the  sixteenth  century, 
was  consciously  and  determinedly  influenced  by  the 
thought  that  they  represented  the  kingdom  of  Charle- 
magne and,  as  such,  had  a  better  right  to  the  Empire 
than  the  German  kings2.  We  shall  have  to  return  to 
this  point  again.  For  the  moment  it  is  sufficient  to 
observe  that  the  attempt  to  make  Philip  III  Emperor 
is  not  an  isolated  phenomenon,  but  a  sign  that,  to  say 
the  least,  French  pretensions  to  the  Empire  are  a 
political  possibility.  Papal  doctrine  taught  that  the 
Papacy  had  transferred  the  Empire  from  the  Greeks; 
a  compliant  Papacy  could  thus  make  possible  another 
"  translatio  "  to  the  French,  who  claimed  to  be  the  true 
descendants  of  the  Franks3. 

Gregory  X  was  not  likely  to  agree  to  this  proposal. 
Nor  was  it  by  any  means  certain  that  even  a  French 
Pope  would  be  more  compliant.  Even  Clement  IV  had 
been  very  jealous  of  Charles'  exercising  his  Senatorship 

1  Vide  Graf,  Roma  nella  Memoria  e  nelle  Immaginazioni  del  Media 
Evo,  vol.  n.  pp.  428-30.     He  notes  however— "  Giova  tuttavia  avver- 
tire  che  nei  poemi  francesi  Carlo  Magno  e  detto  indifferentemente  re  o 
imperatore." 

2  Vide  Leroux,  "La  Royaute"  Francaise  et  le  Saint  Empire  Ro- 
main"  (in  Revue  Historique,  vol.  XLIX.  1892,  pp.  241-88). 

3  We  must  keep  in  mind  that  the  "translatio  imperil"  to  the 
Germans  will  vary  according  to  the  outlook  of  the  writer.    If  he  looks 
on  the  Franci  as  "French,"  the  "  translatio"  to  the  Germans  will  be 
looked  upon  as  taking  place  under  Otto ;  the  "  translatio ' '  under  Charle- 
magne was  a  "translatio"  to  the  Franci.     But  we  shall  see  that  the 
Germans  are  by  no  means  willing  to  see  a  Frenchman  in  Charle- 
magne.  To  them  the  "translatio  imperii "  to  the  Germans  takes  place 
under  Charlemagne;   for  to  them  the  Franks,  the  true  Franks,  are 
Germans. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  217 

in  Rome.  Would  a  French  Pope  be  better  pleased  to 
see  the  nephew  of  Charles  Emperor  ?  One  of  the  most 
striking  characteristics  of  this  period  is  that,  despite 
the  very  different  immediate  aims  of  various  Popes, 
all  seem  to  keep  before  them,  as  their  ultimate  aim,  the 
safeguarding  of  Papal  supremacy ;  none  are  going  back 
on  the  work  of  their  predecessors. 

Gregory  X  was  certainly  not  meaning  to  go  back  on 
the  work  of  Innocent  III,  Gregory  IX  or  Innocent  IV, 
when  he  effected  the  election  of  Rudolf.  The  Empire, 
that  now  revived,  was  not  to  be  the  Hohenstaufen 
Empire.  In  this  lay  the  difficulty  of  the  situation. 
Nominally  the  Empire  was  the  same  as  it  had  ever 
been.  The  Interregnum  was,  after  all,  only  a  long 
vacancy,  during  which  candidates  for  the  Empire  had 
been  almost  always  in  the  field.  There  had  been  no 
formal  surrender  of  Imperial  claims.  The  question  of 
the  Empire's  connection  with  Italy  still  remained  open, 
and  until  that  was  settled,  the  position  of  the  Papacy 
was  never  secure.  In  fact  it  was  never  settled,  as  is 
shown  by  the  history  of  the  next  century,  with  Henry  VII 
and  Lewis  of  Bavaria.  Not  even  with  Charles  IV  was  it 
formally  settled.  The  cession  by  Rudolf  of  the  Romagna 
was  a  step  towards  a  settlement;  but  it  was  not  carried 
out  until  after  Gregory  was  dead;  and,  as  is  well  known, 
Rudolf  was  never  actually  crowned  Emperor1. 

1  The  cession  of  the  Romagna  was  made  to  Nicholas  III ;  the 
documents  relating  to  it  are  in  Theiner,  Codex  Diplomatlcus  Dominii 
Temporalis  S.  Sedis,  vol.  i.  pp.  203-48.  Vide  also  Rodenberg,  "Zur 
Geschichte  der  Idee  eines  deutschen  Erbreiches  im  13  Jahrhundert " 
(in  Mittheilungen  des  Instituts  fiir  oesterreichische  Geschichtsforschunc/, 
vol.  xvi.  1895),  pp.  33-40,  for  some  excellent  pages  on  Gregory  X's 
policy  towards  the  Empire  and  his  views  on  its  connection  with 


218  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

The  reality  of  the  problem,  which  the  future  of  the 
Empire  presented,  can  be  seen  in  the  numerous  projects 
during  the  last  half  of  the  thirteenth  century,  both 
before  and  after  the  election  of  Rudolf,  which  aimed  at 
a  complete  and  radical  solution  of  these  difficulties.  All 
these  plans  have  been  examined  with  great  learning 
and  detail1.  In  some  cases  their  existence  is  to  be 
inferred  rather  than  proved  for  certain ;  in  other  cases 
we  have  definite  information.  A  brief  survey  of  the 
most  important  of  them  will  lead  us  on  to  the  examina- 
tion of  the  political  literature  of  our  period. 

We  have  referred  above  to  an  oath  exacted  from 
Charles  of  Anjou  by  Urban  IV  and  relating  to  the 
possible  union  of  his  Sicilian  crown  with  any  other. 
In  this  may  be  seen  a  foreshadowing  of  more  definite 
projects.  Charles  promises  that  neither  he  nor  his 
heirs  will  ever  procure  their  election,  or  agree  to  their 
election,  should  it  take  place,  as  king  or  Emperor  of 
the  Romans,  as  king  of  Germany,  or  as  "dominus"  of 
Lombardy  or  Tuscany2.  Now  what  is  remarkable  here 

Italy.  Speaking  of  his  threat  to  the  electors,  that  if  they  did  not  pro- 
ceed to  an  election,  he  would  himself  nominate  an  Emperor,  he  says : 
"Gregor  X  ist  der  erste  gewesen,  welcher  vor  aller  Welt  den  Satz 
ausgesprochen  hat,  dass  der  Papst  das  Wahlrecht  den  Kiirf ursten  unter 
Umstanden  beseitigen  und  die  papstlichen  Ernennung  an  die  Stelle 
setzen  konne"  (p.  35).  On  the  other  hand  Gregory  was  firmly  con- 
vinced that  the  Empire  was  a  part  of  the  divine  ordering  of  the  world ; 
vide  below,  p.  226,  note  1. 

1  Vide  Busson,  "Die  Idee  des  deutschen  Erbreiches  und  die  ersten 
Habsburger"  (in  Sitzungsberichte  der  Philosophisch-Historisclien  Clasxe 
der  kaiserl.  Akademie  der  Wissemchaften  (Vienna),  vol.  LXXXVIII.  1878, 
pp.  635-725) ,  and  Rodenberg,  the  article  referred  to  in  the  preceding  note. 

2  Rodenberg,  op.  cit.  p.  1  and  ff.      Charles  promises  "quod  nun- 
quam  per  se  vel  alios  seu  quocumque  modo  procurabunt,  ut  eligantur 
vel  nominentur  in  regem  vel   imperatorem  Romanorum  vel   regem 


Ill]  THE  PROBLEM   OF   THE   EMPIRE  219 

is  the  separation  of  the  Regnum  Romanorum  from  the 
Regnum  Theotonie,  and  of  both  from  the  "  dominium  " 
of  Lombardy  and  Tuscany.  Nor,  it  seems,  can  this  be 
due  to  the  chance  wording  of  the  oath1 ;  taken  in 
conjunction  with  other  examples,  it  shows  that  already 
Urban  IV  entertained  the  possibility  of  a  German 
kingdom  separate  both  from  the  Empire  and  from  Italy. 
Clement  IV's  relations  with  the  two  rivals,  Richard 
and  Alphonse,  do  not  seem  to  have  been  so  neutral  as 
Urban's.  It  is  at  least  a  not  impossible  hypothesis2 
that  Clement,  who  speaks  of  himself  as  intending  so 
to  dispose  of  this  "dilatum  diu  negotium...ut  per  nos 
vel  per  successores  nostros  initio  prestito  finem  possit 
accipere  Deo  gratum  et  necessarium  toti  mundo3,"  may 
have  had  in  mind  some  arrangement  by  which  Richard 
of  Cornwall  should  obtain  the  German  crown,  but  on 
conditions  that  would  somehow  have  severed  it  from  con- 
nection with  Italy.  Certainly  Richard,  whose  strength 
lay  chiefly  in  north  Germany,  was  a  far  more  acceptable 
candidate  than  Alphonse,  who,  owing  to  the  geographical 

Theotonie  seu  dominum  Lombardie  aut  Tuscie  vel  majoris  partis 
earundem  Lombardie  vel  Tuscie ;  et  si  electionem  vel  nominationem 
ad  imperium  vel  ad  regnum  Komanum  seu  ad  regnum  Theotonie  aut 
ad  dominium  Lombardie  vel  Tuscie  seu  majoris  partis  earum  de  ipsis 
celebrari  contigerit,  nullum  hujusmodi  electioni  vel  nominationi 
assensum  prestabunt." 

1  Eodenberg,  op.  cit.  p.  3:    "Diese  Scheidung  beruht  nicht  etwa 
auf  Versehen  oder  Nachlassigkeit,  denn  sie  ist  weiter  in  dem  Vertrags- 
entwurf e  consequent  durchgef iihrt ;  wir  begegnen  ihr  auch  in  der  sonst 
vielfach  abweichenden  Urkunde,  durch  welche  die  bevollmachtigten 
Kardinale  1265  Karl  von  Anjou  das  Konigreich  Sicilien  iibertrugen, 
und  spater  erscheint  sie  wieder  in  dem  Eide,  den  Karl  1276  Johann  XXI 
leistete." 

2  Eodenberg,  op.  cit.  pp.  19  and  ff. 

3  Kodenberg,  op.  cit.  p.  22. 


220  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

position  of  his  own  kingdom,  was  mainly  attracted  to 
the  Empire  by  its  claims  over  Italy. 

This,  however,  can  be  at  best  but  probable  conjecture. 
We  come  to  certainty  in  a  memorial  of  topics  to  be  dis- 
cussed at  the  Council  of  Lyons,  drawn  up  by  Humbert 
de  Romanis1.  The  last  proposition  deals  with  the 
Empire.  It  is  proposed  that  a  vicar  should  be  ap- 
pointed for  the  vacant  Empire  "ad  quern  haberetur 
recursus  propter  guerras  et  casus  varios  emergentes  " ; 
and  that  the  "rex  Teutonic"  should  become  an  hereditary 
king,  "  and  thenceforth  be  content  with  that  kingdom  " 
— as  such  he  would  be  more  feared  and  justice  would  be 
better  done  in  Germany.  In  Italy  there  should  be  one 
or  two  kings  "  sub  certis  legibus  et  statutis,"  appointed 
with  the  consent  of  the  cities  and  prelates.  They 
should  be  hereditary  kings,  who  in  certain  cases  could 
be  deposed  by  the  Pope.  Or  there  might  be  a  king 
of  Lombardy,  who  would  also  be  Imperial  vicar  in 
Tuscany,  during  a  vacancy  of  the  Empire,  and  who 
would  only  recognise,  as  his  overlord,  an  Emperor  con- 
firmed and  crowned  by  the  Pope.  "  Imperium  enim," 
Humbert  concludes,  "  quasi  ad  nihilum  est  redactum, 
et  a  pluribus,  quotquot  fuerunt  electi  ad  imperium  seu 
promoti,  plura  mala  sub  eodem  dominio  secuta  sunt, 
et  pax  et  unitas  turbata  et  strages  hominum  facte 
et  pauca  bona  secuta ;  et  alia  multa  sunt,  que  realiter 
persuadent,  ut  queratur  modus  aliquis  conveniens  ad 


1  He  was  general  of  the  Dominicans,  though  he  had  resigned  before 
this  date.  He  died  in  1277,  having  refused  the  patriarchate  of  Jeru- 
salem and  a  bishopric.  There  is  an  account  of  his  life  and  writings 
in  Feret,  La  Faculte  de  Theologie  de  Paris  et  ses  Docteurs  les  plus 
Celebrex,  vol.  n.  pp.  495-503. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  221 

providendum  circa  hoc,  si  valeat  inveniri1."  We  cannot 
suppose  that  a  scheme  like  this  had  no  dependence  on 
Papal  plans  and  policy2.  And  though  the  next  year 
saw  Rudolf's  election,  the  project  of  Humbert  de 
Romanis  recurs  again  under  Nicholas  III,  and  in  a 
form  which  provides  us  with  further  detail.  Ptolemy 
of  Lucca  tells  us  in  his  Historic  Ecclesiastica  that 
Nicholas  III  treated  with  Rudolf  "  super  novitatibus 
faciendis  in  Imperio3."  The  whole  Empire  was  to  be 
divided  into  four  parts — a  German  kingdom  for  Rudolf 

1  The  text  is  given  by  Eodenberg,  op.  cit.  p.  31  (from  Martene  and 
Durand,  Amplissima  Collectio  Veternm  Scriptorum,  vol.  vn.  col.  198) : 
"Circa  imperium  vacans  videtur  constituendus   vicarius  ad  quern 
haberetur  recursus  propter  guerras  et  casus  varios  emergentes,  vel 
addendo,  quod  statueretur  cum  pace  comitatus  (Kodenberg  puts  a  ?  after 
"comitatus"),  quod  rex  Teutonic  fieret  non  per  electionem  sed  per 
successionem  et  esset  deinceps  contentus  regno  illo  et  magis  timeretur 
et  magis  justitia  in  regno  Teutonic  servaretur.    Item  quod  in  Italia  pro- 
videretur  de  rege  uno  vel  duobus  sub  certis  legibus  et  statutis,  habito 
consensu  communitatum  et  prelatorum,  et  per  successionem  regnarent  in 
posterum,  in  certis  casibus  possent  deponi  per  apostolicam  sedem;  ali- 
quando  enim  Lumbardi  regem  habuerunt ;  vel  quod  rex  in  Lumbardia 
institutus  esset  vicarius  imperii  in  Tuscia  vacante  imperio,  et  im- 
peratori  confirmato  et  coronato  per  apostolicam  sedem,  et  non  aliter, 
regnum  recognosceret  ut  vassallus.     Imperium  enim  etc." 

2  Eodenberg,  op.  cit.  p.  32. 

3  Historia  Ecclesiastica,  Lib.  xxm.  chap.  34  (in  Muratori,  Eerum 
Italiarum    Scriptores,   vol.   xi.    col.    1183):    "Eodem  anno   Eodul- 
phus  suam  filiam  in  uxorem  Carolo  Martello  tradidit.     Quo  etiam 
tempore,  ut  tradunt  Historiae,  Nicholas  III  cum  Eodulpho  jam  dicto 
tractat  super  novitatibus  faeiendis  in  Imperio,  ut  totum  Imperium 
in  quatuor  dividatur  partes,  videlicet  in  regnum  Alamanniae,  quod 
debebat  posteris  Eodulphi  perpetuari ;    in   regnum  Viennense,    quod 
dabatur  in  dotem  uxori   Caroli  Martelli   filiae  dicti  Eodulphi.     De 
Italia  vero  praeter  regnum   Siciliae   duo  regna  fiebant;     unum  in 
Lombardia,  aliud  vero  in  Tuscia;  sed  quibus  darentur,  nondum  erat 
expressum:  sed  suspicandi  satis  erat  materia."      And  vide  Busson, 
op.  cit.  p.  649  and  ff.,  where  he  argues  weightily  for  the  reliability 
of  Ptolemy's  information. 


222  THE   PROBLEM   OF  THE    EMPIRE  [CH. 

and  his  heirs ;  a  kingdom  of  Aries  for  Charles  Martell 
(of  Anjou)  and  his  wife,  Rudolf's  daughter;  and  two 
Italian  kingdoms  of  Tuscany  and  Lombardy.  "  Quibus 
darentur,"  says  Ptolemy  of  these  last,  "nondum  erat 
expressum ;  sed  suspicandi  satis  erat  materia."  There 
is  reason  to  believe  that  Nicholas  intended  them  for 
his  nephews,  two  of  the  Orsini1. 

None  of  these  projects,  we  know,  came  to  anything, 
but  for  us  their  importance  is  very  great.  It  is,  indeed, 
by  no  means  clear,  either  in  Ptolemy  of  Lucca's  account 
of  Nicholas  Ill's  plans  or  in  the  memorial  of  Humbert 
de  Romanis,  what  precisely  is  to  be  the  future  of  the 
Empire.  Humbert  de  Romanis  really  seems  to  make 
three  distinct  proposals.  First,  that  an  imperial  vicar 
should  be  appointed,  to  whom  recourse  might  be  had 
in  the  troubled  state  produced  by  the  long  Interregnum ; 
we  must  remember  that  the  memorial  was  drawn  up 
before  the  election  of  Rudolf  of  Habsburg.  Or  secondly, 
that  the  German  crown  should  become  hereditary  and 
that  one  or  two  hereditary  kings — in  certain  cases  to 
be  deposed  by  the  Papacy — should  be  set  up  in  Italy : 
no  doubt  in  Lombardy  and  Tuscany,  since  southern  Italy 
did  not  enter  into  the  question.  Or  thirdly,  that  the 

1  Busson,  op.  cit.  App.  664-5,  and  a  note  by  the  same  author— 
"  Zu  Nicolaus  III  Plan  einer  Theilung  des  Kaiserreiches  "  (in  Mitthei- 
lungeh  des  Inst.  fur  oesterreichische  Geschichtsforschung,  vol.  vn.  1886), 
pp.  156-9.  Ptolemy  of  Lucca,  op.  cit.  cap.  31,  col,  1182,  says  of 
Nicholas — "nimis  fuit  amator  suorum."  It  is  worth  noting  that 
Dante,  who  placed  Nicholas  III  in  Hell  among  the  simonists,  makes 
him  say : 

"E  veramente  fui  figliuol  dell'  orsa, 
cupido  si,  per  avanzar  gli  orsatti, 
che  su  1'  avere,  e  qui  me  misi  in  borsa." 

(Inferno,  xix.  70-2.) 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  223 

single  king  of  Lombardy — he  has  just  recalled  the  fact 
that  "aliquando  Lumbardi  regem  habuerunt " — should 
be  Imperial  vicar  in  Tuscany  during  a  vacancy  of 
the  Empire,  and  should  only  recognise  his  kingdom 
(i.e.  Lombardy)  as  feudally  dependent  upon  such 
Emperors  as  were  confirmed  and  crowned  by  the 
Pope.  We  see,  then,  that  in  the  first  and  third  proposals 
the  existence  of  the  Empire  is  accepted,  with — and 
this  was  doubtless  of  prime  importance  to  Humbert — 
guarantees  that  its  claims  over  Italy  should  not  be 
prejudicial  to  the  Papacy.  In  the  first  proposal  the 
vicar  appointed  is  apparently  to  be  vicar  for  the  whole 
Empire,  but  in  the  third  he  seems  merely  intended 
to  regulate  the  affairs  of  northern  Italy.  But  in  the 
second  proposal  nothing  is  said  of  the  Empire,  and  it 
seems  an  inevitable  conclusion  that  here  Humbert 
proposes  nothing  less  than  that  the  Empire  should 
disappear  and  its  place  be  taken  by  these  three 
hereditary  kingdoms1.  It  is  to  be  noticed  that  he 

1  Rodenberg,  op.  cit.  p.  32,  thinks  that  Humbert  means  that  the 
German  king,  as  such,  is  to  have  no  right  to  the  Empire,  but  "  es 
(i.e.  the  Empire)  deswegen  ganz  zu  beseitigen,  kommt  ihm  nicht  in 
den  Sinn,  und  ein  solche  Gedanke  ware  seiner  Zeit  wohl  iiberhaupt 
unfasslich  gewesen."  This  I  cannot  agree  with;  this  chapter  will 
attempt  to  show  that  such  a  thought  was  by  now  not  at  all  impossible. 
Busson,  op.  cit.  p.  651,  seems  to  me  far  more  correct  when  he  says: 
*'  Das  Kaiserthum,  das  friiher  neben  dem  Papstthum  als  zweite  Grand* 
saule  der  Universitas  Christiana  gegolten,  war  seit  dreissig  und  mehr 
Jahren  erledigt — wir  finden  wiederholt  bei  Geschichtsschreiber  Italiens 
zu  Ende  des  13  Jahrhunderts  die  Ueberzeugung  ausgesprochen  dass 
das  Kaiserthum  mit  Friederich  II  definitiv  sein  Ende  erreicht  habe 
(he  refers  to  Salimbene).  Die  alte  Ordnung  war  vernichtet,  ihre 
einfache  Wiederherstellung  durch  die  geanderten  Verhaltnisse  er- 
schwert,  so  dass  wie  von  selbst  der  Gedanke  sich  nahe  legen  konnte 
die  zerstorte  alte  Ordnung  durch  eine  neue  zu  ersetzen." 


224  THE   PROBLEM   OF   THE    EMPIRE  [CH. 

talks  of  a  Rex  Teutonie,  not  of  a  Rex  Romanorum, 
though  this  fact  by  itself  is  not  decisive.  It  became 
a  common  device  to  talk  of  the  king  of  Germany  when 
one  wished  to  avoid  any  hint  of  the  Roman  character 
of  the  Empire,  and  consequently  its  universality  or 
connection  with  Italy.  Now,  in  the  third  proposal  the 
connection  between  the  Empire  and  Italy  is  retained. 
The  king  of  Lombardy  is  to  recognise  his  kingdom  as 
dependent  upon  the  Emperor,  when  once  the  Emperor 
is  confirmed  and  crowned,  and  he  is  only  to  be  Im- 
perial vicar  in  Tuscany,  while  the  Empire  is  vacant. 
Therefore  it  is  quite  clear  that  in  the  third  proposal 
Humbert  conceives  of  the  Empire  as  still  elective — 
indeed  how  else  could  he  propose  that  the  king  of 
Lombardy  should  recognise  his  kingdom  as  dependent 
only  on  a  confirmed  Emperor  ?  In  the  second  proposal, 
on  the  contrary,  there  is  no  mention  of  any  connection 
between  the  hereditary  German  kingdom,  with  which 
the  German  king  is  to  be  content,  and  the  two  hereditary 
Italian  kingdoms.  There  can  therefore  be  no  reason 
to  think  that  Humbert  proposes  that  this  hereditary 
German  king  should  still  be  allowed  even  the  empty 
title  of  Emperor.  Similarly  in  the  plan  of  Nicholas  III 
there  is  no  reason  to  think  that  the  hereditary  German 
king  is  to  retain  the  title  of  Emperor.  Certainly 
nothing  is  said  in  Ptolemy's  account  which  points  to 
such  a  conclusion.  The  only  mention  of  the  Empire 
is  its  partition.  The  very  fact  that  it  is  the  Empire, 
which  it  is  proposed  to  partition,  leads  one,  in  the 
absence  of  anything  said  to  the  contrary,  to  suppose 
that  the  Empire,  once  partitioned,  will  no  longer  exist. 
The  cause  of  the  proposed  partition  was  the  fact  that 


Ill]  THE   PROBLEM    OF   THE   EMPIRE  225 

accidentally  an  Empire,  called  Roman  and  traditionally 
composed  of  other  territories  besides  Germany,  had 
come  to  be  associated  with  the  German  kingdom.  Why 
then,  when  the  Papacy  had  at  last  broken  that  associa- 
tion, should  it  leave  the  German  king  with  the  title  of 
Emperor?  For  with  that  title  would  go  a  legacy  of 
traditional  claims,  not  easily  to  be  separated  from  it. 
Nor  must  it  be  forgotten  that  the  Papacy,  in  allowing 
the  Empire  to  become  hereditary,  would  lose,  with  the 
right  of  confirmation  and  coronation,  the  main  source 
of  its  actual  supremacy  over  so  many  Emperors. 
Theoretically  the  Pope  did  not  confirm  or  crown  the 
German  king,  but  the  king  of  the  Romans.  Accident 
had  united  those  two  crowns.  An  hereditary  German 
kingship  had  no  dangers  for  the  Papacy;  but  an 
hereditary  Empire,  however  restricted,  could  never  be 
quite  without  danger:  even  if  the  Imperial  claims 
over  Italy  were  formally  surrendered,  the  idea  of  its 
universality  would  remain. 

However,  we  should  remember  that  we  have  here 
only  the  report  of  the  projects  of  Nicholas  III,  just  as 
Humbert's  memorial  is  not  a  treatise,  but  the  heads  of 
subjects  to  be  discussed  at  the  council.  It  may  not  be 
clear  what  either  of  them  intends  with  regard  to  the 
Empire,  but  it  is  quite  clear  that  neither  of  them  reveals 
any  conception  of  the  Empire  as  a  necessary  part  of 
the  divine  or  human  ordering  of  the  world.  There  is  as 
little  sentiment  in  these  proposals  as  was  shown  by  the 
eighteenth  century  politicians  who  partitioned  Poland. 
We  are  now  come  to  a  period  of  the  Middle  Ages,  when  it 
is  no  longer  possible  to  say  that  men  could  not  conceive 
of  the  world  without  the  Roman  Empire  or  could  not 

w.  15 


226  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

conceive  of  any  other  Empire  than  the  Roman  Empire. 
Nothing  can  better  illustrate  the  different  modes  of 
thought,  which  in  the  Middle  Ages,  as  in  all  other  ages, 
lived  side  by  side,  than  to  compare  the  tone  of  these 
proposals  to  dismember,  if  not  to  destroy,  the  Empire, 
.with  the  tone  of  Gregory  X's  letters  to  Rudolf  of 
Habsburg.  To  Gregory  the  Roman  Empire  was  still  to 
be  one  of  the  twin  divine  powers,  the  gifts  of  God,  by 
which,  united  "  mutuis  auxiliis,"  but  independent  each 
in  its  proper  sphere,  the  world  is  governed1.  We  must 
be  prepared  in  the  political  thought,  which  we  are  now 
to  examine,  for  the  most  diverse  views  of  the  Empire — 
its  character,  its  past  and  its  future.  We  shall  find 
some  writers  pleading  for  the  Empire  from  the  stand- 
point of  Gregory  X,  and  others  arguing  that,  as  the 
other  world-monarchies  were  equally  from  God  with 
the  Roman  Empire,  and  as  God  willed  them  to  give 
place  to  the  Roman  Empire,  so  He  may  now  will  it, 
in  its  turn,  to  give  way  to  those  kingdoms  which  do  not 

1  Vide  the  well-known  letter,  printed  in  Theiner,  Codex  Diplomaticus 
Dominii  Temporalis  S.  Sedis,  vol.  i.  no.  336,  p.  188:  "Gregorius  epis- 
copus,  etc.  carissimo  in  Christo  filio  Rudolf o  Eegi  Eomanorum 
illustri,  salutem,  etc.  Sacerdotium  et  Imperium  non  multo  differre 
merito  sapientia  civilis  asseruit,  si  quidem  ilia,  tamquam  maxima  dona 
dei  a  celesti  collata  dementia,  principii  conjungit  idempnitas.  Ea 
velut  auxiliis  mutuis  semper  egentia  suffragii  suis  inter  ipsa  vicibus 
alternandi  unit  necessitas,  et  ad  presentium  mundi  regimen  instituta, 
ut  alterum  videlicet  spiritualibus  ministret,  reliquum  vero  presit 
humanis,  una  et  eadem  institutionis  causa  finalis  ipsa  inseparabiliter 
licet  sub  ministeriorum  diversitate  conjuncta  designat.  Horum  in- 
super  necessarian!  unionem  alterius  considerata  carentia  evidenter 
insinuat,  et  emergentia  exinde  discrimina  manifestant.  Imperium 
namque  in  apostolice  sedis  vacatione  sue  destituitur  a  rectore  salutis : 
Ecclesia  vero  in  throni  cessatione  Cesarei  oppressorum  patet  incursibus, 
dum  suo  defensore  privatur." 


Ill]  THE   PROBLEM   OF  THE   EMPIRE  227 

or  will  not  obey  it.  The  necessity  of  the  Roman  Empire 
was  no  longer,  if  it  ever  had  been,  an  axiom  of  political 
thought. 

The  first  treatise  which  we  propose  to  consider  is 
that  known  as  the  De  praerogativa  Romani  Imperil 
of  Jordan  of  Osnaburg.  The  treatise  well  deserves 
its  reputation,  not  for  its  scientific  value  as  a  work 
of  political  theory,  but  for  its  excellence  as  an 
illustration  of  political  thought  in  the  last  half  of 
the  thirteenth  century.  Yet  it  is  not  altogether  an 
easy  treatise  to  study.  Ever  since  Waitz  produced 
a  new  and  critical  edition  of  it  in  1869,  controversy 
has  been  busy  round  it.  In  a  chapter  such  as  this 
it  is  impossible,  as  a  general  rule,  to  inquire  into 
controversies  as  to  the  authorship  or  similar  points 
connected  with  the  treatises  which  we  examine.  We 
can  only  pause  for  such  inquiries  in  cases  where 
it  is  impossible,  on  the  one  hand,  to  neglect  a  par- 
ticular treatise,  and,  on  the  other  hand,  to  make 
a  proper  use  of  it  without  noticing  the  controversial 
questions  which  it  involves.  The  present  treatise  is 
a  case  in  point.  We  can  make  no  pretence  to  solve 
the  questions  at  issue;  but  it  is  right  and  neces- 
sary to  state  what  these  questions  are,  and  to  make 
clear  what  course  we  mean  to  adopt  amid  the  rival 
solutions. 

The  treatise,  as  printed1,  is  preceded  by  an  intro- 

1  I  shall  refer  to  and  quote  from  Waltz's  edition,  in  the  Abhand- 
lungen  der  konigl.  Gesellschaft  der  Wissenschaften  zu  Gottingen.  The 
treatise  as  printed  in  Goldast,  Monarchia  S.  Romani  Imperil,  or  Schard, 
Syntagma  Tractatuum,  does  not  give  this  introductory  letter,  and  is 
called  "  Chronica  Mag.  Jordani  qualiter  Bom.  Imperium  translatum 
fuit  ad  Germanos." 

15—2 


228        THE  PROBLEM  OF  THE  EMPIRE         [CH. 

ductory  letter1,  in  which  the  writer  begins  with  pro- 
fessions of  humility  to  one  whom  he  addresses  later  as 
"  pater  sancte  V  and  begs  for  indulgence  towards  his 
work  ("  scriptum  ").  He  has  put  his  name  in  the  rubric3 
above,  not  from  ostentation,  but  that  "cognita  scriptoris 
imperitia  scripto  fides  adhibeatur  dumtaxat  quatenus 
constituit  ex  ipsa  rei  evidentia  vel  ex  scriptis  aucten- 
ticis  aliorum."  The  letter  then  goes  on  to  relate  how 
the  writer  was  lately  celebrating  Mass  at  Viterbo. 
Coming  to  the  passage  where  the  Church  was  wont  to 
pray  for  the  Emperor,  he  found  all  mention  of  the 
Empire  omitted  from  the  book,  "  de  capella  Romani 
pontificis,"  which  he  was  using.  This  he  cannot  ascribe 
to  chance  or  the  fault  of  the  copyist4.  So  he  fears 
that  if  the  Roman  Church  presumes  to  say — "  We  have 

1  pp.  39-42.  2  p.  42. 

3  The  rubric  runs:  "Memoriale  reverend!  patris  domini  Jakobi  de 
Columpna  Sancte  Marie  in  Via  lata  diac.  cardinalis  de  prerogativa 
imperil  Romani."     This  heading  (and  indeed  the  whole  letter)  are 
wanting  in  some  MSS.     On  the  other  hand  one  MS  adds  between  the 
words  "cardinalis"  and  "de  prerogativa"  the  following — "quod  sibi 
ad  honorem  nominis  sui  Alexander  de  Roes,  canonicus  Sancte  Marie 
in  capitulo  (ace.  to  Schraub,  Jordan  von  Osnabriich  und  Alexander  von 
Roes,  p.  21,  this  should  read  'capitolio')  Coloniensi,  omnium  cleri- 
corum  suorum  minimus  et  humillimus."     Vide  Waitz's  apparatus 
criticus  on  p.  39. 

4  Vide  p.  40:  "Nuper  itaque  vacante  sede  per  mortem  sanctissimi 
patris  domini  Nicolai  pape  tercii,  dum  ego  indignus  peccator  in  civitate 
Viterbensi  sacramentum  corporis  et  sanguinis  domini  nostri  Jhesu 
Christi  conficerem,habui  pre  manibus  librum  michi  ad  hoc  de  capella 
Romani  pontificis  commodatum.     Et  cum  ad  ilium  locum  canonis 
pervenissem,  ubi  sancta  ecclesia  catholica  orare  consuevit  pro  antistite 
et  pro  rege  ac  aliis  orthodoxis,  memoriam  quidem  inveni  antistitis,  ut 
oportuit,  sed  regiae  dignitatis  memoriam  non  inveni.    Neque  hoc  casu 
vel  scriptoris  negligentia  factum  esse  arbitror,  cum  eundem  defectum 
in  libris  religiosorum  et  secularium  clericorum  alias  tarn  in  Urbe  quam 
extra  similiter  invenissem." 


Ill]  THE   PROBLEM   OF  THE   EMPIRE  229 

no  king  but  the  Pope  " — worse  will  befall  it  than  befell 
the  Jews,  when  they  said — "We  have  no  king  but 
Caesar."  "Sed  tutius  esse  puto  tacere  quam  de  hac 
materia  plura  loqui."  He  will  only  add  that,  as  the 
Roman  eagle  cannot  fly  with  one  wing,  so  also  Peter's 
ship  cannot  be  navigated  with  one  oar  amid  the  storms 
of  this  world.  The  dove  that  has  only  one  wing  will 
soon  fall  a  prey,  not  only  to  the  birds  of  the  air,  but  to 
the  beasts  of  the  field.  No  monstrosity  lives  well  or 
long.  And  so,  with  more  excuses  of  his  ignorance  and 
professions  of  humility,  he  presumes  to  offer  "  quoddam 
scriptum  viri  doctissimi  venerandi  magistri  Jordani 
canonici  Osnaburgensis,  quod  ipse  ad  petitionem  quo- 
rundam  amicorum  suorum  de  prerogativa  Romani  imperii 
edidit1." 

We  see  at  once  that,  if  the  letter  be  one  whole,  it  is 
not  by  Jordan  of  Osnaburg;  but  then,  in  that  case,  what 
is  the  "scriptum"  referred  to  in  the  earlier  part  of  the 
letter?  To  answer  this  difficulty  Waitz  divided  the  letter 
into  two  parts — without  manuscript  authority2.  The 
first  part  of  the  letter  he  ascribed  to  Jordan,  and  the 
"scriptum"  referred  to  is  his  treatise;  the  second  part 
of  the  letter  he  ascribes  to  the  Cardinal  Colonna,  who 
is  sending  the  treatise  of  Jordan  to  Pope  Martin  IV3. 
Wattenbach4,  soon  after  Waitz's  publication,  gave  quite 
a  different  solution.  The  letter  he  considered  to  be 
one  whole,  addressed  by  Alexander  of  Roes  to  Cardinal 

1  pp.  41-2. 

2  Vide  Schraub,  op.  cit.  p.  18.      In  Waitz's  apparatus  criticus  two 
MSS  are  mentioned  as  having  "  Prologus"  at  the  place  of  division,  but 
they  are  apparently  of  very  little  authority. 

3  Vide  the  introduction  to  Waitz's  edition. 

4  Vide  Schraub,  op.  cit.  p.  3. 


230  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

Colonna.  The  "scriptum"  of  Jordan,  referred  to  at  the 
end  of  the  letter,  he  considered  to  be  Chapter  I.  of  the 
printed  treatise;  the  "scriptum"  of  the  writer  of  the 
letter  was  the  rest  of  the  treatise.  He  does  not  appear, 
however,  to  have  gone  into  the  question  exhaustively. 
Numerous  other  solutions1  have  been  offered,  and  in  all 
of  them  the  treatise  is  taken  as  a  whole  and  ascribed 
to  Jordan;  the  introductory  letter  has  been  the  real 
centre  of  controversy.  Finally,  in  1910,  Dr  Schraub2, 
one  of  the  latest  to  approach  the  problem,  has  revived 
the  solution  of  Wattenbach,  supporting  it  among  other 
evidence  by  a  new  collation  of  the  manuscripts. 

The  actual  attribution  of  the  treatise,  or  of  parts  of 
it,  to  Jordan  of  Osnaburg  or  Alexander  of  Roes  is  for 
our  purpose  unimportant.  In  fact,  we  know  so  little  of 
either  of  them,  that  they  can  be  little  more  than  names3. 
But,  even  putting  aside  the  question  of  manuscript  au- 
thority4, the  arguments  brought  forward  by  Dr  Schraub 
are  such  as  cannot  be  passed  over  in  silence.  On  the 
other  hand,  it  is  not  possible  within  our  limits  to  enter 
into  as  full  a  consideration  of  the  question  as  its  interest 

1  They  are  enumerated  by  Schraub,  op.  cit.  pp.  3-5.      Most  im- 
portant, and  the  only  ones,  besides  Waitz  and  Schraub,  which  I  have 
seen,  are  Wilhelm,  "Die  Schriften  des  Jordanus  von  Osnabriich"  (in 
Mittheilungen  des  Institnts  fur  oesterreichischer  Geschichtsforschung , 
vol.  xix.),  and  Grauert,  "  Jourdain  d'Osnabriich  et  la  Notitia  Saeculi  " 
(in  Melanges  Paul  Fabre). 

2  Vide  his  Jordan  von  Osnabriich  und  Alexander  von  Roes. 

3  Jordan  of  Osnaburg  is  mentioned  in   Osnaburg  charters   from 
1251-83.     For  what  is  known  of  him  vide  Waitz's  Introduction,  p.  4, 
and  Schraub,  op.  cit.  pp.  44-6.      For  Alexander  of  Roes  vide  Waitz, 
p.  9,  and  Schraub,  pp.  47-8.     The  Cardinal  Jacob  Colonna  played  an 
important  part  in  the  history  of  these  years  and  is  well  known  for  the 
later  part,  played  by  him  and  his  family,  in  the  reign  of  Boniface  VIII. 

4  Vide  Schraub,  op.  cit.  pp.  5-14. 


Ill]  THE   PROBLEM   OF  THE   EMPIRE  231 

deserves.  Our  best  plan  will  therefore  be  to  examine 
Chapter  I.  of  the  treatise  apart  from  the  rest,  leaving 
open  the  question  of  authorship,  both  in  the  case  of 
Chapter  I.  and  of  the  remaining  chapters,  and  not 
binding  ourselves  to  accept  all  Dr  Schraub's  conclu- 
sions as  to  the  aim  and  character  of  either  part1. 

The  author  of  Chapter  I  begins  by  pointing  out  in 
how  many  ways  God  has  honoured  the  Roman  Empire — 
and  not  only  has,  but  does,  since,  while  the  Roman 
Empire  stands,  the  man  of  sin,  Antichrist,  will  not 
come2.  And  as  Christ  Himself,  so  His  vicar  S.  Peter 
bids  it  be  honoured,  saying:  "Fear  God  and  honour 
the  king3."  Would  that  the  Germans,  to  whom  has 
been  transferred  the  "regimen"  of  the  world  and  Roman 
Church,  would  understand  this  and  act  accordingly: 

1  The  following  point,  for  example,  seems  to  me  to  need  explana- 
tion.    If,  as  Dr  Schraub  holds,  the  introductory  letter  is  one  whole, 
surely  its  form  is  very  strange.     If  Alexander  of  Roes  is  sending  his 
and  Jordan's  treatises  together  to  the  Cardinal,  should  we  not  expect 
him  rather  to  mention  the  two  treatises  together,  than,  as  he  does,  his 
own  at  the  beginning  and  Jordan's  at  the  end  of  the  letter,  with  the 
important  event— i.e.  the  omission  of  the  prayers  for  the  Emperor — 
between  the  two?     That  event  was  the  origin  of  his  fears  for  the 
safety  of  the  Church  and  so  the  original  cause  of  writing  his  treatise. 
It  would  therefore  more  naturally  precede  the  mention  of  his  own 
treatise  than  of  Jordan's,  which  on  Schraub's  hypothesis  he  is  adding 
to  his  own.     Still,  the  beginning  of  the  supposed  second  half  of  the 
letter— " nuper  itaque  vacante  etc." — seems    certainly  against  the 
division  of  the  letter. 

2  Vide  p.  47:  "Item  Dominus  non  solum  honoravit,  sed  honorat 
Romanum  imperium  in  hoc,  quod  Romano  imperio  stante  et  durante 
non  veniet  homo  peccati,  filius  perditionis,  Antichristus." 

3  Vide  p.  49 :  "  Sicut  autem  Christus  dominus  et  magister  omnium 
in  se  ipso  Romanum  imperium  honoravit,  ita  beatus  Petrus,  cui  Domi- 
nus ecclesiam  suam  regendam  commisit,  honorari  precepit  in  epistola 
sua  dicens:  'Deum  timete  et  regem  honorificate.'  "    • 


232  THE  PROBLEM  OF  THE   EMPIRE  [CH. 

reverence  the  king,  whom  God  has  given  them  "loco 
justitie,"  and  recognise  that  it  is  to  the  Roman  Empire 
that  they  owe  their  exaltation.  Would  that  those, 
whose  right  it  is  to  elect  a  king,  "afterwards  to  be 
promoted  Emperor,"  would  foresee  the  dangers  which 
will  come  when  the  Roman  Empire  is  no  more.  "For 
it  must  needs  be  that  offences  come;  woe  to  that  man 
by  whom  the  offence  cometh1."  The  author  now 
points  out  that  the  right  of  election  belongs  to  the 
three  archbishops  and  the  Count  Palatine,  who  was 
originally  mayor  of  the  old  royal  palace  in  Treves2.  The 
people  of  these  dioceses  are  the  Germans,  thus  called 
either  as  being  related  to  the  Romans,  through  a 
common  Trojan  descent,  or  directly  sprung  from  the 
Romans:  "for  the  Emperor  Julius  subdued  that  land 
to  the  Roman  Empire  and  occupied  it  with  Roman 
inhabitants.  And  for  this  reason  due  order  required 

1  Vide  pp.  49-50:    "Utinam  German!,  ad  quos  mundi  regimen 
est  translatum  et  quibus  ecclesie  Romane  regimen  est  commissum, 
saperent  et  intelligerent  ac  novissima  providerent !     Utinam  saperent 
justitiam  et  earn  diligerent  et  regem  quern  Dominus  eis  loco  justitie 
posuit,  reverenter  intenderent,  eique  sicut  Dei  ministro  honoris  debi- 
tum  exhiberent.     Utinam  exaltati  per  Romanum  imperium  et  dilatati, 
magnitudinem  bonorum  in  eos  collatorum  intelligerent  et  non  essent 
ingrati !     Utinam  principes,  praesertim  hii  ad  quos  pertinet  jus  et 
potestas  eligendi  regem  in   imperatorem  postmodum  providendum, 
pericula,  que  venient  sublato  Romano  imperio,  providerent!     Dum 
enim  sublatum  fuerit  Romanum   imperium,  tribulatio  tanta  net  in 
mundo,  quod,  nisi  dies  illius   tribulationis,  ut  dicitur  in  Marco  et 
Matheo,  'fuissent  breviati,  non  fieret  salva  omnis  caro.'    Utinam  ergo 
Germani,  ad  quos  et  in  quos  imperiale  regnum  est  translatum,  hujus 
regni,  quod  Dominus  posuit  in  prodigium  super  terrain,  novissima 
providerent  et  sublationem  ejus  pertimescerent !     Licet  enim  necesse 
sit,  ut  veniant  scandala,  ve   tamen    illis,   per  quos   sunt  scandala 
ventura." 

2  Vide  p.  50. 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  233 

that  the  Romans,  as  senior,  should  have  the  Sacer- 
dotium  and  the  Germans,  as  junior,  the  Regnum1." 
Later  the  Bohemian  and  Saxon  dukes  and  the  "  comes 
Marchie"  were  added  to  the  electors;  for  at  the  time 
of  the  "translatio  imperii"  under  Charlemagne  these 
other  peoples  were  either  not,  or  only  newly,  catholic2. 
Finally,  the  author  once  more  returns  to  the  dangers 
that  must  follow  the  destruction  of  the  Empire3.  All 
that  give  a  hand  to  this  destruction  are  the  precursors 
of  Antichrist.  Let  the  Romans  and  their  pontiffs 
beware  lest  for  their  sins  the  Sacerdotium4,  by  the  just 

1  Vide  p.  51 :  "  Et  hii  populi  dicuntur  German!  quasi  de  eodem 
germine  ortum  habentes  cum  Eomanis,  videlicet  de  Trojanis,  Enea 
scilicet  et  Priamo  juniore;  vel  dicuntur  Germani  quasi  deEomanorum 
germine  germinati.      Julius  enim  imperator  illam  terram  Eomano 
subegit  imperio  et  earn  Eomanis  habitatoribus  occupavit.     Et  propter 
hoc  debitus   ordo  requirebat,  ut,  sicut  Eomani  tamquam  majores 
sacerdotium,  sic  Germani  tamquam  minores  regnum  optinerent." 

2  Vide  p.  51. 

3  Vide  pp.  51-2:  "Item  notandum,  quod  cum  Antichristus  ven- 
turus  non  sit,  nisi  prius  imperium  destruatur,  indubitanter  omnes 
illi  qui  ad  hoc  dant  operam  ut  non  sit  imperium,  quantum  ad  hoc, 
sunt  precursores  et  nuntii  Antichristi.    Caveant  ergo  Eomani  et  eorum 
pontifices,  ne  peccatis  et  culpis  suis  exigentibus  justo  Dei  judicio 
sacerdotium  ab  ipsis   auferatur!     Caveant  nihilominus  presules  et 
principes  Germani,  ne  ipsi  per  ambitionem  temporalis  potestatis  jura 
sibi  et  possessiones  imperii  vendicent  et  usurpent,  quia,  sicut  supra 
scriptum  est,  necesse  est  ut  veniant  scandala,  ve  autem  illis  per  quos 
scandala  sunt  ventura  !     Et  vere  necesse  est,  quia  tantus  ardor  domi- 
nandi  et  habendi  cor  eorum  excecabit,  ut  nee  facere  velint  veritatem, 
quam  noverunt,  nee  ab  aliis  audire,  quam  ignorant,  sicut  scriptum 
est:  '  Oculos  habent  et  non  videbunt,  aures  habent  et  non  audient.'  " 

4  Waitz  reads  "  imperium  "  here,  but  gives  in  the  apparatus  criticus 
the  reading  of  one  MS  as  "sacerdotium."     This  I  have  ventured  to 
adopt,  as  the  author  has  already  made  a  special  point  of  contrasting 
the  Eoman  Sacerdotium  with  the  German  Imperium.     To  say  now 
that  the  Eomans  may  lose  the  Imperium  for  their  sins  would  be 
a  contradiction — the  Imperium  has  been  translated  to  the  Germans, 


234  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

judgment  of  God,  be  taken  away  from  them;  and  let 
the  German  princes,  spiritual  and  temporal,  beware  of 
usurping  the  rights  and  possessions  of  the  Empire — 
"it  must  needs  be  that  offences  come,  but  woe  to  that 
man  by  whom  the  offence  cometh."  It  must  needs 
be,  he  concludes  in  a  tone  of  pessimism,  because  the 
lust  of  power  and  possession  blinds  them.  "Having 
eyes,  they  will  not  see;  having  ears,  they  will  not  hear." 

There  is  certainly  nothing  in  this  first  chapter  which 
argues  against  Dr  Schraub's  contention  that  it  was 
written  during  the  Interregnum,  and  that  its  object 
was  to  warn  the  Roman  Pope  and  the  German  princes 
of  the  dangers  in  store  for  Christendom,  so  long  as  the 
Empire  remained  vacant1. 

As  regards  the  remaining  chapters  there  is  no  doubt 
as  to  their  unity  or  that  they  were  written  when  the 
Interregnum  had  come  to  an  end  with  the  election  of 
Rudolf2.  Dr  Schraub  has  pointed  out  the  various  points 
of  difference  between  Chapter  i.  and  these  remaining 
chapters3,  and  he  concludes  that  these  latter  were 
written  to  combat  the  idea  of  a  new  "translatio  imperii" 
to  the  French4,  such,  as  we  have  seen,  was  actually 
proposed.  Others  have  seen  in  the  treatise  a  work 
directed  against  the  plans  of  Nicholas  III  for  a  partition 
of  the  Empire5:  but  Dr  Schraub  denies  this6. 

whom  he  goes  on  to  warn  against  usurping  the  Imperial  rights  and 
possessions. 

1  Vide  Schraub,  op.  cit.  pp.  44-7. 

2  Vide  below,  p.  293,  note  1. 

3  Vide  op.  cit.  pp.  23-44.  4  Vide  op.  cit.  pp.  68-77. 

5  So  both  Wilhelm  and  Grauert  in  the  articles  mentioned  above, 
p.  230,  note  1. 

6  Vide  op.  cit.  pp.  64-8. 


Ill]  THE    PROBLEM    OF   THE    EMPIRE  235 

It  is  not  possible  for  us  to  enter  into  the  arguments 
to  be  adduced  for  either  interpretation  of  the  treatise. 
Nor  indeed  is  it  necessary.  It  is  not  necessary,  that  is 
to  say,  to  take  for  granted  that  the  treatise — or,  at  least, 
Chapter  II.  and  the  remaining  chapters  of  the  treatise — 
is  directed  against  any  one  project.  We  have  attempted 
to  show  that  both  the  plan  of  a  new  "translatio  imperii" 
to  the  French  and  the  plans  of  Nicholas  III  were 
symptoms,  along  with  many  other  plans  that  came  to 
nothing,  of  the  consciousness  that  the  fall  of  the  Hohen- 
staufen  Empire,  both  as  regards  its  actual  power  and  the 
theories  which  supported  it,  had  left  a  tyank  in  Euro- 
pean politics  and  political  theories  which  somehow  or 
other  had  to  be  filled.  Nor  was  the  election  of  Rudolf 
of  Habsburg  in  any  sense  a  final  answer  to  this  problem. 
In  this  way  it  is  possible  to  connect  both  parts  of 
"Jordan  of  Osnaburg,"  even  if  we  accept  Dr  Schraub's 
theory  of  their  separate  authorships.  The  author  of 
the  first,  still  writing  in  the  long  Interregnum,  may 
see  little  hope  for  the  future,  while  the  author  of  the 
second,  writing  after  the  election  of  Rudolf,  may  be  full 
of  hope — certain  that  "in  ipsius  promo tione  divinum 
auxilium  nunquam  se  subtraxit."  But,  in  spite  of  this 
and  all  other  differences,  there  is  a  fundamental  simi- 
larity between  the  two,  which  for  our  purpose  is  all 
important.  Both  authors  were  Germans,  who  were 
writing  to  claim  the  Empire  as  of  right  belonging  to 
the  Germans.  They  might  specially  plead  for  the  Inter- 
regnum to  cease,  or  they  might  combat  the  plan  of 
transferring  the  Empire  to  the  French,  or  the  plan  of 
dividing  up  the  Empire  into  separate  kingdoms ;  but 
at  the  bottom  of  all  their  pleadings  was  the  contention 


236  THE   PROBLEM   OF  THE   EMPIRE  [CH. 

that  the  Empire  belonged  to  the  Germans,  both  his- 
torically and  by  divine  ordination. 

This,  then,  is  the  first  thing  to  be  noticed  about  the 
authors  both  of  Chapter  I.  and  of  the  remaining  chapters 
— they  are  patriotic  Germans,  though  their  patriotism, 
it  is  true,  is  as  narrow  as  their  Germany.  The  true 
Germans  are,  for  both  these  authors,  the  "  Franci 
Germani,"  that  is  to  say,  the  Franks  of  the  Rhineland 
archbishoprics.  The  author  of  Chapter  I.  is  only  con- 
cerned with  two  nationalities — the  Germans  and  the 
Romans.  They  are  related  one  to  another  either  by 
direct  descent  or  through  a  common  Trojan  origin,  and 
the  Romans  are  recognised  as  senior,  the  Germans  as 
junior.  The  author  of  the  later  chapters  is  concerned 
in  addition  with  another  nationality,  the  Gallici.  The 
Franci  are  the  descendants  of  Priam  junior,  who  came 
to  Italy  with  Aeneas1.  Thence  passing  into  Gaul,  they 
expelled  the  Gallici  about  the  Rhine  and  drove  them 
westward.  They  married  Teutonic  women  and  were 
called  Germani  by  the  followers  of  Aeneas  in  Italy — 
"eo  quod  illi  et  isti  de  Germanorum  germine  processis- 
sent."  In  course  of  time  all  Theutonia  "tamquam  a 
digniori"  is  called  Germania.  Meanwhile  the  Regnum 
Romanorum  expanded  and  conquered  the  world.  The 
ancient  relationship  between  the  Germans  and  Romans 
was  renewed  by  Roman  settlements  in  the  Rhineland 
dioceses.  The  Alani  opposed  the  Romans,  and  the 
Senate  and  the  Roman  people  proclaimed  that  whoever 
overcame  the  Alani  should  be  free  ("franci,  id  est  liberi") 
from  tribute  for  ten  years.  The  Germans  succeeded 
and  became  known  as  Franci.  These  Franci  (also 
1  Vide  chap.  iv.  pp.  56-68,  for  the  early  history  of  the  Franks. 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  237 

known  as  German!  or  Gallic!  Comati),  through,  increase 
of  population,  sent  a  part  of  their  number  eastward 
beyond  the  Rhine.  These  emigrants  became  the  Franci 
Ori  en  tales  of  Franconia.  Another  part  went  westward 
beyond  the  Seine  and  married  Gallic  women,  adopting 
their  manners  and  language.  These  became  the  Franci- 
genae  and  their  land  is  now  called  France. 

Gaul,  according  to  our  author1,  is,  "large  sumendo," 
a  province  of  Europe,  bounded  on  the  east  by  the  Rhine, 
on  the  south  by  the  Alps,  on  the  west  by  the  "termini 
Hispaniae,"  and  on  the  north  by  the  "sea  of  Brittany 
and  Frisia."  It  is  divided  into  three  divisions — Gallia 
Comata,  Gallia  Togata,  Gallia  Bracata.  We  have  seen 
that  the  original  Franks  of  the  Rhineland  archbishoprics 
are  known  as  Franci,  Germani  or  Gallic!  Comati — 
"quae  omnia  unam  gentem  determinant."  The  "French" 
— the  Francigenae — are  descendants  of  Frankish  fathers 
and  Gallic  mothers.  Up  to  the  time  of  Charlemagne 
this  province  of  Gaul — in  the  large  sense — formed  one 
whole,  though  there  were  often  many  kings  within 
it.  "Et  hec  diversitas  regum  et  regnorum  in  Gallia 
multas  facit  diversitates  et  contrarietates  in  scripturis, 
que  gesta  et  antiquitates  Gallicorum  et  Francorum 
descripserunt,  indifferenter  hiis  populis  hec  nomina 
imponentes2."  It  is  our  author's  object  to  trace  the 

1  Vide  chap.  in.  p.  54. 

2  Vide  chap.  iv.  p.  61 :  "In  ista  igitur  provincia  que  Gallia  dicitur 
et  modo  a  Germanis  et  Gallicis,  Francis  et  Francigenis  possidetur, 
quandoque  unum,  quandoque  plura  fuerunt  regna,  aliquando  simul, 
aliquando  successive,  sicut  modo  est  et  diu  fuit  in  Hispania,  ubi  licet 
plures  sint  reges,  tamen  unum  dicitur  regnum  Hispanorum.     Et  hec 
diversitas,  etc." 


238  THE   PROBLEM   OF   THE    EMPIRE  [CH. 

connection  between  these  old  Gallic!  and  Franci  and 
the  French  and  Germans  of  his  own  day. 

He  therefore  traces  the  history  of  this  province  of 
Gallia  from  Pharamond  down  to  Charlemagne1.  Under 
the  Merovingians  the  kings  lived  chiefly  in  Gallia 
Togata,  at  Rheims  and  Paris,  so  that  Belgica  (i.e.  the 
Rhineland  dioceses),  which  S.  Maternus  had  converted 
to  Christianity,  lived  under  its  own  "reges  majores." 
At  the  deposition  of  Childeric,  Pippin,  the  mayor  of 
the  Palace;  became  king;  and  thus  the  kingdom  came  to 
Charlemagne,  to  whom  also  the  Empire  was  transferred 
from  the  Greeks,  and  whose  mother  was  Teberga,  sister 
of  the  Greek  Emperor  Michael. 

Now  Charlemagne,  "de  consensu  et  mandate  Romani 
pontificis,"  ordained  that  the  Imperium  Romanorum 
should  be  for  ever  elective  by  the  German  princes; 
he  considered  that  it  was  not  right  that  the  sanctuary 
of  God,  that  is  the  "  regnum  ecclesie "  should  be 
possessed  by  hereditary  right;  that  he  himself  was  of 
Greek,  Roman  and  German  blood;  and  that  both  he 
himself  and  his  father  Pippin  had  freed  the  city  of 
Rome  and  the  church  of  God  from  the  Lombards  by 
the  help  of  the  Franks  or  Germans2.  On  the  other 

1  Vide  chap.  iv.  pp.  61-8. 

2  Vide  chap.  v.  p.  69 :  "  Sciendum  est  igitur,  quod  sanctus  Karolus 
Magnus  imperator  de  consensu  et  mandate  Romani  pontificis,  or- 
dinatione  sibi  divinitus  inspirata,  instituit  et  precepit,  ut  imperium 
Romanorum  apud  electionem  canonicam  principum  Germanorum  in 
perpetuum  resideret.     Non  enim  convenit,  sanctuarium  Dei,  id  est 
regnum  ecclesie,  jure  hereditario  possideri;  considerans,  quod  ipse 
de   Grecorum,   Romanorum   et   Germanorum   germine   directa   linea 
processisset,  et  quod  etiam  pater  suus  Pipinus  primo  et  ipse  Karolus 
secundo  per  Francorum,  id  est  Germanorum,  auxilium  Romanam 
urbem  et  ecclesiam  Dei  de  Lumbardorum  infestatione  liberasset." 


Ill]  THE    PROBLEM    OF   THE   EMPIRE  239 

hand,  being  king  of  the  Franks  as  well  as  Roman 
Emperor,  and  further  considering  that  he  himself  was 
hereditary  king  of  the ,  Franks,  he  decreed  that  the 
Francigenae  should  have  an  hereditary  king  of  the 
blood  royal  and  a  certain  portion  of  the  Frankish 
kingdom;  and  that  these  kings,  as  the  posterity  of 
an  Emperor,  should  own  no  temporal  superior.  As 
another  recompense  he  added  the  "studium  philosophic 
et  liberalium  artium"  which  he  transferred  from  Rome 
to  Paris1. 

Thus,  according  to  due  and  necessary  order,  the 
Romans,  as  "seniores,"  have  the  Sacerdotium,  the 
Germans  or  Franks  as  "juniores,"  the  Imperium,  and  the 
Francigenae  or  Gallici,  as  "  perspicatiores,"  the  Studium. 
All  three — Sacerdotium,  Imperium  and  Studium — are 
necessary  to  the  life,  increase  and  government  of  the 
holy  catholic  church;  they  are  its  foundation,  walls  and 
roof  respectively.  Let  those  therefore,  whose  business 
it  is,  see  that  this  house  remains  intact,  lest  Antichrist 
or  his  precursors  come  like  thieves  through  its  broken 
walls  (the  Imperium)2. 

1  Chap.   v.   p.    70:    "Porro,   quia  ipse   Karolus  rex  Francorum 
extitit  et  illud  regnum  ad  eum  fuerat  ex  successione  devolutum, 
impium  fuisset  et  indecens,  quod  ipse  suos  heredes  dignitate  regia 
penitus  denudasset.     Statuit  igitur   iniciando,  quod   Heinricus   ejus 
pronepos  consummavit,  ut  Francigene  cum  quadam  regni  Francorum 
portions  regem  haberent  de  regali  semine  jure  hereditario  successurum, 
qui  in  temporalibus  superiorem  non  recognoscerent,  cui  videlicet  tam- 
quam  imperatoris  posteritas   ad   homagium   vel  aliquod   obsequium 
teneretur.     Huic  regi,  suo  heredi,  in  recompensationem  regni  defalcati 
adjecit  studium  philosophic  et  liberalium  artium,  quod  ipse  de  urbe 
Romana  in  civitatem  Parisiensem   transplantavit."     Waitz,   p.    70, 
note  1,  says  that  by  the  "pronepos"  Henry,  here  mentioned,  is  meant 
Henry  the  Fowler. 

2  Chap.   v.   pp.   70-1:    "Et  est  nota  dignum,  quod   debitus  et 


240  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

We  see  how  our  author  treats  the  French  claims  to 
be  the  descendants  of  Charlemagne  and  his  Franks. 
Modern  France  is  a  portion  of  the  old  Gallia  (in  the 
large  sense),  which  was  Charlemagne's  original  kingdom. 
The  inhabitants  of  France  are  Gallici  and  Franci- 
genae ;  it  has  been  allowed  the  Studium  and  its  inde- 
pendence, and  represents  the  hereditary  kingdom  of 
Charlemagne,  though  with  shortened  boundaries.  But 
if  the  kings  of  France  call  themselves  "reges  Fran- 
corum,"  they  do  so  merely  "a  digniori";  they  are  really 
"reges  Francigenarum1."  In  the  same  way  the  true 

necessarius  ordo  requirebat,  ut,  sicut  Eomani  tamquam  seniores 
sacerdotio,  sic  German!  vel  Franci  tamquam  juniores  imperio,  et 
ita  Francigene  vel  Gallici  tamquam  perspicatiores  scientiarum  studio 
dotarentur,  et  ut  fidem  catholicam,  quam  Romanorum  constantia 
firmiter  tenet,  illam  Germanorum  magnanimitas  imperialiter  tenere 
precipiat,  et  eandem  Gallicorum  argutia  et  facundia  ab  omnibus  esse 
tenendam  firmissimis  rationibus  approbet  et  demonstret.  Hiis  si 
quidem  tribus,  scilicet  sacerdotio  imperio  et  studio,  tamquam  tribus 
virtutibus,  videlicet  vitali  naturali  et  animali,  sancta  ecclesia  katholica 
spiritualiter  vivificatur  augmentatur  et  regitur.  Hiis  etiam  tribus, 
tamquam  fundamento  pariete  et  tecto,  eadem  ecclesia  quasi  materialiter 
perficitur....Studeant  ergo  illi,  quorum  interest,  ut  hec  domus  integra 
maneat  et  intacta,  nee,  quod  absit,  parietibus  dissolutis  fur  ille  Anti- 
christus  vel  sui  precursores  intrent  aliunde  quam  per  ostium  et  gregem 
ovium  interficiant  cum  pastore." 

1  Vide  chap.  v.  p.  72:  "Verum  a  tempore  prenotato  (i.e.  the 
separation  of  '  France '  and  '  Germany '  by  Charlemagne  and  Henry  I) 
reges  Francigenarum  se  fecerunt  tamquam  a  digniori  reges  Francorum 
appellari.  Et  similiter  reges  Francorum  vel  Germanorum,  quod  est 
unum,  tamquam  a  superior!,  reges  vel  imperatores  Romanorum 
appellari  voluerunt.  Illi  autem  qui  usque  ad  hec  tempora  reges 
Francorum  dicebantur  non  sunt  dicti  reges  Francorum  a  Francis 
orientalibus,  qui  sunt  homines  grossi  et  incompositi,  neque  a  Francis 
occidentalibus,  qui  sunt  homines  delicati  et  compositi,  sed  a  Francis 
Germanis,  qui  in  habitu  exteriori  a  Francigenis  et  in  moribus  a 
Romanis  nori  multum  discordant."  Cf.  a  comparison  on  p.  60 
between  the  Franci  and  Francigenae.  They  differ  in  speech,  but  are 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  241 

"  reges  Francorum  "  call  themselves  a  superiori  "  reges 
vel  imperatores  Rornanorum."  But  the  old  "reges 
Francorum "  were  so  called  not  from  the  "  Franci 
orientales "  of  Franconia,  "  qui  sunt  homines  gross!  et 
incompositi,"  nor  from  the  "  Franci  occiden tales,"  i.e. 
the  Francigenae,  "  qui  sunt  homines  compositi  et  deli- 
cati,"  but  from  the  "  Franci  Germani "  (of  the  Rhine- 
land),  "qui  in  habitu  exteriori  a  Francigenis  et  in 
moribus  a  Romanis  non  multum  discordant." 

Read  in  connection  with  our  previous  inquiries  the 
significance  of  this  is  obvious.  Some  little  confusion 
arises  from  the  author's  use  of  the  terms  Gallici  and 
Gallia  in  two  senses,  as  well  as  from  the  fact  that  both 
the  Gallici  (in  the  narrower  sense  of  the  Gallici  Comati) 
and  the  Francigenae  are  taken  as  the  ancestors  of  the 
modern  French1.  For,  in  so  far  as  they  are  Gallici,  they 
have  no  claim  to  the  Frankish  kingdom ;  but  we  have 
seen  that  he  allows  them,  as  Francigenae,  to  represent 
the  hereditary  kingdom  of  Charlemagne,  through  "  de- 
falcatum."  Now,  as  Charlemagne  was  king  of  the 
Franks,  it  is  not  quite  easy  to  see  on  what  ground  our 
author  refuses  to  allow  those,  who  represent  his  heredi- 
tary kingdom,  to  be  Franks.  Still  the  important  fact 
is  that  he  does  refuse.  Clearly  and  unmistakably  he 
maintains  that  the  Germans  are  the  true  Franks  and 
that  the  true  kings  of  the  Franks  are  those  who  call 

"exteriori  habitu  satis  conformes,"  except  that  the  Francigenae 
"tamquam  juniores"  are  concerned  with  juvenile  "mores" — tourna- 
ments, poetry,  etc. — the  Franci  with  more  serious  matters — wars 
and  discord—"  in  hoc  Komanorum  germanitatem  quodam  modo 
imitantes." 

1  Vide  a  clear  example  of  this,  above,  p.  239,  note  2,  the  "Franci- 
gene  vel  Gallici,"  as  "perspicatiores,"  have  the  Studium. 

w.  16 


242  THE   PROBLEM   OF   THE    EMPIRE  [CH. 

themselves  by  a  higher  title  "reges  Romanorum,"  as 
those  with  whom  Charlemagne  ordained  that  the 
Empire,  transferred  to  him,  should  remain.  French 
claims  to  the  Empire  could  be  made  only  on  the 
supposition  that  Charlemagne  and  his  Franks  were 
"French."  This  our  author  denies.  France  is  to  have 
neither  a  French  Emperor,  nor  even  a  French  Pope.  It 
is  to  be  content  with  its  acknowledged  independence  and 
its  intellectual  supremacy,  as  realised  in  the  University 
of  Paris. 

The  Empire,  for  the  continuance  of  which  in  German 
hands  this  author,  as  the  author  of  Chapter  I.,  is 
pleading,  is  not  the  Empire  of  the  Hohenstaufen — the 
lawyers'  Empire — but  the  Empire  of  Charlemagne 
and  his  Franks.  Indeed,  our  author  is  distinctly  hostile 
to  the  Hohenstaufen.  He  traces  the  fortunes  of  the 
Empire  from  Charlemagne  and  through  the  Saxon 
Emperors  up  to  the  time  of  Frederick  Barbarossa1. 

1  Vide  Chap.  vi.  pp.  77-9 :  "Translate  itaque  imperio  de  heredibus 
serenissimi  principis  Henrici  primi  imperatoris,  culpis  eorum  exi- 
gentibus,  electores  vota  sua  in  Fridericum  quendam  nobilem  de  Suevia 
direxerunt,  post  ipsum  quosdam  de  suis  successoribus  et  heredibus  in 
reges  eligentes.  Sed  utrum  dictus  Fridericus  prece  vel  pretio,  virtute 
vel  vicio  electorum  gratiam  meruerit,  nescio.  Sed  hoc  scio,  quod  ab 
illo  tempore  imperatores  parum  vel  nichil  operati  sunt  laude  dignum 
vel  vituperio  de  pleno  consilio  vel  auxilio  principum  Germanorum, 
immo  per  Suevos  et  Bavaros  ac  ulteriores  Almanos  imperium  gubernare 
laborabant,  ita  ut  deinceps  non  regnum  Germanic  vel  Theutonie  seu 
Eomanorum,  sed  regnum  Almanie  vulgariter  nuncupetur;  et  ita  sub 
Suevorum  imperio  potestas  et  auctoritas  imperialis  augeri  desiit  et 
vehementius  decrescere  incepit.  Cujus  decrement!  causam  et  occa- 
sionem  ego  relinquo  Gelphis  et  Gibelinis  disputandam.  Sed  hoc 
adicio,  quod,  sicut  Romani  pontifices  in  Italia  fecundiores  terras 
imperii,  sic  German!  principes  in  Germania  meliores  terras  regni  sibi 
et  suis  ecclesiis  quocumque  modo  vel  titulo  conquirunt  et  usurpant. 
Ex  quo  non  est  dubium,  tandem  regnum  Romanorum  et  sacerdotium 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  243 

How  he  was  elected,  "prece  vel  pretio,  virtute  vel  vicio," 
he  does  not  know.  But  he  does  know  that  from  that  time 
dated  the  speedy  decay  of  the  Empire.  These  Suabian 
Emperors  did  not  seek  to  govern  the  Empire,  whether 
well  or  ill,  by  the  counsel  and  with  the  help  of  the 
German  princes,  but  of  Suabians,  Bavarians  and  the 
"  ulteriores  Almani,"  so  that  men  no  longer  talk  of  the 
"regnum  Germanie  vel  Theutonie  seu  Romanorum" 
but  of  the  "regnum  Almanie."  But  he  leaves  the  cause 
of  the  Empire's  decline  to  be  disputed  over  by  Guelphs 
and  Ghibellines,  only  adding  that  the  usurpations 
of  the  Popes  in  Italy  and  of  the  German  princes 
in  Germany  can  but  lead  to  the  separation  of  the 
Regnum  and  Sacerdotium  from  their  mutual  depend- 
ence— "quibus  divisis,  utriusque  desolatio  est  futura." 
He  then  recalls1  a  prophecy,  long  current  in  Germany, 
of  another  Frederick,  who  is  to  rise  from  the  blood  of 

ab  invicem  dividendum  esse.  Quibus  divisis,  utriusque  desolatio  est 
futura." 

1  Vide  pp.  79-82:  "  Verum  tamen  qualis  Fridericus  ultimus  fuerit 
quern  dominus  Innocentius  Papa  IIII  destituit,  propheta  insinuat  ubi 
dicit :  '  Percussisti  caput  de  domo  impii,  denudasti  fundamentum  etc.' 
Dicunt  etiam,  a  longis  temporibus  vatiocinatum  esse  in  Germania, 
quod  de  hujus  Friderici  germine  radix  peccatrix  crumpet  Fridericus 
nomine,  qui  clerum  in  Germania,  et  etiam  ipsam  Eomanam  ecclesiam 
valde  humiliabit  et  tribulabit  vehementer.  Dicunt  praeterea,  aliud 
ibidem  esse  vulgare  propheticum,  quodde  Karlingis,  id  est  de  stirpe  regis 
Karoli  et  de  domo  regis  Francie,  imperator  suscitabitur  Karolus  nomine 
qui  erit  princeps  et  monarcha  totius  Europe  et  reformabit  ecclesiam 
et  imperium,  sed  post  ilium  nunquam  alius  imperabit.  Qui  hujus- 
modi  vaticiniis  et  incertis  prophetiis  vult  fidem  adhibere,  adhibeat. 
Ego  certus  sum  quod  Creator  sue  presidet  creature,  et  quod  justo  Dei 
et  irreprehensibili  agitur  judicio,  ut  secundum  merita  cleri  et  populi 
aliquando  ecclesia  habeat  defensorem,  aliquando  nullum,  aliquando 
vero  pro  rege  tirannum  ad  vindictam  reproborurn  et  ad  exercitium 
electorum." 

16—2 


244  THE   PROBLEM   OF  THE   EMPIRE  [CH. 

Frederick  II  and  to  humble  and  oppress  the  Church, 
and  a  second  prophecy  of  another  Charles,  of  the  blood 
of  Charlemagne  and  "de  domo  regis  Francie,"  who  is 
to  be  monarch  of  all  Europe,  reform  the  Church  and 
Empire,  and  be  the  last  of  all  Emperors.  The  author 
does  not  commit  himself  to  belief  in  such  uncertain 
prophecies.  He  is  sure  that  God's  judgment  is  just; 
and  only  lately,  after  a  vacancy  of  thirty-two  years, 
God  has  raised  up  Rudolf  of  Habsburg,  to  show  that 
divine  help  is  never  wanting1. 

Our  author  had  good  reason  to  be  incredulous  with 
regard  to  these  "vaticinia."  There  is  little  ground  for 
supposing  that,  naturally,  he  was  less  likely  than  most 
of  his  contemporaries  to  be  affected  by  the  spirit  of 
prophecy  and  the  eschatological  beliefs,  which,  rarely 
absent  in  the  Middle  Ages,  were  never  more  widespread 
and  more  potent  in  their  effect  on  men's  thought, 
political  as  well  as  moral,  than  in  the  years  which  fol- 
lowed the  fall  of  the  Hohenstaufen2.  But  to  have 

1  Vide  chap.  vn.  p.  82:  "Novissime  autem  diebus  istis,  postquam 
imperium  per  annos  quasi  32  vacaverat,  visitavit  Deus  plebem  suam 
et  suscitavit  ei  principem   serenissimum  dominum  Rudolphum   de 
Habsburg  comitem.     In  ejus  electione  concordi  et  coronatione  solemp- 
nissima  sicut  Dei  gratia  cunctis  manifestissime  apparuit,  sic  etiam  in 
ipsius  promotione  divinum  auxilium  nunquam  se  subtraxit." 

2  On  the  other  hand  Schraub,  op.  cit.  p.  35,  contrasts  the  perso- 
nality  of   the    author   of   Chap.    i. — "hinter   seinem    predigtartigen 
Warnungen  und  Mahnungen  verschwindet ' ' — with  that  of  the  author 
of  the  remaining  chapters,  who  relegates  "die  Prophezeiungen  iiber 
einen  kiinftigen  Weltmonarchen  oder  Verfolger  der  Kirche  mit  ener- 
gischen  Worten  in  das  Reich  der  Fabeln."     But  the  latter  author 
shows  himself  just  as  credulous  as  the  author  of  Chap.  i.  with  regard 
to  the  legend  of  Antichrist.     It  seems  to  me  much  better  to  explain 
his  attitude  here  as  dictated  by  the  necessity  of  his  theories,  than  by 
a  natural  spirit  of  scepticism,  which  the  rest  of  the  treatise  hardly, 
I  think,  bears  out. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  245 

expressed  anything  but  scepticism  with  regard  to  these 
prophecies  would  have  been  to  contradict  the  whole 
tenour  of  his  treatise.  The  prophecy  of  a  last  Frankish 
Emperor,  from  the  blood  of  Charlemagne,  went  back 
to  the  ninth  century;  the  manifold  prophecies  con- 
nected with  Frederick  II  began  to  be  current  imme- 
diately after  his  death1.  Now  at  the  date  of  this 
treatise2  both  prophecies  had  a  real  and  present  sig- 
nificance, when  Charles  of  Anjou  was  attempting  to 
procure  a  new  "  translatio  imperii,"  and  when  the  hopes 
of  Ghibelline  circles  were  centred  on  another  Frederick, 
the  nephew  of  Frederick  II3.  Our  author's  plea  was 


1  Vide  Kampers,  Kaiserprophetieen  und  Kaisersagen  im  Mittelalter, 
pp.  53-9  and  107  and  ff . 

2  According  to  Schraub,  op.  cit.  pp.  50-62,  it  dates  from  the  first 
months  of  Martin  IV's  pontificate,  probably  soon  after  his  coronation. 
The  words  of  the  introductory  letter,  "nuper  itaque  vacante,  etc." 
(vide  above,  p.  228,  n.  4),  show  that  the  date  must  anyhow  be  near  the 
accession  of  Martin  IV — i.e.  1281. 

3  Frederick  of  Meissen-Thiiringen  (1257-1341) — vide  for  this  very 
interesting  point  Grauert,  "  Zur  deutschen  Kaisersage"  (in  Hist.  Jahr- 
buch  im  Auftrage  des  Gorres  Gesellsctiaft,  vol.  xm.  1892),  pp.  110-11, 
and  especially  p.   Ill:    "Die  beiden  Kaiserspriiche  aber,  von  denen 
Jordanus   uns   berichtet,    ohne   sie    selber    sich   anzueignen,   gelten 
nicht  einer  ferner  Zukunft,  sondern  beziehen  sich  auf  Fiirsten,  die  in 
jenen  Tagen  unter  den  lebenden  weilten  und  in  gewissem  Sinne  als 
die  Reprasentanten  der  grossen  Parteien  der  Ghibellinen  und  Guelfen 
angesehen  werden  konnten....Es  handelt  sich  einmal  um  den  jungen 
Sprossen  des  deutschen  Fiirstengeschlechtes  der  Wettiner,  Friedrich 
den  Freidigen  von  Meissen-Thiiringen,  durch  seine  Mutter  Margaretha 
Enkel  Kaiser  Friedrichs  II,  und  dann  um  Karl  von  Anjou,  den  ersten 
Konig  von  Neapel-Sizilien  aus  dem  Hause  Kapet.     In  der  That  sind 
diese  beiden  Fiirsten,  der  deutsche  Friedrich  und  der  franzosische 
Karl,  nicht  bloss  Rivalen  beziiglich  des  Konigreiches  Sizilien  gewesen. 
Fiihrende  Geister  der  Ghibellinischen  und  der  Guelfischen  Partei  haben 
zeitweilig  je  nach  ihrem  Parteistandpunkt  den  einen  oder  den  anderen 
an  der  Spitze  des  romischen  Imperiums  als  Kaiser  Friedrich  III  oder 


246  THE   PROBLEM    OF   THE   EMPIRE  [CH. 

neither  for  an  Emperor  Frederick  III  nor  an  Emperor 
Charles  IV,  but  for  an  Emperor  Rudolf.  That  he 
mentions  these  prophecies  is  perhaps  proof  enough  that 
they  were  not  without  terror  for  him.  A.Hohenstaufen 
or  a  French  Emperor,  whether  bad  or  good,  would  be 
fatal,  in  his  opinion,  to  the  salvation  of  Christendom, 
which  was  now  assured,  as  he  hoped,  by  the  election  of 
Rudolf  of  Habsburg.  For  to  our  author  Christendom 
is  one  people,  one  Church,  and  within  this  Church  are 
three  powers — the  Sacerdotium,  Imperium  and  Studium. 
Each  of  these  powers  belongs  historically  and  by  divine 
will  to  one  of  the  three  principal  nations  of  the 
world,  the  Romans,  the  Germans  and  the  Gallici  or 
Francigenae.  Their  concord  is  necessary  to  the  welfare 
of  the  Church;  and  to  assure  this  concord  the  three 
powers  must  be  distributed  among  their  rightful  owners1. 
Only  thus  can  Antichrist  be  warded  off.  Especially 
necessary  is  it  that  the  Empire  be  preserved  in  the 
hands  of  the  Germans,  to  whom  it  was  translated,  not 
by  chance,  but  by  divine  ordination  and  the  merit  of 
the  German  princes2.  He  pleads  for  the  continuance 

als  Kaiser  Karl  IV  zu  sehen  gehofft."  Vide  also  Kampers,  op.  cit. 
pp.  118-23. 

1  Vide  Chap.  vm.  p.  85:  "Insuper,  ut  ego  utar  opinione  singulari, 
cum  verecundia  audeo  sic  sentire,  quod  ad  regimen  universalis  ecclesie 
nichil  competentius  expediat,  quam  ut  sanctissimus  pater  Eomanus 
pontifex,  qui  pro  tempore  fuerit,  diligentiam  adhibeat,  quod  studium 
Gallicorum  in  suo  vigore  floreat  et  fructificet  ad  confutandum  here- 
ticorum  versutias  et  errores,  et  ut  Germanum  imperium  in  suo  honore 
dilatetur  ad  supprimendas  gentes  et  omnes  barbaras  nationes,  et  ut 
sacerdotium  Eomanorum  in  suo  robore  subsistat  et  firmetur  ad  con- 
gregandos  filios  ecclesie  ad  amorem  et  obedientiam  per  gratias  com- 
petentes  et' justitiam  expeditam." 

2  Vide  Chap.  n.  p.  52:  "Ne  igitur...humana  temeritas  immutare 
presumat  statum  sacri  imperii,  quod  non  est  dubium  Sancti  Spiritus 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  247 

of  that  concord  between  the  Imperium  and  the  Sacer- 
dotium,  which  Gregory  X's  pontificate  and  Rudolf's 
election  seemed  to  promise.  "Sicut  ecclesia  Romana 
est  ecclesia  Dei,  sic  utique  regnum  est  similiter  regnum 
Dei."  It  were  amazing  if,  after  the  devotion  and 
liberality  shown  by  so  many  Emperors  towards  the 
Church,  the  memory  of  the  "regia  dignitas"  were  to 
be  deliberately  blotted  out  from  the  book  of  the  living, 
and  if  at  least  once  a  year  a  general  prayer  were  not  to 
be  offered  "pro  rege  vel  pro  regno  Romanorum,"  as  it  is 
for  Jews  and  Saracens.  God  ia  His  own  time  must 
rank  such  omission  as  ingratitude  to  Himself1.  Nor  is 
the  Pope  to  despise  the  "secularis  conversatio"  of  the 
German  princes,  who  represent  the  Sacerdotium  of 
Samuel2.  Then  turning  to  the  Germans — "confidenter 
loquor:  si  Germani  principes  cum  suis  fidelibus  Romano 

ordinatione  secundum  qualitatem  et  exigentiam  meritorum  humanorum 
gubernari  et  disponi,  videtur  expediens,  ut  quedam  antiquitates  ex 
multorum  scriptis  collecte  recitentur  ad  demonstrandum  et  declarandum , 
quod  non  eventu  vel  casu  fortuito,  sed  magna  sanctorum  principum 
actum  est  solertia,  ut  Eomanum  imperium  non  apud  Eomanos 
remanere  debuerit  vel  transferri  in  Galileos,  sed  potius  in  Germanos." 

1  Vide  Chap.  vm.  pp.  83-5. 

2  Chap.  vm.  p.  84:  "Ipse  etiam  reges  elegit  in  Israel  et  electum 
consecravit."     This  refers  of  course  to  the  German  coronation  at  Aix, 
as  does  his  mention  of  Rudolf's  "coronatio  solempnissima "  above 
(p.  244,  n.  1),  for  Rudolf  was  never  crowned  Emperor  at  Rome.     And 
it  is  interesting,  in  view  of  our  author's  enmity  to  the  Hohenstaufen 
and  partiality  for  the  Rhineland-  archbishoprics,  especially  for  Cologne 
(vide  below,  p.  250  in  the  legend  of  S.  Maternus),  to  notice  that  the 
Imperial  policy  of  the  Hohenstaufen,  which  aimed  at  obliterating  the 
German  kingship  in  the  Roman  Empire,  threatened  especially  the 
prestige  of  the  Archbishop  of  Cologne,  who  stood  in  the  same  relation 
towards  the  German  coronation,  as  the  Pope  towards  the  Imperial. 
Vide   on    this    point    in    the    Hohenstaufen    policy,    Krammer,    Die 
Reichsgedcinke  des  staiifischen  Kaiserhaus,  pp.  22-5  and  64. 


248  THE   PROBLEM   OF  THE    EMPIRE  [CH. 

imperatori  tamquam  advocate  ecclesie  fideliter  assiste- 
rent,  sicut  in  temporibus  preteritis  consueverunt,  tune 
absque  dubio  omriis  potestas  contraria  esset  parva,  tune 
non  solum  Grecia,  sed  etiam  Caldea  contremisceret 
cum  Egipto.  Aves  viso  flore  cantant  et  letantur,  sed 
ad  aquile  intuitum  silent  et  fugiunt;  sic  omnes  bar- 
bare  nationes  aliorum  regum  insignia  despiciunt,  sed 
Komanorum  et  Germanorum  aquilas  timent  naturaliter 
et  abhorrent1." 

In  the  last  chapter  of  the  treatise  he  develops 
this  plea  for  the  return  to  a  better  order  of  things,  such 
as  he  hopes  the  election  of  Rudolf  may  presage — the 
Church  directed  by  its  three  ruling  powers,  distributed 
each  to  its  proper  owner;  concord  in  the  German  Empire, 
supported,  not  destroyed,  by  the  German  princes; 
and  the  Roman  Papacy  content  with  its  spiritual 
supremacy. 

He  gives2 — "velud  ab  alio  inchohandum  est  ex- 
ordio" — the  legend  of  S.  Maternus,  whom  in  an  earlier 
chapter  he  has  mentioned  as  the  converter  to  Christianity 
of  the  Franci  Germani  of  the  Rhineland  dioceses. 
S.  Peter  sent  him,  with  Eucharius  and  Valerius,  from 
Rome  to  preach  the  faith  in  Gaul.  When  they  came 
to  Alsace,  Maternus  died  and  was  buried;  the  other 
two  returned  to  Rome.  But  S.  Peter  sent  them  back  to 
Gaul,  giving  them  his  staff,  by  which  they  were  to  raise 
Maternus  from  the  grave.  This  they  did  and  almost  all 
the  people  of  the  province  were  converted.  Maternus  lived 

1  He  adds :  ' '  Insuper  non  est  multum  animadvertenda  Eomanorum 
civium  consueta  et  sibi  innata  discordia,  quia,  licet  ipsi  propter  amorem 
dominandi  et  habendi  sint  diseordes,  tamen  per  Dei  gratiam  in  fide 
catholica  tenacissime  sunt  Concordes." 

2  Vide  Chap.  ix.  pp.  86-90. 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  249 

forty  years  after  his  resurrection,  working  miracles  and 
converting  the  people,  and  though  he  died  in  Cologne, 
his  body  was  miraculously  translated  to  Treves.  The 
staff  of  S.  Peter,  with  which  he  had  been  raised  up  from 
the  grave,  was  divided  into  two,  the  lower  part  being 
kept  at  Treves,  where  he  was  buried,  the  upper  at 
Cologne.  The  author  goes  on  to  interpret  the  legend, 
in  which  some  things  are  to  be  taken  literally,  others 
figuratively.  What  are  we  to  understand  by  S.  Peter 
but  the  "  regale  sacerdotium "  ?  And  what  by  his 
pastoral  staff  but  the  Holy  Empire,  that  is,  the  "  sacer- 
dotale  regnum  "  ?  The  staff  represents  the  Emperor, 
"terrena  se  denudans  potestate,"  supporting  and  honour- 
ing the  Pope.  By  the  staff,  which  raised  up  Maternus 
from  the  grave,  the  wandering  sheep  is  brought  back  to 
the  fold,  when  the  Emperor,  "de  mandato  apostolico," 
brings  back  the  wanderer  to  the  faith  by  means  of  the 
material  sword.  Further,  the  staff  sent  by  S.  Peter 
through  Eucharius  and  Valerius  to  Gallia  Belgica  repre- 
sents the  Roman  Empire  translated  from  the  Greeks  to 
the  Germans  in  the  person  of  Charlemagne1.  The  church 

1  Vide  p.  89:  "Sed  quid  per  Petrum  apostolorum  principem  et 
fundamentum  ecclesie  nisi  regale  sacerdotium  intelligimus ?  Et  quid 
per  baculum  pastoralem,  per  quern  pastor  sustentatur,  ovis  errans  ad 
ovile  reducitur  et  lupus  rapax  repellitur,  nisi  sacrum  imperium,  id  est 
sacerdotale  regnum,  designatur?  Per  baculum  siquidem  pastor  sus- 
tentatur, dum  Komanus  imperator  terrena  se  denudans  potestate 
summum  pontificem  et  pastorem  omni  qua  potest  reverentia  et  honore 
sublevat  et  exaltat.  Per  baculum  etiam  ovis  errans  ad  ovile  reducitur 
vel  Maternus  mortuus  suscitatur,  dum  quicumque  christiani  perversis 
moribus  vel  scismaticis  vel  aliis  erroribus  a  Komane  ecclesie  obedientia 
deviantes,  de  mandato  apostolico  per  imperatorem  materiali  gladio  ad 
unitatem  fidei  revocantur.  Per  baculum  insuper  lupus  rapax  repellitur, 
dum  inimici  christiani  nominis  auctoritate  Eomani  pontificis  per 
Eomanum  imperium  conteruntur.  Hunc  itaque  baculum  beatus 


250  THE    PROBLEM    OF   THE   EMPIRE  [CH. 

of  Treves  keeps  the  lower  part  of  this  staff,  and  Cologne 
the  upper,  because  though  Treves  is  older,  it  is  far  less 
in  power  and  merit.  For  the  archbishop  of  Cologne  is 
the  first  of  the  electors  and  at  Aix  consecrates  the  king 
of  the  Romans,  in  this  anticipating  the  office  of  the 
Roman  Pope,  who  consecrates  the  king,  once  duly  elected 
and  consecrated,  as  Emperor. 

Finally,  our  author  again  maintains  that  the  trans- 
lation of  the  Empire  to  the  Germans  was  not  only  the 
work  of  human  zeal  but,  even  before  it  came  about,  was 
divinely  presaged.  But  the  Germans  are  not  to  boast 
of  this,  for  they  are  the  more  blameworthy,  the  more 
they  withdraw  from  their  due  obedience  to  the  Emperor 
and  show  themselves  unworthy  of  this  "regnum  ecclesie," 
which  their  ancestors  "a  Deo  et  hominibus  sanguine 
proprio  meruerunt1."  May  God,  he  concludes,  by  Whose 
providence  the  whole  body  of  the  Church  is  governed, 
deign  to  reform  the  Regnum  and  Sacerdotium  and, 
when  reformed,  to  keep  them  in  concord2. 

Petrus  Eomanus  et  Antiochenus  episcopus  per  Eucharium  et  Valerium 
transmisit  ad  Galliam  Belgicam,  dum  Romanus  pontifex  per  manus 
magninci  Karoli  Romanum  imperium  de  Grecis  transtulit  in 
Germanos." 

1  Vide   Chap.   x.   p.   90:    "Manifestum  est   igitur    ex    predictis 
omnibus,  quod  non  solum  humana  solertia  ex  necessariis  et  rationa- 
bilibus  causis  fuit  institutum,  immo  et  antequam  fieret  divina  fuit 
prefiguratione    presignatum,    quod    Romanorum    imperium    in    fine 
seculorum   transferri   oportuit   in   Germanos.     Sed   de   hoc   non   est 
ipsis  gloriandum,    cum    tanto    magis   se   ostendant   reprehensibiles, 
quanto  magis  ipsi  se  ab  imperatoris  obsequio  faciunt  alienos;  immo 
ipsi  propter  suam  superbiam  et  desidiam  regnum  ecclesie,  quantum 
in  eis  est,  vix  obtinere  poterunt,  quod  eorum  progenitores  a  Deo  et 
hominibus  sanguine  proprio  meruerunt." 

2  Vide  Chap.   xi.   p.  90:    "Deus  autem  omnipotens  cujus  provi- 
dentia    totum    corpus    ecclesie    disponitur    et    regitur,    ita   dignetur 
secundum    suam  voluntatem  regnum   et  sacerdotium  reformare  et 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  251 

With  the  treatise  or  treatises  which  go  under 
the  name  of  Jordan  of  Osnaburg's  De  Praerogativa 
Romani  Imperil  we  may  well  compare  another  of  very 
similar  character,  which  is  known  as  the  Notitia  Sae- 
culi.  The  question  of  the  authorship  of  the  Notitia 
has  generally  been  considered  in  close  connection  with 
the  question  of  the  authorship  of  the  De  Praerogativa. 
This  time  we  have  no  need  to  enter  into  the  question1. 
There  can  be  no  doubt  that  the  Notitia  is  a  single 
treatise,  while  its  date  can  be  fixed  with  practical 
certainty  to  January  or  the  first  half  of  February  12882. 
Nor  can  there  be  any  doubt  as  to  the  close  connec- 
tion between  the  treatise  and  "Jordan  of  Osnaburg3," 

reformata  concordare,  ut  pacem  habeamus  diebus  nostris  et  sancta 
ecclesia  et  fides  catholica  dilatetur  et  crescat  ad  laudem  et  gloriam 
nominis  sui,  qui  est  benedictus  in  secula  seculorum,  amen." 

1  Vide   for  this   treatise    the   works    of    Wilhelm,    Grauert    and 
Schraub,  referred  to  above  (p.  230,  n.  1)  in  connection  with  "Jordan." 
Wilhelm  argues  for  the  authorship  of  Jordan  of  Osnaburg ;  Grauert, 
of  Alexander  of  Roes.     Schraub,  who,  as  we  have  seen,  maintains 
Alexander  to  be  the  author  of  chap.  n.  and  the  following  chapters 
of  the  treatise,  usually  ascribed  to  Jordan  of  Osnaburg,  regards  the 
author  of  the  Notitia  as  unknown.     He  considers  that  this  unknown 
author  made  use  of  the  De  Praerogativa  and  that  in  so  doing  he 
made  considerable  additions  to  it.     Vide  pp.  6  and  ff.,  and  Anhang, 
pp.  121-5.     The  Notitia  Saeculi  is  printed  by  Wilhelm  in  his  article, 
pp.  661-75,  and  I  quote  from  and  refer  to  this  edition. 

2  The  author  tells  us  (p.  664)  that  he  was  writing  in  the  year  1288 
and  that  the  Papacy  was  vacant  after  the  death  of  Honorius  IV,  while 
he  mentions  Hieronimus  of  Ascoli,  who  became  Pope  as  Nicholas  IV 
on   Feb.    15th,    as   still   only   bishop   of    Palestrina    (p.    671).     Vide 
Wilhelm's  article,  p.  637. 

3  Accepting  Dr  Schraub 's  theory  of  the  different  authorship  of 
chap.  i.   and  the  remaining  chapters  of   the  De  Praerogativa,  this 
will,  of  course,  chiefly  apply  to  the  later  chapters,  since  chap,  i.,  on 
this    hypothesis,    dates    from    the    Interregnum.      I    have    however 
attempted  to  show  that  there  may  still  be  a  large  degree  of  similarity 
in  the  outlook,  and  even  in  the  aim,   of  the  two  parts  of   the  De 


252  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

however  that  connection  may  have  come  about.  We 
may  well  consider  some  significant  points  of  resemblance. 
There  are  points  of  difference  as  well1,  but  funda- 
mentally the  two  treatises  rest  upon  a  similar  outlook 
and  similar  political  theories. 

The  Notitia  Saeculi  is  intended  to  deal  shortly  "de 
cursu  seculi  et  statu  reipublicae  fidei  christiane,  id 
est  ecclesie  Romane2."  The  author  begins  by  .dividing 
all  time  into  five  periods — the  time  of  innocence,  the 
time  of  the  law  of  nature,  the  time  of  the  written  law, 
the  time  of  grace  and  the  time  of  glory.  Further,  he 
divides  the  world  into  three  principal  parts,  Asia,  Africa 

Praerogativa  since  Rudolf's  election  was  not  a  final  solution  of  the 
problems,  with  which  the  author  of  chap,  i.,  writing  in  the  Inter- 
regnum, was  faced.  The  author  of  chap.  i.  might  be  said  to  be 
pleading  for  Rudolf's  election,  the  author  of  the  later  chapters  to  be 
justifying  it.  Thus,  though  by  "Jordan  of  Osnaburg"  I  should 
be  understood  to  be  referring  in  general  to  the  later  chapters  of  the 
De  Praerogativa,  it  should  be  noted  that  the  points  of  similarity 
between  the  two  parts  of  the  De  Praerogativa  will  also,  at  least  in 
part,  hold  good  between  chap.  i.  of  the  De  Praerogativa  and  the 
Notitia. 

1  One  point  of  difference  should  be  noted  at  once.     At  the  end  of 
"Jordan's"  treatise  we  saw  him  pray  for  the  reform  and  concord 
of   the  Imperium  and  Sacerdotium.     The  author  of  the  Notitia  is 
far  more  concerned  than  Jordan  with  the  internal  corruption  and  dis- 
cord of  the  clergy  and  especially  with  the  struggle  between  the  regular 
and  secular  clergies — a  very  real  question  at  this  time,  particularly  at 
the  Universities.    The  whole  of  this  side  of  the  treatise  we  shall  have  to 
pass  over,  our  object  being  only  to  illustrate  the  results  of  our  previous 
inquiries  into  the  theories  of  "Jordan  of  Osnaburg."     But  it  ought 
to  be  kept  in  mind  that  this  is  an  integral  and  important  side  of  the 
treatise,  and  that  it  would  be  necessary  to  enter  into  it  were  we  about 
to  analyse  the  work   in  detail.      Vide   below,   p.    258,  n.  1,  for  a 
passage  that  will  well  illustrate  this  side  of  the  treatise.     Vide  also 
below,  p.  260  and  ff.  for  another  point  of  difference  between  the  two 
treatises,  namely  their  feeling  towards  the  Hohenstaufen. 

2  p.  662. 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  253 

and  Europe,  and  the  human  race  into  Gentiles,  Jews 
and  Christians.  Having  ruled  out  of  the  five  periods  of 
time  those  of  innocence,  on  account  of  its  brevity,  and 
of  glory,  on  account  of  its  eternity,  he  now  declares 
that  he  will  leave  to  others  to  treat  of  the  periods  of 
the  law  of  nature  and  the  written  law,  and  confine  him- 
self to  the  period  of  grace.  Similarly  he  will  confine 
himself  to  Europe  and  the  "populus  christianus1." 

From  this  we  see  at  once  that  for  the  author  of  the 
Notitia  the  "  State "  in  the  true  sense  of  the  word 
no  more  exists  than  for  "Jordan  of  Osnaburg."  He 
conceives  of  Christendom  as  one  whole — the  "respublica 
fidei  christiane"  or  "  ecclesia  Romana."  This  Christian 
republic  resides  in  Europe,  but  principally  in  the  two- 
chief  of  the  four  Regna  into  which  he  divides  Europe2 — 
the  Regnum  Romanorum  and  the  Regnum  Francorum. 
These  two  kingdoms  are  further  divided  into  three 
provinces,  Italia,  Teutonia  and  Gallia,  inhabited  by 
three  different  races,  each  with  its  own  national  cha- 
racteristics3. By  divine  ordination  the  three  "princi- 
patus"  in  the  Church,  the  Sacerdotium,  Regnum  and 
Studium,  are  distributed  among  these  three  provinces. 

1  "...pauca  intendo  breviter  et  simpliciter  prosequi  de   tempore 
gracie,  de  terminis  Europe  et  de  populo  christiano." 

2  Vide  p.  666.     Europe  has  four  principal  Regna — the  Greeks  in 
the  East,  Spaniards  in  the  West,  Romans  in  the  South,  and  Franks 
in  the  North.     Among  these  four  principal  Regna,   those   of    the 
Franks  and  Romans  are  "  principaliora. " 

3  Vide  p.  668.     He  gives  the  "mores  medii,  boni  et  mali"  for  the 
three  races  but  concludes:   "Verum  tamen,  quia  genus  humanum 
pronum  est  ad  malum  et  quia  plures  sunt  errantes  in  via  morum 
quam  viventes  virtuose,  ideo  supradictis  provinciis  pocius  ascribuntur 
mali  mores  quam  boni,  ut  Italic  avaricia  et  invidia,  Teutonic  rapacitas 
et  discordia,  Gallic  superbia  et  luxuria." 


254  THE    PROBLEM    OF   THE   EMPIRE  [CH. 

The  Sacerdotium  keeps  the  faith  in  Italy,  the  Regnum 
commands  it  to  be  kept  in  Germany  and  the  Studium 
teaches  it  to  be  kept  in  Gaul1. 

The  author  of  the  Notitia  claims  both  Charlemagne 
and  the  Franks  as  Germans,  no  less  clearly — and  with 
no  wider  a  Germany  in  view — than.  "Jordan  of  Osna- 
burg."  "Veri  et  primi  Franci  sunt  populi  habitantes 
contra  Galliam  in  Magnutina,  Coloniensi  et  Treverensi 
diocesibus2."  Similarly,  in  a  most  interesting  passage3, 

1  Vide  p.  668:  "Ex  hiis  prenotatis  rememorandum  est,  quod  fides 
Christiana,  id  est  ecclesia  Romana,  summa  est  humani  generis  et 
ideo  per  certain  ejus  mutacionem  consideratur  principaliter  mutacio 
seculorum.  Verum  res  publica  ecclesie  Romane  residet  in  Europa, 
principaliter  tamen  in  Romano  regno  et  Francorum.  Quae  regna  in 
tres  partes  dividuntur:  hoc  est  in  Italiam,  Teutoniam  et  in  Galliam, 
nam  pater  et  filius  et  spiritus  sanctus  unus  deus  ita  disposuit,  ut 
sacerdotium,  regnum  et  studium  una  esset  ecclesia.  Cum  ergo  fides 
Christi  hiis  tribus  regatur  principalibus,  sacerdotio,  regno  et  studio, 
et  sacerdotium  fidem  teneat  in  Italia  et  regnum  eandem  teneri  impgret 
in  Teutonia  et  studium  ipsam  tenendam  doceat  in  Gallia,  manifestum 
est,  quod  in  hiis  tribus  provinciis  principalibus  residet  res  publica  fidei 
christiane." 

2  p.  667. 

3  Vide  p.  672:  "  Sufficit  igi'tur,  ut  eligatur  ad  papatum  Romanus 
vel  Italicus  clericus,  qui  rejecta  avaritia  et  invidia  firmus  sit  in  fide, 
fortis  in  opere,  fervens  in  caritate  sicut  Petrus,  et  ad  regnum  Germanus 
miles,  generosus,  magnanimus  et  prudens,  sicut  fuit  Karolus.     Has 
enim  tres  virtutes  hec  dictio  rex  in  ydiomate  Teutonico  exprimit  cum 
dicitur:  cunig,  id  est  generosus  vel  audax  vel  sciens.     Nee  est  dubium 
quin  Karolus  fuisset  Teutonicus,  licet  ipse  Gallicos  regnaverit.     Ipse 
enim  lingua  materna,  id  est  Teutonica,  mensibus  et  diebus  nomina 
imposuit,  sicut  in  actis  suis  legitur  manifeste,  et  etiam  fere  omnia 
nomina    regum    Francie     iiiveniuntur    Teutonica,     ut     Hildericus, 
Theodericus,  Dagobertus...que  in  lingua  Gallica  nichil  nisi  personarum 
denominacionem  significant,  sed  in  Teutonica  eorum  interpretacionem 
faciliter  exponerem,  si  Gallicorum  derisionem  non  timerem.     Unde 
non  dedignet  Francia  minor  se  habere  regnum  reges  et  regum  nomina 
a  Francia  majore,  que  sic  ordinante  providencia  dei  per  ministerium 
principum  in  sortem  regni  Romanorum  est  translata,  quia  sicut  Franci 


Ill)  THE   PROBLEM   OF   THE   EMPIRE  255 

he  -maintains  that  not  only  was  Charlemagne  a  German, 
but  that  nearly  all  the  names  of  the  "French"  kings 
are  actually  German — "que  in  lingua  Gallica  nichil  nisi 
personarum  denominacionem  significant,  sed  in  Teu- 
tonica  eorum  interpretacionem  faciliter  exponerem,  si 
Gallicorum  derisionem  non  timerem."  France  is  "  Francia 
minor."  To  "Francia  major,"  that  is  Germany,  the 
Regnum  Romanorum  has  been  translated  "ordinante 
providencia  dei  per  ministerium  principum."  To  our 
present  author,  as  to  "Jordan  of  Osnaburg,"  the  "French" 
are  Gallici  as  well  as  Francigenae.  Charlemagne  was 
a  German,  though  he  ruled  over  Gallici.  The  original 
"  regnum  Francorum "  was  so  called  from  the  "primi 
Franci,"  that  is  the  Franks  of  the  Rhineland  arch- 
bishoprics. Henry  I,  "dux  Saxonie,  Romanorum  rex," 
was  the  first  who  divided  up  this  kingdom,  uniting 
"prima  Francia,"  which  he  called  Lotharingia  in  honour 
of  his  uncle,  all  Teutonia,  the  county  of  Burgundy 
and  the  kingdom  of  Aries  to  the  Roman  Empire,  and 
leaving  "Francia  minor  cum  Galliis  circumjacentibus" 
to  the  heirs  of  Charlemagne,  who  now  call  themselves 
"  reges  Francorum  "  and  succeed  to  their  kingdom  by 
heredity.  The  kings  of  the  "primi  Franci"  are  elective 
and  call  themselves  a  digniori  kings  of  the  Romans 
and  future  Emperors1. 

sunt  German!  Romanorum,  ita  Francigene  geniti  sunt  Francorum; 
Roman!  igitur  sunt  radix,  German!  stirpes  et  Gallici  sunt  ram!  arboris 
flores  et  fructus  honestatis  producentis." 

1  Vide  pp.  667-8:  "Ex  hiis  patet,  quod  regnum  Francorum  a 
primis  Francis  dictum  est.  Sed  hoc  regnum  Henricus  dux  Saxonie 
Romanorum  rex  hujus  nominis  primus  dividens  primam  Franciam, 
quam  ipse  in  honorem  Lotharii  regis  Francorum  et  imperatoris 
Romanorum,  sui  avunculi,  Lotharingiam  appellavit,  cum  tota 
Teutonia  Burgundie  comitatu  et  Arelatensium  regno  Romano  univit 


256  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

Here  then  again,  if  there  is  some  confusion  as  to  the 
origin  of  the  French — whether  Gallici  or  Francigenae — 
the  answer  is  plain  enough.  The  author  of  the  Notitia 
recognises,  as  distinctly  as  "Jordan,"  the  kings  of  France 
to  be  the  heirs  of  Charlemagne.  But  they  are  heirs  to 
his  kingdom,  not  to  his  Empire,  nor  to  those  border 
provinces  of  Lorraine1,  Aries  and  Burgundy,  which  he 
holds  Henry  to  have  united  to  the  Empire  and  on 
which,  we  may  remember,  French  policy  was  already 
casting  covetous  eyes. 

The  period  of  grace,  which,  as  we  saw,  was  the  only 
period  with  which  our  author  proposed  to  deal,  he 
divides,  on  the  authority  of  the  theologians,  into  four 
subordinate  periods2.  Of  these  the  first  two  are  the 
periods  of  persecution  under  the  Gentiles  and  heretics 
respectively.  These  again  he  puts  aside  and  resolves 
to  confine  himself  to  the  two  remaining  subordinate 
periods — that  "in  quo  clerus  tribulabitur  a  christiano 
populo  propter  peccata  sua"  and  that  "quando  veri 
christiani  per  totum  orbem  persecucionem  pacientur 
sub  antichristo."  We  must  leave  aside  the  first  of 
these  and  confine  ourselves  to  the  second;  which  more 
properly  concerns  us.  We  are  in  a  period,  we  may 

imperio....Ac  heredibus  Karoli  predict!  Franciam  minorem  reliquit 
cum  Galliis  circumjacentibus,  quorum  reges  se  modo  Francorum 
reges  appellant  et  succedunt  ex  hereditate.  Primi  vero  Franci  reges 
suos  e"ligunt  ex  dignitate  et  eos  a  digniori  reges  Komanorum,  futures 
imperatores  appellant . ' ' 

1  Cf.  "Jordan,"  chap.  iv.  p.  36:  "  Verum  qualiter  dictum  regnum 
Francorum  divisum  fuerit  in  Franciam,  Lothringiam  et  in  Germaniam, 

t  qualiter  Lotharingia  devoluta  fuerit  ad  Germaniam  etc."  and  cf. 
chap.  vi.  p.  75,  though  this  latter  passage  is  according  to  Schraub 
(op.  cit.  p.  8)  one  of  the  interpolated  passages. 

2  Vide  p.  663. 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  257 

repeat,  of  widespread  prophecies  and  eschatological 
beliefs.  Whatever  we  may  think  of  the  scepticism  of 
the  author  of  the  later  chapters  of  the  De  Praerogativa, 
there  is  no  doubt  as  to  our  present  author's  attitude.  His 
division  of  the  period  of  grace  is  given  on  the  authority 
of  the  theologians,  but  the  authority,  to  which  he  speci- 
ally refers,  is  the  author  of  a  book  called  De  Semine 
Scripturarum,  ascribed  to  the  famous  Joachim,  Abbot 
of  Fiore,  though  actually,  it  appears,  written  after  his 
death1.  Our  author  is  thus  under  the  influence  of  one 
of  the  most  powerful  sources  in  the  mystical  and  pro- 
phetic literature  and  thought  of  his  age  and  of  many 
years  yet  to  come. 

He  begins  by  doubting  the  possibility  or  propriety 
of  questioning  when  the  advent  of  Antichrist  is  to  be,  and 
notes,  among  other  things,  that  "apostolus  dicit,  quod 
nullatenus  Antichristus  veniet,  nisi  Romanum  imperium  x 
penitus  est  ablatum2."  He  recalls  the  prophecy,  which 
he  has  already  mentioned,  of  the  De  Semine  Scriptu- 
rarum, that  the  "tribulacio  symoniacarum,"  the  purging 
of  the  Church  and  the  recovery  of  the  Holy  Land  are 
to  come  within  the  next  twenty-seven  years.  The 
Church  thereafter  will  remain  for  some  time  in  peace 
and  purity,  till  peace  brings  riches  and  riches  luxury, 
and  the  old  disorders  return  again  more  grievous  than 
before.  Then  perhaps,  he  continues,  the  Roman  Church, 
"auxilio  Gallicorum,"  will  wholly  destroy  the  Roman 
Empire,  which  it  has  now  destroyed  in  part.  And  then 
Antichrist  will  come  and  those,  who  have  helped  to 

1  Joachim  died  in  1202,  the  book  was  written  in  1205,  according 
to  Schraub,  op.  cit.  p.  99,  who  gives  references. 

2  Vide  pp.  672-3.     He  refers  of  course  to  II  Thess.  2. 

w.  17 


258  THE   PROBLEM   OF   THE    EMPIRE  [CH. 

destroy  the  Empire,  will  feel  the  ill  of  it.  For  Anti- 
christ can  never  come  while  the  Church  is  defended 
"in  temporalibus "  by  the  Empire  and  has  the  Studium 
to  aid  it  "in  spirit ualibus."  Let  the  Pope  beware  lest 
he  destroy  the  Imperium,  as  the  king  of  France  lest  the 
Studium  be  dissolved1. 

The   author   gives   elsewhere2   another   division   of 
time,  on  the  authority  of  the  "  antiqui  sapientes,"  into 

1  Vide  pp.  673-4 :  "  Et  forte  Eomana  ecclesia  imperium  Eomanum, 
quod  nunc  pro  parte  destruxit,  auxilio  Gallicorum  tune  in  totum 
destruet.  Quo  destructo  tune  in  annorum  centenario,  qui  currere 
incipiet  anno  a.nativitate  Christi  millesimo  CCCC°  quinto  decimo, 
nascetur  Antichristus  et  est  notabile,  quod  quia  clerici  et  Gallici  nunc 
parte  magna  Eomanum  destruxerunt  imperium,  ideo  in  hoc  tempore 
super  eos  venit  et  veniet  magna  tribulacio.  Quando  vero  ipsi  in  totum 
destruxerunt  imperium,  tune  tanta  et  talis  veniet  omnium  christia- 
norum  tribulacio,  quanta  et  qualis  ab  inicio  non  fuit  neque  net... quia 
nullatenus  veniet  Antichristus,  quam  diu  ecclesia  Eomana  imperium 
habet  defensorem  in  temporalibus  et  studium  Gallicorum  in  spirituali- 
bus  ad jutorem.... Caveat  igitur  papa  ne  destruatur  imperium  et  caveat 
rex  Francie,  ne  studium  dissolvatur,  quia  instigante  diabolo  ad  utrius- 
que  destructionem  jam  sub  boni  specie  laboratur.  Sicut  Christus  non 
venit,  nisi  prius  destructum  esset  regnum  Judeorum,  ita  Antichristus 
non  veniet,  nisi  prius  destruatur  regnum  Eomanorum.  Dicebant  olim 
summi  sacerdotes:  Eegem  non  habemus  nisi  cesarem,  et  modo  dicent 
summi  sacerdotes:  Eegem  non  habemus  nisi  papam.  Sicut  enim 
clerici  seculares  affectant  habere  prerogativam  potencie  secularis,  ita 
fratres  regulares  affectant  habere  prerogativam  scientie  naturalis,  et 
sicut  clerici  seculares  postponunt  regulam  theologicam  vivendo,  ita 
fratres  regulares  postponunt  scienciam  theologicam  disputando  et 
studendo,  ex  quibus  potestas  imperii  in  impotentiam  et  sciencia  studii 
in  heresem  convertetur,  et  hec  sunt  preambula  Antichristi."  We  have 
quoted  this  passage  at  length,  because  it  well  illustrates  a  side  of  the 
treatise  (vide  above,  p.  252,  n.  1)  which  finds  little  or  no  parallel  in 
"Jordan."  One  sees  how  significant  the  idea  of  the  Studium  as  a 
third  governing  ' '  power ' '  in  the  Church  becomes  in  connection  with 
our  author's  concern  at  the  discord  between  the  secular  and  regular 
clergies. 

3  pp.  664-6. 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  259 

periods  of  forty-nine  years.  According  to  this  mode  of 
reckoning,  he  finds  that  the  period  between  the  con- 
secration of  Frederick  II  in  the  year  1220,  when  the 
Roman  Empire  was  "in  statu  potissimo1,"  and  the  second 
council  of  Lyons,  held  by  Gregory  X,  was  a  period  in 
which  the  Empire  so  declined,  "  quod  ejus  vix  habebatur 
rnemoria,  et  econtra  in  tantum  Romanum  creverat  sacer- 
dotium  in  temporalibus  et  in  spiritualibus,  quod  ad 
pedes  Romani  pontificis  non  solum  populus  christianus 
et  prelati  ecclesiastici,  sed  etiam  reges  mundi,  Judei, 
Greci  et  Tartari  convenientes  recognoverunt  Romano 
sacerdotio  mundi  monarchiam."  And  so  he  foretells  for 
the  next  fifty  years,  near  the  beginning  of  which  he  is 
writing,  the  contrary  process,  since  the  Empire  could 
not  decline  further,  unless  it  be  entirely  destroyed,  nor 
the  Papacy  advance  to  greater  power,  unless  "abjecta 
auctoritate  apostolica  in  regalem  potestatem  conver- 
tatur."  He  sees  the  change  foreshadowed  in  "those 
two  princes  of  the  world,  Gregory  X  and  Rudolf  I." 
That  there  have  been  ten  Gregories  and  one  Rudolf 

1  There  is  some  doubt  as  to  the  right  reading  here.  Wilhelm 
reads:  "Si  igitur  tempora  preterita  revolvimus,  invenimus  quod 
ab  illo  tempore,  in  quo  Fredericus  secundus  consecratus  fuit  ab 
Honorio  II  A.D.  MCCXX  in  statu  potissimo  Eomanum  tenuit  imperium 
usque  ad  ultimum  concilium...."  Something  is  clearly  missing 
between  "MCCXX"  and  "in  statu."  In  Wilhelm 's  apparatus 
criticus  we  find  that  two  MSS  give  "qui";  but  as  Schraub,  op.  cit. 
p.  86,  points  out,  "qui"  makes  the  author  contradict  himself ,  since 
he  cannot  say  that  Frederick  II  "  in  statu  potissimo  tenuit  imperium," 
if  at  the  same  time  he  dates  the  Empire's  decay  from  Frederick's 
consecration.  Schraub  therefore  proposes  "in  quo,"  which  fits  the 
context  excellently:  i.e.,  the  year  1220  is  the  year  in  which  the 
Empire  both  reaches  its  high -watermark  and  the  decline  of  the  next 
fifty  years  begins.  This,  from  the  whole  context,  is  evidently  what 
the  author  means. 

17—2 


260  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

means  that  the  "  unitas  imperil  sive  regni  ascendere 
debeat  ad  numerum  denarium  et  denarius  sacerdotii 
descendere  debeat  ad  unitatem."  Or,  if  human  malice 
impedes  this  revival  of  the  Empire,  it  can  only  mean 
that  the  time  has  come  when  the  ten  tyrants  (who  in 
the  Antichrist  legend  are  to  secede  from  the  Empire 
before  the  coming  of  Antichrist)  will  arise,  and  the 
"  clericalis  ordo  "  suffer  accordingly.  But  looking  back 
at  the  years  which  have  passed  since  the  second  council 
of  Lyons,  noting  how  the  temporal  and  spiritual  power 
of  the  Church  has  decreased  and  how  the  power  of 
the  Empire  has  increased,  our  author  has  no  doubt 
that  the  latter  is  to  grow  still  greater  as  the  former 
.grows  less. 

This  is  interesting  in  many  ways.  It  shows,  to 
begin  with,  that  the  author  does  not  share  "  Jordan's  " 
hatred  of  the  Hohenstaufen1.  He  dates  the  decline  of 
the  Empire  from  Frederick  II — "Jordan"  dated  it 
from  Frederick  Barbarossa — but  for  this  he  blames 
rather  the  Popes  than  the  Emperors.  At  least,  at 
Frederick  II's  consecration  the  Empire  was  at  the 
height  of  its  power ;  nor  do  we  hear  anything,  as  with 
"Jordan,"  of  the  Hohenstaufen's  partiality  for  the 
"  ulteriores  Almani."  The  author's  attitude  towards 
the  Hohenstaufen  is  clearly  shown  by  a  curious  poem 
which  concludes  his  treatise2.  It  is  an  allegorical 

1  In  "Jordan,"  however,  we  find  in  one  MS  a  long  passage  in 
chap,  vi.,  printed  by  Waitz,  pp.  79-81,  in  the  apparatus  criticus,  which 
is  a  very  pro-Hohenstaufen  account  of  Frederick  II's  relations  with 
the  Papacy  and  Holy  Land.     There  can  be  no  doubt  that  this  is  an 
interpolation,  since  it  is  in  flat  contradiction  to  the  rest  of  the  chapter. 

2  Vide  p.  675 :  "  Sed  inter  jam  dicta  et  dicenta  libet  hie  metricam 
illam  interserere  parabolam,  quam  alias  ante  terminum  scripsi,  cujus 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  261 

account  of  the  first  Council  of  Lyons,  at  which 
Innocent  IV  deposed  Frederick  II.  The  poem  is  called 
the  Pavo.  The  peacock  is  the  Pope,  who  conspires 
against  the  eagle,  the  king  of  birds,  who,  of  course,  is 
the  Emperor1. 

"Anxia  mens  igitur  dominandi  fervet  amore, 
ferventerque  studet  quo  fine  sequatur  amatum. 
Tandem  complacuit  prorsus  generale  gregari 
concilium,  quo  possit  aves  involvere  cunctas2." 

The  council  meets  and  the  peacock  claims 

"...quod  nobis  debetur  honos  dominandi3. 

Et  sic  competeret  nobis  imponere  leges 
omnibus  et  nemo  regnare  potest  sine  nobis4." 

The  eagle  is  cited  to  appear  and  he  is  defended  "  man- 
date sufficienti"  by  the  crow  and  the  daw  (corvus  and 


figure  et  similitudinis  plene  et  perfecte  intelligence  proprietates  gentium 
et  ordinum  et  causas  perturbacionum  universalisecclesiedeclarabunt." 
The  poem  is  not  printed  by  Wilhelm  and  I  shall  therefore  quote  from, 
and  refer  to,  it  as  printed  by  Karajan,  who  has  printed  both  the 
Notitia  and  the  poem  in  his  article  ' '  Zur  Geschichte  des  Concils  von 
Lyon  1245"  (in  Denkschriften  der  Kaiserlichen  Akademie  der  Wissen- 
schaften,  PMlosophitcJi-Hiftoriache  Classe,  Vienna,  vol.  n.  1851), 
pp.  111-17. 

1  The  key  to   the  poem  is  given  as  follows  after  the  Prologue 
(p.  Ill):  "Pavo:  papa;  columbe:  cardinales  et  episcopi;  palumbes: 
abbates  albi  et  nigri;   turtur:   abbates  cistercienses ;   anser  et  anas: 
cives  et  burgenses ;  passeres :  differentie  clericorum ;  irundo :  ordines 
mendicantes;     corvus:     laici    et    clerici    gebelini;    capo:    episcopus 
gallicus;   gallus:    rex   gallicorum;    pica:    guelfi,   picardi,   normanni, 
britones  et  alia  genera  gallicorum;    aquila:    imperator;    alie   aves 
rapaces:    teutonic!    et    alemanni;    bubones:    greci;    milvi:    seculi; 
falcones:  hispani." 

2  p.  Ill,  lines  19-22.  3  p.  114,  line  138. 
4  p.  114,  lines  146-7. 


262  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

monedula)1.     But  to  no  avail: 

"8ed  lex, 

nee  canon,  neque  commentum,  neque  glossa  tuentur 
absentem,  quia.'  mox  in  eum  sententia  currat, 
et  condempnatus  cuncto  privetur  honori. 
Unde  monedula  garrula,  provida  taliter  orsa  est : 
'Ista  dies,  maledicta  dies  et  causa  timoris ! 
Ista  dies,  ubi  nulla  quies,  ubi  virga  furoris! 
Conveniant  et  condoleant  inopes  et  habundi 
nunc  timeant  et  nunc  fugiant  pariter  tremebundi 2. '  " 

The  author  of  the  Notitia  thus  shows  himself  a 
partisan  of  the  Hohenstaufen.  In  the  poem  the  peacock 
and  other  birds  are  considered  rebels3  against  the  rule 
of  the  eagle— those  who 

"nolebant  aquila  regnante  modeste 
conregnare,  sibi  contenti  finibus  illis 
quos  natura  dedit," 

and  will,  by  provoking  schism,  destroy  the  Regnum  and 

1  Vide  p.  115,  lines  195-8: 

"Monedula,  corvus, 

quelibet  in  totum  mandate  sufficient! 

comparent,  aquilam  defendentes  meliori 

quo  possunt  jure,  tutorum  nomine." 

The  Pavo  had  said  (p.  113,  lines  83  and  ff.), 

"Expedit  ergo  via  procedere  juris  et  ipsum 
citare,  ut  veniat  promptus  etc." 

2  p.  115,  lines  198-206. 

3  Vide  lines  219-24,  p.  116: 

' '  Si  aquilam  primo  nature  conditione 

deserit  obsequium  pennarum,  postea  vero 

juribus  ablatis  sors  totis  viribus  ipsam 

dejicit,  ac  inter  pedes  incedere  jussit, 

pavoni  tribuens  jus  imperio  dominandi 

cum  prius  obtentis.     Sic  transit  gloria  mundi!" 
The  Pavo  himself  is  looked  on  as  the  leader  of  the  rebels — vide  lines 
17-18,  p.  Ill: 

"Namque  feras  jam  pensat  aves  superare  potentes 

ut  rex,  quern  timide  fecere  patrem  sibi  sponte" 
(i.e.,  the  other  rebel  birds). 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  263 

receive  their  due  punishment  from  the  tyrants,  whom 
they  preferred  to  their  own  true  king1. 

But,  none  the  less,  if  we  return  to  the  passage  in 
the  Notitia  itself,  which  we  considered  above,  we  see 
that  our  author  is  no  more  pleading  for  the  Hohen- 
staufen  idea  of  the  Empire  than  was  "  Jordan  of  Osna- 
burg."  He  may,  in  marked  contrast  to  "Jordan,"  be 
favourable  to  the  Hohenstaufen,  but  the  Empire,  for 
which  he  pleads,  is  not  their  Empire,  the  civilian's 
Empire,  centred  in  Italy,  a  world-wide  State.  His 
Empire  is  the  old  "regimen  ecclesiae,"  one  of  the 
governing  powers  of  the  "  respublica  christianae  fidei." 
He  too,  like  "Jordan,"  looks  back  to  the  election  of 
Rudolf  as  to  the  beginning  of  a  more  hopeful  time. 
Though  in  this  one  passage  he  foretells  a  time  of 
decadence  for  the  Sacerdotium,  and  seems  to  regard, 
the  alternate  rise  and  fall  of  the  Imperium  and  Sacer- 
dotium as  necessary,  elsewhere,  and  generally  in  his 
treatise,  he  too  is  pleading  for  concord  between  the  three 


1  Vide  p.  117,  lines  263-72: 

"Porro  quis  finis  hiis  principiis  mediisve 
conveniat,  verax  determinat  auctor  et  inquit: 
Regni  scissuram  sequitur  destructio  regni, 
destructo  regno  veniunt  pro  rege  tyranni, 
qui  penam  sceleris  reddant  auctoribus  equam, 
ut  qui  nolebant  aquila  regnante  modeste 
conregnare,  sibi  contenti  finibus  illis 
quos  natura  dedit,  discant  moriendo  rebelles 
bubones  milvos  et  falcones  peregrines, 
quos  illis  Grecus,  Calaber  transmisit  et  Hesper!" 
Wilhelm  (pp.  650-1)  considers  these  lines  a  decisive  proof  that  the 
poem  could  not  have  been  composed  by  the  author  earlier  than  the 
Sicilian  Vespers  of  1282,  to  which,  he  thinks,  they  must  refer.     Cf. 
p.  670  of  the  Notitia. 


264  THE   PROBLEM    OF   THE    EMPIRE  [CH. 

powers  and  their  proper  distribution  among  their  three 
rightful  owners.  Especially  necessary  is  it  that  the 
Imperium  should  be  in  the  hands  of  a  German— 
"  Germanus  miles,  generosus,  magnanimus  et  prudens, 
sicut  fuit  Karolus  " — and  the  Sacerdotium  in  the  hands 
of  a  Roman  or  Italian — "  firmus  in  fide,  fortis  in  opere, 
fervens  in  caritate  sicut  Petrus1."  He  points  to  the 
terrible  disasters  which  have  overtaken  Frenchmen 
under  the  pontificate  of  the  French  Pope,  Martin  IV, 
"qui  ob  amorem  gentis  sue  turbavit  ecclesiam  dei 
totam,  volens  totum  mundum  modo  Gallicorum  regere2." 
Similarly  the  clergy  and  Gallici  together  have  in  part 
destroyed  the  Empire,  and  when  they  have  succeeded 
in  doing  so  altogether,  the  great  "tribulation"  under 
Antichrist  will  follow3.  "Non  enim  ociose,  ut  credo, 
Spiritus  Sanctus  ordinavit,  quod  apud  Romanos  sacer- 
dotium  et  apud  Germanos  esset  regnum4."  Together 

1  Vide  above,  p.  254,  n.  3.  2  p.  670. 

3  In  the  Pavo  also  the  alliance  of  France  (Gallus)  and  the  Papacy 
(Pavo)  in  destroying  the  Empire  is  clearly  brought  out.     The  Gallus 
is  made  (unhistorically)  to  attend  the  Council : 

"Pavo  gratulans  suscepit  ad  oscula  gallum" 
(p.  112,  line  42).     Then  later: 

"Hiis  mediis  gallus  et  cum  pavone  columbe 
funiculum  nectunt  triplicem  qui  dissociari 
non  queat  ex  facili,  spondentes  pondere  firmo 
auxiliis  et  consiliis  relevari  vicissim  " 
(p.  115,  lines  191-4).     And  vide  lines  248-50,  p.  116: 
"Ipse  etiam  pavo  galloque  superveniente 
plumas  et  pennas  aquile  rapiebat,  easque 
alis  et  caude  proprie  religare  studebat." 

4  Vide  p.  671 :  "  Et  revera  propter  hoc  summopere  videtur  expedire, 
quod  ad  sacerdotium  et  ad  regnum  ecclesie  catholice,  que  utraque 
tamquam  dei  sanctuarium  jure  hereditario  possideri  non   convenit, 
eligeretur  ad  sacerdotium  quidam  Komanus  vel  saltern  Italicus  et  ad 
regnum  Germanus.     Non  enim  ociose,  ut  credo,  Spiritus  Sanctus  ordi- 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  265 

these  three  nations  are  a  tree  producing  "  fiores  et 
fructus  honestatis,"  of  which  the  Romans  are  the  root, 
the  Germans  the  stem  and  the  Gallici  the  branches1. 
Elsewhere  he  compares  them  to  a  family.  The  Pope — 
"  quia  summa  universalis  regiminis  ad  Romanam  revol- 
vitur  ecclesiam  " — is  the  dutiful  and  prudent  father, 
the  Gallici  an  obedient  son,  the  Germani  a  brother  "  de 
pari  contendens,"  the  Italians  or  Romans  a  recalcitrant 
son2. 

We  have  spent  many  pages  in  considering  these 
treatises,  their  fears  and  forebodings  and  their  interpre- 
tations of  an  often  somewhat  doubtful  history3.  They 
have  none  of  the  practical  spirit  of  the  lawyers  or  of 
the  subtlety  of  the  Aristotelians,  to  whom  we  are  now 
to  turn.  Yet  the  study  of  these  treatises  is  in  no 

navit,  quod  apud  Eomanos  sacerdotium  et  apud  Germanos  esset 
regnum.  Istud  autem  ego  dico  non  supponens  necessitatem,  sed 
insinuans  congruitatem,  quia  multi  de  Gallia,  de  Grecia  et  aliis  mundi 
partibus  viri  sanctissimi  adeo  vocati  sunt  ad  papatum,  et  plurimi 
Romanorum  non  solum  ad  papatum,  immo  etiam  ad  minora  officia, 
inveniuntur  minus  habiles  etc."  He  goes  on  to  give  a  practical 
example  of  a  Roman  legate  who,  by  his  tactlessness,  raised  all 
Germany  against  himself. 

1  Vide  above,  p.  254,  n.  3. 

2  Vide  p.  670:  "  Et  quia  summa  universalis  regiminis  ad  Romanam 
revolvitur  ecclesiam,  ideo  Romanus  pontifex  tamquam  pius  et  prudens 
pater  familias  regere  debet  gentem  Gallicam  tamquam  filium  obedientem 
et  gentem  Teutonicam  sive  German orum,  quod  est  unum,  tamquam 
fratrem  de  pari  contendentem  et  gentem  Italicam  sive  Latinam  tamquam 
familiam  recalcitrantem  et  alias  mundi  naciones  tamquam  proximos 
et  vicinos."     The  "alii  mundi  naciones"  must  be  those  outside  the 
Church,  non-Christian  nations. 

3  It  is  worth  noting  that  the  author  of  chap.   vm.    of   the   De 
Praerogativa  confesses  "in  precedentibus  ab  aliquorum   scriptis   in 
quibusdem  deviasse;  sed  sicut  ipsi  ex  suis  originalibus  credunt  veri- 
tatem  excerpsisse,  sic  ego  nullam  puto  admiscuisse  falsitatem,  petens 
cum  humilitate  veniam  de  erratis." 


266  THE   PROBLEM  OF   THE   EMPIRE  [CH. 

way  lost  labour.  They  may  give  us  nothing  that  can 
properly  be  called  scientific  political  theory,  but  they 
give  us  our  first  answer  to  the  problems,  which  the 
fall  of  the  Hohenstaufen  Empire  had  left  for  solution. 
They  give  us  the  German  answer.  Its  full  significance 
will  appear,  when  we  have  considered  other  answers 
given  to  these  same  problems  by  writers  of  other 
nationalities. 

We  have  seen  that  for  the  authors  of  these  treatises 
the  "  State "  does  not  really  exist.  Mankind  or 
Christendom  forms  a  single  Church,  a  Christian  Re- 
public or  People,  within  which  are  different  nations 
and  kingdoms.  Therefore  the  Imperium,  for  the 
maintenance  of  which  in  German  hands  they  plead  so 
earnestly,  is  not  a  universal  "State,"  but  the  "Gelasian" 
Imperium — a  ruling  power  within  the  Church.  Their 
thought  was  unaffected  alike  by  the  political  theories 
of  the  Roman  lawyers,  as  by  political  theories  still 
newer.  Aquinas  was  dead  before  these  treatises  were 
written1,  so  that  already  the  political  theories  of  Aris- 
totle had  begun  that  new  life,  which  was  to  be  of  such 
lasting  importance  in  the  history  of  thought.  We  find 
no  trace  of  such  theories  in  these  treatises. 

We  have  already  referred  more  than  once  to  the 
influence  of  Aristotle's  Politics,  as  they  entered  medieval 
political  thought  under  the  guidance  of  Aquinas  and 
his  followers.  We  pointed  out  in  the  last  chapter  that 
for  the  Aristotelian  the  "  State  "  meant  the  "  Civitas  "  or 
"Regnum."  The  Roman  lawyers  came  to  this  conclusion 

1  This  will  not  apply  of  course  to  chap.  i.  of  the  De  Praerogativa, 
if  we  accept  the  theory  that  chap.  i.  and  the  remaining  chapters  are 
of  different  dates  and  by  different  authors. 


Ill]  THE    PROBLEM   OF   THE    EMPIRE  267 

independently,  and  only  after  a  long  process  of  reason- 
ing, whereby  the  Civitas  or  Regnum  was  invested  with 
one  after  another  of  the  peculiar  marks  and  privileges 
of  the  one  true  "State,"  the  Roman  Empire — until 
the  Civitas  and  Regnum  were  themselves  recognised  as 
Empires  in  miniature,  "sibi  principes,"  and  so  "States." 
It  is  very  important  to  observe  that  the  State,  in  the 
modern  sense  of  the  word,  has  two  independent  origins : 
that  it  is  both  the  Empire  on  a  reduced  scale  and  the 
older,  self-sufficient,  non-universal  vroXt?.  Clearly  the 
way  was  now  open  to  a  great  advance  in  political 
thought.  It  was  laboriously  and  against  their  will  that 
the  lawyers  had  raised  up  the  Civitas  and  Regnum, 
from  their  original  dependent  position,  to  an  inde- 
pendent and  equal  position  with  the  one  original  world- 
state,  the  Empire.  But,  starting  from  Aristotle's 
Politics,  the  recognition  of  the  7roXt<?  (whether  trans- 
lated by  Civitas  or  Regnum)  as  the  "  State,"  so  far 
from  presenting  difficulty,  would  seem  a  necessary 
conclusion. 

Yet  in  actual  fact  the  modern  State  did  not  leap 
ready-made,  nor  at  once,  from  the  pages  of  the  revived 
Aristotle  or  of  his  interpreters.  Many  obstacles  were 
still  to  be  overcome,  before  the  modern  State,  either  of 
theory  or  fact,  could  exist.  Let  us  remember  that  we 
are  still  in  the  thirteenth  century.  Aquinas  himself,  his 
great  pupil  Egidius  Romanus,  and  perhaps  the  greater 
number  of  the  early  exponents  of  the  new  political 
thought,  were  unhesitating  supporters  of  the  Papacy 
in  its  most  extreme  claims  to  political  power.  If,  then, 
the  idea  of  the  State,  as  a  secular,  non-universal  com- 
munity and  as  the  highest  of  all  communities,  became 


268  THE   PROBLEM   OF   THE    EMPIRE  [CH. 

prominent  through  the  re-introduction  of  Aristotle's 
Politics,  it  was  not,  as  it  is  perhaps  needless  to  say, 
because  they  looked  on  the  State  as  a  means  to  merely 
secular  ends  or  because  they  desired  to  limit  the  Papal 
power  in  any  particular. 

In  the  first  place  they  adopted  without  hesitation 
Aristotle's  dictum  that  man  is  naturally  a  political 
animal ;  they  saw  in  Government  a  necessary  conse- 
quence of  man's  innate  tendency  to  live  in  society— 
a  tendency  which  finds  its  cornpletest  satisfaction  in 
the  State1.  The  State  is  founded  by  a  natural  im- 
pulse of  "human  industry2,"  and  political  government 
is  distinguished  from  slavery.  Both  are  natural :  but 
while  political  government  is  natural  in  a  primary 
sense,  and  would  have  come  into  existence  if  mankind 
had  never  fallen,  slavery  is  a  result  of  the  fall3,  natural 
in  a  secondary  sense,  as  deduced  by  human  reason 
on  grounds  of  utility4.  But  then,  though  both  sorts 

1  Vide  Aquinas,  Commentary  on  Aristotle's  Politics,  i.  Lectio  1, 
where  he  comments  on  this  dictum  of  Aristotle.     Vide  p.  3  of  the 
edition  printed  at  Venice  1568,  containing  both  his  Commentary  on 
the  Politics  and  his  treatise  De  Regimine  Principum  (though  with 
separate  pagination)  to  which  I  shall  refer  in  the  following  notes. 
It  should  be  remarked  that  the  Latin  version  of  the  Politics,  given  in 
this  edition,  is  the  later  version  of  Leonardo  Aretino  (1370-1444),  not 
the  "vetus  versio,"  which  however  will  be  found  separately  in  this 
edition. 

2  Vide  Aquinas,  Commentary  on  Aristotle's  Politics,  i.  Lectio  1, 
p.  3  verso:  "Agit  de  institutione  civitatis,  concludens  ex  praemissis, 
quod  in  omnibus  hominibus  est  quidam  naturalis  impetus  ad  communi- 
tatem  civitatis,  sicut  et  ad  virtutes.     Sed  tamen  sicut  virtutes  acqui- 
runtur  per  exercitium  humanum,  ut  dicitur  in  secundo  Ethicorum,  ita 
civitates  sunt  institutae  humana  industria." 

3  Vide  Aquinas,  De  Regimine  Principum,  in.  9  (this  is  in  the  part  of 
the  treatise  which  was  added  by  a  later  hand — vide  below,  p.  269, 
note  1),  p.  14. 

4  Vide  Aquinas,  Summa  Theologica,  n.  1.  94.  5,  p.  194. 


Ill]  THE   PROBLEM    OF   THE    EMPIRE  269 

of  dominion  are  natural,  they  are  also  divinely  or- 
dained. In  the  continuation  of  Aquinas'  treatise  De 
Regimine  Principum1  this  is  discussed  at  length2.  He 
shows  how  all  dominion  is  from  God3 — sometimes,  as 
in  the  case  of  the  Romans,  granted  as  the  reward  of 
virtue4,  at  other  times  as  punishment  for  sin:  the 
second  case  applies  equally  to  slavery  and  political 
dominion5. 

Then  with  regard  to  the  aim  of  the  State  and 
Government.  It  is  scarcely  necessary  to  point  out 
that  to  Aquinas,  "the  first  Whig,"  and  to  those  who 
followed  him,  the  raison  d'etre  of  Government  is  the 
good  of  the  governed6.  The  ruler  who  seeks  his  own 
good  is  a  tyrant,  not  a  king.  The  king's  is  a  divine  task. 
"  Magnitude  regiae  virtutis  apparet  quod  praecipue 

1  According    to   Baumann,    Die   Staatslehre   des   h.    Thomas   von 
Aquimis,  pp.  5-6,  only  Book  i.  and  the  first  four  chapters  of  Book  n. 
are  by  Aquinas  himself,  and  this   seems  generally  accepted.     The 
author  of  the  latter  part  is  generally  held   to   be  Aquinas'   pupil, 
Ptolemy  of  Lucca. 

2  In  Book  in.  vide  chaps.  1-9.  3  Vide  chaps.  1-3. 

4  Vide  chaps.  4-6.     Dominion  was  granted  the  Romans  on  account 
of  their  "amor  patriae,"  the  "zelus  justitiae"  shown  in  their  laws, 
and  their  "singularis  pietas  et  civilis  benevolentia." 

5  Vide  chaps.    7-8.     The   idea  of  tyranny  as  an  instrument  of 
punishment,  allowed  by  God  both  on  the  sinning  people  and  on  the 
tyrant  himself,  is  well  expressed  in  a  few  lines  by  an  Italian  poet  of 
the  fourteenth  century,  Bindo  Bonichi.     The  lines  form  an  excellent 
commentary  on  these  two  chapters— "  Iddio  permette  regni  lo  tiranno 
Accio  che  opprima  il  popol  peccatore,  Non  gia  per  ben  di  lui  ma  per 
suo  danno;  Suscita  dopo  lui  un  ch'  e  peggiore,  Che  il  fa  morir  o  ver 
languir  d'  affanno:  E  in  questo  modo  il  punisce  il  Signore."     The 
poem  from  which  these  lines  come  is  printed  in  Carducci's  selection, 
Rime  di  M.  Cino  da  Pistoia  e  d1  altri  del  Secolo  XIV,  pp.  154-5. 

e  Vide  Aquinas,  De  Regimine  Principum,  i.  1,  p.  1  verso:  "Rex  est 
qui  unius  multitudinem  civitatis  vel  provinciae  et  propter  bonum 
commune  regit." 


270        THE  PROBLEM  OF  THE  EMPIRE        [CH. 

Dei  similitudinem  gerit,  dum  agit  in  regno  quod  Deus 
in  mundo1";  and  as  his  task  is  greater  than  other 
men's,  so  will  be  his  reward  in  another  life.  But  then, 
once  terms  like  "  good  "  and  "  virtue  "  were  postulated 
as  the  end  of  Government,  they  could,  in  the  Middle 
Ages,  be  interpreted  ultimately  in  none  but  a  Christian 
sense.  Aristotle  in  a  famous  phrase  had  said  that 
the  State  comes  into  existence  rov  'Cfiv  eveicev,  but 
exists  rov  €v  £rjv  eveicev.  There  were  of  course 
several  points  at  which  the  Greek  "good  life"  and 
"  virtue "  could  meet  the  Christian :  but  there  was 
this  fundamental  difference.  To  Aquinas  the  good 
life  must  inevitably  be  interpreted  with  final  reference 
to  another  existence ;  the  good  life  could  not  be  an  end 
in  itself,  as  it  was  to  the  Greeks.  This  is  a  distinction 
of  immense  importance,  since  it  left  the  way  open 
for  the  Papalist's  insistence  on  the  superiority  of  the 
Sacerdotium  above  all  secular  governments.  Two 
things,  says  Aquinas2,  are  necessary  for  the  good  life 


1  Vide  Aquinas,  De  Regimine  Principum,  i.  9,  p.  4.     Cf.  chap.  12, 
p.  5:  "Hoc  igitur  officium  rex  se  suscepisse  cognoscet,  ut  sit  in  regno 
sicut  in  corpore  anima  et   sicut  Deus  in    mundo."      Cf.   Egidius 
Romanus,  De  Regimine  Principum,  in.  Part  2,  chap.  6,  pp.  465-7. 

2  Vide  De  Regimine  Principum,  i.  14  and  15.     The  whole  of  these 
chapters  should  be  seen,  but  the  following  quotation  from  chap.  14, 
p.  5  verso  illustrates  the  line  of  argument :  ' '  Sed  quia  homo  vivendo 
secundum  virtutem  ad  ulteriorem  finem  ordinatur,  qui  consistit  in 
fruitione  divina,  ut  supra  jam  diximus,  oportet  eundem  finem  esse 
multitudinis  humanae,  qui  est  hominis  unius.     Non  est  ergo  ultimus 
finis  multitudinis  congregatae  vivere  secundum  virtutem  sed  per  vir- 
tuosam  vitam  pervenire  ad  fruitionem  divinam.     Siquidem  autem  ad 
hunc  finem  pervenire  posset  virtute  humanae  naturae,  necesse  esset 
ut  ad  officium  regis  pertineret  dirigere  homines  in  hunc  finem.... Sed 
quia   finem   fruitionis   divinae   non   consequitur  homo  per  virtutem 
humanam,  sed  virtute  divina,  juxta  illud  Apostoli  Ro.  6  (Romans, 


Ill]  THE   PROBLEM    OF   THE    EMPIRE  271 

of  man — the  principal,  which  is  virtue,  and  the  secon- 
dary, which  is  sufficiency  of  temporal  goods,  and  which 
is  instrumental  "  ad  actum  virtutis."  Unity  moreover 
is  a  necessary  preliminary  to  all  good  action ;  the  unity 
of  a  man  is  natural,  the  unity  of  a  multitude  of  men — 
"  quae  pax  dicitur  " — it  is  the  task  of  the  ruler  to  pro- 
cure. Thus  the  State  exists  for  three  main  purposes: 
to  keep  this  multitude  "  in  unitate  pacis,"  to  direct  it  by 
the  bond  of  peace  to  good  action ;  to  supply  the  material 
provision  which  makes  this  good  action  possible.  But 
virtue  itself  is  not  the  ultimate  aim  of  man,  rather  "per 
virtuosam  vitam  pervenire  ad  divinam  fruitionem." 
Now,  since  it  is  not  human  virtue,  but  divine  grace, 
which  leads  men  to  this  ultimate  end,  the  power  that 
guides  men  thereto  is  not  a  human  but  a  divine  "  regi- 
men"— the  "regale  sacerdotium"  of  Christ  and  His 
vicar,  the  Pope.  The  end  of  the  State,  then,  is  "  vitam 
multitudinis  bonam  procurare  secundum  quod  congruit 
ad  caelestem  beatitudinem  consequendam."  But  it  is 
from  the  "lex  divina,"  the  teaching  of  which  belongs 
to  the  Sacerdotium,  that  men  can  learn  the  way  to 
this  "celestis  beatitude":  therefore  the  final  authority 
in  politics  must  rest  with  the  Pope,  as  the  power  which 

chap.  6)  'Gratia  Dei,  vita  aeterna,'  perducere  ad  ilium  finem  non 
humani  erit,  sed  divini  regiminis.  Ad  ilium  igitur  regem  hujusmodi 
regimen  pertinet,  qui  non  est  solum  homo,  sed  etiam  Deus,  scilicet  ad 
dominum  nostrum  Jesum  Christum,  qui  homines  filios  Dei  faciens  in 
caelestem  gloriam  introduxit....Hujus  ergo  regni  ministerium,  ut  a 
terrenis  essent  spiritualia  distincta,  non  terrenis  regibus,  sed  sacer- 
dotibus  est  commissum,  et  praecipue  summo  sacerdoti  successor!  Petri 
Christi  Vicario  Eomano  Pontifici,  cui  omnes  reges  populi  Christiani 
oportet  esse  subditos,  sicut  ipsi  domino  Jesu  Christo.  Sic  enim  ei,  ad 
quern  finis  ultimi  cura  pertinet,  subdi  debent  illi,  ad  quos  pertinet  cura 
antecedentium  finium,  et  ejus  imperio  dirigi." 


272  THE   PROBLEM   OF   TH,E   EMPIRE  [CH. 

directs  to  this  final  end,  rather  than  with  the  king, 
to  whom  belongs  merely  the  ordering  of  those  means 
which  contribute  to  the  final  end1. 

Beside  the  universal  Papacy  and  Church,  whether  as 
a  theory  or  a  fact  so  entirely  foreign  to  the  world  of  Aris- 
totle, the  thirteenth  century  also  possessed  the  theory, 
if  not  the  fact,  of  a  universal  Empire,  equally  foreign  to 
Aristotle  and  his  world2.  But  while  the  universal  Church, 

1  Vide  De  Regimine  Principum,  i.  15,  p.  5  verso:    "Quia  igitur 
vitae,  quam  in  praesenti  bene  vivimus,  finis  est  beatitude  caelestis,  ad 
regis  officium  pertinet  ea  ratione  vitam  multitudinis  bonam  procurare 
secundum  quod  congruit  ad  caelestem  beatitudinem  consequendam,  ut 
scilicet  ea  praecipiat,  quae  ad  caelestem  beatitudinem  ducunt,  et  eorum 
contraria  secundum  quod  fuerit  possibile  interdicet.     Quae  autem  sit 
ad  veram  beatitudinem  via,  et  quae  sint  impedimenta  ejus,  ex  lege 
divina  cognoscitur,  cujus  doctrina  pertinet  ad  sacerdotum  officium  etc." 
It  is  not  to  be  suggested,  of  course,  that  the  Papal  supremacy  was 
maintained  only  by  this  line  of  argument.     Innumerable  other  argu- 
ments could  be  adduced — the  need  of  one  final  authority  in  matters  of 
faith,  the  analogy  of  the  supremacy  of  particular  bishops  in  particular 
' '  populi ' '  to  the  supremacy  of  the  one  head  of  the  whole  Church  in 
the  whole  Christian  people,  etc.     Vide  e.g.  Aquinas,  Summa  contra 
Gentiles,  iv.  76. 

2  It  is  noticeable  that  in  commenting  on  the  passage  in  Aristotle's 
Politics,  iv.  (according  to  the  old  arrangement  of  the  books  vn.)  7,  in 
which  Aristotle  maintains  the  superiority  of  the  Greek  race,  as  occupy- 
ing an  intermediate  position  between  the  northern  races  and   the 
Asiatic — didwep  tXetiOepdv   re   SiareXe?  /ecu    jSeXrto-ra    TroXiTei^ejw    /ecu 
5wd/j.evov  &pxeu>  TrdvTuv  ^uas  rvyxdvov   iroXiTeias — Aquinas  seems  to 
take  this  last  expression  in  the  sense  of  a  World-monarchia,  as  the 
Middle  Ages  understood  the  term ;  and  a  long  argument  is  necessary  to 
explain  the  historical  fact  that  the  Greeks  had  by  no  means  always 
shown  their  superiority  by  the  possession  of  this  ' '  monarchia. ' '     ' '  Sed 
contra  ista  argueret  aliquis  rationaliter,  quod  cum  ea  quae  sunt  natu- 
ralia,  semper  vel  in  pluribus  eodem  modo  se  habeant,  sed  Graeci  sunt 
nati  principari  aliis,  non  autem  illi  qui  circa  Asiam  vel  Europam ; 
sequeretur  quod  Graeqi  semper  vel  in  majori  parte  principarentur  aliis 
et  alii  non  ipsis,  cujus  contrarium  apparet  ex  historiis  antiquorum: 
Chaldaei  enim  et  Persae  qui  sunt  circa  Asiam  multo  tempore  dominati 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  273 

with  the  Papacy  at  its  head,  was  an  integral  and 
necessary  part  of  the  political  thought  of  the  medieval 
Aristotelians,  the  Empire  was  not.  Neither  Aquinas 
nor  Egidius  Romanus  were  in  any  way  connected  with 
or  drawn  towards  the  Empire;  they  were  Papalists 
before  everything1.  Hence  of  the  Roman  Empire,  as 
existing  in  their  own  day,  they  hardly  speak ;  and 
though  the  old  Empire  provided  them  with  many  of 
their  historical  examples,  they  saw  in  it  only  a  species 
of  the  genus  Regnum,  not,  as  the  Roman  lawyers,  a 
form  of  State  to  itself,  and  even  the  only  State. 

Yet,  if  not  through  Aquinas  or  Egidius,  the  Empire 
was   to   enter   the   new  political   theories,  which   had 

sunt  ipsis  et  vicinis  eorum  monarchiam  tenentes.  Similiter  Roman! 
qui  circa  Europam  sunt  plurimo  tempore  dominati  sunt  Graecis  quam 
econtrario :  diuturnior  enim  fuit  monarchia  Romanorum  quam  Grae- 
corum  etc."  Vide  Comment,  on  Politics,  vn.  Lectio  5,  p.  108.  Cf.  a 
passage  in  the  De  Regimine  Principum,  in.  10,  p.  15,  where  the  author 
gives  the  duration  of  the  four  World-monarchies.  The  Monarchia  of 
the  Assyrians  lasted  1240  years,  that  of  the  Medes  and  Persians  233 
years,  whereas  the  "monarchia  Graecorum  in  Alexandra  incaepit  et 
in  eodem  finitur,  quo  dicitur  in  primo  Machab.  quod  regnavit  Alexander 
annis  12  et  mortuus  est.  Sed  quamvis,"  he  adds,  "  Graeci  non  habu- 
erunt  universale  dominium,  viguit  tamen  regnum  Macedonum  usque 
ad  mortem  Alexandri... annis  485." 

1  Egidius  moreover  was  closely  connected  with  France.  In  1295 
he  became  archbishop  of  Bourges,  and  he  had  been  tutor  to  Philip  the 
Fair,  for  whom  he  wrote  his  De  Regimine  Principum.  The  struggle 
between  Boniface  and  Philip  interrupted  for  a  time  his  good  relations 
with  the  king,  for  Egidius  was,  as  we  have  said,  before  all  things  a 
Papalist.  But  after  Boniface's  death  they  were  renewed,  as  a  result, 
it  seems,  of  Egidius  having  supported  the  king  against  the  Templars. 
Vide  Scholz,  Die  Publizistik  zur  Zeit  Philipps  des  Schonen  und  Bonifaz 
VIII. ,  pp.  37-42  and  p.  41 ,  note  31  a.  Aquinas  also  had  been  intimately 
connected  with  the  university  of  Paris  and  received  marks  of  favour 
from  S.  Lewis.  His  De  Regimine  Principum  is  dedicated  to  the  king 
of  Cyprus. 

w.  18 


274  THE   PROBLEM   OF   THE    EMPIRE  [CH. 

Aristotle's  Politics  for  basis.  Now  Aristotle's  "  State  "  is 
the  TroXt?,  but  the  TroXt?  entered  medieval  thought  both 
as  the  Regnum  or  Provincia  and  as  the  Civitas.  If  the 
Civitas  was  the  more  obvious  translation,  there  was 
none  the  less  little  difficulty  in  bringing  the  Regnum 
and  Civitas  under  one  rubric,  as  the  "State."  This  was 
certainly  the  easier  to  do  in  that  Aristotle  himself  had 
not  distinguished  between  "kingship  in  a  city-state 
and  kingship  in  a  nation1."  Then,  again,  we  should 
remember  that,  while  in  Italy  the  "  State  "  might  well 
be  a  city,  outside  of  Italy  there  were  great  and  powerful 
national  kingdoms,  with  which  not  a  few  of  these 
Aristotelians  were  in  closer  connection  than  with  the 
city-states  of  Italy.  But,  though  it  is  true  to  say  that 
in  general  the  Aristotelians  translated  iro\i<^  by  Civitas 
or  Regnum  almost  indifferently2,  we  find  already  in 
Aquinas  the  view  that  the  Provincia  is  a  more  perfect 
community,  because  4  more  self-sufficient,  than  the 
Civitas,  as  the  Civitas  itself  is  more  self-sufficient 
than  the  Vicus3.  This  line  of  thought  is  more  prominent 

1  Vide  Newman,  Politics  of  Aristotle,  vol.  iv.  p.  11. 

2  In  his  Commentary  on  the  Politics  the  ' '  State ' '  is  almost  always, 
if  not  always,  Civitas;  but  even  in  his  De  Regimine  Principum,  where 
it  is  especially  the  ' '  regni  originem  et  ea  quae  ad  regis  officium  per- 
tinent" (vide  "  Argumentum  operis,"  p.  1),  of  which  he  writes,  we 
frequently  have  the  Civitas  mentioned  along  with  the  Eegnum  or 
Provincia,  without  any  idea  of  a  distinction  between  them — e.g.  i.  14 : 
"  Institutio  civitatis  aut  regni  ex  forma  institutionis  mundi  convenienter 
aecipitur."      So   too   in   Egidius,    who,    even   more   distinctly   than 
Aquinas,  sees  in  the  Eegnum  a  more  perfect  form  of  community  tMn 
the  Civitas. 

3  Vide  De  Regimine  Principum,   i.   1,  p.  1  verso:    "Cum  autem 
homini   competat  in   multitudine   vivere,    quia   sibi   non   sufficit   ad 
necessaria  vitae  si  solitarius  maneat,  oportet  quod  tanto  sit  perfectior 
multitudinis  societas,  quanto  magis  per  se  sufficiens  erit  ad  necessaria 


Ill]  THE    PROBLEM   OF   THE    EMPIRE  275 

in  Egidius  Romanus1  than  in  Aquinas;  it  was  only 
a  small  step  further  to  see  the  culmination  of  this 
hierarchy  of  States  in  a  universal  Imperium,  the  finally 
most  self-sufficient  and  perfect  community. 

In  the  third  book  of  the  De  Regimine  Principum  by 
Aquinas,  which  is  regarded  as  unauthentic,  the  Empire 
is  viewed  rather  differently.  The  author  distinguishes 
four  kinds  of  "  dominion  " — the  "  sacerdotale  et  regale 
dominium,"  the  "regale  dominium"  (under  which  the 
"imperiale  dominium"  is  included),  the  "politicum 

vitae.  Habetur  siquidem  aliqua  vitae  sufficientia  in  una  famiKa 
domus  unius,  quantum  scilicet  ad  naturales  actus  nutritionis  et  prolis 
generandae  et  aliorum  hujusmodi;  in  uno  autem  vico,  quantum  ad  ea 
quae  ad  unum  artificium  pertinent;  in  civitate  vero,  quae  est  perfecta 
communitas,  quantum  ad  omnia  necessaria  vitae ;  sed  adhuc  magis 
in  provincia  una  propter  necessitatem  compugnationis  et  mutui  auxilii 
contra  hostes :  unde  qui  perfectam  communitatem  regit,  id  est  civitatem 
vel  provinciam,  autonomasice  rex  vocatur:  qui  autem  domum  regit, 
non  rex  sed  paterfamilias  dicitur." 

1  Vide  De  Regimine  Principum,  in.  Part  i.  chap.  5,  pp.  411-2 : 
"Possumus  autem  triplici  via  ostendere,  quod  praeter  communitatem 
civitatis,  utile  est  humanae  vitae  statuere  communitatem  regni."  In 
the  first  place  "ex  parte  sufficientiae  vitae" — "Quare  sicut  utile  est 
vitae  humanae  in  eadem  civitate  congregari  di versos  vicos,  ut  facilius 
habeantur  quae  requiruntur  ad  vitam :  sic  utile  est  civitates  plures 
congregari  sub  uno  principatu  aut  sub  uno  regno,  ut  facilius  et  melius 
sibi  invicem  subveniant  quantum  ad  ea  quibus  indigemus  in  vita." 
Secondly,  the  legislator  must  aim,  not  merely  at  supplying  the  corporal 
wants  of  the  citizens,  but  at  making  them  live  "secundum  legem  et 
virtuose."  "  Si  constet  de  principe  quod  juste  regat  et  quod  non  con- 
Vertatur  in  tyrannum,  expedit  civitatibus  propter  virtuose  vivere  et 
propter  corruptionem  perversorum  congregari  sub  uno  regno;  quod 
si  tamen,"  he  adds  however,  "princeps  tyrannizare  vellet,  quanto 
minorem  haberet  potentiam,  tanto  magis  esset  expediens  civitati." 
Thirdly,  the  kingdom,  which  is  "  quasi  quaedam  confederatio  plurium 
civitatum,"  is  better  calculated  to  sustain  hostile  attacks — "propter 
faciliorem  defensionem  et  tuitionem  utile  fuit  ex  pluribus  communi- 
tatibus  politicis  constituere  communitatem  unam  regni." 

18—2 


276  THE   PROBLEM   OF   THE    EMPIRE  [OH. 

dominium  "  and  the  "  oeconomicum  dominium1."  The 
last  is  not  touched  upon  subsequently2,  and,  actually,  he 
makes  a  distinction  between  the  "regale  dominium"  and 
the  "  imperiale."  The  "dominium  sacerdotale  et  regale  " 
belongs  to  the  Pope,  as  vicar  of  Christ,  who  was  both 
Priest  and  King;  while  the  Imperium  itself  —  the 
universal  "  monarchia  "  —  the  author  holds  to  have  de- 
scended from  the  Assyrians,  Medes  and  Persians, 
Macedonians  and  Romans,  as  a  fifth  "monarchia,"  to 
Christ.  Thus  Coristantine  only  surrendered  into  the 
hands  of  Christ's  vicar  what  was  due  to  him  long 
since.  We  have  met  this  identical  view  before  in 
Bartolus  himself,  and  we  shall  later  have  to  consider 
it  more  closely.  For  the  moment  we  note  that,  though 
the  "potestas  imperii  ex  judicio  papae  dependet," 
the  "  imperiale  dominium  "  is  still  treated  as  to  some 
extent  a  class  of  "  dominium  "  to  itself,  though  in 
general  it  is  grouped  under  the  heading  of  the  "  regale 
dominium."  So  far  as  the  Empire  is  universal,  the 
"  imperiale  dominium  "  is  said  to  be  superior  to  the 
"regale  dominium,"  though  for  another  reason,  which 
is  not  mentioned,  it  is  inferior3.  Later  it  is  placed 
between  the  "  regale  dominium  "  and  the  "  politicum 
dominium4."  The  distinction  between  these  two  rests 
upon  Aristotle's5  distinction  between  the  two  forms  of 

1  Vide  chaps.  10  and  ff. 

2  Since  of  course  the  '  '  oeconomicum  dominium  '  '  is  not  a  species  of 
political  dominion  at  all.    The  idea  of  the  "oeconomicum  dominium  " 
is  derived  from  Aristotle,  Politics,  in.   14  —  iLairep  yap  rj  olKovofj.iKT] 

Tts  ot/aas  iffriv,   OUTOJS  i)  j3a<n\€ia  7r6Xewj  /cat    £6vovs    ei>6s    ^ 


3  Vide  Z>e  Regimine  Principum,  in.  12,  p.  15. 

4  Ibid.  20,  p.  17  verso. 

5  Vide  Aristotle,  Politics,  in.  14  and  15. 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  277 

kingship,  into  which  he  resolves  his  original  five, 
77  Aa/ccovi/crj  ftacriXela  and  77  Tra/z/SacrtXe/a — the  dis- 
tinction between  a  king  Kara  vopov  and  a  king  Kara 
rrjv  avrov  /3ov\7jcrt,v.  The  latter  alone  is  truly  a  king1. 
This  distinction  is  naturally  commented  upon  in 
Aquinas'  Commentary  on  the  Politics2,  and  passed  into 
general  currency  among  the  Aristotelian  political 
theorists.  It  represents  the  distinction  between  a  king, 
who  is  above  the  law,  and  an  officer  of  state,  who  is  the 
creature  of  law.  Thus  our  present  author  sees  the 
"politicum  dominium"  in  the  office  of  the  Roman  consuls 
or  the  "  rectores  civitatum  "  of  Italy.  The  "  imperiale 
dominium,"  then,  resembles  this  "  politicum  dominium  " 
in  its  generally  elective  character  and  its  occasional 
examples  of  hereditary  succession  or  usurpation.  But 
it  resembles  the  "  regale  dominium "  with  regard  to 
jurisdiction,  coronation  and  its  "arbitraria  potestas " 
above  the  law. 

This  may  be  ingenious,  but  it  is  not  a  very  valuable 
theory  of  the  Empire,  nor  does  it  really  find  a  place  for 
the  Empire  in  the  analysis  of  "dominia,"  which  the 
author  undertakes.  And  yet  this  continuation  of  the 

1  Ibid.  chap.  16. 

2  Vide   Comment,   on  Arist.  Politics,  in.  Lectio  13,  p.  47  verso: 
' '  In  prima  dicit  quod  fere  duae  sunt  considerandae  species  monarchiae 
regalis,  ad  quas  aliae  aliquo  modo  reducuntur. ...Una  est  Laconica,  in 
qua  principatur  aliquis  secundum  legem.     Alia  est  regnum.     Laconica 
autem  differt  a  regno,  quia  in  Laconica  rex  principatur  secundum 
legem.     Item  non  est  dominus  omnium.     Sed  in  regno  principatur 
secundum  virtutem,  et  est  dominus  omnium."     Cf.  on  Politics,  in. 
Lectio  15,  p.  49  and  on  Politics,  i.  Lectio  1,  p.  1  verso:    "  Civitas 
autem  duplici   regimine   regitur,   scilicet   politico   et   regali.     Regale 
quidem  est  quando  ille  qui  civitati  praeest  habet  plenariam  potestatem. 
Politicum  autem  regimen  est  quando  ille  qui  praeest  habet  potestatem 
coarctatam  secundum  aliquas  leges  civitatis." 


278  THE    PROBLEM   OF   THE    EMPIRE  [CH. 

unfinished  treatise  of  Aquinas  is  very  interesting  and  in 
many  points  original,  if  it  has  not  the  consistency  and 
logical  precision  that  distinguishes  Aquinas'  own  work. 
Whether  it  represents  what  Aquinas  himself  would 
have  written,  had  he  completed  his  work,  must,  of 
course,  be  doubtful.  For  us  it  has  a  distinct  value. 
It  shows  how  far  medieval  thought,  with  regard  to  the 
Empire,  was  from  being  hide-bound  within  one  circle  of 
ideas,  and  secondly  the  very  real  difficulty  which  faced 
the  men  of  this  period  in  fitting  in  the  Empire  both 
with  the  new  political  conceptions  and  with  the  facts 
which  surrounded  them — a  powerful  Papacy,  powerful 
kingdoms,  and  a  weak  Empire  with  a  great  past  and 
still  great  claims.  Medieval  political  theory  could  not 
be  constant,  because  there  was  on  the  one  side,  at  least 
since  the  eleventh  century,  a  continued  influx  of  new 
thought ;  on  the  other  side,  a  continual  change  in  the 
external  political  conditions,  which  political  thought  in 
every  age  must,  at  any  rate  in  part,  reflect. 

We  shall  illustrate  this  still  better,  if  we  turn  to  the 
work  of  a  man,  who,  while  deeply  imbued  with  the  new 
political  philosophy,  was,  unlike  the  writers  whom  we 
have  just  been  considering,  what  may  properly  be  called 
an  Imperialist,  though  at  the  same  time  in  no  sense  anti- 
Papal.  The  work  is  the  treatise  of  Engelbert,  Abbot  of 
Admont1,  De  Ortu  et  Fine  Romani  Imperil",  written  in 


1  There  is  some  account  of   his  life  in  Eiezler,  Die  literarische 
Widersache  der  Pdpste  zur  Zeit  Ludwig  des  Balers,  pp.  159  and  ff .     The 
date  of  his  death  is  given  as  1331  (p.  162).     His  treatise,  De  Regimine 
Principum,  which  according  to  Eiezler  (p.  162,  note  4)  was  printed  in 
the  middle  of  the  eighteenth  century,  I  have  not  been  able  to  find. 

2  In  Goldast,  Politico,  Imperialia,  pp.  754-73. 


Ill]  THE    PROBLEM   OF   THE    EMPIRE  279 

the  early  years  of  the  fourteenth  century,  during  the 
reign  of  the  Emperor  Henry  VII1. 

Engelbert,  in  the  preface  to  his  work2,  tells  us  that 
he  had  been  sitting  talking  with  some  friends,  and  that 
the  conversation  had  turned  upon  the  condition  of  the 
Roman  Empire.  Some  said  that  its  end  must  be  near, 
failing  as  it  was  both  in  its  rights  and  power;  others 
that,  as  it  began  in  illicit  and  unjust  conquest  of  other 
peoples,  so  it,  in  its  turn,  must  fall  before  the  en- 
croachments of  other  kingdoms.  He  thought  over 
these  things,  and,  at  the  request  of  some  of  his  friends, 
composed  his  treatise3. 

1  In  chap.  xvi.  p.  765,  he  mentions  "  Henricum  hujus  nominis 
septimum,  qui  nostro  tempore  ad  imperil  clavum  sedet." 

2  Vide  p.  754 :  "  Consedentibus  et  colloquentibus  mecum  aliquando 
quibusdam  familiaribus,  viris  prudentibus  ac  maturis,  contigit  inter 
cetera  Romani  imperii,  sive  regni,  et  status  ipsius  fieri  mentionem: 
quibusdam  asserentibus,  in  tantum  jam  ipsum  imperium  sive  regnum 
in   suis   juribus  et  viribus  defecisse,  quod  verisimile  esset  in  brevi 
ipsum  in  totum  deficere  et  cessare  oportere:  aliis  dicentibus,  quod 
sicut  a  principio  sui  ortus  Romanum  imperium  illicite  et  injuste  regna 
mundi  et  populos  diversarum  nationum  et  gentium  subegisset  armorum 
violentia  et  bellorum:  ita  et  ipsum  Imperium  jamdudum  et  quotidie 
deinceps  a  diversis  regnis  et  principatibus  et  nationibus  impugnandum 
et  imminuendum  esse  donee  in  brevi  totaliter  deleatur.     Hac  ergo 
hincinde  collocutione  et   collatione  habita,  ab   aliquibus  tune  prae- 
sentibus  rogatus,  et  consideration  ipsius  rei  etiam  incitatus,  subse- 
quens  opusculum  de  ortu,  progressu  et  fine  regnorum,  et  praecipue 
regni  seu  imperii  Romani,  adjunctis  rationibus  et  authoritatibus  ac 
exemplis  ipsam  materiam  contingentibus,  composui  et  collegi,credens 
legentibus  nonnullum  solatium,  neque  id  inutile  ex  istius  materiae 
indagine  ac  notitia  posse  pro  venire." 

3  It  is  curious  to  see  that,  in  the  preface  to  an  edition  of  Engelbert's 
treatise,  printed  at  Bale  in  1553,  we  have  a  very  similar  conversation 
given  as  the  cause  of  printing  the  treatise.     The  writer  of  the  preface 
was  Gaspar  Bruschius,  an  interesting  sixteenth  century  figure,  a  poet 
and  antiquary,  who   recalls   to  Wolfgang,  Abbot   of   Garsten,   "his 
Maecenas,"  a  conversation  they  had  had  "de  ultimis  temporibus  ac 


280  THE   PROBLEM    OF   THE    EMPIRE  [CH. 

Thus  the  work  excellently  illustrates  the  existence 
of  this  problem  of  the  Empire  and  its  future.  Men  are 
openly  discussing  its  future  existence  ;  its  justness  is 
doubted  and  its  future  despaired  of.  And  it  illustrates 
other  sides  of  our  previous  inquiries.  The  treatise, 
though  usually  known  shortly  as  De  Ortu  et  Fine 
Romani  Imperil,  is  called  by  Engelbert  himself1 — 
De  ortu,  progressu  et  fine  regnorum  et  praecipue 
regni  sen  imperil  Romani.  The  difference  is  signi- 
ficant. Engelbert  is  not  starting  from  the  "  Romanum 
imperium  seu  regnum "  of  the  lawyers,  as  the  one 
political  State,  but  from  the  generic  "  regnum,"  of 
which  the  Roman  Empire  is  a  species.  Aristotle  and 
Augustine  are  the  foundations  of  his  thought ;  we  shall 
see  that  he  has  by  no  means  always  harmonised  his 
Aristotle  and  Augustine.  For  the  moment,  we  have 
only  to  note  that  we  start  from  the  general  history  of 
the  Aristotelian  "  regnum2,"  of  which  the  Roman  Empire 

mundi  hujus  fine  et  de  Romani  imperil  (quod  ante  mundi  finem  collabi 
necesse  est)  interitu."  He  is  convinced  that  they  are  nearing  the  end, 
and,  from  a  prophecy  of  Regiomontanus,  he  concludes  that  this  is  to 
be  about  the  year  1588. 

1  Vide  above,  p.  279,  note  2. 

2  Vide  e.g.  chap.  vn.  pp.  757-8,  where  we  have  the  Regnum  as  the 
culmination  of  a  series  of  communities,  beginning  with  the  Domus.    In 
chap.  xii.  p.  761,  where  he  is  discussing  the  meaning  of  "magnitude" 
as  applied  to  Regna,  he  gives,  on  the  authority  of  Aristotle,  five  species 
of  communities — Domus,  Vicus,  Civitas,  Gens  and  Regnum— which 
he  contrasts  with  Augustine's  three— Domus,  Urbs,  Orbis.     Where  in 
Aristotle  he  finds  this  series  of  five  communities,  it  would  be  very  dim- 
cult  to  say.     Aristotle  sees  below  the  TroXts  the  oiKla  and  the  /CW/XT/,  but 
nothing  above  it.    Probably  Engelbert  has  merely  misunderstood  Aris- 
totle's views  on  the  tdvos  (gens) — they  are  indeed  not  altogether  easy 
to  understand  (vide  Newman,  Aristotle's  Politics,  vol.  i.  p.  39,  and  in. 
p.  346,  note  2).      Engelbert  refers  to  Book  iv.,  but  he  might  well  be 
referring  to  Book  vn.  (which  is  iv.  ace.  to  the  modern  order)  where 


Ill]  THE   PROBLEM    OF   THE    EMPIRE  281 

will  afford  the  chief  examples,  because  it  is  the  special 
subject  of  the  treatise. 

Having  proved  from  Aristotle  the  justness  of 
"dominium"  and  its  conformity  to  nature1,  Engelbert 
copies  from  S.  Augustine  some  words  of  Justin2,  to 
prove,  aided  by  other  references  to  Cicero,  Macrobius 
and  Valerius  Maximus,  the  original  innocence  and 
justness  of  all  Regna.  Such  was  their  origin;  their 
subsequent  history  is  a  falling  away  from  this  primitive 
excellence. 

Taking  Assyria  as  the  earliest  "of  the  very  great 
kingdoms  of  the  world,"  he  holds,  on  the  authority  of 
Justin,  that  Ninus  was  the  first  to  seek  unjust  dominion8. 

Aristotle  is  discussing  the  proper  size  of  the  TroXis.  Vide  chap.  4 — 
6/iotws  5£  Kal  TrdXis  i]  fj.ei>  e£  6\iywi>  \iav  OVK  avrapKys  (ij  5e  TrdXis  aifrap/ces), 
•}}  8£  €K  TroXXcDi'  ayav  ev  TOIS  /J.ei>  dvayKaiois  avrdpicris,  iLairep  H6i>os,  ctXX' 
ou  TrdXis '  Tro\iTeiai>  yap  ov  pq.5iov  VTrdpxtW  ris  yap  (TTpaTtjybs  &rrai  TOV 
\iav  UTre/j/SaXXoyros  TrXrjflous,  if)  TIS  nijpvi;  /U.TJ  "Zrevropeios;  Of  course  there 
is  nothing  whatever  in  Aristotle's  words  here  or  elsewhere  about  the 
TrdXis  leading  up  to  the  e0vos,  as  the  less  to  the  more  self-sufficient, 
nor  any  idea  of  the  £6vos  as  a  more  ' '  perfect ' '  community  than  the 
TrdXis.  On  the  contrary  Aristotle  says  that,  as  the  too  small  TroXts 
will  not  be  independent,  and  so  properly  not  a  TroXis  at  all,  so  the  too 
large  TroXis  will  indeed  be  independent  as  regards  the  necessaries  of 
life,  but  independent  as  an  £0?os,  not  as  a  TroXts.  The  £0j/os  is  ex- 
cluded, from  its  size,  from  the  possibility  of  a  "constitution,"  and  so 
cannot  be  a  "  State. ' '  Still,  Engelbert  may  easily  have  interpreted  this 
into  the  idea  of  the  Gens  as  above  the  Regnum.  But  whether  he  did 
so  or  not,  it  is  important  to  note  that  he  himself  adopts  neither  of  the 
two  series  of  communities,  which  he  gives  on  the  authority  of  Aristotle 
and  Augustine.  Throughout  his  treatise  he  adopts  the  quadruple 
series  of  Domus,  Vicus,  Civitas,  Regnum,  with  the  Vicus  sometimes 
omitted,  until  finally,  as  we  shall  see,  he  caps  the  series  with  a 
universal  Imperium.  For  Augustine's  series  vide  De  Civ.  Dei,  xix.  7. 

1  Vide  chap.  i.  p.  754. 

2  He  borrows  the  reference,  as  most,  if  not  all,  his  history,  from 
Augustine.     Vide  De  Civ.  Dei,  iv.  6. 

s  Vide  chap.  iv.  p.  756,  and  Augustine,  De  Civ.  Dei,  iv.  6. 


282  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

As  regards  Rome,  he  seems  to  distinguish  three  periods 
—that  of  the  kings1,  that  from  the  expulsion  of  the 
kings  to  the  end  of  the  Republic2,  and  that  of  the 
Empire3 — in  each  of  which  deterioration  followed  a 
good  beginning. 

The  general  aim  of  all  kingdoms  is  felicity,  which 
some  men  make  to  consist  in  virtue,  others  in  pleasure4. 
Now,  the  felicity  of  the  kingdom  depends  on  no  other 
causes  than  the  felicity  of  man.  Thus,  adopting 
Augustine's  well-known  comparison  between  the  "  duos 
homines,  unum  mediocrem  statu  suo  et  rebus,  alium 
vero  praedivitem  et  magnum  statu  et  rebus5,"  he  finds 
the  felicity  of  the  kingdom  to  consist  in  freedom  from 
want,  trouble  and  fear,  or  affirmatively  in  sufficiency, 
tranquillity  and  security6,  all  of  which  are  included  in 
the  term  Peace7.  He  shows  that  the  large  kingdom  is 
better  adapted  to  securing  this  felicity  than  the  small, 

1  Vide  chap.  v.  pp.  756-7.  2  Vide  chap.  vi.  p.  757. 

3  Ibid,  ad  fin.  and  cf.  chap.  xx.  p.  770. 

4  Vide  chap.  vn.  pp.  757-8. 

5  Vide  Augustine,  De  Civ.  Dei,  iv.  3. 

6  Vide  chap.  ix.  p.  759. 

7  Vide  chap.  xiv.  p.  763:   "  Sciendum  itaque  quod  licet  superius 
distinguendo   felicitatem  per  partes  suas   dictum  sit,  quod   felicitas 
regnorum  et  regum  consistat  principaliter  in  tribus,  scil.  in  bonorum 
regni  sufficientia  sine   indigentia,   et   tranquillitate   sine   turbatione, 
et    in   securitate   sine   timore :    omnia  tamen  ista   sub   una  ratione 
et   sub   uno   nomine    pacis   includuntur,    quae   est   finis   ultimus   et 
principalis,  ad  quern  tendunt  omnes  hominum  communitates,  parvae 
et  magnae,  majores  et  maximae,  ut  puta,  communitas  domus,  com- 
munitas  vici  vel  villae,  communitas  et  societas  gentis  et  regni,  sicut 
dicit  Augustinus  19  lib.  de  Civ.  Dei.    Pax  enim  est  finis,  propter  quern 
omnis  hominum  communitas  et  societas  est  constituta:  et  forma  se- 
cundum   quam  regitur,  et  ratio  sive   causa   propter  quam  durat   et 
conservatur,  et  functus  in  quo  complete  felicitatur."     Vide  Aug.,  De 
Civ.  Dei,  xix.  11-14,  espec.  12. 


Ill]  THE    PROBLEM   OF   THE    EMPIRE  283 

though,  with  Augustine,  he  maintains  the  necessity 
of  justice,  if  the  kingdom  is  to  be  something  more 
than  "a  fair  thievish  purchase1."  The  large  kingdom 
is  just  "  de  facilitate,"  not  "  de  necessitate."  The  small 
kingdom  is  not  necessarily  less  just,  but  justness  does  not 
constitute  the  whole  of  felicity,  though  essential  to  its 
complete  realization.  Justice  requires  sufficiency  and 
security  for  its  execution,  and  these  are  more  easily 
secured  in  the  larger  kingdom ;  but  if  they  can  be 
procured  in  the  small  kingdom,  it  may  be  preferable2. 
Whether  the  kingdom  be  just  or  not  depends  on  two 
conditions3:  the  quality  of  its  acquisition — of  which 

1  Vide  chap.  xm.  pp.  761-3. 

2  Vide  chap.  xm.  p.  762,  where  he  has  just  quoted  Augustine's 
words  on  the  "magna  latrocinia":  "Ex  hoc  etiam  ulterius  patet, 
quod  si  Eomanum   imperium   orbem  terrae  et  ejus  dominationem 
obtinuit  et  tenet  sola  potentia,  sine  justitia,  tune  jam  non  erit  im- 
perium, sed  improperium,  et  non  patrocinium,  sed  latrocinium  orbis. 
Utrum  ergo  regni  magnitude  faciat  ad  ipsius  justitiam,  ita  ut  ideo  sit 
et  dicatur  regnum  justum,  quia  magnum,  sicut  ille  pirata  arguebat  et 
opponebat  Alexandro,  et  per  consequens  regnum   parvum   ideo  non 
possit   esse   justum,   quia   parvum,   ad   hoc  solvendo  dicimus,  quod 
nullum  regnum  ideo  est  vel  erit  de  necessitate  justum,  quia  magnum, 
sed  de  facilitate.... Manifestum  est  igitur  ex  praedictis  omnibus,  quod 
justitia  per  se  operatur  ad  felicitatem  regum  et  regnorum:    magni- 
tude vero  potentiae  et  regni,  secundum  dilationem  et  amplitudinem 
ipsius,    cooperatur    ad    felicitatem,    non    per    se,    sed    per  accidens, 
scilicet  mediante  amore  et  diligentia   justitiae  in  regnante.      Parva 
vero  regna,  licet  possint  esse  justa,   non  tamen  propter  hoc  statim 
felicia,  quia  justitia  non  est  tota  felicitas,  sed  potior  pars  felicitatis 
regum  et  regnorum,  cum  justitia  requirat  sufficientiam  et  securitatem 
ad  sui  executionem.     Parva  vero  regna  non  possunt  esse  sibi  ex  se 
sufficientia  nee  secura,  nisi  bonitas  vicinorum  regnorum  praestet  eis 
sufficientiam,   et  aequitas  ipsorum  concedat  ipsis  securitatem.     Ubi 
vero  parva  regna  ex  se  possent  gaudere  sufficientia  et  securitate,  ibi 
esset  melius  habere  regnum  parvum  et  quietum,  quam  magnum   et 
latum,  et  semper  debile  et  infirmum  etc." 

3  Vide  chap.  x.  pp.  759-60. 


284        THE  PROBLEM  OF  THE  EMPIRE        [CH. 

he  distinguishes  three  kinds,  election  as  in  the  Empire, 
succession  as  in  other  kingdoms,  and  occupation — and 
the  quality  of  its  administration.  While  he  thus 
vindicates  the  Roman  Empire's  just  acquisition  of 
Empire,  either  through  conquest  in  a  war,  or  testa- 
mentary disposition,  or  voluntary  subjection,  and  its 
just  administration,  he  argues  that,  on  the  other  hand, 
neither  he,  who  has  acquired  his  kingdom  justly,  but 
administers  it  unjustly,  nor  he  who  has  acquired  it 
unjustly,  but  rules  it  justly,  can  be  called  a  just  king1. 
The  question  then  remains,  whether  that  peace,  which  is 
the  end  of  all  human  communities2,  be  best  attained  in 
one  universal  "  monarchia  "  or  in  single  and  independent 
kingdoms.  His  treatment  of  this  question  is  very  de- 
tailed. He  gives  in  the  dialectical  manner  the  argu- 
ments for  and  against,  and  finally  the  "  solutio  "  of  the 
objections  raised  against  a  "  world-monarchia."  The 
question  is  so  pertinent  to  our  inquiries,  and  his  treat- 
ment of  it  so  significant,  that  we  shall  first  attempt, 
as  briefly  as  possible,  to  give  an  analysis  of  the 
most  important  arguments  on  either  side  and  of  the 
"  solution." 

In  favour  of  a  universal  "  monarchia  "  it  is  argued 3 
that  it  best  fulfils  the  natural  tendency  to  unity,  which 
"art"  imitates  in  single  kingdoms  and  should  conse- 
quently follow  in  "  the  whole  multitude  of  kingdoms." 
For  as  the  "  commune  bonum "  is  preferable  to  the 
"  bonum  singulorum "  and  the  "  res  publica "  to  the 
"res  privata,"  and  as  the  lesser  good  of  the  Domus 
leads  up  to  the  greater  good  of  the  Ci vitas,  and  the 

1  Vide  chap.  xi.  pp.  760-61.       2  Vide  chap.  xiv.  p.  763. 
3  Vide  chap.  xv.  pp.  763-5. 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  285 

lesser  good  of  the  Civitas  to  the  greater  good  of  the 
Regnum,  so  the  lesser  good  of  many  kingdoms  must 
lead  up  to  the  "bonum  commune  omnium  gentium  et 
regnorum  "  in  "  one  natural  kingdom  and  Empire."  He 
then  adopts  from  Augustine  Cicero's  definition  of  "  res- 
publica  "  as  the  "  res  populi,"  and  of  the  "  populus  "  as 
"  multitude  hominum  communi  consensu  divini  et 
humani  juris  sociata  in  unum,"  and  argues  that  there 
is  but  one  true  "jus  divinum,"  that  is  "the  one  true 
cult  of  the  one  true  God,"  but  one  true  "jus  humanum," 
that  is  the  canons  and  laws  consonant  to  the  Divine 
Law,  but  one  "  consensus "  in  this  Divine  and  human 
Law,  that  is  the  Christian  faith,  and  but  one  people, 
that  is  the  Populus  Christianus  "fide  consentiens  in 
illud  jus  divinum  et  humanum,"  and  therefore  one  only 
"  respublica  "  of  the  whole  Christian  people.  "  Ergo  de 
necessitate  erit  et  unus  solus  princeps  et  rex  illius 
reipublicae,  statutus  et  stabilitus  ad  ipsius  fidei  et 
populi  Christiani  dilationem  et  defensionem."  And  so, 
he  concludes,  Augustine  holds  that  there  can  be  no 
true  Empire  outside  the  Church,  however  de  facto 
there  may  have  been  Emperors  who  were  outside  both 
it  and  Christianity.  Further  he  argues  that  the  exist- 
ence of  a  universal  "  monarchia,"  above  all  differences  of 
race,  tongues  and  laws,  is  necessary  to  preserve  the 
concord  of  the  •  world  and  is  in  the  likeness  of  God's 
rule  over  the  universe.  This  "  world-monarchia  "  is  not 
a  spasmodic  or  fortuitous  occurrence,  but  the  continual 
result  of  God's  providence,  working  through  nature 
and  human  art  and  reason ;  it  may  be  traced  from 
the  Assyrians  to  the  Babylonians,  thence  to  the  Medes 
and  Persians,  to  Alexander  and  his  successors,  "ever 


286  THE   PROBLEM    OF   THE    EMPIRE  [CH. 

fluctuating  hither  and  thither "  till  it  came  to  Antony 
and  Cleopatra,  and  so,  after  the  battle  of  Actium,  to 
Octavian,  the  first  "monarcha  Romanorum." 

We  then  have  the  arguments  against  a  "monarchia1." 
It  is  argued  that  it  is  unnecessary  to  human  felicity ; 
for  just  as  many  households  can  exist  peacefully  and 
separately  without  forming  a  Vicus,  many  Vici  without 
forming  a  Civitas,  so  there  is  no  necessity  for  the  single 
kingdoms  to  form  one  Empire,  which  is  the  less  quiet 
as  it  is  the  greater — "quale  nunc  est  et  semper  fuit 
regnum  Romanorum."  The  Roman  Empire  was  and  is 
always  troubled  by  wars  and  rebellions;  hardly  ever 
were  the  gates  of  the  temple  of  Janus  shut ;  the  greater 
number  of  Roman  Emperors  have  died  violent  deaths ; 
and  the  Roman  Empire  has  been  the  cause  rather  of 
disorder  and  war  than  of  peace.  The  Roman  Empire 
has  therefore  been  "in  vain,"  because  it  has  not  attained 
its  end,  while  we  see  kingdoms,  which  are  inde- 
pendent of  it,  living  at  peace  with  other  kingdoms, 
whether  dependent  or  independent  of  the  Empire. 
The  same  might  hold  good  of  all  kingdoms,  if  there 
were  no  universal  Empire.  Besides,  there  are  differ- 
ences of  race,  tongues,  manners  and  laws,  and  as  the 
true  king  governs  according  to  the  written  law,  but 
also  according  to  his  will  or  the  unwritten  law,  how  can 
there  be  one  king  for  all  diversities  of  peoples,  each 
with  their  different  customs  ?  Nor  is  there  one  only 
Respublica  or  Populus,  for  Jews  and  Gentiles  can  have 
no  place  within  the  Christian  Republic  or  People. 
Further,  the  Roman  Empire  has  already  in  certain 
cases  withdrawn  its  boundaries ;  while  many  kingdoms, 
1  Vide  chap.  xvi.  pp.  765-6. 


Ill]  THE   PROBLEM    OF   THE    EMPIRE  287 

such  as  France,  England,  Spain  and  others,  claim  to  be 
de  jure  independent  of  it.  If  they,  why  not  others  ? 

Before  coming  to  the  "solutio,"  Engelbert  dis- 
tinguishes J  between  the  perfect  felicity  of  the  next  life 
and  the  comparatively  imperfect  felicity  of  this  life.  All 
men  aim  at  felicity,  and,  in  order  to  obtain  it  in  this 
life,  human  imperfection  needs  the  subordination  of 
the  less  perfect  under  the  more  perfect — the  wife  and 
family  under  the  rule  of  the  husband,  the  household 
itself  under  the  Civitas,  the  Civitas  under  the  Reg- 
num,  and  finally,  therefore,  the  Regnum  under  the 
culminating  Impermm — "in  cujus  felicitate,  tanquam 
universali  et  pro  tanto  una  et  ultima  ac  optima,  con- 
sistit  salus  et  felicitas  omnium." 

Passing  now  to  the  "solutio2/'  he  maintains  that  it 
is  better  and  juster  that  all  kingdoms  and  kings  should 
be  subject  to  one  Christian  Empire  and  Emperor, 
since  it  were  monstrous  if  the  Christian  Republic  were 
to  have  more  than  one  head.  Here  on  earth  an  Empire 
is  necessary  to  maintain  the  peace  and  concord  of 
the  world,  as  also  for  the  defence  and  propagation 
of  Christianity.  As  to  the  Roman  Empire  having  been 
"  in  vain,"  he  answers  that,  though  in  the  next  world 
all  "  praelatio  "  and  "  potestas  "  will  cease,  we  cannot 
expect  perfect  security  and  quiet  in  this  world.  The 
felicity  of  the  Regnum  here  on  earth  consists,  not  so 
much  in  the  fact  of  being  in  peace,  but  in  continual 
striving  for  peace  and  so  deserving  the  eternal  peace. 
It  must  strive  for  what  it  can  obtain  according  to 
human  imperfection.  And  though  there  may  be  some 

1  Vide  chap.  xvn.  pp.  766-7. 

2  Vide  chap.  xvm.  pp.  767-9. 


288  THE    PROBLEM   OF   THE    EMPIRE  [CH. 

kingdoms  which  do  not  recognize  the  superiority  of  the 
Empire,  the  Empire  is  still  necessary,  that  the  Church 
and  Christianity  may,  under  one  head,  present  a  united 
front  before  their  enemies  and  rebels.  Nor,  because  some  I 
kingdoms,  like  France,  may  be  specially  exempt  by 
privilege,  does  it  follow  that  all  should  be — "  privilegia 
paucorum  non  facit  legem  universalem."  Otherwise  it 
will  not  be  exemption  from,  but  the  destruction  of, 
the  Empire — that  falling  away  of  the  kingdoms  from  ! 
the  Empire  and  of  the  Churches  from  the  Apostolic 
see,  which  is  to  be  the  forewarning  of  the  advent  of 
Antichrist.  This  it  is  that  they  are  hastening,  wrho 
"  zealously  give  their  mind  to  the  overthrow  and  dis- 
memberment of  the  Empire."  As  for  the  arguments 
adduced  from  the  differences  of  race,  tongues,  manners 
and  laws,  he  answers  that  what  may  be  true  of  the  king, 
is  not  true  of  the  Emperor,  who  is  above  the  king. 
Law  is  divided  into  "jus  naturale,"  which  is  the  "jus 
commune  omnium  gentium"  and  the  "jus  positivum," 
which  varies  according  to  diversities  of  race  and 
manners.  Now  all  races  use  the  "jus  naturale,"  and 
those  parts  of  Roman  Law  which  are  applicable  to 
all  races  and  kingdoms.  Therefore  it  is  proper  and 
necessary  that  they  should  all  obey  the  one  Roman 
Empire,  both  for  the  preservation  of  the  internal  concord 
of  Christendom  and  for  the  protection  of  the  Christian 
kingdoms  against  the  infidels.  For  the  infidels  also 
are  bound  by  the  "jus  gentium  "  not  to  harm  others  and 
to  respect  the  rights  of  others,  and  so  may  legally  be 
coerced  by  the  Emperor.  Jews  and  Gentiles  do  not 
make  a  part  of  the  Christian  Republic  or  People,  but 
they  share,  as  men,  in  the  "jus  naturale"  and  "jus 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  289 

gentium,"  and  are  subject  to  the  Empire.  Finally 
Engelbert  disposes  of  the  alleged  examples  of  the 
retreat  of  the  Imperial  boundaries. 

Engelbert's  treatise  shows  us  how  the  Empire 
was  able  to  find  a  place  in  the  new  political  thought, 
the  basis  of  which  was  Aristotle's  Politics.  We  saw 
that  for  the  Aristotelian  the  State,  the  TroXi?,  was  the 
Civitas  or  Regnum,  but  that  before  long  the  Regnum 
came  to  be  considered  as  a  more  perfect  and  self- 
sufficient  community  than  the  Civitas.  In  the  same 
way,  Engelbert  began  by  taking  the  Imperium  as  a 
species  of  the  Regnum;  he  concluded  by  placing  the 
Imperium  above  the  Regnum,  as  the  finally  most  per- 
fect and  self-sufficient  State,  completing  the  Regnum, 
as  the  Regnum  completes  the  Civitas.  That  this 
process  involved  "confused  thinking"  is  indubitable1. 

But  we  may  consider  this  a  little  more  closely.  To 
begin  with,  when  Egidius  Romanus  completes  the 
Domus  and  Civitas  with  the  Regnum,  and  when  Engel- 
bert, going  a  step  further,  completes  the  Domus,  Civitas 
and  Regnum  with  the  universal  Imperium,  they  do  not 
imply  that  the  Civitas  in  the  one  case,  or  the  Regnum 
in  the  other,  cannot  be  "  States,"  but  that  they  are  less 
perfect,  less  self-sufficient  communities,  fulfilling  their 
lend  better,  if  completed  by  a  more  perfect  and  self- 
I  sufficient  community.  In  other  words  they  are  better 
•  fitted  to  be  Communes  or  Provinces,  though  they  can 
|  be  States.  The  confusion  is  obvious.  The  very  fact 
that  the  series  of  communities  was  made  to  start  in 
the  Domus,  made  it  desirable  that  the  conception  of 
!  the  State — and  all  it  implied  according  to  the  new 

1  Cf .  Gierke,  Political  Theories  of  the  Middle  Age,  pp.  96-7. 

w.  19 


290         THE  PROBLEM  OF  THE  EMPIRE        [CH. 

political  theories — should  be  reserved  for  one,  that  is 
to  say  the  highest,  in  their  series  of  communities.  The 
line  between  "State"  and  "not-State"  should  have  been 
drawn  either  below  Regnum,  or  if  they  carried  the 
series  to  its  conclusion  in  the  Imperium,  below  Im- 
perium.  They  did  not  draw  the  line,  and  consequently 
the  theory  of  the  State,  as  distinct  from  the  Province 
or  Commune,  was  still  to  some  considerable  extent  in 
the  making.  But  we  must  remember  that  fact,  as 
well  as  theory,  was  confused.  In  the  feudal  order  of 
the  thirteenth  and  fourteenth  centuries  there  was  not 
the  sharp  distinction,  which  we  draw  now,  between 
State,  Province,  Commune.  Cities  of  the  same  magni- 
tude might  actually  be  States  in  Italy  and  Communes 
in  France. 

If,  then,  the  Empire  entered  political  thought  under 
the  guidance  of  Aristotle,  it  did  so  as  the  highest  and 
most  perfect  and  self-sufficient  community.  Engelbert 
was  by  no  means  unique  in  this  line  of  thought.  We 
find  it  in  Papalist  writers,  who  had  no  prejudice  in 
favour  of  the  Empire.  Now  Engelbert  was  prejudiced 
in  favour  of  the  Empire — arid  therein  lies  a  point  of 
great  importance.  Engelbert  was  pleading  for  the  exist- 
ence of  an  Empire.  The  result  is  that,  if  we  look 
a  little  closer  at  his  treatise,  we  see  that  his  Imperium 
was,  in  fact,  something  besides  the  highest,  completest, 
most  self-sufficient  state  of  the  Aristotelians. 

In  the  first  place  we  may  notice  that  very  curious 
discussion  in  which  Engelbert  argues  from  the  diversity 
of  race,  laws,  tongues  and  customs  for  the  necessity  of 
a  supreme  Emperor,  in  order  to  preserve  the  concord 
of  kingdoms,  where  they  are  not  separated  one  from 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  291 

another  by  naturally  inaccessible  boundaries — otherwise, 
"  providentia  divina  super  ordinando  et  conservando 
statu  regnorum  mundi  erit  insufficiens  et  incompleta1." 
Then  in  the  arguments,  which  he  adduces  against  a 
"  monarchia,"  it  is  argued  that  as,  according  to  the  Philo- 
sopher, he  is  not  "  simpliciter "  to  be  called  king,  who 
rules  merely  according  to  written  law,  and  not  at  all 
according  to  his  will  and  reason,  there  cannot  be  one 
Emperor  or  king  for  all  the  different  races,  since  there 
cannot  be  one  law,  whether  written  or  unwritten,  for 
the  different  races  "secundum  diversas  linguas  et 
patrias  et  patrios  mores  ac  ritus2."  Then,  finally,  in 


1  Vide  chap.  xv.  p.   764:    "  Sed  sicut   superius  dicebatur  regna 
mundi  sunt  di versa  ad  invicem,  secundum  diversitatem  unius  cuj usque 
patriae  et  linguae  et  rrtorum  et  legum.    Haec  autem  diversitas  gentium 
et  regnorum,  ubi  non  est  limitata  et  separata  magnis  montibus  et 
fluminibus  locisve  aliis  inviis  ac  desertis,  ut  unius  gentis  ad  aliam  non 
facilis  sit  accessus,  est  causa  et  occasio  adversitatis  et  discordiae, 
gentis  contra  gentem,  et  regni  adversus  regnum.     Ergo  de  necessitate 
erit  aliqua  potestas  major  ac  superior,  quae  habeat  authoritatem  et 
virtutem  concordandi  et  concordiam  ordinandi  et  conservandi  inter 
regna  et  gentes  diversas  adinvicem  et  adversas :  aut  providentia  divina 
super  ordinando  et  conservando  statu  regnorum  mundi  erit  insufficiens 
et   incompleta.... Ergo   ex   divinae   providentiae   ordinatione    erit    de 
necessitate   aliqua   una   potestas  et  dignitas   suprema   et  universalis 
in  mundo,  cui  de  jure  subesse  debent  omnia  regna  et  omnes  gentes 
mundi,  ad  faciendam  et  conservandam  concordiam  gentium  et  regnorum 
per  totum  mundum." 

2  Vide  chap.  xvi.  p.  765:  "Praeterea,  ut  dicit  Philosophus  quarto 
Politicorum,  rex  est  lex  animata  etc.      Exinde   sumitur  differentia 
inter  regnum  regis  et  regnum  politicum;  quia  politia  regit  populum 
secundum  legem  scriptam,  rex  vero  regit  regnum  secundum  utramque 
legem,  scilicet  scriptam  et  non  scriptam;  quia,  ut  dicit  Philosophus 
ibidem,  non  est  simpliciter  rex  dicendus,  qui  non  regit  nisi  secundum 
legem  scriptam,  et  nihil  secundum  voluntatem  et  rationem  propriam. 
Sed  lex  sive  scripta,  sive  non  scripta,  non  potest  esse  una  diversis 
gentibus  secundum  diversas  linguas  et  patrias  et  patrios  mores  ac  ritus. 

19—2 


292  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

the  "solutio"  this  is  answered  as  follows :  it  is  true  that 
a  king  must  rule  according  to  the  particular  positive 
laws  of  each  kingdom,  which  reflect  its  particular 
characteristics  of  race,  language,  customs ;  but  there  is 
also  Natural  Law — the  law  common  to  all  nations — 
and  those  parts  of  Roman  Law,  which  can  with  justice 
and  utility  be  applied  to  all  nations,  both  of  which  laws 
all  nations  are  bound  to  observe  "  intra  se,"  as  well  as 
in  their  dealings  with  their  neighbours.  This  applies 
equally  to  Christian  and  Pagan  nations,  for  Pagans, 
"in  quantum  homines,"  are  subject  to  the  dictates  of 
the  "jus  gentium,"  i.e.,  not  to  harm  others  and  to 
respect  their  rights,  and  can  therefore  be  coerced  "  per 
imperium1." 

Ergo  nee  unus  rex  vel  imperator  potest  esse  diversis  gentibus  secundum 
linguas  vel  patrios  mores  ac  ritus  patrios  adinvicem  diversificatos." 

1  Vide  chap.  xvm.  p.  768:  "  Ad  quartum  quod  objiciebatur,  quod 
non  est  possibile  nee  conveniens  gentibus  a  se  diversis,  secundum 
diversas  linguas  ac  patrias  et  mores  et  ritus  patrios,  esse  unam  legem; 
ergo  nee  unum  regem;  et  per  consequens  ergo  non  est  conveniens 
neque  utile  neque  justum  omnibus  gentibus  praeesse  unum  imperatorem 
etc. — Respondeo,  quod  alia  ratio  attenditur  circa  hoc  in  rege  et  alia  in 
imperatore,  qui  est  super  reges ;  quia  sicut  lex  (generaliter  sumendo 
nomen  legis)  distinguitur  in  jus  naturale,  quod  est  jus  commune 
omnium  gentium,  et  in  jus  positivum,  quod  variatur  secundum  diversi- 
tatem  gentium,  juxta  diversas  patrias  et  mores  ac  ritus  patrios;  ita 
singulae  gentes  singulos  habent  reges  unamquamque  gentem,  secun- 
dum suas  leges  proprias  convenientes  suae  patriae  et  moribus  et 
ritibus  ipsius,  regentes  et  gubernantes.  Omnia  vero  regna  simul 
secundum  jus  naturale  commune  omnibus  gentibus  et  regnis,  vel 
secundum  ea  quae  ex  ipsis  legibus  Romanis  possunt  omnibus  gentibus 
et  regnis  juste  et  utiliter  con  venire,  et  quae  omnes  gentes  et  regna 
omnia  tenentur  intra  se  et  ad  vicinos  et  ad  extraneos  observare,  non 
solum  possibile,  sed  etiam  necessarium  et  utile  est,  uni  Romano 
imperio  obedire,  vel  ad  pacem  et  quietem  uniuscujusque  regni  et  gentis 
intra  se  simul  et  extraneos  observandum,  ut  in  regnis  Christianis,  vel 
saltern  ad  ipsa  regna  Christiana  ab  ipsis  non  invadenda  nee  pertur- 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  293 

We  have  noticed  above  the  difference  between  the 
"regnum  regis"  and  the  "regnum  politician,"  as  it 
appears  in  Aquinas  and  his  continuator,  and  have 
traced  it  back  to  Aristotle  himself.  The  problem  of  the 
relation  of  the  ruler  to  law,  as  presented  by  Aristotle, 
is  to  be  compared  with  the  problem,  which  had  occupied 
the  attention  of  the  lawyers  for  many  years  before 
Aquinas,  whether  the  Princeps,  who  is  "solutus  legi- 
bus,"  is  free  to  act  merely  at  caprice.  This  had  in 
general  been  answered  negatively,  for  not  only  is  the 
Princeps  bound  by  the  higher  Laws  of  God,  Nature  and 
Nations,  but  also,  though  he  is  not  bound  by,  it  is  still 
right  and  proper  that  he  should  rule  according  to,  his 
own  laws.  In  the  arguments,  which  Engelbert  adduces 
against  a  universal  "  monarchia,"  he  expresses  the  differ- 
ence between  the  "regnum  regis"  and  the  "regnum 
politicum  "  by  saying  that  the  true  king  rules,  not  only 
according  to  the  unwritten  law,  but  also  according  to 
his  will  and  reason.  By  will  and  reason  Engelbert  does 
not  mean  mere  caprice1,  but  an  unwritten  law  consonant 

banda,  ut  in  regnis  infidelium  et  paganorum,  quae  (quantum  ad  hoc) 
Eomano  imperio  subesse  teneiitur;  quia  non  solum  est  jusChristiano- 
rum,  sed  etiam  jus  gentium  et  omnium  hominum  (in  quantum  homines) 
jus  suum  unicuique  tribuere  et  servare  et  alterum  injuste  non  laedere ; 
ad  quod  Christianis  regnis  observandum,  possunt  et  debent  ipsi  infideles 
et  pagani  de  jure  per  imperium  coherceri." 

1  This  is  clear  if  we  turn  to  Aquinas,  Comment,  on  Politics,  iv. 
Lectio  4,  p.  57,  whence  the  expression  "voluntas  et  ratio"  seems 
taken.  Aquinas  is  commenting  on  the  passage  in  Aristotle's  Politics  iv. 
(ace.  to  the  modern  order  vi.)  chap,  iv.,  where  Aristotle  says  that 
there  can  be  no  TroXtrem,  where  the  Law  is  not  supreme.  "Sed  ali- 
quis  argueret  contra  illud  quod  dicit,  quod  ubi  leges  non  praevalent 
non  est  respublica,  quia  monarchia  regalis  politia  est,  tamen  non  est 
principatus  secundum  legem,  sed  secundum  voluntatem  et  rationem 
principantis.  Ad  hoc  posset  aliquis  dicere  breviter,  quod  quaedam 


294  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

to  the  customs  of  each  particular  kingdom ;  otherwise 
his  argument  that  there  cannot  be  a  true  king  over  all 
kingdoms  with  their  discordant  customs  would  not 
apply.  And,  thus,  in  the  "  solutio  "  of  these  arguments 
against  a  universal  "monarchia,"  this  particular  argu- 
ment is  so  stated  as  merely  to  express  the  view  that  there 
cannot  be  one  law  for  all  the  diverse  kingdoms,  with 
their  diverse  tongues  and  customs,  and  therefore  no  one 
Emperor  above  these  kingdoms.  To  this  he  answers, 
as  we  have  seen,  that  "  alia  ratio  attenditur  circa  hoc  in 
rege  et  alia  in  imperatore,  qui  est  super  reges."  He 
distinguishes  between  the  "jus  naturale" — "  quod  est  jus 
commune  omnium  gentium  " — and  the  "jus  positivum," 
which  varies  from  race  to  race,  and  compares  this  dis- 
tinction to  that  between  a  single  race,  governed  by 
a  king  "secundum  leges  proprias  convenientes  suae 
patriae  et  moribus  et  ritibus  ipsius,"  and  all  nations 
which  together  observe  the  "jus  naturale"  and  "ea  quae 
ex  ipsis  legibus  Romanis  possunt  omnibus  gentibus  et 
regnis  juste  et  utiliter  convenire."  And  from  this  he 
argues  that  the  obedience  of  all  nations  to  the  Roman 
Empire  is  not  only  possible,  but  necessary,  both  for  the 

est  politia  monarchicha  in  qua  unus  dominatur.  Alia  est  politia 
poliarchicha  in  qua  plures  principantur.  In  politia  poliarchicha  non 
corrupta  principatus  est  secundum  leges  et  de  tali  loquitur  Aristoteles, 
in  alia  non.  Aliter  dicendum  est  et  melius  quod  in  omni  politia 
principatur  aliquis  secundum  aliquam  regulam,  quam  dicimus  legem. 
Sed  in  quibusdam  ilia  regula  est  interior  existens  in  voluntate  et 
ratione,  in  quibusdam  est  extra  in  scripto.  In  monarchia  regali, 
monarcha  habet  istam  regulam  quae  est  in  voluntate  et  ratione  ejus, 
in  politia  poliarchicha  est  extra  in  scripto.  Quod  ergo  dicebatur,  quod 
ubi  est  politia  ibi  est  principatus  secundum  legem,  verum  est,  vel  in- 
trinsecam,  vel  scriptam.  Hie  autem  intelligit  de  scripta;  et  ideo  non 
multum  differt  a  prima,  sed  earn  declarat." 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  295 

internal  and  external  peace  of  Christian  nations  and 
for  their  defence  against  the  infidels,  who  "in  quantum 
homines"  are  bound  by  the  "jus  gentium,"  and  so  sub- 
ject to  the  Empire. 

Now  leaving  aside  the  case  of  these  infidels1,  one 
cannot  fail  to  be  struck  by  this  argument.  It  amounts 
to  this :  as  every  particular  kingdom  has  its  particular 
laws,  over  which  stands  a  particular  king,  so  all  king- 
doms, having  common  laws,  form  an  Empire,  over  which 
stands  a  universal  Emperor.  And  note  what  these 
common  laws  are — the  Law  of  Nature  and  those  parts 
of  Roman  Law  which  can  be  applied  to  all  races.  That 
is  to  say,  the  Emperor  is  the  head  of  a  universal  State 
with  universal  laws,  above  both  particular  kings  and 
particular  laws.  The  universal  Empire  is  the  Roman 
Empire ;  the  universal  law  is,  in  part,  also  Roman. 

This  is  a  very  different  conception  of  the  Empire 
from  that  which  we  have  just  been  considering — the 
Empire  as  the  highest,  completest  and  most  self-suffi- 
cient community.  This  is  not  the  Aristotelian's  Empire. 
If  it  is  not  the  civilian's  Empire,  it  is  very  near  it. 
The  Aristotelian's  Empire  is  the  highest  and  most 
perfect  community,  in  which  less  perfect  communities 
find  their  completion.  In  the  passages  before  us  the 
conception  is  quite  different.  The  universal  Empire 
and  Emperor,  with  their  universal  laws,  stand  in  an 
international  position  above  the  particular  kingdoms 
and  kings,  with  their  particular  laws.  The  difference 
between  the  Empire  and  the  kingdoms  is  not  merely 
one  of  degree  of  perfection,  but  rather  a  difference  of 
kind.  "  Alia  ratio  attenditur  circa  hoc  in  rege  et  alia  in 
1  Vide  above,  pp.  105-7. 


296  THE   PROBLEM    OF   THE    EMPIRE  [CH. 

imperatore,  qui  est  super  reges."  The  kingdom  is  a 
particular  national  unit  with  its  own  language,  race, 
customs.  The  raison  d'etre  of  the  Empire  is  the  very 
fact  that  there  are  many  such  particular  national  units, 
and  that  consequently  there  must  be  one  international 
power  above  them.  The  kingdoms  represent  the 
diversity  of  race  from  race,  the.  diversity  of  their 
customs  as  expressed  in  their  diverse  laws.  The 
Empire  represents  the  unity  of  Christendom  and  even 
of  mankind,  as  expressed  in  a  common  law,  which 
binds  them  as  men,  not  as  members  of  this  or  that 
community. 

But  the  changes  in  Engelbert's  conception  of  the 
Empire  do  not  stop  here.  The  Empire  was  viewed 
originally  as  a  species  of  the  Aristotelian  Regnum,  and 
then  as  something  above  the  Regnum,  because  more 
perfect  and  self-sufficient.  We  have  then  seen  it 
approach  very  near  to  the  lawyer's  universal  State. 
But,  in  his  arguments  on  the  question  of  a  universal 
"  monarchia,"  we  have  the  first  sign  of  change  of  view, 
which  is  obvious  in  the  last  chapters  of  the  work.  The 
Imperium  as  a  "  State  "  vanishes,  and  we  return  to  the 
old  conception  of  the  Empire  as  the  secular  govern- 
ment of  the  Church.  It  is  here  that  his  interpretation 
of  S.  Augustine  leads  him  to  conclusions,  which  do  not 
harmonise  with  the  Aristotelian  basis  of  his  thought. 
From  Aristotle  he  gets  the  conception  of  the  Empire 
as  the  most  perfect  and  self-sufficient  State;  from 
Augustine  he  interprets  it  as  a  "power"  within  the 
Church. 

The  first  point  to  be  noticed  is  that,  in  his  argu- 
ments in  favour  of  the  Roman  "  monarchia,"  Engelbert 


Ill]  THE    PROBLEM   OF   THE    EMPIRE  297 

adopts1  Cicero's  definitions  of  "respublica  "and  "populus," 
which  Augustine  expressly  held  inapplicable  to  Rome. 
Augustine,  as  we  saw,  held  them  inapplicable,  because 
Cicero's  definition  implied  that  the  Respublica  cannot 
exist  without  justice,  and  Augustine  refuses  to  see  the 
possibility  of  justice  in  a  Pagan  Rome — "  where  man 
does  not  serve  God,  what  justice  can  be  thought  to 
be  in  him2?"  Now  Pagan  itome  is  a  thing  of  many 
centuries  past :  and  for  Engelbert  the  very  fact  that 
there  is  a  "consensus"  in  one  "jus  divinum  " — that  is 
to  say,  "  the  one  true  cult  of  the  one  true  God  " — and 
in  one  "jus  humanum  " — that  is  to  say,  the  Canons  and 
Laws  consonant  to  the  "jus  divinum" — is  a  proof  that 
there  is  but  one  Christian  Republic  and  People.  There- 
fore there  is  one  only  king  or  prince  of  that  Republic. 

1  Vide  chap.  xv.  p.  764. 

2  "Ita  scribit  August.  19  lib.  de  Civ.  Dei  ex  verbis  Ciceronis  in  lib. 
de  Eepublica,  quod  respublica  est  res  populi,  populus  autem  est  multi- 
tude hominum  communi  consensu  divini  et  humani  juris  sociata  in 
unum  etc.     Ergo  ubi  est  unum  jus  divinum  et  humanum,  et  unus  et 
concors  consensus  populi  in  illud  unum  jus  divinum  et  humanum,  ibi 
erit  unus  populus  et  una  respublica.     Ubi  autem  est  unus  populus  et 
una  respublica,  ibi  de  necessitate  erit  et  unus  rex  et  unum  regnum. 
Sed  est  unum  solum  in  toto  mundo  verum  jus  divinum,  videlicet  unus 
cultus  verus  veri  Dei;  et  solum  unum  verum  jus  humanum,  scilicet 
canones  et  leges   consonae   juri    divino,    quia   jus   humanum   sumit 
authoritatem  et  principium  a  jure  divino,  et  non  e  contrario.     Et  est 
unus   solus   consensus   populi   in   illud    jus   divinum   et   humanum, 
scilicet  fides  Christiana;  et  unus  solus  populus,  scilicet  Christianus 
populus,  fide  consentiens  in  illud  jus  divinum ;  et  per  consequens  una 
sola  respublica  totius  populi  Christiani.     Ergo  de  necessitate  et  unus 
solus  princeps  et  rex  illius  reipublicae,  statutus  et  stabilitus  ad  ipsius 
fidei  et  populi  Christiani  dilationem  et  defensionem.     Ex  qua  ratione 
concludit  etiam  Augustinus  19  lib.  de  Civ.  Dei  quod  extra  ecclesiam 
nunquam  fuit,  iiec   potuit,  nee   poterit   esse   verum   imperium,  etsi 
fuerunt  imperatores  qualitercumque  et  secundum  quid,  non  simpliciter, 
qui  fuerunt  extra  fidem  Christianam  et  ecclesiam." 


298  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

And  so  he  can  maintain  Augustine  to  have  held  that 
there  can  be  no  true  Empire  outside  the  Church, 
however  de  facto  there  may  have  been  Emperors  out- 
side both  Church  and  Christianity.  Now  it  is  scarcely 
necessary  to  say  that,  neither  in  Book  xix.,  nor  any- 
where else  in  the  Civitas  Dei,  does  Augustine  hold  this 
view  in  so  many  words.  He  does  deny  that  there  can 
be  a  State,  in  the  proper  sense  of  the  word,  where  there 
is  not  the  worship  of  the  true  God:  in  other  words 
he  maintains  that  the  true  State  is  a  Christian  State. 
On  the  other  hand,  he  expressly  finds  a  definition  of 
"  Respublica,"  which  can  be  applicable  to  Pagan  Rome, 
and  of  which  Engelbert  takes  no  notice;  and  while 
he  extols  the  felicity  of  a  Christian  Emperor,  he  ex- 
pressly holds  that  God  gave  the  Empire  to  the  Pagan 
Julian,  as  He  did  to  the  Christian  Constantine.  How 
it  became  possible  to  interpret  Augustine,  as  we  see 
him  here  interpreted  by  Engelbert,  we  have  already 
attempted  briefly  to  indicate1.  For  our  present  purpose 
it  is  sufficient  to  see  that  Engelbert  could  read  this  mean- 
ing into  Augustine :  and  that  the  result  of  so  doing 
was  to  bring  back  the  old  conception  of  the  Empire  as 
within  the  Church,  as  the  government  and  leader- 
ship of  the  Christian  Republic  and  People.  Engelbert 
began,  like  any  other  Aristotelian,  from  the  Regnum, 
as  the  State.  He  proceeded,  like  many  other  Aristo- 
telians, to  advance  the  Imperium  above  the  Regnum, 
as  a  yet  more  perfect  and  self-sufficient  State.  He 
did  not,  on  the  other  hand,  as  Aquinas,  argue  that 
finally  the  Papacy  must  be  above  all  States,  because 
it  directs  man  to  his  ultimate  end,  for  the  attainment 
1  Vide  above,  pp.  64-7. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  299 

of  which  the  State  merely  supplies  the  means.  He 
reverted  rather  to  the  older  political  thought,  in  which 
the  State  had  not  yet  come  to  exist,  in  which  the  bond 
of  human  society  was  the  Church  or  Christian  Republic, 
of  which  the  secular  power  was  one — as  he  says  here  the 
only l — government. 

Between  the  two  views  there  is  a  vast  difference, 
though  both  were  opposed  to  the  development  of  a 
theory  of  the  State,  in  its  modern  sense.  Aquinas 
did  not  destroy  the  State,  but  placed  over  it  a  uni- 
versal Papacy,  which  itself  came  more  and  more  to 
be  invested  with  the  political  attributes  of  a  State. 
The  result  was  to  retard  the  development  of  the  State 
as  an  independent  and  secular  "  societas  perfecta."  The 
State  was  there,  but  it  could  not  by  itself  lead  the 
men  who  composed  it  to  their  ultimate  end :  that  task 
could  be  fulfilled  only  by  the  universal  Papacy,  on  which 
therefore  every  State  must  be  dependent.  Engelbert, 
on  the  other  hand,  reverted,  as  we  have  said,  to  a  mode 
of  thought  in  which  the  very  conception  of  the  secular 
State  was  wanting :  so  that  the  treatise  which  began 
with  seeking  the  origin  of  the  Roman  Empire  in 
common  with  all  other  Regna,  saw  in  its  end  the 
destruction  of  the  secular  government  of  the  Church — 
and,  with  that,  of  the  Church  itself. 

This  becomes  quite  obvious  in  the  last  few  chapters, 
in  which  he  treats  of  the  coming  of  Antichrist.  In 
Chapter  xviii.,  which  is  the  "  solutio  "  of  the  objections 
urged  against  the  Roman  "  monarchia,"  he  argues  for  the 
necessity  of  an  Empire  to  insure  the  unity,  defence  and 
diffusion  of  the  Church.  Certain  kingdoms  may  be 
1  But  later,  we  shall  see,  he  recognises  the  two  governing  powers. 


300         THE  PROBLEM  OF  THE  EMPIRE       [CH. 

free  by  privilege,  but  an  Empire  is  still  necessary ;  for 
its  destruction  will  be  the  herald  of  the  coming  of 
Antichrist.  The  first  sign  of  his  coming  will  be  the 
"  discessio  "  of  the  kingdoms  from  the  Roman  Empire, 
to  be  followed  by  the  "  discessio  "  of  the  Churches  from 
their  obedience  to  the  Apostolic  see,  and  lastly  of  the 
faithful  from  the  faith.  The  Church  will  then  be  a 
headless  and  lifeless  body,  its  members  uninfluenced 
by  its  twin  temporal  and  spiritual  heads1.  This  is 
repeated  in  the  last  few  chapters.  The  Empire  and 
Papacy  are  the  twin  heads — the  temporal  and  spiritual — 
of  the  Church,  of  which  the  faithful  are  the  members ; 
Antichrist  can  only  come  when  the  Church  is  headless 
and  its  members  consequently  "without  motion  and 

1  Vide  p.  768:  "Quod  subjectio  omnium  regnorum  respectu  im- 
perii  non  solum  ideo  est  utilis  et  necessaria  ac  justa,  ut  regna  per 
ipsum  imperium  adinvicem pacificentur  et  concordentur...sed  praecipue 
ideo  justa  vel  utilis  et  necessaria  est  subjectio  regnorum  ad  imperium,  ut 
contra  eos  qui  sunt  extra  ecclesiam  et  extra  fidem  et  contra  ecclesiam 
et  contra  fidem  ipsa  ecclesia  atque  fides  ad  omnibus  suis  membris,  sub 
uno  suo  proprio  capite  concordantibus  et  unitis,  defendatur  et  ad  dilatan- 
dum  locum  sui  tabernaculi  fines  suos  faciat  longiores.  In  quo  casu  et 
causa  nullum  regnum  Christianum  a  subjectione  et  obedientia  imperil 
credimus  esse  liberum  vel  exemptum. . . .  Sed  privilegia  paucorum  non 
faciunt  legem  communem,  nee  si  omnia  regna  essent  libera  et  exernpta 
ab  imperio,  ista  esset  vel  dici  posset  exemptio  ab  imperio,  sed  potius 
peremptio  et  totalis  destructio  imperil,  qualis  futurus  est  secundum 
prophetiam  Pauli  Apostoli,  quando,  appropinquante  tempore  adventus 
Antichrist!,  veniet  discessio  primum  regnorum  omnium  ab  imperio, 
deinde  ecclesiarum  ab  obedientia  sedis  Apostolicae,  et  ultimo  fidelium 
a  fide,  sicuti  postmodum  dicetur.  Tune  enim  ecclesia  sic  acephalata 
et  vacante,  et  membris  influentiam  suorum  capitum  in  temporalibus 
et  spiritualibus  non  capientibus  et  per  consequens  motu  ac  sensu 
gratiae  privatis,  locum  et  facultatem  habebit  deceptio  et  dominatio 
Antichrist! :  unde  illi,  qui  studium  et  ingenium  suum  adhibent  ad 
dejectionem  et  detruncationem  imperil,  videntur  directe  festinare  ad 
hoc,  ut  locus  et  facultas  praeparetur  tyrannidi  Antichrist!." 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  301 

sense 1."  The  "  discessio  "  will  begin  with  that  of  the  king- 
doms from  the  Roman  Empire,  after  which  the  Empire 
"  deficiet  et  cessabit  in  totum."  The  "  discessio  "  of  the 
Churches  will  follow,  which  the  spiritual  sword,  deprived 
now  of  the  help  of  the  temporal,  will  not  be  able  to 
restrain.  Lastly  will  come  the  "  discessio  "  of  the  faith- 
ful, when  there  is  no  longer  either  secular  or  spiritual 
power  left  to  preserve  the  unity  of  the  Christian  faith2. 
The  blame  rests  with  the  "  praelati,"  both  spiritual  and 
secular,  and  with  the  "subditi,"  but  most  of  all  with 
the  Roman  Emperors  themselves,  some  of  whom  have 
rebelled  against  the  Church  itself,  outside  of  which,  he 
again  repeats,  there  is  not,  nor  can  be,  an  Empire,  while 
others,  through  pride,  avarice,  malice  or  slackness  in  the 
government  of  the  Respublica,  have  themselves  helped 
to  bring  about  the  dismemberment  of  the  Empire. 
"  Therefore  the  dissolution  and  destruction  of  the  Roman 
kingdom  or  Empire  is  to  be  through  the  falling  away  of 
those  kingdoms  from  the  Empire,  which  were  formerly 
coerced  and  subdued  into  the  one  body  of  this  very 
Empire3." 

In    this    account    of    its    dissolution    the    Empire 
seems  to  assume  the  character  both  of  a  world-wide 

1  Vide  chap.  xxi.  p.  771 :  "  ...Quia  stante  adhuc  capite  ecclesiae  in 
spiritualibus  scilicet  apostolica  sede,  et  capite  in  temporalibus  scilicet 
imperio  Romano,  et  stantibus  adhuc  fidelibus  in  fide,  locum  et  com- 
moditatem  non  habebit  deceptio  et  dominatio  Antichristi,  capitibus 
praedictis  et  membris  ipsorum  ei  resistentibus.      Cum  vero  corpus 
ecclesiae  factum  fuerit  acephalum  et  per  consequens  membra  singula 
sine  motu  et  sensu,  quantum  ad  veritatem  et  unitatem  ac  firmitatem 
fidei,  tune  locum  et  effectum  habebit  adventus  Antichristi  et  malitia 
ipsius  etc." 

2  Vide  chap.  xxn.  p.  771. 

3  Vide  chaps,  xxn.  and  xxiu. 


302  THE  PROBLEM   OF  THE   EMPIRE  [CH. 

territory  and  of  the  temporal  head  of  the  universal 
Church.  Its  end  is  to  be  the  "  discessio  "  of  the  many 
provinces,  which  it  had  formerly  conquered  and  reduced 
into  the  "unum  corpus  Romanae  reipublicae1."  Simi- 
larly, when  Engelbert  talks  of  the  Emperors  as  rebels 
against  the  Church,  he  means,  it  is  perhaps  needless  to 
point  out,  rather  the  clergy  and  Pope,  than  the  "  com- 
munio  fidelium,"  of  which  the  Empire  has  been  called 
the  "caput  in  temporalibus."  And  this  only  makes 
more  evident  what  we  have  wished  to  demonstrate 
by  our  analysis  of  Engelbert's  treatise.  The  treatise 
is  a  plea  for  the  Empire.  But,  as  we  analyse  the 
treatise  in  detail,  we  see  that  Engelbert's  theory  of  the 
Empire  contains  elements  drawn  from  different  sources, 
which  are  not  really  harmonised.  His  Empire  is  much 
besides  the  most  perfect  and  self-sufficing  community 
of  the  Aristotelian  material,  which  is  the  foundation 
of  his  political  theories.  It  is  this  characteristic  which 
makes  it  so  interesting  and  important  a  work.  The 
treatise  shows  us  how  the  Empire  entered  the  political 
theories  of  the  Aristotelians;  it  also  shows  us  that 
conceptions  of  the  Empire,  based  on  older  political 
theories,  still  live  on  side  by  side  with  the  new. 

1  Vide  p.  772:  "  ...Et  ideo  a  diversis  nationibus  et  gentibus,  ut 
puta  a  Sarracenis,  a  Longobardis,  a  Gothis,  a  Vandalis,  ab  Hunnis,  a 
Sclavis  et  Graecis,  et  demum  a  Francis  et  Hispanis,  provinciae  imperil 
seu  regni  Eomani  ab  imperio  sunt  distractae,  et  in  principatus  et 
regna  per  se  reversae  et  redactae,  sicut  prius  ab  ipsis  Romanis  iidem 
illi  principatus  et  ea  ipsa  regna  debellata  et  subacta,  in  Romanas  pro- 
vincias  fuerant  redacta....Sed  per  coactionem  et  bellicam  subjectionem 
regna  mundi  et  principatus  et  provinciae  olim  sunt  subactae,  et  com- 
pactae  quasi  in  unum  corpus  Romanae  reipublicae.... Ergo  dissolutio 
et  destructio  regni  sive  imperil  Romani  futura  est  per  recessum  et 
discessionem  illorum  regnorum  ab  imperio,  quae  prius  in  unum  corpus 
ipsius  imperil  taliter  coacta  fuerant  et  subacta." 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  303 

The  resemblance  between  this  treatise  and  Dante's 
De  Monarchic  has  often  been  noted.  We  have  ex- 
amined Engelbert's  treatise  in  order  to  see  how  the 
new  Aristotelian  political  theories  might  be  made  to 
support  a  plea  for  the  Empire;  we  might  with  equal 
propriety  have  chosen  the  De  Monarchia.  But  there 
is  at  least  one  very  important  point  of  difference  be- 
tween Engelbert's  position  and  Dante's.  Engelbert's 
treatise  is  the  result  of  a  quiet,  cloistral  conversation ; 
his  nationality  never  obtrudes  into  his  work.  Dante's 
is  the  work  of  a  layman  and  an  exile,  who  had  lived  an 
active,  political  life;  Dante  is  always  a  fervid  Italian 
patriot. 

Italian  patriotism  naturally  looked  back  to  the  past 
greatness  of  Italy,  when  Rome  was  in  truth  the  centre 
and  mistress  of  the  world.  The  growth  of  the  north- 
Italian  communes  meant  the  triumph  of  the  Roman 
element  in  their  population  ;  Roman  Law  triumphed 
over  Lombard  Law;  an  Italian  language,  the  direct 
offspring  of  vulgar  Latin,  grew  up  and  acquired  a 
stable  form  in  a  literature ;  the  Italians  became  a  nation, 
however  disunited — and  that  nation  was  a  Latin  nation. 
While  the  lawyers  were  busy  discussing  the  "  LexRegia," 
the  Roman  populace  asserted  its  claim  to  be  the  source 
of  the  Imperium.  The  other  Italian  cities  looked  to  Rome 
as  to  their  mother-city1 ;  it  was  the  proud  boast  of  great 
Guelph  cities  like  Florence  or  Perugia  that  they  were 
"daughters  of  Rome2."  The  Guelph  opposition  to  the 

1  Vide  Pomtow,  Ueber  dem  Einfluss  der  altromischen  Vorstellungen 
etc.,  pp.  4-15;    D'Ancona,  II  Concetto  della  unita  politico,  nei  poeti 
italiani,  p.  7. 

2  Vide  Graf,  Roma  nella  Memoria  e  nelle  Immaginazioni  del  Medio 
Evo,  vol.  i.  p.  21. 


304  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

Emperors  might  even  appear  in  the  light  of  a  struggle 
by  Italian  nationalism  against  German  invasion  and 
conquest. 

Dante  was  a  Guelph  by  birth,  but  himself  he  was 
above  party.  In  his  Divine  Comedy  he  metes  out 
reward  and  punishment  to  Guelph  and  Ghibelline  alike. 
He  is  equally  severe  on  those  who  "  oppose  "  and  those 
who  "appropriate"  the  Empire — the  Guelphs  with  their 
clerical  and  French  allies  and  the  Ghibellines,  who  "  ply 
their  arts "  under  cover  of  the  "  sacred  standard1." 
Dante's  political  thought  contains  a  fusion  of  Guelph 
nationalism  and  Ghibelline  Imperialism,  both  purged 
of  their  party  signification. 

We  can  do  but  scant  justice  to  Dante's  political 
thought  in  these  pages.  We  are  here  concerned  with 
but  one  side  of  it — and  one  which,  while  it  receives 
illustration  from  every  part  of  his  work,  we  are  some- 
times apt  to  overlook.  Dante's  insistent  claim  for  the 
independence  of  the  Empire  from  the  Papacy  is  apt  to 
engross  our  attention.  But  we  ought  to  remember  that 
his  insistence  on  the  Roman  character  of  this  Empire 
occupies  fully  as  much  of  his  thought2.  The  Empire 
belongs  to  the  Romans  historically  and  by  divine  ordi- 
nation. They  conquered  the  world  justly  and  therefore 
possess  it  on  a  just  title ;  the  Roman  Empire  was  the 
divinely  prepared  organ  of  that  peace,  which  is  the  aim 
of  all  human  societies,  and  which  was  realised  in  its 

1  Vide  Paradiso,  vi.  31-3  and  100-11. 

-  It  is  illustrated  by  the  whole  of  Book  n.  of  the  De  Monarchia,  by 
Convivio  iv.  4-5,  Epist.  v.,  vi.  and  vn.  (though,  of  course,  the  authen- 
ticity of  these  letters  is  by  no  means  certain) ,  and  by  numerous  passages 
throughout  the  Divine  Comedy,  of  which  Jusfinian's  speech  (Para- 
diso, vi.)  may  be  given  as  the  most  striking  example. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  305 

perfection  only  once,  when,  under  Augustus,  the  world 
was  divinely  prepared  to  receive  Christianity. 

The  definition  of  peace  as  the  "  ultimate  and 
principal  end,  to  which  all  human  societies  tend," 
we  have  seen  used  by  Engelbert  as  a  chief  argu- 
ment for  the  existence  of  a  universal  Empire.  This  is 
the  Imperialist  standpoint — 

"Lo  'mperador  con  pace 
Tutto  '1  mondo  mantiene1." 

Dante,  we  have  said,  was  not  only  an  Imperialist;  he 
was  also  an  Italian  patriot.  Like  Petrarch2,  he  went 
crying  out  for  peace,  and,  as  in  the  case  of  Petrarch, 
it  was  more  especially  peace  for  his  own  Italy,  disunited 
and  distracted  by  faction,  the  prey  of  tyrants,  and  with 
no  pilot  to  guide  it  amid  all  these  troubles3.  For  to 
Dante  the  Emperor  was  not  only  the  universal  pilot4 ; 
he  was,  in  a  special  sense,  the  pilot  of  Italy5. 

The  pilot  was  found  for  a  while  in  Henry  of  Luxem- 
bourg, the  man  who  realised  Dante's  ideal  of  an  Emperor, 
who,  unlike  the  false  Albert,  came,  prematurely,  but 

1  The  lines  occur  in  what  is  perhaps  the  best  known  of  all  the 
earliest  Italian  poems — the  lament  of  the   Crusader's  mistress  by 
Rinaldo  d'Aquino.     I  quote  it  from  the  poem  as  printed  by  Butler, 
Forerunners  of  Dante,  p.  21. 

2  "  lo  vo  gridando  pace,  pace,  pace."     (Vide  the  last  line  of  the 
famous  Canzone  beginning  "Italia  mia.") 

3  Vide  Purgatorio,  vi.  76-126. 

4  Vide  Convivio,  iv.   4,  p.   299:    "...Conviene  essere   uno  quasi 
inocchiere,  che  considerando   le  diverse  condizioni  del   mondo,  e   li 
l  diver  si  e  necessari  uffici  ordinando,  abbia  del  tutto  universale  e  irr- 
jepugnabile  ufficio  di  comandare." 

5  "  Ahi  serva  Italia,  di  dolore  ostello, 

Nave  senza  nocchiere  in  gran  tempesta. . . . " 

(Vide  Purcj.  vi.  76-7.) 

w.  20 


306  THE   PROBLEM  OF   THE   EMPIRE  [CH. 

as  in  duty  bound,  to  "straighten  Italy1."  Henry's 
untimely  death  shattered  Dante's  hopes,  but  not  his 
ideals.  The  De  Monarchia  is  not,  as  it  has  sometimes 
been  called,  the  "  swan-song "  of  the  Empire  ;  if  the 
Empire  had  a  "  swan-song,"  Nicolas  of  Cusa,  not  Dante, 
sang  it.  Indeed,  it  is  as  likely  as  not  that  the  De 
Monarchia  was  written  after  Henry's  death,  even  in 
the  last  years  of  Dante's  life2.  His  book  is  not  a 
lament;  it  is,  so  far  as  it  here  concerns  us,  an  answer 
to  the  problem  of  the  Empire  and  its  future.  It  gives 
us  the  Italian  answer,  just  as  "Jordan  of  Osnaburg" 
and  the  author  of  the  Notitia  gave  us  the  German. 
The  Germans  claimed  the  Empire  as  German  historically 
and  by  divine  ordination ;  Dante  on  the  same  grounds 
claimed  it  as  Italian.  The  Germans  turned  to  Charle- 
magne and  the  Franks,  Dante  to  Roman  history  and  the 
great  Roman  Emperors  and  heroes.  To  the  Germans  the 
Rhineland  was  the  seat  of  the  Empire,  while  Italy  was  but 
a  conquered  province ;  to  Dante  Italy  was  the  Empire's 
garden3  and  Rome  itself  its  proper  seat4.  To  Dante 
Henry  VII  was  no  German,  but  Roman  Emperor, 
"  Caesaris  et  Augusti  successor5,"  Italy's  spouse  and 

1  Vide  Paradiso,  xvn.  80-90,  xxx.  133-8. 

2  Vide  Kraus,  Dante,  Sein  Leben  und  sein  Werk,  pp.  678-87.     He 
concludes:  "  Fasst  man  alle  diese  Gesichtspunkte  zusammen,  so  wird 
man  sich  die  Einsicht  kaum  verschliessen  konnen,  dass  die  Monarchia 
nach  1317,  vermuthlich  in  derselben  Zeit,  wie  die  letzten  Gesange  des 
Purgatorio  entstanden,  und  zwar  in  Eavenna  geschrieben  ist." 

a  Vide  Purgatorio,  vi.  105. 

4  Vide  De  Monarchia,  in.  10  ad  init. 

5  VideEpist.  vn.  1  (to  Henry  VII),  p.  409 :  "  Quumque  tu,  Caesaris  et 
Augusti  successor,  Apennini  juga  transiliens,  veneranda  signa  Tarpeia 
retulisti,  protinus  longa  substiterunt  suspiria,  lacrymarumque  diluvia 
desierunt;  et,  ceu  Titan  peroptatus  exoriens,  nova  spes  Latio  saeculi 
melioris  effulsit." 


Ill]  THE   PROBLEM   OF  THE   EMPIRE  307 

Italy's  glory1.  He  was  the  direct  successor  of  Frede- 
rick II2:  Rudolf,  Albert,  and  Adolf,  on  the  contrary, 
were  Germans,  who  basely  refused  to  do  their  duty, 
who  paid  no  heed  to  the  cry  of  "  their  Rome,"  who  re- 
fused to  be  Roman  Emperors3.  To  Dante  the  election 
of  Rudolf  was  no  presage  of  better  times,  as  it  was  to 
"  Jordan " ;  in  his  eyes  the  Interregnum  lasted  from 
Frederick  II's  death  to  Henry  YII's  coronation.  For  , 
him  a  German  Emperor  was  an  impossibility ;  an  Em- 
peror was  Roman,  his  proper  place  was  in  Italy. 

Dante  does  not  stand  alone4,  however  much  his 
towering  genius  seems  to  isolate  him  among  his  con- 
temporaries. A  detailed  inquiry  into  the  political 
thought  of  the  early  Italian  poets  would  be  of  great 
interest  and  well  repay  the  study5.  The  poetry  of  the 
thirteenth  and  fourteenth  centuries  is  full  of  politics, 
because  the  poets  were  for  the  most  part  politicians. 
Italian  poetry  began  in  the  Sicilian  court  of  the  last 
great  Emperor;  he  and  his  ministers  and  courtiers 

1  Vide  Epist.  v.  2,  p.  406:    "  La^tare  jam,  nunc  miseranda  Italia 
etiam   Saracenis,  quae  statim  invidiosa  per  orbem  videberis;   quia 
sponsus  tuus,  mundi  solatium  et  gloria  plebis  tuae,  clementissimus 
Henricus,  Divus  et  Augustus  et  Caesar,  ad  nuptias  properat." 

2  Vide  Convivio,  iv.  3,  p.  298:  "...Federigo  di  Soavo,  ultimo  Im- 
peradore  de'  Eomani  (ultimo  dico  per  rispetto  al  tempo  presente,  non 
ostante  die  Eidolfo  e  Adolfo  e  Alberto  poi  eletti  sieno  appresso  la  sua 
morte  e  de'  suoi  discendenti)...."     Dino  Compagni,  or  whoever  is  the 
author  of  the  "Chronicle,"  in  the  same  way  regards  Henry  VII  as  the 
direct  successor  of  the  Emperor  Frederick  II. 

3  Vide  Purgatorio,  vi.  97-126,  vn.  91-6. 

4  Vide  D'Ancona,  "La  Politica nella  Poesia del  Secolo  XIII e  XIV " 
(in  Nuova  Antologia,  January  1867),  pp.  30-52. 

5  The  three  articles  by  D'Ancona,  to  which  I  have  referred  in  the 
note  above  (Nuova  Antologia,  Jan.,  Sept.,  Dec.  1867),  are  the  only 
study  of  any  length  on  this  subject  of  which  I  know.     So  far  as  they 
go,  they  are  very  noteworthy,  but  they  are  by  no  means  complete. 

20—2 


308  THE  PROBLEM   OF  THE  EMPIRE  [CH. 

were  all  poets.  Thence  it  passed  northwards;  the 
poets  were  men  closely  concerned  with  the  active 
political  life  of  the  Italian  cities,  men  who  knew  at 
first  hand  the  meaning  of  exile,  tyranny,  faction  and  the 
other  phenomena,  which  were,  in  great  part,  directly  due 
to  the  practical  non-existence  of  the  Imperial  authority 
in  Italy.  But  here  such  inquiry  is  not  to  be  attempted. 
We  must  pass  on  briefly  to  consider  Dante's  greatest 
successor,  Petrarch ;  but,  in  passing,  we  .may  note  that 
Cino  da  Pistoia,  the  master  of  Bartolus,  whom,  as 
a  lawyer,  we  have  more  than  once  had  occasion  to  men- 
tion, occupies  a  very  similar  position  to  that  of  his  friend, 
Dante.  He  too  was  an  exile,  and  he  too  set  his  public 
and  private  hopes  on  the  success  of  Henry  VII l ;  he 
too,  when  those  hopes  were  destroyed,  saw  the  dead 

Emperor 

"co'  gli  altri  nel  beato  regno2." 

1  Vide  Canzone  xv.  (in  Rime  di  Messer  Cino  da  Pistoia,  ed.  Bindi 
and  Fanfani),  pp.  186-7: 

"In  uno  e  morto  '1  Senno,  e  la  Prudenza, 
Giustizia  tutta,  e  Temperanza  intera. 
Ma  non  fe  morto:   ahi  lasso!   ch'  ho  io  detto? 
La  fama  sua  al  mondo  £  viva  e  vera. 

***** 

Ma  quai  son  morti,  e  quai  vivono  ancona 

Di  quei,  che  avean  lor  fede  in  lui  fermata 

Con  ogn'  amor,  si  come  in  cosa  degna, 

E  malvagia  fortuna  in  subit'  ora 

Ogn'  allegrezza  nel  cor  ci  ha  tagliata." 

There  is  another  Canzone  by  Cino  on  the  death  of  Henry  VII 
(Canzone  xix.  pp.  270-4),  though  this  latter  one  is  sometimes  as- 
cribed to  Dante. 

2  Canzone  xv.  p.  188: 

"Arrigo  e  Imperador,  che  del  profondo 
E  vile  esser  quaggiu,  su  nel  giocondo 
L'  ha  Dio  chiamato,  perche  'I  vide  degno 
D'  esser  co'  gli  altri  nel  beato  regno." 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  309 

There  is  no  more  interesting  commentary  on  Dante's 
political  thought  than  Petrarch's  letters  to  Charles  IV, 
the  grandson  of  Henry  VII.  Charles,  we  know,  had 
resolved  definitely  to  renounce  his  family  policy,  to 
leave  Italy  and  to  build  up  a  strong  position  in 
Germany,  with  his  Bohemian  kingdom  as  its  founda- 
tion. No  doubt  he  was  right;  he  had  learnt  his 
lesson  by  experience  during  the  two  years  which  he 
had  passed  in  Italy,  when  young,  as  viceroy  to  his 
father,  John  of  Bohemia.  But  it  is  easy  to  under- 
stand the  intense  disappointment  of  all  but  the  Guelphs, 
when  they  saw  the  grandson  of  Henry  VII  come  to 
Italy  to  be  crowned,  and  hasten  back  after  a  single 
day  in  Rome — all  at  the  command  of  a  French  Pope 
in  Avignon. 

The  burden  of  Petrarch's  correspondence  with 
Charles  IV  is — "remember  your  father  and  grandfather." 
"O  si  in  ipsis  Alpium  jugis,"  he  writes1,  dissuading 
Charles  from  leaving  Italy  after  his  coronation,  "  avus 
tibi  nunc  paterque  fiant  obvii !  quid  dicturos  putas  ? 
crede  illos  audias  vel  absentes. — 'Profecisti  eximie, 
ingens  Caesar,  hoc  tuo  tot  per  annos  dilato  in  Italiam 
adventu  et  festinato  abitu.  Refers  demum  istud  fer- 
reum,  illud  aureum  diadema,  simul  ac  sterile  nomen 
imperii.  Imperator  Romanorum  vocitaberis  Bohemiae 
rex  solius ;  qui  utinam  nusquam  esses,  ut  vel  eis  altius 
coacta  virtus  assurgeret,  famesque  domestica  neglec- 
tum  aviti  cultum  patrimonii  suaderet.' "  Otherwise 
what  need  has  he  of  being  Roman  Emperor2  ? — "  Nihil 

1  Vide  Epist.  Famil.  xix.  12  (ed.  Fracasetti),  vol.  n.  p.  547. 

2  Vide  xxm.  21   (vol.  in.  pp.  245-6):    "  Tu,  quod  olim  dixi,  ad 
imperium  natus  es,  amplum  excelsumque  opus :   illud  age  fideliter, 


310  THE   PROBLEM   OF   THE    EMPIRE  [CH. 

est  quod  imperil  majestas  ac  providentia  atque  justitia, 
et  his  viribus  armata,  non  possit1."  If  he  is  Emperor, 
his  main  task  must  lie  in  Italy2 — "  extra  quam  ubi 
imperii  caput  quaeras  nescio3."  He  is  lord  of  the 
world4,  but  Italy  is  the  centre  of  his  Empire.  He 
may  be  German  by  birth,  but  Italy  now  claims  him. 
"  Quotiens  in  Germania  inspexeris,  Italiam  cogita ;  illic 
natus,  hie  nutritus,  illic  regnum,  hie  et  regnum  habes 
et  imperium,  et  quod  nationum  et  terrarum  pace 
dixerim,  cum  ubique  membra,  hie  ipsum  caput  in- 
venies....Te  enim,  ut  libet,  sibi  Germani  vindicent; 
nos  te  Italicum  arbitramur5."  It  is  more  important 
for  what  a  man  is  born,  than  where6.  And  indeed 

bene  si  vixisse  vis  videri :  alioquin  quid  juvat  illas  tuas  ultimas 
mundi  horas  composuisse  magnifice  ?  Hoc  et  sine  imperio  potuisses 
et  fortasse  facilius." 

1  Vide  xxm.  21  (vol.  in.  p.  246) :  "  Quod  si  forsan,"  he  continues, 
"  negatus  tibi  coelitus  rerum  finis;  tamen  glorioso  in  actu,  quam  in 
quiete  languida  mori,  multo  melius,  multoque  felicius  opinor.      Et 
hoc  est  quod  divae  memoriae  avum  tuum  omnibus  saeculis  gloriosum 
fecit."     Elsewhere,  referring  to  Eienzi,  he  asks,  "  Si  tantum  ergo 
Tribunicium  potuit,  quid  Caesareum  nomen  posset?"     Vide  xvin.  1 
(vol.  n.  p.  464). 

2  Vide  xvin.   1    (vol.  n.  p.  468):    "  Diruta  est,  inquis,   imperii 
libertas:  tu  pater  imperii  dirutam  restaurabis.     Sumpta  Latinis  ser- 
vitus:  tu  illam  tuorum  cervicibus  excuties."     Cf.  x.  1  (vol.  n.  p.  60) : 
"  Hoc  igitur  primum  fac,  reliqua  suum  tempus  invenient,  quamquam 
placata  ad  plenum  et  composita  Italia,  nihil  aut  modicum  putem 
negotii  supererit." 

3  Vide  xvin.  1  (vol.  n.  p.  467):    "  Nunquam  te  Italia,  nunquam 
tu  Italiam  videbis,  extra  quam  etc." 

4  Vide  xii.  1  (vol.  n.  p.  160):  "Loquor  ecce  iterum  ad  dominum 
meum,  et,  nisi  piget,  ad  cunctorum  dominum  loquor." 

5  Vide  x.  1  (vol.  n.  p.  59). 

6  Vide  xix.  1  (vol.  n.  p.  514):   "Jam  juga  Alpium  transcendent! 
occurro  animis :  haud  equidem  solus :  infinita  mecum  acies,  quin  ipsa 
nostrum  omnium  publica  mater  Italia,  et  Italiae  caput  Roma,  tib 


Ill]  THE   PROBLEM   OF  THE   EMPIRE  311 

Rome,  the  home  of  the  Caesars — "  queen  of  all  cities 
and  of  the  world" — is  his  true  home:  "patriarn  et 
solium  tuum  pete1." 

Petrarch  failed  to  allure  Charles  beyond  the  Alps ; 
unlike  Dante,  he  found  no  living  Emperor  in  whom 
he  could  realise  his  ideal  Caesar.  There  is  a  note  of 
despair  and  disillusion  in  Petrarch,  that  is  not  to  be 
found  in  Dante;  already  in  1356  he  writes  of  the 
Empire  as  "boni...omnis  effoetum  et  solius  umbrae 
vetustatis  innixum2."  Petrarch,  indeed,  turned  else- 
where more  than  once  to  find  the  deliverer :  twice  he 

obviae,  altis  vocibus  Virgilianum  illud  exclamant — '  Venisti  tandem, 
tuaque  expectata  parent!  Vicit  iter  durum  pietas.'  Neque  vero  Ger- 
maniae  obtentu  hanc  fastidias  aut  repellas  matrem,  cum  qua  et  vitae 
primordia  egisti,  et  si  tuum  decus  amas,  extrema  exiges.  Nos  te, 
Caesar,  ut  ab  initio  dicebam,  ubicumque  ortum  Italicum  arbitramur. 
Neque  vero  magni  interest  ubi  sis  natus,  sed  ad  quid.  Vive  et  vale, 
Caesar,  et  propera." 

1  Vide  xxin.  2  (vol.  in.  p.  193):    "  Habet  jam  Bohemia  suum 
regem,  tu  Italiae  mundique  rex,  post  tergum  linquendi  orbis  securus, 
et  patriam  et  solium  tuum  pete.      Nam  etsi  secundum  apostolicam 
sententiam  manentem  hie  non  habeas  civitatem,   si  qua  tamen   in 
terris  patria  est  tua  propria  Caesarum  domus,  ac  vera  patria  Roma 
est:  quin  et  communis  omnium  est  patria,  rerum  caput,  orbis  atque 
urbium  regina." 

2  Vide  the  following  passage  from  what  was  once,  perhaps,  the 
most  popular  of  all  Petrarch's  works,  De  Reniediis  Utriusque  Fortunae, 
lib.    i.    Dialog,    cxvi. :    Spes    says:    "  Spero    Principem   venturum." 
Ratio  answers:    "  Et  illius  commune  omnium  malum  speras.     Fuit 
enim   quando   et   principes   imperium  et   principem  populi   poterant 
sperare,    nunc    imperium    principi    labor   est,    princeps    populi    per- 
nicies."...Spes:    "Spero  principem  venturum."     Ratio:   "  Et  secum 
simul    motus    rerum   varios,    mutationes   urbium,    noxias   novitates, 
famem,   pestem,    bella,    cliscordias,    haec   vel    universa    vel    singula 
modernis  cum  principibus  venire  sunt  solita.     Si  haec  placent,  prin- 
cipem spera:    ut  nil  horum  formidabile  sit,  ipsum  certe  inane  jam 
imperil  nomen  est  plenum   famae  et  rumorum;    boni  autem  omnis 
effoetum  et  solius  umbrae  vetustatis  innixum." 


312  THE   PROBLEM   OF  THE   EMPIRE  [CH. 

sought  him  in  Italy — in  Rienzi  and  in  Robert  of  Naples1. 
Gradually  the  idea  took  form  that  Italy's  deliverer, 
Dante's  "Veltro2,"  must  be  a  national  king,  who  would 
weld  the  disunited  nation  into  one — a  hope  that  for 
nearly  five  centuries  was  to  be  the  unrealised  ideal 
of  Italian  patriotism3.  An  Italian  contemporary  of 
Petrarch  expounds  this  as  the  one  expedient  left4: 

"0  figliuol  mio,  da  quanto  crudel  guerra 
Tutti  insieme  verremo  a  dolce  pace, 
Se  Italia  soggiace 
A  un  solo  re  che  al  mio  voler  consenta." 

It  is  interesting  to  compare  with  the  poem  from 
which  these  lines  are  taken,  another  of  almost  con- 
temporary date,  written  in  Latin  by  an  acute  German 
thinker,  Lupold  of  Bebenburg5.  The  German  poet, 
weary  with  reading  the  "  gesta  Romanorum  Cesarum," 
wandered  into  the  country  for  his  recreation  and  lost 
his  way.  Suddenly  he  found  himself  before  a  throne 
on  which  sat  a  queen,  the  splendour  of  whose  crown 
and  jewels  amazed  him.  She  bade  him  have  no  fear — 

1  Vide D'  Ancona,IZ  Concetto  della  Unita  nei  Poeti  Italiani,  pp.  18-25. 

2  Vide  Inferno,  i.  101-5. 

3  Vide  D'Ancona,  II  Concetto  della   Unita,  dc.  pp.  25-30;    La 
Politica  nella  Poesia,  d-c.  (Dec.  1867),  pp.  750-3. 

4  Vide  Fazzio  degli  Uberti's  (circ.  1305-circ.  1368)  fine  poem  in 
Carducci,  Rime  di  M.  Cino  da  Pistoia  e  d1  altri  del  secolo  XIV,  pp.  334- 
42.     Vide  pp.  340-1:    "  Un  sol  modo  ci  veggio,  e  quel  dirai:  |  Che 
piglino    quel    Buemo    (Carducci    reads    "  buono    uom " ;    which    as 
D'Ancona,    II    Concetto   della    Unita,    dc.t  note   66,    points   out,   is 
inferior;    "Buemo"   obviously   refers    to    Charles    IV)   che    '1    pud 
fare,  |  Che  mi  debbe  donare  |  Un  virtuoso  re  che  ragion  tenga  |  E 
la  ragion  dello  imppro  mantegna  |  etc." 

5  "Ritmaticum    et    Querulosum    et    Lamentosum    Dictamen    de 
Modernis  Cursibus  et  Defectibus  Regni  ac  Imperii  Romanorum  "  (1341) 
in  Boehmer,  Fontes  Eerum  Germanicarum,  vol.  i.  pp.  479-84. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  313 

"Ait:    'Nichil  paveas,  audi  que  tibi  pando. 
Ego  sum,'  inquid,  'sacrum  imperium  Romanum.'" 

She  proceeded  to  give  him  her  history,  how  she  resided 
once  in  Rome,  and  transferred  her  seat  thence,  first  to 
Constantinople,  and  later  to  Germany.  She  celebrated 
the  great  deeds  and  merit  of  Charlemagne,  Otto  and 
their  earlier  German  successors,  and  the  loyalty  of  the 
old  German  nobles.  These  memories  made  her  weep, 
but  the  poet  attempted  to  comfort  her — 

"0  predulcis  domina,  quis  est  qui  provocare 
Vos  ad  fletum  potuit  ?     Nonne  terram  et  mare 
Deus  vobis  tradidit?     Quare  non  vindicatis 
Factas  vobis  iniurias?     Quam  ob  rem  exspectatis  ? " 

She  answered — "  benigne  " —  ' 

"Inconsulte  loqueris!     Nam  talia  dicendo 
Contra  tuam  patriam  allegas  nescienter." 

The  Germans  no  longer  honour  her  or  serve  her  and 
the  "vicini  gentes"  desert  her1— 

"Ex  eo  quod  Germani  sua,  non  mea,  querunt." 
It  is  only  their  forefathers'  loyalty  which  keeps  her 
from  once  more  transferring  her  seat ;  and  she  ends 
by  solemnly  commanding  the  poet  to  declare  to  the 
German  nobles  that  as,  if  they  are  loyal  to  her,  they 
will  find  their  reward,  so,  if  they  disobey  her, 

"Ad  gentem  aliam  in  brevi  transmigrabo, 
Et  sedem  ubi  deo  placuerit  locabo, 

1  Vide  lines  124-31 : 

"...Germani  non  multum  me  honorant, 
Parum  mihi  serviunt,  ymmo,  que  sim  ignorant. 
Vides,  quod  Ytalici  me  spernunt  deridendo, 
Et  suis  pro  lybito  tyrannis  serviendo. 
Hec  offense  patriam  Germaniae  contingunt, 
Sed  ad  has  propulsandas  gladiis  se  non  cingunt." 


314  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

Eos  juste  deseram  qui  me  deseruerunt, 

Immo  que  sim  et  qualis  scire  non  curaverunt." 

Lupold's  doggerel  Latin  seems  centuries  away  from 
Fazzio  degli  Uberti's  noble  Italian ;  yet  the  two  were 
of  one  age  and  concerned  with  but  one  problem,  only 
viewed  from  different  standpoints.  The  Italian  poet — 
"  della  mia  donna  ragionando  " — also  wandered  out  into 
the  country,  and  there,  among  the  flowers,  fell  asleep 
and  had  his  vision  of  Rome — 

"E1P  era  antica,  solenne  e  onesta, 
Ma  povera  pareva  e  bisognosa." 

She  was  surrounded  with  her  old  champions,  the  Roman 
heroes  and  Emperors,  whom  she  names  to  the  poet  and 
whose  deeds  she  celebrates.  The  good  days  are  no 
more — 

"O  lassa  is ventura ta, 
Come  caduta  son  di  tanta  altezza, 
La  dove  m'  avean  posto  trionfando 
Gli  miei  figliuol,  magnanima  brigata ! 
Che  m'  hanno  or  visitata 
Col  padre  loro  in  tanta  gran  bassezza. 
Lassa  !   ch'  ogni  virtti  ogni  prodezza 
Mi  venne  men  quando  morir  costoro, 
I  quai  col  senno  loro 
Domaro  il  mondo  e  riformarlo  in  pace 
Sotto  lo  splendor  mio,  ch'  ora  si  face 
Di  greve  piombo  e  poi  di  fuor  par  d'  oro." 

There  is  nothing  to  hope  for  from  Charles  himself  or 
from  Naples;  all  that  she  can  now  do  is  to  pray 
that  the  Bohemian  Emperor  will  give  her  and  Italy 
"a  single  king"— 

"Un  virtuoso  re  che  ragion  tenga 
E  la  ragion  dello  impero  mantegna." 

The  problem,  we  have  said,  was  the  same  for  both 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  315 

poets,  but  the  standpoint  of  each  was  very  different. 
The  one  took  his  stand  in  Germany,  the  other  in 
Italy:  both  countries,  historically  in  the  closest  con- 
nexion with  the  Empire,  were  faced  with  the  problem 
of  finding  some  alternative  to  the  Empire,  when  the 
fall  of  the  Hohenstaufen  had  left  it  powerless.  Lupold, 
like  "  Jordan  of  Osnaburg"  or  the  author  of  the  Notitia, 
can  only  appeal  to  the  past;  the  appeal  is  amplified 
with  immense  skill  and  subtlety  in  his  work  De  Jure 
Regni  et  Imperil.  The  Italian,  on  the  contrary,  has 
broken  with  the  past.  The  Empire  is  lost  to  Italy  past 
hope  of  recovery.  It  has  become  German  and  must 
remain  such.  Italy — 

"L'  Italo  giardino 
Chiuso  da'  monti  e  dal  suo  proprio  mare" — 

must  now  have  its  own  national  king. 

We  are  now  to  turn  to  another  group  of  political 
writings  of  very  great  importance.  The  struggle 
between  Philip  the  Fair  and  Boniface  VIII  gave  rise 
to  a  large  output  of  political  pamphlets  and  manifestoes, 
both  in  France  and  elsewhere ;  much,  as  in  all  such 
struggles,  was  ephemeral,  but  some  of  the  writings, 
those  produced  in  France  especially,  were  of  lasting 
consequence.  Before  we  turn  to  these  French  apolo- 
gists, it  will  be  well  to  consider  some  of  the  Papal 
claims,  which  they  set  out  to  answer. 

The  very  large  place,  which  the  pretended  Donation 
of  Constantine  occupies  in  medieval  political  thought, 
does  not  correspond  to  the  actual  use  which  the  Popes 
themselves  made  of  it.  None  of  the  greatest  medieval 
Popes — Gregory  VII,  Innocent  III,  Innocent  IV,  or 
Boniface  VIII — appealed  to  it  at  the  most  important 


316  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

crises  of  their  struggles  with  Emperors  and  other 
secular  rulers1.  To  appeal  to  it  was,  of  course,  to 
appeal  to  a  human  document,  as  the  basis  for  the  Papal 
claim  to  temporal  power.  Besides,  though  the  authen- 
ticity of  the  Donation  was  rarely  questioned  before  the 
Renaissance2,  its  validity  was  often  and  openly  denied; 
many  held  it  either  absolutely  void  or,  even  if  valid, 
revocable  by  Constantine's  successors.  This  may  well 
account  for  the  fact  that  the  Popes  seemed  no  more 
inclined  to  appeal  to  it,  even  after  a  theory  had  become 
current  among  the  Papalist  writers,  which  explained 
the  Donation  as,  properly,  the  restitution  of  that  which 
de  jure  already  belonged  to  the  vicar  of  Christ.  This 
clearly  avoided  the  awkward  conclusion  that  the  tem- 
poral power  of  the  Pope  rested  upon  a  human  founda- 
tion. Innocent  IV  seems  to  have  been  the  first  to 
give  this  explanation3 ;  yet  he  did  not  appeal  to 
the  Donation  in  his  struggle  with,  or  deposition  of, 
Frederick  II. 

Extracts  from  the  document  were  in  the  Decretum, 
though  not  originally  included  by  Gratian  himself. 
And  in  view  of  the  place  which  it  occupies  in  medieval 

1  Vide  Zinkeisen,  "The  Donation  of  Constantine  as  applied  by 
the  Roman  Church"  (in  English  Historical  Revieiv,  vol.  ix.  1894, 
pp.  625-32). 

2  Vide  Zinkeisen,  op.  cit.  pp.  629-30.     Already  Otto  III  seems  to 
have  doubted  its  genuineness,  as  also  S.  Henry  II,  "  showing  that  it  was 
the  settled  Imperial  policy  to  disregard  it."     Vide  a  note  by  Lea  in 
vol.  x.  of  the  Engl.  Hist.  Review  (1895),  p.  86.     It  was  denied  by  the 
Arnoldists.     Vide  the  end  of  note  283,  p.  182,  in  Gierke,  Pol.  Theories 
of  the  Middle  Age,  and  Dollinger,  Fables  respecting  the  Popes  of  the 
Middle  Ages  (Transl.  by  Plummer),  pp.  141-2. 

3  Vide  Lane  Poole,  Illustrations  oftlie  History  of  Medieval  Thought, 
p.  250 ;  Gierke,  loc.  cit. 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  317 

thought,  we  cannot  pass,  it  by,  however  few  the 
appeals  to  it  in  the  world  of  actual  politics.  The 
arguments  and  theories  which  it  occasioned,  both  in 
the  Papalist  writers  and  their  opponents,  are  for  our 
purpose  of  great  importance1. 

The  idea  of  the  Donation,  as  properly  a  restitution 
to  the  vicar  of  Christ  of  that  which  by  right  was  his 
long  since,  was  elaborated  by  the  continuator  of  the 

1  It  will  be  convenient  to  give  here  the  references  to  the  Papalist 

authors,  to  whom  we  shall  refer.    Leaving  out  of  account  Aquinas  and 

the  continuator  of  Aquinas'  treatise  De  Reg.  Princ.,  whom  we  have 

met   before,   we   shall   confine   ourselves,  apart  from  references    to 

the  Popes  themselves,  to  contemporaries  of  Boniface.      These  are 

(1)   Augustinus  Triumphus.     His  great  Summa  de  Eccles.  Potestate 

was  dedicated  in  1320  to  Pope  John  XXII,  but  there  have  lately  been 

printed  four  small  treatises  ascribed  to  him,  which  date  from  the 

present    struggle.      Three   of   these   are   printed    by   Scholz    in    his 

Publizistik  zur  Zeit  Philipps  des  Schonen  und  Bonifaz   VIII.     The 

treatises  are  (a)  "  De  duplici  po testate  praelatorum  et  clericorum," 

Anhang,   pp.   486-501;    (b)   "  De  potestate  collegii  mortuo  Papa," 

Anhang,  pp.  501-8;  (c)  "  De  facto  Templariorum,"  Anhang,  pp.  508- 

16.     The  fourth  treatise  is  printed  by  Finke  in  his  Am  den  Tagen 

Bonifaz   VIII,  Quellen,  pp.  Ixix.-xcviii.,  though  not  in  full.     It  is 

named  ' '  Tractatus  contra  articulos  inventos  ad  diffamandum  sanctis. 

patrem  dom.  Bonifacium,  etc."     Finke  prints  it  as  anonymous,  but 

Scholz,  op.  cit.  pp.  175-6,  ascribes  it  confidently  to  Augustinus.     We 

shall  make  use  of  the  first  and  fourth  of  these  treatises.     (2)  Henry  of 

Cremona,  "  De  Potestate  Papae,"  printed  in  Scholz,  op.  cit.  Anhang, 

pp.  459-71.      This  treatise   is  especially,  interesting,   as  Henry   of 

Cremona's  opinions  are  combated  by  John  of  Paris  and,  according 

to  Scholz,  by  other  French  writers  as  well,  who  do  not,  however, 

mention  him  by  name,  as  John  of  Paris  does.     In  John's  treatise, 

as  printed  in  Goldast,  Monarchia  S.  Romani  Imperil,  he  appears  as 

"Johannes  de  Cremona."     This  is  incorrect,  vide  Scholz,  pp.  242-3, 

281-2,  289.     (3)    An  anonymous  treatise  on  the  Bull  Clericis  Laicos, 

printed  in  Scholz,  op.  cit.  Anhang,  471-86.     Scholz  thinks  that  the 

author  may  be  Henry  of  Cremona.     Finally,  "Dupuy"  refers  to  the 

"  Preuves  "  in  his  Histoire  du  Differend  d'entre  le  Pape  Boniface  VIII 

et  Philippe  le  Bel,  etc. 


318  THE   PROBLEM  OF  THE   EMPIRE  [CH. 

treatise   De   Regimine   Principum1   of  Aquinas,   in   a 
manner  that  deserves  special  attention. 

The  Roman  Empire  is  the  fourth  in  the  series  of 
"monarchiae"  which  forms  the  history  of  the  world: 
it  follows  the  Empires  of  the  Assyrians,  of  the  Medes 
and  Persians,  and  of  the  Greeks.  But  ';nos  quintam 
possumus  addere" — the  "monarchia"  of  Christ,  "qui 
fuit  verus  Rex  et  Sacerdos  et  verus  Monarcha2."  This 
Empire  was  His  when  He  came  to  earth3 ;  thus,  to 
begin  with,  our  author  must  show  why  Christ  chose 
an  "abject  life"  and  why  the  Pagan  Roman  Emperors 
were  allowed  to  continue  ruling.  He  holds  that 
Augustus  and  his  successors  were,  unknown  to  them- 
selves, the  vicegerents  of  Christ.  And  so,  instinctively, 
Augustus  refused  to  be  called  "  dominus,"  while 
Tiberius  wished  Christ  "tamquam  verum  dominum 
inter  deos  transferri,"  but  was  prevented4.  Christ 

1  Vide  m.  12-18.  2  Vide  in.  12,  p.  15. 

3  Vide  in.  14,  p.  15  verso:    "  Sed  tune  oritur  quaestio  de  justo 
Domini  principatu,  quando  incepit,  quia  constat  multos  postea  im- 
perasse,  ipse  vero  abjectam  vitam  elegit.     Item  in  Joanne  scribitur 
quod   cum  pavisset  multitudinem,   abscondit   se  quia  volebant  eum 
populi  rapere  ac  regem  facere.     Item  in  eodem  ipse  dicit:  Regnum 
meum  non  est  de  hoc  mundo.      Ad  hanc  autem  quaestionem  est 
responsio,  quia  principatus  Christi  incepit  statim  in  sua  nativitate 
temporali." 

4  Vide  in.  13,  p.  15  verso:     "In  quo  vero  satis  apparet  quod 
dominium   Christi   ordinatur  ad   salutem   animae   et   ad    spiritualia 
bona  ut  jam  videtur,  licet  a  temporal ibus  non  excludatur,  eo  modo 
quo  ad  spiritualia  ordinatur.... In  humilitate  ergo  vixit  et  demum  in 
Augusto  substituit  ut  describeretur  uni versus  orbis  in  ortu  domini,  ut 
Lucas  evang.  testatur.     Et  in  hac  descriptione  solvebatur  census  sive 
tributum,  ut  historiae  tradunt,   in  recognitionem  debitae  servitutis, 
non  sine  mysterio,  quia  ille  natus  erat  qui  verus  erat  mundi  dominus 
et  Monarcha,  cujus  vices  gerebat  Augustus,  licet  non  intelligens,  sed 
nutu  Dei,  sicut   Cayphas  prophetavit.      Unde  hoc  instinctu  dictus 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  319 

chose  the  "abject  life"  for  good  reasons,  to  teach 
princes  humility — "  per  quam  quis  redditur  in  regi- 
mine  gratiosus1" — and  to  show  that  His  "dominium" 
was  different  from  that  of  others.  "  Quam  vis  enim 
temporaliter  esset  dominus  orbis,  directe  tamen  ad 
spiritualem  vitam  suum  ordinavit  principatum2." 

Thus  Christ  permitted  the  secular  Emperors  to  rule, 
both  in  His  life  and  after  His  death,  until  His  kingdom 
should  be  perfect:  and  to  that  perfection  the  virtues 
and  martyrdoms  of  the  Christians  contributed3.  When 
the  right  moment  came,  Constantine  was  struck  down 
with  leprosy.  Healed  miraculously  by  Pope  Sylvester, 
he  executed  the  Donation,  or  rather  '•  cession,"  by  which 
he  restored  to  Christ's  vicar  what  de  jure  was  owing 
to  him.  "  In  qua  quidem  cessione  spiritual!  Christi 
regno  adjunctum  est  temporale,  spirituali  manente  in 
suo  vigore4." 

After  the  removal  of  the  Empire  to  Constantinople 
the  Emperors,  excepting  the  Arian  Constantius  and  the 
apostate  Julian,  were  all  obedient  to  the  Papacy5.  He 

Caesar  mandavit  tune  temporis,  ut  narrant  historiae,  ne  quis  de 
Eomano  populo  dominum  ipsum  vocaret,  etc." 

1  Vide  in.  14,  p.  15  verso.  2  Vide  in.  15,  p.  16. 

3  Vide  in.  16,  p.  16  verso. 

4  Vide  in.  16,  p.  16  verso:   "  Opportune  igitur  tempore  ut  mani- 
festaretur  mundo  regnum  Christi  compositum,  virtus  principis  nostri 
Jesu  Christi  principem  mundi   sollicitavit,   Constantinum   videlicet, 
percutiens  eum  lapra,  ac  ipsum  sanans  supra  humanam  virtutem.    Qua 
probata  in  dominio  cessit  vicario  Christi,  beato  videlicet  Sylvestro,  cui 
de  jure  debebatur,  causis  et  rationibus  supra  assignatis.    In  qua  quidem 
cessione  spirituali  Christi  regno  adjunctum  est  temporale,  spirituali 
manente  in  suo  vigore.      Quia  illud   per  se   quaeri  debetur  Christi 
fidelibus,  istud  vero  secundario  tamquani  administrans  primo.     Aliter 
autem  contra  intentionem  fit  Christi." 

5  Vide  in.  17,  p.  16  verso:  "  Istud  autem  notabile  abinde  usque  ad 


320  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

illustrates  this  from  the  history  of  the  ecclesiastical 
Councils1.  Then,  when  the  Lombards  oppressed  the 
Church  and  the  Eastern  Empire  gave  no  help — "quia 
forte  non  poterat2 " — the  Pope  summoned  the  Frankish 
king  to  his  aid  and  transferred  the  Empire  to  him3. 
With  Charlemagne  the  Empire  became  hereditary,  and 
so  it  remained  until  Gregory  V  instituted  the  Imperial 
Electors4. 

We  have  met  this  theory  of  a  "  quinta  monarchia 
of  Christ,  succeeding  the  "monarchiae"  of  the  Assyrians, 
the  Medes  and  Persians,  the  Greeks  and  the  Romans, 
in  Bartolus  himself.  Bartolus  gave  it  "adhaerendo 
opinioni  S.  Matris  Ecclesiae,"  and  there  seems  no 
reason  against  supposing  that  he  has  taken  it  from  our 
present  author.  But  it  occupies  no  great  space  in  the 
thought  of  Bartolus,  while  our  very  brief  sketch  above 
can  hardly,  perhaps,  do  justice  to  the  elaborate  and 
lengthy  treatment  of  this  theory  by  the  continuator  of  the 
treatise  of  Aquinas.  He  has  combined  into  one  picture 
the  succession  of  "  world-monarchiae,"  the  Donation,  the 
."translatio  imperii"  and  the  supposed  appointment  of 

tempora  Carol!  magni  de  imperatoribus  refertur,  omnes  quasi  obedi- 
enteset  reverentes  fuisse  Romanae  ecclesiae,  tamquam  ipsa  principatum 
teneret,  sive  respectu  spiritualis  dominii,  sicut  sancta  synodus  Nicena 
diffinit,  sive  temporalis." 

1  Vide  m.  17  and  18. 

2  The  author's  favourable  attitude  to   the  Eastern  Emperors  is 
worth  noticing. 

3  Vide  in.  19. 

4  Vide  in.   19:    "  Et  tantum  durabit,"  he  says  (p.  17)  of  this 
institution    of    the    Electors,     "quantum    Romana    ecclesia,     quae 
supremum   gradum   in    principatu   tenet   Christi    fidelibus    expedire 
judicaverit."    These  are  very  significant  words  and  must,  of  course, 
be  taken  in  connection  with  the  Papal  projects,  which  we  considered 
above. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  321 

the  electors  by  Gregory  V.  All  these  elements  in  his 
picture  had  very  different  origins.  The  idea  of  the  four 
"  monarchiae  "  went  farthest  back.  The  Donation  was 
a  forgery  of  the  eighth  or  ninth  century.  Innocent  III, 
in  a  famous  Decretal,  had  established  the  Papal  doctrine 
of  the  "  translatio  imperii."  The  supposed  appointment 
of  the  Electors  by  Pope  Gregory  V  dated  from  even 
later1.  From  all  these  diverse  sources  our  author  has 
constructed  a  single  picture  of  the  Empire's  history. 
Bartolus  had  no  such  aim.  He  introduced  this  idea 
of  the  "  quinta  monarchia  "  of  Christ,  when  discussing 
whether  de  jure  the  Emperor  is  lord  of  the  world.  He 
was  mainly  thinking  of  the  Empire  as  a  territory :  the 
Empire  having  become  the  Empire  of  Christ,  the  Pope, 
Christ's  vicar,  is  considered  as  delegating  a  part  of  it, 
which  becomes  the  territory  of  the  Empire,  to  the 
Emperor,  reserving  a  part  to  himself — the  territory  of 
the  Church.  Bartolus,  when  he  discussed  the  Dona- 
tion of  Constantine,  did  not  return  to  this  version 
I 

1  Vide  the  Decretal  Venerabilem  (Decretal,  i.  6.  34):  "  Verum  illis 
principibus  jus  et  potestatem  eligendi  regem  in  imperatorem  postmodum 
promovendum,  recognoscimus,  ut  debemus,  ad  quos  de  jure  ac  antiqua 
;  consuetudine  noscitur  pertinere,  praesertim  quum  ad  eos  jus  et  potestas 
!  hujusmodi  ab  apostolica  sede  pervenerit,  quae  Romanum  imperium  in 
!  personam  Caroli  a  Graecis  transtulit  in  Germanos."  Innocent,  we  see, 
I  does  not  rest  the  institution  of  the  Electors  on  Gregory  V— it  is  the  im- 
|  mediate  result  of  the  ' '  translatio. ' '  Here  he  is  at  one  with  the  Germans 
I  (vide  ' '  Jordan ' '  above) ,  the  difference  being  that  Innocent  thence  argues 
;  for  the  dependence  of  the  Electors  on  the  Papacy,  while  Jordan  denies 
.;  that  the  ' '  translatio ' '  was  the  mere  work  of  the  Pope  and  ascribes  the 
j  appointment  of  the  Electors  to  Charlemagne  himself.  The  supposed 
|  appointment  by  Gregory  V  is  general  among  the  Papalists  by  the  end 
|  of  the  thirteenth  century.  The  history  of  the  Papal  theory  of  the 
!  "  translatio  "  is  traced  in  detail  by  Dollinger  in  The  Empire  of  Charles 
ithe  Great  and  his  successors,  pp.  150-80. 

W.  21 


322  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

of  the  Empire's  history.  On  the  contrary,  he  took  the 
Donation  to  be  a  real  donation,  not  a  "restitution," 
and  based  the  "  territorium  Ecclesiae  "  on  it.  The  two 
views  as  to  the  origin  of  the  territory  of  the  Church 
are,  as  we  remarked,  irreconcilable ;  but  one  may  feel 
pretty  certain  that  the  latter  would  have  been  the  view 
of  Bartolus,  had  he  not  been  in  a  country  "  friendly  "  to 
the  Church.  With  our  other  author  it  is  very  different. 
His  purpose  in  tracing  the  history  of  the  ,Empire  was  to 
show  that  the  true  Emperor  is  now  the  vicar  of  Christ, 
the  Pope.  Bartolus  might  accept  that  theory  on  occa- 
sion, "adhering  to  the  opinion  of  the  Church,"  but  it 
was  not  the  general  theory  of  the  Empire  with  which 
he  worked,  and  hardly  could  be. 

But,  returning  to  the  Papalist  theories,  we  must  see 
that  it  is  not  merely  by  virtue  of  the  Donation  that  the 
Pope  claimed  to  be  the  true  Emperor.  "Adveniente 
Christo  istud  Romanorum  Imperium  incepit  esse  Christi 
Imperium."  The  Donation  merely  marked  the  de  facto 
assumption  of  that  Empire  by  the  vicar  of  Christ ;  de 
jure  it  was  his  before.  This  is  very  clearly  expressed 
by  Henry  of  Cremona1.  The  jurists,  he  says,  maintain 
that  Constantine  was  the  first  to  donate  the  Church, 
"  que  antea  nil  habebat."  But,  he  answers,  this  was  not 
"defectus  juris,"  but  "defectus  potencie."  God  "in- 
spiravit  Constantinum,  ut  renunciaret  imperio  et 
confiteretur  se  ab  ecclesia  illud  tenere,  nee  tune  u1 

1  Vide  De  pot.  Papae,  pp.  467-8:  "  Praeterea  opponunt  juriste: 
talia  non  fiebant  ante  Constantinum,  et  Constantinus  primo  dotavil 
ecclesiam  que  ante  nil  habebat.  Sed  quod  ecclesia  ante  non  faciel 
talia,  non  erat  defectus  juris,  sed  potencie....  Ibid  em  dominus  voluil 
fidei  subvenire  et  hoc  [aliter]  bene  fieri  non  poterat,  humano  more 
loquor,  nisi  potentiam  ecclesie  dando.  Quare  inspiravit,  etc." 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  323 

quidam  dicunt,  fuit  dotata  primo  de  jure,  sed  de  facto, 
sicut  satis  manifestum  est,  quod  imperator  ecclesie  dare 
non  potuit  licentiam  habendi  proprium  nee  etiam  potuit 
bona  imperil  alienare :  unde  non  dedit,  sed  recognovit 
[ab  ecclesia]  et  ecclesia  sine  peccato  proprium  habet1." 
It  is  clear  that  the  continuator  of  the  treatise  of  Aquinas, 
though  he  does  not  say  so  perhaps  in  so  many  words, 
also  considers  the  Donation,  or  "restitution,"  as  including 
the  whole  Empire,  and  that  therefore  the  Emperors  at 
Constantinople,  whose  obedience  he  notes  so  approvingly, 
must  be  considered  as  Emperors  merely  by  delegation 
from  the  Popes2.  And,  of  course,  it  was  by  virtue  of 
such  a  theory  that  the  "translatio  imperii"  under  Charle- 
magne was  expounded  from  the  Papal  standpoint.  The 
true  Monarcha  or  Imperator  is  the  Pope,  the  vicar  of 
Christ3.  The  reigning  Emperor  is  his  delegate. 

But  if  the  Pope  is  the  true  Roman   Emperor,  is 

there  necessity  for  this  temporal  Emperor,  his  delegate  ? 

|  Of  course  the  development  of  the  Antichrist  legend 

demanded   the  existence   of   a  Roman  Empire.     The 

theory  of  the   "quinta  monarchia"  of  Christ  did  not 

1  The  way  Henry  of  Cremona  here  takes  his  opponents'  argument 
I  against  the  possibility  of  alienating  the  "  bona  imperii "  and  turns  it 

to  his  own  account  is  very  interesting.     He  is,  however,  evidently  not 

completely  convinced  himself,  for  a  little  later  he  adds:   "  Si  impera- 

tores  aliquod  jus  habebant,  propter  peccata  que  commiserunt  occidentes 

I  fideles   in   Christo,    maxime   summos   pontifices,   divinitus   illo   jure 

;  privati  fuerant,  quia  privilegium  meretur  amittere  qui  permissa  sibi 

;  abutitur  potestate." 

2  Vide    above,    p.    319,    note    5:     "  Omnes    quasi    obedientes   et 
I  reverentes    fuisse    Romanae    ecclesiae,    tanquam    ipsa    principatum 
i  teneret,  sive  respectu  spiritualis  dominii...sive  temporalis." 

3  Gierke,   Political  Tlieories  of  the  Middle  Age,  note  12,  p.  107, 
)  says  that  already  in  the  twelfth  century  many  of  the  canonists  say : 

"Papa  ipse  verus  Imperator." 

21—2 


324  THE    PKOBLEM   OF   THE   EMPIRE  [CH. 

mean  that  the  Roman  Empire  had  ended.  There  was  no 
such  break  between  the  fourth  and  fifth  "monarchiae"  as 
between  that,  for  example,  of  the  Medes  and  Persians 
and  that  of  the  Greeks.  The  Roman  Empire  still 
existed,  but  it  had  become  the  Empire  of  Christ — 
"incepit  esse  Christi  imperium."  There  was  thus  no 
absolute  necessity  for  a  temporal  Emperor  and  a 
temporal  Empire,  delegates  of  and  dependent  on  the 
vicar  of  Christ,  the -true  Roman  Emperor.  The  Papacy 
did,  indeed,  need  a  temporal  power — though  by  right  it 
had  both  swords,  it  needed  a  delegate  to  whom  it  could 
normally  entrust  the  temporal  one,  to  be  used  for  its 
own  defence  and  at  its  command.  But  lesser  powers 
than  Emperors  could  have  supplied  this  need.  The  Popes 
might  insist  that  the  Emperor  was  their  delegate,  even 
their  vassal,  but  history  was  very  obviously  against 
them.  The  Empire  however  fallen,  might  always  be 
dangerous.  It  claimed  to  be  universal — it  had  still  more 
dangerous  claims  over  Italy.  Then,  with  the  rise  of 
national  states,  ever  more  and  more  jealous  of  any  sug- 
gestion of  their  subjection  to  the  Roman  Empire,  even 
the  need  of  a  Roman  Empire  began  to  be  doubted. 
We  shall  see  John  of  Paris  asking  why  the  Roman 
Empire  should  not  give  way  to  others,  as  older  Empires 
gave  way  to  it ;  why  France  could  not  have  prescribed  its 
independence  against  Rome,  as  Rome  had  against  the 
Greeks.  Now  John  of  Paris  had  no  intention  of  recog- 
nising the  Pope  as  the  "verus  imperator."  On  the 
contrary,  he  expressly  rejected  the  idea1.  He  was  argu- 
ing against  the  need  of  any  Roman  Empire  at  all.  This 
was  a  bold  position,  because  directly  opposed  to  the 
1  Vide  below,  p.  346,  note  1. 


Ill]  THE    PROBLEM   OF   THE    EMPIRE  325 

traditional  belief  in  the  absolute  necessity  of  the  Roman 
Empire,  as  standing  between  the  world  and  Antichrist. 
The  argument  of  John  of  Paris  amounted  in  effect  to 
a  justification  of  that  dismemberment  of  the  Empire 
by  the  "  discessio "  of  the  Regna,  which  was  one  of 
the  signs  that  would  herald  the  coming  of  Antichrist. 
Now  the  Papalist  did  recognise  the  Pope  as  the  Em- 
peror: consequently  from  the  Papalist  standpoint  the 
disappearance  of  the  temporal  Emperor  and  Empire 
would  leave  the  true  Roman  Empire  still  standing. 
An  interesting  passage  in  Aquinas  will  illustrate  this. 
"  Quomodo  est  hoc  ? "  he  asks,  in  his  Commentary  upon 
the  Epistles  to  the  Thessalonians1,  referring  to  the 
prophesied  secession  of  the  kingdoms  from  the  Roman 
Empire;  "quia  jamdiu  gentes  recesserunt  a  Romano 
imperio,  et  tamen  necdum  venit  Antichristus.  Dicen- 
dum  est  quod  nondum  cessavit,  sed  est  commutatum  de 
temporali  in  spirituale,  ut  dicit  Leo  Papa  in  sermone 
de  apostolis  :  et  ideo  dicendum  est  quod  discessio  a 
Romano  imperio  debet  intelligi  non  solum  a  temporali, 
sed  a  spirituali,  id  est  a  fide  catholica  Romanae 
ecclesiae."  Thus  to  Aquinas  the  Empire  was  already 
dissolved.  But  that  was  true  only  of  the  temporal 
Empire.  The  Roman  Empire  still  stood — "nondum 
cessavit,  sed  est  commutatum  de  temporali  in  spirituale." 
The  "discessio"  of  the  kingdoms  from  the  temporal 
Empire  might  have  taken  place,  but  the  final  "dis- 
cessio," which  was  to  herald  Antichrist,  was  to  be  from 
the  spiritual  Roman  Empire — "  id  est  a  fide  catholica 
Romanae  ecclesiae." 

1  The  passage  is  quoted  by  Lane  Poole,  Illustrations  of  tlie  History 
of  Med.  TJwught,  p.  246,  note  19. 


326  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

The  belief  that  the  prophesied  "  discessio  "  was  to 
include  the  "discessio"  of  the  churches  from  the 
Roman  see,  as  well  as  that  of  the  kingdoms  from  the 
Empire,  was  common  enough  in  the  Middle  Ages1.  We 
saw  in  Engelbert  a  triple  "discessio" — that  of  the 
kingdoms  from  the  Empire,  of  the  churches  from  the 
Papacy,  of  the  faithful  from  the  faith.  Now  Aquinas  was 
not  thinking  here  of  the  "discessio"  of  the  churches 
from  the  Papacy,  but  of  the  "  discessio  "  of  the  king- 
doms from  the  Empire ;  and  by  distinguishing  between 
the  temporal  and  the  spiritual  Empire,  he  could  allow 
that  the  "discessio"  from  the  temporal  Empire  had 
already  taken  place,  while  leaving  the  true  Roman  Em- 
pire intact — "  commutatum  de  temporali  in  spirituale." 
Its  end  would  come  when  the  Regna,  which  have  already 
receded  from  the  temporal  Roman  Empire,  receded  from 
the  spiritual  Roman  Empire  as  well,  that  is  to  say,  from 
the  Roman  Church,  in  which  the  old  temporal  Empire 
was  merged. 

None  the  less  the  Papalist  theory  in  general  did 
not  argue  for  the  non-necessity  of  the  temporal  Emperor 
nor  assume  that  the  temporal  Empire  was  already 

1  Vide  e.g.  the  treatise,  De  Adventu  et  Statu  et  Vita  Antichristi, 
ascribed  to  Aquinas  himself,  p.  38:  "Circa  statum  praedicationis 
notatur  quod  ante  praedicationem  Eliae  et  Henoc  praecedent  quatuor. 
Primo  dissidium  regnorum  a  Romano  imperio....Quia  medium est  dum 
universis  circumquaque  gentibus  imperat,  quibus  ab  ipso  recedentibus, 
de  medio  auferetur,  et  tune  ille  iniquus  opportune  sibi  tempore  reve- 
labitur..,.Secundo,  inobedientia  ecclesiarum  Romanae  ecclesiae...." 
This  treatise  was  printed  for  the  first  time,  along  with  another  treatise, 
De  Preambulis  ad  Judicium,  etc.  at  Rome  in  1840.  Their  editor, 
F.  Hyacinthus  de  Ferrari,  ascribed  them  both  to  Aquinas.  They  were 
printed  in  the  subsequent  Parma  ed.  of  Aquinas  (1852-73),  vol.  xvn., 
but  their  authenticity  was  very  much  doubted.  Vide  the  preface  to 
vol.  xvn.  pp.  3-4. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  327 

dismembered.  The  outlook  of  the  Papalists  varied 
according  to  the  circumstances  under  which  they  wrote. 
But,  in  general,  it  may  be  said  that  their  object  was,  not 
to  deny  the  existence  of  the  temporal  Emperor  or  the 
necessity  of  his  existence,  but  to  insist  on  his  subjection 
to  the  Pope.  For,  after  all,  the  temporal  Emperor  and 
Empire  were  there.  The  Pope  might  be  the  "true" 
Emperor — but  it  could  not  be  denied  that  there  was 
a  temporal  Emperor  as  well.  The  existence  of  this 
temporal  Empire  was  a  fact,  not  to  deny,  but  to  explain. 
We  have  seen  the  elaborate  explanation  offered  by  the 
continuator  of  the  De  Regimine  Principum  of  Aquinas  ; 
as  to  Aquinas  himself,  we  may  remember  that  he  died 
in  1274,  so  that  his  active  literary  life  fell  in  the  period 
of  the  long  Interregnum.  Then  the  temporal  Empire 
did  seem  to  have  disappeared,  while  the  theory  of  the 
Pope  as  "  verus  imperator  "  received  additional  signifi- 
cance, since  his  right  to  administer  the  Empire  during  a 
vacancy  was  very  widely  allowed.  It  was  very  different 
when  the  Interregnum  had  ended.  If  Boniface  VIII, 
in  the  well-known,  but  doubtful1,  story,  exclaimed  to 
the  German  ambassadors,  as  he  sat  crowned  upon  his 
throne — "  Ego  sum  Caesar2,"  we  shall  see  that,  as  a 
matter  of  fact,  he  found  a  distinct  use  for  a  temporal 
Empire  and  a  temporal  Emperor. 

1  Vide    the   monograph   of    Niemeier   on    the   relations    between 
Boniface  and  Albert,  to  which  we  shall  have  occasion  to  refer  below, 
Untersuchungen  ilber  die  Beziehungen  Albrechts  I  zu  Bonifaz   VIII, 
pp.  47-50. 

2  The   claim  made  in  the   Document,  known  as  the   "  Dicta tus 
Papae  "  and  included  in  the  Registrum  of  Gregory  VII  (in  Monumenta 
Gregoriana,  p.  174),  that  "solus  pontifex  possit  uti  imperialibus  in- 
signiis  ' '  may  well  be  considered  in  connexion  with  this  story,  whether 
the  ' '  Dictatus  "  be  by  Gregory  himself  or  not. 


328  THE   PROBLEM   OF   THE    EMPIRE  [CH. 

Needless  to  say,  these  "Imperial"  claims  of  the 
Popes  were  strenuously  denied.  We  shall  see  French 
writers  arguing  that  the  Donation,  even  if  valid,  gave 
only  a  "  certam  provinciam,"  not  the  whole  Empire, 
which  Constantine  transplanted  to  the  East,  and  of 
course  not  France  itself.  By  denying  that  the  Dona- 
tion included  the  Imperium,  they  could  even  throw 
doubts  on  the  "  translatio  imperii."  On  the  other  hand, 
they  were  sometimes  willing  to  acknowledge,  always 
supposing  its  validity,  that  the  Donation  might  have 
given  the  Popes  the  dominion  at  least  of  Italy.  And 
though  the  Popes  themselves  seemed  very  reluctant  to 
base  their  wider  claims  upon  this  document,  they  did  at 
times  appeal  to  it  in  asserting  their  rights  over  Rome 
and  the  Papal  territory  in  Italy.  We  may  also  illus- 
trate this  by  an  interesting  passage  from  the  Summa 
of  Augustinus  Triumphus1 — a  writer  who  had  no  inten- 
tion of  understating  Papal  claims.  He  maintains  that 
the  Pope,  as  vicar  of  Christ,  has  universal  jurisdiction, 
both  temporal  and  spiritual,  "in  toto  orbe  terrarum," 
but  "ipsorum  temporalium  immediatam  administra- 
tionem  non  recipit  nisi  in  regionibus  occidentalibus 
imperii  per  concessionem  factam  ecclesie  a  Constantino." 
Here,  we  see,  the  Donation  is  held  to  give  an  "im- 
mediata  administratio  "  in  the  western  portion  of  the 
Empire.  Nothing  is  said  of  the  East;  but  we  may 
suppose  that  he  includes  France  in  the  "regionibus 
occidentalibus  imperii."  For  he  goes  on  to  explain 
how  it  is  that  the  Church  only  uses  this  "  temporalis 
administratio "  in  Italy,  "  mediante  Imperatore  quern 
eligit,"  and  not  in  other  parts  of  the  West.  It  is  not 
1  Vide  Quaest.  XLV.  art.  2. 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  329 

because  it  lacks  authority,  but  for  the  sake  of  peace 
and  unity — "quia  ex  quo  imperium  fuit  divisum  et 
a  diversis  partibus  diversimode  et  tyrannice  usurpa- 
tum,  ecclesia  propter  vitandum  scandalum  et  schisma 
temporalium  administrationem  in  regnis  illis  dimisit, 
propter  cujus  scandali  vitationem  salvator  humani 
generis  etiam  se  tributarium  fecit." 

Augustinus  here  recognises  that  the  Popes  use 
their  de  jure  universal  temporal  jurisdiction,  and  the 
immediata  administratio  "  derived  from  the  Donation 
of  Constantine,  de  facto  only  "in  partibus  Ytaliae." 
This  can  also  be  illustrated  from  the  words  of  two 
of  the  Popes  themselves.  Gregory  IX,  in  a  letter  to 
Frederick  II1,  recalls  to  Frederick  the  good  examples 
of  his  predecessors,  and  lays  special  stress,  in  mention- 
ing the  Donation,  on  the  surrender  of  the  city  "  cum 
toto  ducatu  suo."  Similarly  Nicholas  III2,  skilfully 

1  Vide  "  Epistolae  Saeculi  XIII  "  (inMon.  Germ.  Historica),  vol.  i. 
p.  604. 

2  Vide  Sext.  i.  6.  17  (The  Decretal  Fundamenta  Militantis  Ec- 
clesiae) :  "  Isti  (SS.  Peter  and  Paul)  sunt,  quid  illam  in  hanc  gloriam 
provexerunt,  ut  sit  gens  sancta,  populus  electus,  civitas  sacerdotalis 
et   regia,  per   sacram   beati   Petri   sedem  caput   totius  orbis   effecta. 
Ne  autem  ipsa  mater  ecclesia  in  congregatione  et  pastura  fidelium 
temporalibus  careret  auxiliis...non  absque  miraculo  factum  esse  con- 
cipitur,  ut  occasionaliter  Constantini  monarchae  a  Deo  provisa,  sed 
curata   baptismalibus   fomentis  innrmitas,   quandam   quasi  adjiceret 
ipsi  ecclesiae  firmitatem,  qui  quarto  die  sui  baptismatis,  una  cum 
omnibus  satrapis  et  universe   senatu,   optimatibus   etiam   et   cuncto 
populo,  in  persona  beati  Silvestri  sibi  Romanam  concedendo  urbem 
relinquens,  ab  eo  et  successoribus  ejus  per  pragmaticum  constitutum 
disponendam  esse,  decernens  in  ipsa  Urbe  utriusque  potestatis  mo- 
narchiam  Romanis  pontificibus,  declararet,  non  justum  arbitrans  ut, 
ubi  sacerdotii  principatum  et  Christianae  religionis  caput  imperator 
coelestis  instituit,  illic  imperator  terrenus  habeat  potestatem;   quin 
magis  ipsa  Petri   sedes,   in  Romano  jam    proprio    solio    collocata, 


330  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

applying  to  the  Roman  church  the  famous  words 
with  which  Pope  Leo  apostrophised  the  Romans — "  ut 
sit  gens  sancta,  populus  electus,  civitas  sacerdotalis  et 
regia,  per  sacram  beati  Petri  sedem  caput  totius  orbis 
effecta  " — appeals  to  the  Donation  as  giving  the  Pope 
temporal  authority  over  the  city  of  Rome.  This  limited 
claim  is  explained  by  the  fact,  that  in  this  decretal 
Nicholas  was  regulating  the  Roman  Senatorship,  pro- 
viding especially  against  its  assumption  by  powerful 
foreign  princes1. 

The  Popes,  in  the  claims  which  they  made  as  Italian 
princes,  might  occasionally  appeal  to  the  Donation.  The 
wider  claims  which  they  made  as  Popes,  that  is  to  say, 
as  vicars  of  Christ,  the  Priest  and  King,  were  never 
shortened.  The  thunderous  words,  which  end  the  Bull 
Unam  Sanctam* — "  Porro  subesse  Romano  pontifici  omni 
humanae  creaturae  declaramus,  dicimus,  diffinimus  et 
pronunciamus  omnino  esse  de  necessitate  salutis  " — ex- 
pressed no  new  doctrine.  They  put  the  papal  claims  in 

libertate  plena  in  suis  agendis  per  omnia  potiretur,  nee  ulli  subesset 
homini,  quae  ore  divino  cunctis  dignoscitur  esse  praelata." 

1  With   the  special   claim   of   this  decretal  -over  Home  may  be 
compared  Aquinas,  De  Eefj.  Prin.  i.  14,  p.  5  verso.     Having  main- 
tained that  kings  of  the  Christian  people  are  subject  to  the  Pope, 
he  allows  that  priests  were  below  kings  among  the  Gentiles  and  in 
the  Old  Testament:    "  sed  in  nova  lege  est  sacerdotium  altius,  per 
quod  homines  traducuntur  ad  bona  coelestia.     Unde  in  lege  Christi 
reges  debent  sacerdotibus  esse  subjecti."     And  he  goes  on  to  point 
out  how,  by  divine  providence,   the  custom  grew  up  in  the  city  of 
Home,  "  quam  Deus  praeviderat  christiani  populi  principalem  sedem 
futuram,"  that  the  Rectores  of  the  city  should  be  subject  to  the  Pope. 
"  Sicut  enim  Maximus  Valerius  refert,  omnia  post  religionem  ponenda 
semper  nostra  civitas  duxit,  etiam  in  quibus  summae  majestatis  clecus 
conspici  voluit.    Quapropter  non  dubitaverunt  sacris  imperia  servire." 

2  Extrav.  Commun.  i.  8.  1. 


Ill]  THE   PROBLEM   OF  THE  EMPIRE  331 

their  most  imposing  and  least  conciliatory  form,  but  the 
claims  were  not  new.  The  doctrine  of  the  "  plenitudo 
potestatis"  went  back  to  Innocent  III,  and,  in  its 
essence,  to  Gregory  VII1.  The  "plenitudo  potestatis" 
was,  as  Dr  Figgis  has  said2,  nothing  less  than  sovereignty 
in  a  strict  Austinian  sense — sovereignty  at  once  temporal 
and  spiritual  over  the  universe,  or  at  least  over  uni- 
versal Christendom.  Into  the  general  theories,  which 
supported  that  claim,  we  have  here  no  need  to  inquire. 
Their  character  and  the  ideas  upon  which  they  rest 
need  no  new  exposition.  It  is  the  "  Imperial "  claims 
of  the  Papacy  which  especially  concern  us;  we  must 
consider  a  little  more  closely  their  place  in  the  theories, 
upon  which  the  Papacy  based  its  claim  to  the  obedience 
of  the  King  of  France. 

The  Popes  had  before  now  come  into  conflict  with 
the  kings  of  France  and  England,  but  the  struggle  of 
Boniface  with  Philip  the  Fair  and  Edward  of  England 
was  the  first  which  could  compare  in  importance  with 
the  former  struggles  between  the  Papacy  and  Empire. 
Indeed,  France  had  come  to  be  considered  as  the 
special  ally  and  defender  of  the  Papacy3.  The  present 

1  Vide  Gierke,   Political  Theories  of  the  Middle  Age,  note  131, 
p.  144. 

2  From  Gerson  to  Grotim,  p.  17. 

3  Augustinus  Triumphus  compares  the  past  and  present  conduct 
of  France:   "Nam  dicemus,  quod  in  domo  Franciae  zelus  christiane 
fidei  et  reverencia  sancte  matris  ecclesie  et  liberacio  ejus  pastorum  de 
manibus  imperatorum  et  aliorum  persequencium  eos  temporibus  retro- 
actis  potissime   viguit   et   refulsit   in   tantum,  ut   domus   ilia   quasi 
autonomastice  et  per  quandam  superexcellentiam  capud  christianorum 
et  relatrix  ac  defensatrix  fidei  orthodoxe  ubique  diceretur  et  predi- 
caretur.     Ex  tali  nomine  ergo  et  ex  tali  forma  reges  moderni  gentis 
Francorum,  eorum  predecessorum  vestigia  non  sequentes,  in  tantum 
sunt  in  superbia  elati,  quod  quasi  admodum  regis  Nebuchodonosor 


332  THE   PEOBLEM   OF   THE   EMPIRE  [CH. 

struggle  was,  in  fact,  an  interlude.  The  events  in 
Italy,  following  the  fall  of  the  Hohenstaufen,  when  the 
Papacy  had  too  eagerly  embraced  the  French-Angevin 
alliance,  led  up  directly  to  this  struggle  between  Philip 
and  Boniface.  Its  result  was  the  Avignon  exile,  the 
trophy  of  Philip's  victory.  Avignon  meant  that  the 
King  of  France  did  not  intend  to  let  the  Papacy  back 
out  of  an  alliance,  which  had  been,  and  was  to  be, 
of  the  highest  advantage  to  France. 

Boniface  himself  repeatedly  recalled  his  intimate 
knowledge  of  France,  and  the  proofs  which  he  had  given, 
of  his  affection  for  her1.  He  had  certainly  no  prejudice 
in  favour  of  the  Empire.  He  had  refused  to  recognise 
Albert  as  king  of  the  Romans,  when,  after  the  death  of 

nolunt  aliquera  super  se  recognoscere."  Vide  the  Tract,  contra 
articulos,  etc.,  p.  Ixxxvi.  Aquinas,  De  Reg.  Prin.  i.  14,  p.  5  verso, 
sees  in  the  pre-eminence  of  the  Druids  in  old  Gaul  a  divine  presage 
that  "  futurum  erat  ut  in  Gallia  Christian!  sacerdotii  plurimum 
vigeret  religio." 

1  Vide  the  speech  of  Boniface  in  a  Consistory  held  in  1302  (in 
Dupuy,  pp.  78-9):  "  Prima  est  quod  nunquam  volumus  respondere 
juxta  stultitiam  suam,  quia  in  quantum  in  nobis  est,  volumus  esse 
in  pace  et  in  amore  cum  rege,  quia  semper  dileximus  regnum  et  illos 
de  regno,  et  sciunt  multi  qui  hie  sunt,  quod  ego  semper  quamdiu  fui  in 
cardinalatu  fui  Gallicus,  ita  quod  frequenter  fuit  mihi  improperatum 
a  fratribus  meis  Eomanis,  a  quodam  qui  est  mortuus,  et  etiam  ab  alio 
qui  est  juxta  me,  quod  eram  pro  Gallicis  et  contra  Eomanos;  dicebant 
enim  quia  semper  alii  cardinales  Campani  fuerant  cum  Eomanis: 
etiam  postquam  fuimus  in  statu  isto  multum  dileximus  regem,  et 
fecimus  ei  multas  gratias,  quas  nolumus  modo  explicare  per  singula, 
quia  melius  sederet  in  ore  alterius  quam  in  nostro.  Audemus  dicere 
quod  vix  teneret  rex  pedem  in  stallo  nisi  nos  essemus;  cum  enim 
insurgerent  contra  eum  Anglici,  et  Alemanni  et  quasi  omnes  majores 
subditi  et  vicini  ejus,  ipse  habuit  triumphum  de  omnibus— et  per 
quern  ?  nos— et  quomodo  ?  per  depressionem  adversariorum  suorum. ... 
Nos  scimus  secreta  regni,  nihil  latet  nos,  omnia  palpavimus,  nos  scimus 
quomodo  diligunt  Gallicos  Allemanni,  et  illi  de  Lingadoch  et  Burgundi 
etc."  Cf.  the  Bull  Ausculta  Fill  of  the  year  1301  (in  Dupuy,  p.  48). 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  333 

Adolph,  Albert  had  applied  for  recognition.  But  the 
great  struggle  with  France  altered  matters;  and  in 
April  1303  Boniface  recognised  Albert  as  king  of  the 
Romans,  in  return  for  which  Albert  was  well  pleased 
to  own  the  dependence  of  his  crown  upon  the  Papacy, 
while  acknowledging  his  past  errors  and  his  duty  of 
future  obedience. 

A  report  of  the  speech,  which  the  Pope  made  on 
this  occasion  to  the  envoys  of  Albert,  has  come  down 
to  us,  and  is  of  the  greatest  importance  for  the  proper 
understanding  of  the  literature,  which  we  are  about 
to  examine.  Boniface1  begins  by  recalling  the  old 
simile  of  the  two  luminaries — the  sun  and  the  moon, 
that  shines  only  with  borrowed  light — but  he  gives  it 
a  special  interpretation  to  fit  the  occasion.  This  time 
the  sun  is  to  be  the  king  of  the  Romans,  "qui  est 
sol  sicut  monarcha  qui  habet  omnes  illuminare  et 
spiritualem  potestatem  defendere,  quia  ipse  est  datus 
et  missus  in  laudem  bonorum  et  in  vindictam  male- 
factorum."  Then  he  recalls  that  vicar  of  Christ,  the 
successor  of  S.  Peter,  transferred  the  Empire  to  the 
Germans  and  gave  the  right  of  election  to  the  seven 
princes,  who  are  to  elect  a  king  of  the  Romans,  "qui 
est  promovendus  in  imperatorem  et  monarcham  om- 
nium regum  et  principum  terrenorum."  Then  follow 
memorable  words  which  have  often  been  quoted :  "  Nee 

1  The  speech  is  to  be  found  in  a  Memorial  of  the  Consistory  at 
which  the  recognition  took  place.  The  whole  Memorial  is  printed 
by  Niemeier,  Untersuchung.en  ilber  die  Beziehungen  Albrechts  I  zu 
Bonifaz  Fill,  pp.  114-28,  the  Pope's  speech  occupying  pp.  114-18. 
Niemeier  maintains  the  trustworthiness  of  the  speech  as  reported, 
which  had  been  doubted  :  vide  pp.  109  ff .  The  Memorial  as  a  whole 
had  not  been  printed  before. 


334  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

insurgat  hie  superbia  gallicana,  que  dicit  quod  non 
recognoscit  superiorem.  Mentiuntur,  quia  de  jure  sunt 
et  esse  debent  sub  rege  Romano  et  imperatore1."  He 
contrasts  Albert's  present  devotion  and  obedience  with 
his  former  arrogance.  And  he  reminds  the  Germans 
that,  as  the  Empire  was  transferred  to  them  by  the 
Pope,  so,  if  he  wish,  he  may  again  transfer  it  elsewhere 
— "et  hoc  sine  juris  injuria2."  He  supplies  the  many 
defects  in  Albert's  election,  because  he  hopes  well  of  him ; 
his  father  was  the  good  king  Rudolph,  "  catholicus,  fidelis 
et  devotus  isti  ecclesie,  homo  verax  et  veridicus."  But 
he  warns  Albert,  that  should  he  belie  his  hopes,  he, 
the  Pope,  could  easily  repress  him.  "Quidam  enim 
principes,"  he  continues  in  a  passage  of  splendid  con- 
fidence, "faciunt  colligationes  suas.  Et  audacter  dici- 
mus,  quod  si  omnes  principes  terreni  essent  hodie 
colligati  contra  nos  et  contra  ecclesiam  istam,  dum 

1  "  Et  nescimus,"  he  continues,  "  unde  hoc  habuerunt  vel  adin- 
venerunt,  quia  constat,  quod   Christian!  subditi  fuerunt  monarchis 
ecclesie  Komane  et  esse  debent:    nee  habent  hoc  a  lege  veteri  vel 
nova,  nee  aliquo  propheta,  vel  evangelio,  vel  apostolo.      Unde  hie 
dicimus,  quod  dicit  apostolus :   '  Et  si  quis  evangelizaverit  vobis  aliud, 
quam  evangelizamus,  etiam  angelus  de  celo,  anathema  sit.'     Et  nos 
volumus,  quod,  quicunque  evangelizaverit  aliud,  anathema  sit." 

2  P.  116:  "  In  nomine  Domini  constituimus  sic  eum  hodie,  non  in 
hodie  eternitatis,  de  quo  dictum  est  filio:  'Ego  hodie  genui  te,'  sed  in 
hodie  temporis.    Sicut  enim  pater  dedit  filio  potestatem  non  in  tempore, 
sed  in  eternitate,  sic  Christus  homini  et  Christi  vicario  dedit  potestatem 
in  tempore,  ut  ipse  habeat  jus  constituendi  imperatorem  et  imperium 
transferendi.     Et  attendant  hie  Germani,  quia  sicut  translatum  est 
imperium  ab  aliis  in  ipsos,  sic  Christi  vicarius  successor  Petri  habet 
potestatem  transferendi  imperium  a  Germanis  in  alios  quoscumque,  si 
vellet,  et  hoc  sine  juris  injuria.... Unde  si  subveniat  justa  et  legitima 
causa,  juste  posset  transferre  et  justa  faceret,  si  eos  privaret.     Tamen 
hie  fuit  semper  patientia  istius  ecclesie,  que  magis  voluit  cum  eis  de 
benignitate  agere,  quam  de  rigore,  ut  non  privaret  eos,  licet  juste  privare 
potuisset." 


Il]  THE   PROBLEM   OF   THE   EMPIRE  335 

,amen  nos  haberemus  veritatem  et  staremus  pro  veri- 
iate,  non  appretiaremus  eos  unam  festucam ;  et  sine 
lubio,  si  veritatem  et  justitiam  non  haberemus,  bene 
imeremus,  sed  alias  omnes  confunderemus  et  veritas 
lonfunderet  eos."  After  this  he  again  returns  to  the  duty 
>f  all  men  to  obey  Albert — "  Iste  est  rex  praecellens  super 
>mnes  reges  et  nullus  est  ab  eo  exemptus  " — and  ends 
vdth  promises  of  support. — "  Igitur  faciat  bene  rex,  quia 
i  bene  defendat  et  recuperet  jura  sua  et  jura  regni  et 
mperii,  audacter  dicimus,  quod  nos  defendemus  plus  jura 
lua  quam  nostra,  et  hoc  contra  quemcumque  de  mundo, 
jt  per  nos  firmabitur  sententia  sua  et  non  fiectetur." 

That  this  is  all  directed  against  the  king  of  France 
leeds  no  demonstration,  and  the  significance  of  thus 
inding  Boniface  maintaining  the  subjection  of  all  kings 
jo  the  Emperor,  and  bidding  the  Emperor  defend  and 
•ecover  the  rights  of  the  Empire,  cannot  be  over-esti- 
nated.  Hitherto  the  Papal  theory  had  been  ever 
idvancing  its  claims  at  the  expense  of  the  Empire. 
Hitherto,  we  may  say,  the  whole  Papal  armoury  had 
3een  forged  as  weapons  against  the  Empire.  But  here, 
m  the  contrary,  we  have  a  weapon,  made  expressly  to 
it  the  struggle  with  a  king,  and  one  whose  whole  force 
baust  depend  upon  alliance  between  the  Empire  and 
Papacy.  Nor  was  Boniface  unique  among  his  contem- 
poraries in  adopting  this  line  of  argument.  The  author 
of  the  anonymous  treatise  on  the  Bull  Clericis  Laicos 
;nsists  on  the  necessity  of  unity,  and  cannot  believe 
ohat  Christ,  when  about  to  leave  this  earth,  would  have 
kished  His  Church  to  have  more  than  one  head,  namely 
8.  Peter  and  his  successors1.  So  also  Rome  could  not 
1  Vide  p.  475. 


336  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

have  two  kings.  "Item,"  he  continues  in  a  passage 
well  worth  quoting  in  full,  "  universi  reges  et  principes 
fatentur  se  imperatori  Romano  subesse  quantum  ad 
corporalia,  quod  quidem  jus  superioritatis  in  temporali- 
bus  quicumque  attribuunt  ei  de  jure,  cum  ipse  dicatur 
mundi  dominus...et  omnia  dicantur  esse  ipsius...et 
tune  non  poterunt  negare,  quin  etiam  subsunt  papae 
in  temporalibus  mediate,  cum  imperium  teneatur  ab 
eo  et  ipse  confirmat  ejus  electionem  et  coronam  imperil 
concedit;  etiam  ipse  imperator  jurat  sibi  fidelitatem. . . . 
Non  obstat  si  dicatur  quod  imperium  a  deo  processit... 
quia  hoc  non  tollit  quin  imperium  teneatur  a  papa, 
cum  ipse  sit  vicarius,  ut  supra  probatum  est.  Si  enim 
noluerint  confiteri  se  subesse  imperatori,  necessarie 
habent  confiteri  se  subesse  pontifici  Romano  in  tem- 
poralibus." 

Let  us  note  this  passage  well.  To  begin  with,  it  is 
very  probably  of  earlier  date  than  the  speech  of  Boniface, 
that  is  to  say,  earlier  than  the  actual  accommodation 
between  the  Pope  and  King  Albert1.  But  be  that  so, 
or  not,  the  passage  must  be  taken  along  with  Boniface's 
words.  It  shows  us  that  the  Pope's  insistence  on  the  sub- 
jection of  the  King  of  France  to  the  Roman  Emperor  was 
something  more  than  an  angry  and  random  flight  of 


1  Scholz  thinks  the  date  may  be  February-July  1297,  but  that 
a  later  date,  i.e.  1302,  is  quite  possible.  Vide  op.  cit.  pp.  169-70.  In 
any  case,  then,  it  is  earlier  than  the  speech.  The  author,  he  thinks, 
may  be  Henry  of  Cremona.  Henry  of  Cremona  was  a  canonist,  and 
in  this  connection  it  may  be  noted  that  he  attacks  the  Ghibellines 
bitterly  in  his  own  treatise  (vide  p.  460).  If  he  is  also  the  author  of 
this  anonymous  treatise,  his  argument  becomes  yet  more  noteworthy 
in  the  mouth  of  a  Guelph,  writing  before  the  recognition  of  Albert  by 
Boniface. 


l]  THE   PROBLEM   OF   THE   EMPIRE  337 

letoric,  such  as  Boniface  was  not  slow  to  shower  on 
is  enemies. 

Secondly,  we  see  that  neither  Boniface  nor  the 
nthor  of  this  treatise  find  any  contradiction  to  their 
lea  for  unity  in  the  government  of  the  Church,  when 
ley  maintain  the  subjection  of  all  kings  to  the  Roman 
Imperor.  Such  unity  is  not  inconsistent  with  the 
xistence  of  two  powers,  both  "a  Deo."  Boniface 
imself  on  one  occasion,  in  another  public  speech, 
lade  a  point  of  affirming  his  belief  in  the  divine 
rdination  of  the  two  powers — how,  he  asked,  could  a 
iwyer  of  forty  years'  standing  do  otherwise  ?  "  Quad- 
iginta  anni  sunt  quod  nos  sumus  experti  in  jure, 
t  scimus  quod  duae  sunt  potestates  ordinatae  a 
)eo1."  Boniface  was  speaking  the  literal-  truth,  but 
e  was  also  begging  the  question.  The  avowal  by 
>oniface  and  the  Papalists  that  they  do  not  deny  the 
xistence  of  "two  powers  ordained  by  God"  is  impor- 
mt,  as  an  illustration  of  the  fact  that  the  Papalists 
jid  not  follow  up  the  idea  of  the  human,  sinful  or 
jiabolical  origin  of  the  Regna  and  Imperium,  which 
pe  Investiture  struggle  had  suggested.  But  the  real 
oint  at  issue  between  the  Papalist  and  his  opponent 

as  not  so  much — Are  there  two  powers  ordained  by 

od  ?   as — What  are  the  relations  between  these  two 
lowers  ?    Are  they  equal  ?    And  are  they  "  distinct  and 

^parate  "  ? 

The  French  writers  pointed  to  declarations  of  the 

'opes2  themselves,  as  conclusive  proof  that  the   two 

1  l  In  Dupuy,  p.  77. 

;  2  Decretal,  iv.  17.  13  and  n.  1.  13.  Cf.  also  Extrav.  Commun.  v. 
2 — the  decretal  of  Clement  V,  which,  while  not  condemning  the 
w.  22 


338  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

powers  are  distinct — above  all  to  the  decretals  Per 
venerabilem  and  Novit  Hie  of  Innocent  III.  And,  of 
course,  so  far  as  the  Popes  claimed  to  interfere  in  tem- 
poral matters  "ratione  peccati,"  they  did  indirectly 
recognise  the  normal  independence  of  the  temporal 
power  in  its  own  sphere1.  To  explain  away  these  de- 
cretals was  no  easy  task ;  they  stood  in  black  and  white 
in  the  Canon  Law.  None  the  less  the  Papalists  con- 
tinued to  deny  the  separation  of  the  two  powers,  unless 
it  were  recognised  as  being  merely  de  facto2.  Rightly 

Bull  Unam  Sanctam,  declares  that  in  no  way  "per  illam  rex,  reg- 
num  et  regnicolae  praelibati  amplius  ecclesiae  sint  subject!  Bomanae 
quam  antea  existebant  etc."  The  decretal  Causam  (iv.  17.  7)  is 
appealed  to  in  support  of  English  independence.  Vide  below,  p.  354, 
note  1. 

1  This  comes  out  very  clearly  in  the  decretal  Novit  ille :    ' '  Non 
ergo  putet  aliquis  quod  jurisdictionem  aut  potestatem  illustris  regis 
Francorum  perturbare  aut  minuere  intendamus,  quum  ipse  jurisdic- 
tionem et  potestatem  nostram  nee  velit  nee  debeat  etiam  impedire, 
quumque  jurisdictionem  propriam  non  sufficiamusexplere,  cur  alienam 
usurpare  velimus?...Non  enim  intendimus  judicare  de  feudo,  cujus  ad 
ipsum  spectat  judicium,  nisi  forte  jure  communi  per  speciale  privi- 
legium   vel    contrariam    consuetudinem   aliquid    sit   detractum,   sed 
decernere  de  peccato,  cujus  ad  nos  pertinet  sine  dubitatione  censura 
quam  in  quemlibet  exercere  possumus  et  debemus....Quum  enim  non 
humanae  constitutioni,  sed  divinae  legi  potius  innitamur,  quia  potestas 
nostra  non  est  ex  homine,  sed  ex  Deo:  nullus  qui  sit  sanae  mentis 
ignorat,  quin  ad  officium  nostrum  spectet  de  quocunque  mortali  peccato 
corripere  quemlibet   Christianum,   et,  si  correctionem  contempserit, 
ipsum  per  districtionem  ecclesiasticam  coercere. ' '    So,  in  the  speech  in 
which  Boniface  affirms  his  belief  in  the  two  "powers "  (vide  above),  he 
continues — "Dicimus,  quod  in  nullo  volumus  usurpare  jurisdictionem 
regis... Non  potest   negare   rex   seu  quicunque  alter  fidelis,  quin  sit 
nobis  subjectus  ratione  peccati." 

2  Innocent  IV  in  his   Commentary  on   the  Decretals  says  of  the 
famous  words  in  the  decretal  "  Per  venerabilem  " — "  Et  cum  dominus 
rex  superiorem  in  temporalibus  minime  recognoscat  " — "  De  facto,  nam 
de  jure  subest  imperatori  Romano,  ut  quidam  dicunt.     Nos  contra: 


l]  THE   PROBLEM   OF   THE   EMPIRE  339 

ie  temporal  power  is  only  separated  from  the  spiritual 
y  delegation  from  the  Pope.  Originally  there  was  no 
jparation  at  all.  Thus,  Henry  of  Cremona1  can  allow 
lat  the  Imperium  is  "  a  Deo  "  no  less  than  the  Sacer- 
otium,  but  maintains  the  two  jurisdictions  to  be  from 
od  "  non  divisim  sed  conjunctim."  The  Pope,  as  vicar  of 
'hrist,  the  Priest  and  King,  in  the  well-worn  phrase  has 
oth  swords,  the  spiritual  and  temporal.  The  spiritual 
»vord  is  wielded  directly  by  the  spiritual  power,  the 
miporal  power  is  wielded  for  the  Church  by  "  kings 
fid  knights'2,"  but  "  ad  nutum  et  patientiam  sacerdotis." 
'hat  is  to  say,  the  kings  and  knights  are  delegates  of 


nmo  papae."  Cf.  Augustinus  Triumphus,  De  duplici  potestate, 
550 :  ' '  Secundum  primariam  institucionem  et  auctoritatem  uni- 
srsalem  utraque  potestas  in  Romano  pontifice  residet  et  ab  ipso, 
mquam  ab  uno  capite  universalis  ecclesie,  in  clericos  et  laicos  debet 
mvari.  Et  per  consequens  omnes  praedictae  (i.e.  all  secular  or 
•iritual  powers)  potestates  casu  interveniente  per  Romanum  pontificem 
)ssunt  privari,  quia  sicut  ab  ipso  potestas  spiritualis  et  temporalis 
nnibus  confertur,  sic  ab  eis  per  eum  auferri  potest.  Si  vero  aliqui 
fntrarium  faciunt  vel  contrarium  dicunt,  contra  facientes  de  facto 
jciunt,  non  de  jure,  et  contrarium  dicentes  in  favorem  principum  et 
gum  hujus  seculi  dicunt  pocius  quam  secundum  veritatem." 
'  l  Vide  pp.  446-7  :  "  Sed  contra  hec  supradicta  multa  opponuntur. 
jt  primo,  quia  imperium  a  deo  processit  sicut  et  sacerdotium,  ut  in 
{athentic.  '  Quomodo  oporteat  episcopos.'...Et  ego  respondeo;  quod 
jt  verum  et  hoc  supra  in  principio  pro ba turn  est,  quod  a  deo  proces- 
irunt  iste  due  jurisdictiones,  sed  non  divisim,  sed  conjunctim." 
i  -  Vide  Bull  Unam  Sanctam:  "In  hac  ej usque  potestate  duos  esse 
adios,  spiritualem  videlicet  et  temporalem,  evangelicis  dictis  in- 
;uimur. ...Uterque  ergo  est  in  potestate  ecclesiae,  spiritualis  scilicet 
iidius  et  materialis.  Sed  is  quidem  pro  ecclesia,  ille  vero  ab  ecclesia 
*  ercendus.  Ille  sacerdotis,  is  manu  regum  et  militum,  sed  ad  nutum 
(patientiam  sacerdotis.  Oportet  autem  gladium  esse  sub  gladio  et 
•aiporalem  auctoritatem  spiritual!  subjici  potestati....Nam,  veritate 
vstante,  spiritualis  potestas  terrenam  potestatem  instituere  habet,  et 
clicare,  si  bona  non  fuerit." 

22—2 


340  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

the  Sacerdotium — "its  organs  and  instruments1."  As 
properly  the  two  powers  belong  "  conjunctim  "  to  the 
Sacerdotium,  so,  when  they  are  divided  by  the  dele- 
gation of  the  one  power  to  temporal  rulers,  the  powers, 
thus  separated,  are  not  equal  and  coordinate.  The  tem- 
poral ruler  must  be  dependent  on  the  spiritual,  who 
delegates  the  temporal  sword  to  be  used  on  his  behalf 
and  at  his  command.  The  Pope  is  set  above  all  kings 
and  kingdoms  "  ad  evellendum,  destruendum,  disperden- 
dum,  dissipandum,  aedificandum  atque  plantandum2." 

Albert  was  willing  to  accept  the  humble  position, 
which  the  Papal  theory  offered  him.  His  power  was 
above  that  of  all  other  temporal  rulers  and  was  of  divine 
ordination,  but  mediately  through  the  Pope,  on  whom 
his  possession  of  the  Empire  depended.  Now  if  he,  the 
supreme  and  universal  temporal  ruler,  recognised  none 
the  less  that  he  was  subject  to,  and  dependent  on,  the 
Pope,  it  was  an  obvious  conclusion  that  inferior  temporal 
powers  must  be  at  least  equally  subject.  Thus  the 
Roman  Empire  became  a  stalking-horse  behind  which 
the  Papacy  could  attack  French  claims  to  independence. 


1  Vide    Augustinus    Triumphus,   De    duplici    potestate,   p.    550: 
"Utramque  ergo  potestatem  spiritualem  et  temporalem  residere  con- 
sequitur  in  summo  pontifice,   unde  Christus,  cujus  personam  repre- 
sentat,  dicit...'  Data  est  michi  omnis  potestas  in  celo  et  in  terra' ;  sed 
potestas  spiritualis  residet   in  ipso,  quantum  ad  auctoritatem  et  ad 
execucionem,  sed  temporalis,  quantum  ad  auctoritatem,  non  autem 
quantum  ad  immediatam  execucionem,  quia  committit  execucionem 
talis  potestatis  secularis  regibus  et  principibus,  qui  debent  esse  organa 
et  instrumenta  ejus  in  parendo   mandatis  ipsius  in  omnibus  et  in 
exequendo  potestatem  temporalem  ad   requisitionem  ejus;  et   quan- 
tum ad  talem  execucionem  non  est  inconveniens,  quod  papa  aliqua 
recognoscat  a  regibus  et  secularibus." 

2  Bull  AitKCulta  Fill  (in  Dupuy,  p.  48). 


Ill]  THE   PROBLEM   OF   THE    EMPIRE  341 

And  if  the  inferior  king  refused  to  recognise  a  supreme 
universal  Emperor,  there  was  still  no  escape.  The  Papal 
claims  came  out  from  the  cover  of  the  Empire.  The 
kings,  as  all  other  Christians,  were  subject  immediately 
bo  the  Pope,  the  one  head,  temporally  and  spiritually, 
'  of  the  body  of  the  Church  or  congregation  of  the 
faithful."  Let  us  now  turn  from  the  Papalists  to  their 
French  adversaries. 

We  have  already  remarked  upon  the  attempt  made 
by  Charles  of  Anjou  to  procure  the  nomination  by 
Pope  Gregory  X  of  his  nephew,  Philip  III  of  France, 
bo  the  Empire.  This  attempt  was  not  an  isolated 
ambitious  scheme  of  Charles  of  Anjou,  but  must  be 
baken  in  connection  with  the  political  problems,  which 
bhe  defeated  Hohenstaufen  had  bequeathed  to  Europe. 
Those  problems  were  still  to  be  solved.  Consequently, 
bhere  is  nothing  surprising  in  the  fact  that  the  attempt 
bo  procure  a  French  Emperor  should  reappear  under 
Philip  the  Fair.  There  is,  indeed,  this  important  dif- 
ference. Charles  of  Anjou  wished  Gregory  X  to  exercise 
bhe  right  of  effecting  a  new  "  translatio  imperii,"  which 
right,  we  have  seen,  the  Papacy  actually  claimed.  Philip 
bhe  Fair  attempted  to  work  directly  upon  the  electors, 
in  spite  of  the  fact  that  the  Papacy  was  already  in  its 
French  exile.  Again,  Charles  of  Anjou  wished  the 
Deigning  king  of  France  to  become  Emperor;  Philip 
jhe  Fair  tried  to  procure  the  election  of  his  brother, 
Charles  of  Valois,  and  at  the  time  had  little  reason 
-jo  think  that  the  Valois  would  so  soon  succeed  to  the 
French  crown.  These  differences,  however,  noteworthy 
is  they  are,  need  not  detain  us.  We  have  only  to 
lotice  the  definite  existence  of  these  French  pretentions 


342  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

to  the  Empire,  and  to  see  that  they  were  not  the  effect 
of  a  spasmodic  policy  of  ambition.  They  were  claims 
based  upon  a  supposed  right  to  the  Empire.  The  French 
kings  claimed  to  represent  the  royal  line  of  Charlemagne; 
the  "  French  "  were  the  descendants  of  his  Franks.  We 
see,  then,  that  France,  as  well  as  the  Papacy,  has  "  Im- 
perial "  claims1,  and  we  need  only  point  to  Dubois  to 
show  that  the  French  political  literature  has  its  aggres- 
sive, as  well  as  its  defensive,  side.  Dubois  repeats  the 
same  projects  time  after  time,  and  in  all  of  them  the 
central  point  is  the  domination  of  Europe  by  France, 
and  the  consequent  acquisition  of  the  Empire  by  the 
French  king2.  Whether  Dubois  was  really  in  the  king's 
confidence  has  been  doubted ;  but  whether  he  was,  or 
.not,  his  works  are  equally  valuable  as  illustrating  the 
aggressive  side  of  French  policy. 

It  is  however  the  defensive,  not  the  aggressive,  side 
of  the  French  position  that  chiefly  concerns  us.    "  Vult 

1  Bodin  in  the  sixteenth  century  still  makes  these  claims. 

2  The  best  known  of  the  works  of  Dubois  is  the  "  De  Recuperatione," 
published  by  Langlois  in  Textes  pour  servir  a  r etude... de  Vliistoire. 
But  it  is  a  great  pity  that  the  earlier  ' '  De  Abbreviatione ' '  has  not  as 
yet  been  printed,  though  there  is  a  long  abstract  of  it  (in  French)  in 
Memoires  de  Vlnstitut  de  France  (Academie  des  Inscriptions  et  Belles 
Lettres,  vol.  xvm.  Part  2)  by  de  Wailly.     It  would  be  very  interesting 
to  have  Dubois'  schemes  in  their  earliest  form— for  the  "  De  Abbrevia- 
tione" dates  from  1300.     For  our  purpose  the  little  tract  printed  by 
Boutaric,   in  Notices  et  Extraits  des   Manuscrits,    vol.    xx.    Part  2, 
pp.  186-9,  is  very  important.     Two  little  pieces  ascribed  to  Dubois, 
the  "  Deliberatio  "   (in  Dupuy,  p.  44)  and  the  "  Supplicatio  "  (Ibid. 
p.  215),  will  also  illustrate  the  defensive  side  of  the  French  political 
literature.     But  that  side  we  are  about  to  consider  at  length,  as  it 
appears   in  more  important  treatises,   two  of  which  have  also  been 
ascribed  by  some  to  Dubois  himself — the  Quaestio  de  Potestate  Papai1 
and  the  Dialogus  inter  Clericum  et  Militem.  To  me  it  seems  that  in  both 
hese  cases  the  style  is  utterly  unlike  the  very  distinctive  style  of  Dubois. 


II]  THE    PROBLEM   OF   THE   EMPIRE  343 

sibi  mundi  monarchiam  vendicare  ? "  asks  a  note,  evi- 
dently by  a  Frenchman,  appended  to  the  manuscript, 
from  which  the  anonymous  treatise  on  the  Bull  Clericis 
Laicos  has  been  printed1.  The  Empire  of  the  world2 
— that  is  what  the  Papal  claims  amounted  to.  The 
3laim  might  be  made  by  the  Pope  as  Pope,  or  by  the  Pope 
is  "  verus  imperator,"  or  by  the  Pope  on  behalf  of  the 
temporal  Emperor,  as  a  power  set  up  by,  and  dependent 
3n,  the  Papacy,  and  who,  in  the  particular  circumstances 
of  the  time,  had  been  willing  to  accept  that  position. 
The  first  object  of  the  French  politician,  whether 
practical  or  theoretical,  must  be  to  deny  the  subjection 
Df  France  to  any  such  "  mundi  monarchia  " — whether 
the  Pope's  or  the  Emperor's3. 

The  Papal  claims  to  a  supremacy,  even  "  in  tempo- 
ralibus,"  over  the  French  kingdom,  were  most  easily 
met  when  based  on  the  Donation  of  Constantine. 
John  of  Paris  discusses  the  Donation  at  length,  and 
maintains  that  neither  the  Donation  nor  the  "  translatio 
imperii "  can  give  the  Pope  any  ground  for  claiming 

1  The  Note  is  printed  by  Scholz  at  the  end  of  the  treatise;  op.  cit., 
Anhang,  p.  484. 

2  Vide  the  following  passage  from  the  anonymous  treatise  itself : 
"  Christus...mundum  relicturus,  ad  instar  prudentis  patris  familias, 
qui  peregre  profecturus  ad  partes  longinquas  procuratorem  seu  vicarium 
loco  sui  dimittit,  voluit  dimittere  loco  sui  vicarium,  scilicet  beatum 
Petrum  et  quemlibet  ejus  successorem,  qui  in  omnibus,  quae  optima 
erant  ad  universale  mundi  regimen,  haberet  plenitudinem  potestatis, 
alias  non  reputaretur  pater  familias"  (p.  474). 

3  As  illustrating  the  defensive  side  of  the  French  position  we  shall 
consider  above  all  the  work  of  John  of  Paris,  De  Potestate  Eegia  et 
Papali.     Besides  this  we  shall  refer  to  three  anonymous  works — the 
Quaestio  de  Potestate  Papae,  the  Qaaestio  in  Utramque  Partem,  and  the 
Dialogus  inter  Militem  et  Clericum. 


344  THE    PROBLEM    OF   THE    EMPIRE  [CH. 

a  supremacy  over  the  king  of  France1.  The  Donation 
only  gave  a  "  certam  provinciam " — Italy  and  some 
other  lands — but  not  France;  it  did  not  include  the 
Empire,  for  that  Constantine  transferred  to  New 
Rome  and  the  Greeks.  So  the  "  translatio,"  whether 
it  was  merely  a  nominal  transference,  which  left  the 
Empire  "  secundum  rem  "  with  the  Greeks,  or  whether 
it  was  rather  a  division  of  the  Empire,  cannot  give  the 
Pope  any  ground  to  claim  supremacy,  over  France, 
since  the  fact  that  there  still  remained  Emperors-  at 
Constantinople  after  the  "  translatio  "  proves  that  it  did 
not  include  the  whole  Empire3;  and  later  he  shows 

1  Vide  the  whole  of  chap.  xxn.  pp.  139-41,  of  his  "De  Potestate 
Regia  et  Papali"  (in  Goldast,  Monarchia  S.  Romani  Imperii,  vol.  n. 
pp.  108-47) ;  and  cf .  chap.  xvi.  p.  130.     It  is  worthy  of  note  that 
earlier  in  the  treatise,  chap.  x.  p.  120,  John  of  Paris  remarks  on  a 
difficulty,  which  we  have  seen  the  Papalists  had  actually  to  face, 
namely  that  the  acceptance  of  temporal  power  from  a  human  donation 
was  out  of  harmony  with  the  Papal  claim  to  both  swords,  as  repre- 
sentative of  Christ's  kingly  and  priestly  power.     None  the  less,  he 
points  out,  the  Canon  Law,  in  including  the  Donation,  clearly  regards 
it  as  a  "donatio,"  not  as  a  "redditio" — "Mirum  etiam  videtur,  quod 
Constantinus  Imperator  dedisse  dicitur  imperium  Italicum  ecclesiae 
et  totam  jurisdictionem  temporalem,  et  quod  ecclesia  illud  tamquam 
datum,  si  hoc  habuit,  de  jure  recepit.     Tune  enim  non  fuisset  facta 
beato  Silvestro  donatio :  sed   redditio   ejus   quod   suum  erat,  cujus 
contrarium  sentit  ecclesia  distinct.  96  Constantinus." 

2  Cf.  on  the  other  hand  Radulf  de  Colonna,  "De  Transl.  Imp." 
(in  Goldast,  op.  cit.,  vol.  n.),  chap.  x.  p.  95:  "Nee  est  imperium  jam 
modo  apud  Graecos,  licet  largo  vocabulo  imperator  vocatur  etc." 

3  He  has  already,  but  more  briefly,  discussed  the  Donation  and 
"translatio"  in  chap.  xvi.  (p.  130).     As  to  the  Pope  having  translated 
the  Empire,   he  refers  us  back  to  his  argument   on   the   supposed 
deposition  by  Pope  Zachary  of  Childeric.     There  he  argues  that  "  non 
oportet  ex  talibus  factis  singularibus,  quae  variis  causis  fieri  possunt, 
argumenta  juris  sumere."     He  points  out,  in  a  most  interesting  line 
of  argument,  certain  exceptional  cases  in  which  the  Emperors  have 
interfered,  often  at  the  request  of  the  Church,  in  purely  spiritual  or 


II]  THE   PROBLEM   OF   THE   EMPIRE  345 

hat  the  French  were  never  subject  to  the  Empire. 
But  the  Donation  can  be  proved  invalid  for  reasons 
riven  by  the  Gloss,  which  maintains  the  illegality  of 
icts  of  the  Emperor  tending  to  diminish  his  Empire 
r  to  bind  his  successors.  Then  John  of  Paris  goes  on 
o  argue  that,  even  supposing  the  Donation  were  valid 
nd  had  included  the  whole  Empire,  even  so  the  Pope 
vould  have  no  supremacy  over  France.  The  Gallici 
vere,  indeed,  subject  to  the  Empire  in  the  time  of 
Augustus,  but  the  Franci,  who  were  related  to  the 
Trojans,  never.  They  were  always  very  hostile  to  the 
Ionian  Empire,  and,  refusing  to  pay  tribute,  were 
xpelled  from  their  homes  in  Pannonia.  Thence  they 
ame  to  the  banks  of  the  Rhine,  and  the  Emperor 
ralentinian,  being  unable  to  defeat  them,  named  them 
ranci,  "  id  est  feroces."  They  conquered  all  Germany 
nd.  Gaul  as  far  as  the  Pyrenees — "  Galliam  habitantes, 


cclesiastical  matters,  and  then  turns  to  his  Papalist  opponents  and 
}sks  them  if  they  wish  to  draw  a  general  conclusion  from  these  single 
Lota — "Ex  quo  posset  modo  consimili  sumi  argumentum,  quod  ad 
pperatorem  pertinet  primatum  ecclesiae  transferre  et  de  ecclesiis 
|rdinare....Numquid  ergo  propter  hoc  ad  principem  pertinet  interesse 
ionsiliis  episcoporum  et  dissensiones  et  causas  eorum  modo  consimili 
'eterminare,  an  non?...Numquid  dicimus  propter  talia,  quod  ecclesia 
jiomana  habeat  ab  imperatoribus  primatum  ecclesiarum?...Legitur 
|tiam,  quod  tempore  Henrici  imperatoris  Romani  juraverunt  non  se 
|apam  electuros  sine  imperatoris  assensu.  Est  igitur  hoc  observan- 
um  ?  etc."  (vide  chap.  xv.  p.  129).  So  with  the  "  translatio" — it  was 
in  exceptional  fact.  Then  he  offers  other  explanations — "  non  trans- 
jilit  veritatem,  sed  nomen,"  "non  fuit  factum  per  solum  papam," 
(tc.  "  Quicquid  autem  de  hoc  factum  sit,"  he  concludes,  "papa  non 
Irdinavit,  nisi  de  eo  quod  sibi  a  Constantino  collatum  fuerat,  quod 
ioncedo  fieri  posse  de  jure," — and  the  Donation,  he  has  suggested, 
night  have  included  the  city,  certain  western  provinces  and  the 
signa  imperialia,"  but  not  the  Imperium. 


346  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

eamque  Franciam  nominantes,  nullis  Romanis  nee  aliis 
quibuscumque  subject!." 

But  supposing  the  Franks  had  been  subject  to  the 
Empire,  the  Pope  does  not  gain  thereby,  since  he  is 
not  Emperor1.  Or  supposing  he  were,  the  Franks  would 
by  now  have  prescribed  their  independence.  It  is  said 
that  prescription  does  not  run  against  the  Roman  Em- 
pire— but  why  not  ?  There  were  "  regna  et  imperia  " 
before  the  Roman  Empire — Babylon,  Carthage  and 
Greece,  all  of  which  were  "  aeque  a  Deo  sicut  imperium 
Romanorum."  Never,  indeed,  has  the  world  been  less 
in  peace  than  under  the  Roman  Emperors.  "  Horribilia 
scelera  per  mundum  currebant  et  dissensiones  per- 
maximae."  And  if  the  Romans  could  prescribe  against 
the  Greeks,  why  should  not  others  prescribe  against 
the  Roman  Empire2  ?  If  it  be  said  that  God  willed 
all  other  Empires  to  cease  in  face  of  the  Roman 
Empire,  why  should  it  not  be  said  that  now  God  wills 

1  p.  140  he  says:  "Et  ideo  yolunt  aliqui  quod  rations  hujus  doni 
pontifex  imperator  est  et  dominus  mundi,  et  quod  potest  reges  con- 
stituere  et  destituere,  sicut  imperator  et  praecipue  imperio  vacante." 
But  this  is  of  course  not  allowed.     "Ex  dicta  donatione,  data  quod 
valuerit  et  toto  imperio  facta  fuerit,  et  dato  quod  Franci  tune  fuissent 
imperio  subjecti,   quod  non  dicimus,  adhuc  papa  nihil  potest  super 
regnum  Franciae,  cum  non  sit  imperator..."  (p.  141). 

2  Vide   p.   141:    "Mirum  etiam   si  praescribi   non  possit  contra 
imperium  Romanorum,  ut  dicunt  illi,  cum  ante  regnum  Romanorum 
fuerunt  regna  et  imperia,  scilicet  Babyloniorum,  quod  incepit  a  Nino, 
tempore  Abrahae :  Carthaginense,  tempore  Judith  :  Macedonum  sive 
Graecorum  ab  Alexandro  tempore  Machabaeorum :  et  quodlibet  prae- 
dictum  est  aeque  a  Deo,  sicut  imperium  Romanorum.     Si  igitur,  non 
obstante  quod  Graeci  habuerunt  imperium  a  Deo,  Romani  praescribunt 
et  praescripserunt  contra   Graecos  et  usurpare  tentaverunt  Graecos 
expellendo :  quare  non  possunt  alii  homines  praescribere  contra  im- 
perium Romanorum,  etiam  eorum  dominium  a  se  abjiciendo :  praecipue 
cum  eis  se  non  subjecerunt  voluntarie,  sed  violentia  Romanorum?" 


Il]  THE   PROBLEM   OF   THE    EMPIRE  347 

he  Roman  Empire  itself  to  cease  ?      Scripture  is  wit- 
ness to  this1. 

Similarly  the  author  of  the  Quaestio  de  Potestate 
Papae  disposes  of  the  Donation2.  It  only  gave  the 
Pope  temporal  jurisdiction  over  those  who  are  "de 
tlomano  imperio."  The  Eastern  Empire  Constantine 
did  not  give;  and  this  proves  that  the  Pope  is  not 
'dominus  temporalis  omnium  Christianorum,"  since 
:here  were  many  Christians  in  Constantinople,  both 
Before  and  after  the  Donation — witness  the  founda- 
tion of  many  churches,  and  especially  of  S.  Sophia, 
)y  Constantine.  "Ergo  ratione  illius  donationis  non 
x>test  dici  dominus  temporalis  omnium  Christianorum, 
sed  saltern  illorum  Christianorum,  qui  sunt  de  Romano 
mperio.  Quantum  ergo  ad  ilia  regna,  quae  non  sub- 
sunt  Romano  imperio,  non  est  papa  dominus  superior 

1  p.  141 :  "Si  vero  aliquis  dicat  quod  Deo  ordinante  cessare  debuit 
mperium  aliorum,  et  crescere  debuit  imperium  Eomanorum;  quare 
non  sic  potest  dici  de  Eomano  imperio,  quod  cessare  debeat  Deo 
rdinante,  ut  illi  qui  ante  Romanis  qualitercumque  fuerunt  subjecti, 
amplius  non  debeant  subjici,  si  discedere  velint  et  possint?  Imo 
expressius  videtur  haberi  in  Scriptura,  de  imperio  Romanorum,  quod 
deficere  voluerit,  quam  de  alio....Similiter  in  Danielem,  ubi  agitur  de 
magine  quadriforma,  percussa  in  pedibus,  dicit  glossa,  quod  regno 
Romanorum  nihil  fortius  fuit  et  nihil  in  fine  debilius  aut  fragilius 
erit."  (These  words  come,  of  course,  from  Jerome's  Comment,  on 
Daniel.}  Even  an  Imperialist  like  Engelbert  of  Admont,  De  ortu  et 
fine,  etc.,  chap.  xx.  p.  770,  declines  to  believe  those  who  "divinatores 
|magis  quam  veri  prophetae,  adulando  Romanis  imperatoribus  et 
|  imperio  asserere  ausi  fuerint,  quod  Romanum  imperium  esset  aeter- 
mum  ex  eo,  quod  bene  vel  male,  et  nunc  cum  augmento,  nunc  vero 
cum  diminutione  et  detrimento,  longiori  tempore  duraverit  quam  alia 
regna  mundi,  ut  Assyriorum  et  Medorum  et  Graecorum  regnum." 
None  the  less,  according  to  Engelbert,  when  it  does  cease,  Antichrist 
will  come— so  that  it  is  to  last  until  the  end  of  the  world  is  imminent. 
a  "Quaestio  de  Pot.  Papae,"  pp.  675-6  (in  Dupuy,  Histoire  du 
differend,  etc.,  pp.  663-83). 


348  THE   PROBLEM   OF   THE    EMPIRE  [CH. 

in  temporalibus1."  The  kingdom  of  France  is  not 
under  the  Empire  and  has  never  been  within  the 
memory  of  man.  Therefore  the  Pope  is  not  superior  "  in 
temporalibus,"  but  only  "  in  spiritualibus  " — as  regards 
the  latter,  in  France  as  elsewhere.  If,  however,  it  be 
said  that  France  is  subject  to  the  Empire  de  jure, 
whatever  may  be  the  case  de  facto,  our  author  answers 
by  insisting,  like  John  of  Paris,  on  prescription2.  The 
French  kings  have  been  in  peaceful  possession  of  their 
kingdom,  owning  no  temporal  superior,  but  God — 
neither  Pope  nor  Emperor — for  much  more  than  a 
hundred  years.  The  kings  of  France  have  always  been 
devoted  and  loyal  to  the  Church,  and  it  is  not  con- 
ceivable that  S.  Lewis,  had  he  not  rightly  possessed 
the  independence  which  he  claimed,  would  have  been 
canonised  by  the  Church  and  proved  his  sanctity  by  so 
many  miracles3. 

The  author  of  the  Quaestio  in   Utramque  Partem4 

1  He  continues:  "Eegnum  autem  Franciae  non  subest  Romano 
imperio:  immo  sunt  certi  limites,  et  fuerunt  a  tenipore,  ex  quo  non 
extat  memoria,  per  quos  regnum  et  imperium  dividuntur.    Ergo  Papa 
in  regno  Franciae  non  est  dominus  nee  superior  in  temporalibus,  sed 
tantum  in  spiritualibus,  sicut  et  ubique  terrarum." 

2  "  Si  vero  diceret  aliquis,  regem  et  regnum  Franciae  subesse  in 
temporalibus  Romano  imperio  de  jure,  et  per  consequens  etiam  papae, 
quamvis  de  facto   fuerit   aliud   observaturn ;    contra   hoc   opponitur. 
Nam   per    praescriptionem    legitimam    jus   acquiritur   praescribenti. 
Nulla  autem  praescriptio  magis  est   legitima,  quantum   ad   cursum 
temporis   quam   centenaria;    unde   et   ipsa   currit   contra   Romanam 
ecclesiam.     Reges  autem  Franciae  longe  plus  quam  a  centum  annis 
sunt  in  possessione  pacifica,  quod  solum  Deum  superiorem  habent  in 
temporalibus,  nullum  alium  recognoscentes  superiorem  in  istis,  nee 
imperatorem  nee  papam,  etc." 

3  Cf.  John  of  Paris,  chap.  xxn.   p.   141,    Qnuextio   in    Utrdinqiie 
Partem,  art.  v.  p.  102. 

4  "Quaestio  in  Utramque  Partem,"  art.  v.  pp.  105-6  (in  Goldast, 
Monarchia,  vol.  n.  pp.  96-107). 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  349 

begins  by  referring  to  the  decretal  Fandamenta  Ec- 
clesiae  of  Nicholas  III1,  which  we  have  mentioned 
above,  and  which  was  mainly  concerned,  in  its  mention 
of  the  Donation,  with  justifying  the  Pope's  temporal 
power  over  Rome  itself:  this  he  is  willing  to  concede2. 
Turning,  however,  to  the  Donation  itself,  as  it  appears 
in  Gratian's  Decretum,  he  maintains  its  invalidity,  as 
did  John  of  Paris,  on  the  authority  of  the  "juristae3." 

1  In  quoting  from  the  decretal  he  says  ' '  dicit  Bonifacius  Papa. ' ' 
The  decretal  appeared  in  the  Sext ,  published  by  Boniface  VIII  in  1298. 

2  His  argument  is  interesting  and  worth  quoting  as  showing,  in 
connection  with  the  passage  from  John  of  Paris  (quoted  above,  p.  344, 
note  1),  that  the  French  Apologists  are  quite  aware  of  the  weak  point 
in  the  Donation  of  Constantine  as  the  basis  of  papal  claims.     After 
quoting  from  the  decretal,  he  continues:   "Eesponsio:  si  ex  institu- 
tione   divina    papa   dicit   se   esse   dominum    omnium    temporalium, 
necessitas  est  dicere  quod  ex   donatione   Constantini   sit   monarcha 
utriusque  potestatis  in  urbe.     Si  dicat  quod  hanc  monarchiam  Con- 
stantinus  declaravit,  et  inde  caute  dictum  est  '  declararet '  (i.e.  in  the 
decretal,  vide  above,  p.  329,  n.  2),  respondeo,  quod  ex  constitutione  divina 
monarchia  totius  mundi,  quantum  ad  utramque  potestatem,  non  fuit 
concessa  Petro,  nee  successoribus  ejus,  sicut  est  superius  declaratum. 
Sed  ex  dono  Constantini  posset  ibi  esse  monarchia,  sic  intelligendo : 
quod  cum  papa  spiritualem  potestatem  haberet  in  urbe  et  orbe,  Con- 
stantinus  ipse  temporalem  illam  potestatem,  quam  habebat  in  urbe, 
transtulit  in  papam,  ut  in  ipsa  urbe  utraque  potestas  (quae  in  duabus 
personis  erat)  esset  in  solo  papa,  sicut  dicimus  quod  aliquis  episcopus 
est  dominus  temporalis  et  spiritualis  in  sua  civitate  et  sic  est  ibi 
monarcha  utrumque  obtinens  principatum.    Sic  ergo  concedimus  quod 
papa  habet  monarchiam  utriusque  potestatis  in  urbe,  non  tamen  in 
orbe." 

3  "De  ista   donatione   Constantini    dicunt   juristae   communiter, 
quod  non  valuit  multiplici  ratione."     The  reasons  given  are :  (1)  The 
Emperor  being  "semper  Augustus  "  must  increase  (augere)  the  Empire, 
not  diminish   it.      Further  the  Donation  was   excessive.      (2)    The 
Emperor  is  "administrator  imperii  et  reipublicae,  ut  dicunt  jura." 
(3)  He  cannot  prejudice  his  successors.     (4)  If  it  were  valid,  others  of 
his  successors  might  imitate  him,  and  thus  in  the  end  the  Empire 
"detruncaretur."      Further  he   adds— "Dico  quod  si  dicta  donatio 


350  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

Further  he  maintains  that  it  could  not  apply  to  the 
Franks,  who  were  not  subject  to  the  Empire  ;  or,  sup- 
posing that  they  were  subject — "quod  non  concedimus" 
— they  would  have  prescribed  their  independence.  On 
both  of  these  points1  he  refers  us  to  discussions  earlier 
in  the  treatise,  where  the  arguments  used  do  not  call 
for  special  notice  after  our  examination  of  John  of  Paris 
and  the  Quaestio  de  Potestate  Papae. 

It  is  evident  that  these  Frenchmen  were  very  con- 
cerned to  prove  France's  absolute  independence  of 
the  Empire,  They  had  no  thought  of  denying  the 
universal  spiritual  supremacy  of  the  Pope :  what  they 
denied  was  that  there  is  any  universal  sovereign  "  in 
temporalibus  " — be  he  Pope  or  be  he  Emperor. 

We  have  earlier  in  this  chapter  examined  the  entry 
into  political  thought  of  a  material,  which  had  come 
into  existence  long  before  the  Roman  world-monarchy 
was  dreamed  of;  even  the  great  Empire  of  Alexander 
had  found  no  place  in  the  political  thought  of  his 
teacher.  Aristotle  knew  of  no  State  above  the  TroXtv, 
and,  consequently,  to  the  medieval  Aristotelians  the 
State,  as  we  have  seen,  was  primarily  the  Civitas  or 
Regnum,  not  the  Imperium,  though  subsequently  they 
might  evolve  a  theory  of  the  Imperium,  as  the  finally 
most  perfect  community.  Thus  these  Frenchmen  could 
start  from  the  Regnum  as  the  "  State  " — John  of  Paris 
points  out  expressly  that  Aristotle  holds  the  "  genera- 
tionem  regni  esse  naturalem  in  singulis  civitatibus 
vel  regionibus,  non  autem  imperii  vel  monarchiae2." 

valuerit,  tamen  ecclesia  non  fuit  in  possessione,  nisi  illius  portionis 
terrae,  quae  dicitur  patrimonium  B.  Petri." 

1  Vide  art.  v.  ad  init.,  p.  102.  2  Vide  chap.  HI.  p.  112. 


Ill] 


THE   PROBLEM   OF   THE   EMPIRE 


351 


Accordingly,  John  of  Paris  having  denned  the 
Regnum  as  the  "regimen  multitudinis  perfectae,  ad 
commune  bonum  ordinatum  ab  uno1,"  and  the  Sacer- 
dotium  as  the  "  spiritualis  potestas  ecclesiae,  ministris 
ecclesiae  a  Christo  collata,  ad  dispensandum  fidelibus 
sacramenta2,"  insists  on  the  necessity  of  unity  "in 
spiritualibus":  this  unity  is  found  in  the  Pope3.  But 
the  unity,  which  in  spiritual  matters  is  ordained  "ex 
divino  statute,"  is  not  equally  necessary  for  the  "  fideles 
laici."  By  natural  instinct  men  are  inclined  to  diversity. 
A  "  suprema  hierarchia  in  temporalibus "  is  derived 
neither  from  natural  instinct  nor  from  Divine  Law. 
All  the  faithful  form  the  one  body  of  the  catholic 
faith,  outside  of  which  there  is  no  salvation,  but  there 
is  no  necessity  for  them  to  be  united  "in  aliqua  re- 
publica  communi."  Climate  and  natural  conditions 
produce  various  forms  of  polity — "  quod  est  virtuosum 
in  una  gente  non  est  virtuosum  in  alia4."  A  supreme 
temporal  head  is  not  necessary  and  is  neither  "  de  jure 
naturali  "  nor  "de  jure  divino."  Aristotle  knew  of  no 


1  Vide  chap.  i.  p.  109. 

2  Vide  chap.  n.  p.  111. 

4 


3  Vide  chap.  m.  pp.  111-2. 

p.  112.  He  continues:  "Non  est  ergo  sic  necesse  mundum  regi 
per  unum  in  temporalibus,  sicut  necesse  est  quod  regatur  per  unum  in 
spiritualibus,  nee  ita  trahitur  a  jure  naturali  vel  divino.  Unde  Philoso- 
phus  in  Politicis  dicit  etc .  (vide  above ,  p .  350) ....  Augustinus  etiam,  quarto 
De  Civitate  Dei,  dicit  quod  melius  et  magis  pacifice  regebatur  respublica, 
cum  uniuscuj usque,  vel  unumquodque  regimen  suae  patriae  terminis 
finiebatur.  Et  ibidem  etiam  dicit  quod  causa  destructions  imperil 
Eomani  fuit  ambitio  propria  dominandi  vel  provocans  alienas  injurias. 
Et  sic  non  ita  trahitur  a  jure  naturali,  quod  in  temporalibus  sit  unus 
monarcha,  sicut  in  spiritualibus,  nee  huic  obviat  quod  7  quaest.  1  in 
apibus,  ubi  dicitur  quod  unus  debet  praeesse  et  non  plures :  quia  ibi 
loquitur  de  re  una,  ubi  non  expedit  plures  ex  indistincto  dominari: 
sicut  ostendit  de  Remo  et  Romulo,  qui  simul  et  ex  indistincto  domina- 
bantur:  et  ideo  unus  in  alium  fratricidium  commisit." 


352  THE   PROBLEM   OF    THE    EMPIRE  [CH. 

Imperium.  Augustine  shows  that  it  was  Rome's 
"  ambitio  propria  dominandi "  which  was  the  cause 
of  its  ruin.  And  the  famous  Cap.  In  apibus,  in 
Gratian's  Decretum,  which  was  so  often  appealed  to 
as  proving  the  necessity  of  unity,  is  explained  as 
proving,  not  the  necessity  of  unity  in  the  whole 
world  under  its  one  universal  temporal  head,  but 
the  necessity  of  unity  in  each  particular  kingdom1. 

Our  author's  interpretation  of  the  Cap.  In  apibus'2 
is  especially  interesting.  He  is  not  arguing  against 
unity,  but  he  wishes  to  prove  that  the  necessary  unity 
"in  temporalibus "  is,  not  unity  under  one  single 
universal  head,  but  the  unity  of  particular  kingdoms. 
He  has  no  intention  of  throwing  doubt  on  the  necessity 
of  unity  in  the  kingdom.  On  the  contrary,  by  passing 
over  the  "  imperator  unus  "  and  laying  stress  upon  the 
"judex  unius  provinciae"  and  the  two  kings  Romulus 
and  Remus,  he  proves  that  one  temporal  head  is  a 
necessity  in  the  kingdom.  Only  it  proves  nothing 
else — "ibi  loquitur  de  re  una." 

]  Cf.  Quaestio  de  Pot.  Papae,  p.  678:  "Quando  ergo  dicitur, 
ecclesiastica  hierarchia  exemplata  est  ad  similitudinem  hierarchiae 
caelestis,  dico  quod  verum  est  in  spiritualibus ;  sed  in  nullo  exemplatio 
ista  trahenda  ad  temporalia  vel  corporalia :  et  concede  quod  sicut  in 
caelesti  hierarchia  est  unus  qui  praeest  omnibus  spiritibus,  ita  in 
ecclesia  est  unus  qui  praeest  omnibus  animalus  (sic),  quantum  ad  ea, 
quae  pertinent  ad  spiritum  et  spiritualitatem,  sed  non  quantum  ad 
ea,  quae  pertinent  ad  temporalitatem."  Cf.  Quaest.  in  Utramque 
Partem,  p.  102. 

Which  runs  :  "In  apibus  princeps  unus  est ;  grues  unam  se- 
cuntur  in  ordine  literate;  imperator  unus,  judex  unius  provinciae. 
Koma  condita  duos  fratres  simul  habere  reges  non  potuit  et  fratricidio 
dedicatur.  In  Rebeccae  utero  Esau  et  Jacob  bella  gesserunt ;  singuli 
ecclesiarum  episcopi,  singuli  archiepiscopi,  singuli  archidiaconi,  et 
omnis  ordo  ecclesiasticus  suis  rectoribus  nititur." 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  353 

Sometimes  we  find  arguments  intending  to  prove 
that,  even  if  the  dependence  of  the  Emperor  on  the 
Papacy  be  conceded,  no  analogy  can  be  drawn  from  this 
with  regard  to  France.  The  Quaestio  de  Potestate  Papae 
offers  a  good  example  of  this.  Among  the  Papalist  argu- 
ments, which  the  author  brings  forward  to  be  refuted, 
it  is  urged  that,  since  the  Pope  confirms  the  Emperor, 
therefore  the  Pope  is  the  Emperor's  temporal  superior, 
and  consequently  the  superior  of  any  other  Christian1. 
Later  on  this  argument  is  answered  as  follows2 :  the 
Pope  can  no  more  claim  superiority  over  the  Emperor 
on  the  ground  of  confirmation  and  coronation,  than 
can  the  Cardinal  of  Ostia  over  the  Pope  himself,  on  the 
ground  of  consecrating  the  Pope.  This,  however,  is 
given  on  the  authority  of  a  "dicunt  aliqui."  Our 
author  himself  is  quite  willing  to  waive  the  question 
of  the  Pope's  supremacy  over  the  Emperor,  and  merely 
to  argue  that  the  conclusion  from  this  premiss  of  a 

1  p.    666:    "Item  non  confirmatur  quis,   nisi  a  superior!.... Secf 
imperator  confirmatur  per  papam  in  jurisdictione  imperiali,  quae  est, 
temporalis....Ergo  papa  est  superior  imperatore,  et  etiam  in  temporali- 
bus;  et  consequenter  quolibet  alio  Christiano." 

2  pp.    681-2:    "Ubi  dicitur  de  confirmatione    imperatorum    per 
papam,    dicunt   aliqui,    quod    sicut    cardinalis    Hostiensis    consecrat 
papam,    et  tamen  post  consecrationem  nullam  jurisdictionem  spiri- 
tualem  habet  super  ipsum  papam :  ita  papa  confirmat  imperatorem  et 
etiam  coronat ;  et  tamen  post  confirmationem  et  coronationem  nullam 
jurisdictionem  temporalem  super  ipsum  habet.     Ego  dico,  quod  quic- 
quid  sit  de  imperatore,  nunquam  tamen  super  regern  Franciae  habet 
papa,  vel  habuit,  aliquam  temporalem  jurisdictionem.     Et  hoc,  quia 
idem  rex  habet  regnum,  non  per  electionem,  sed  per  successionem, 
nee  unquam  a  papa  recepit  confirmationem  vel  coronationem.     Unde 
patet  quod  non  bene  concluditur,  quando  dicitur :  papa  est  superior  in 
temporalibus   imperatore;   ergo   quolibet   Christiano.      Quia  aliquae 
causae  sunt  in  imperatore,  quae  non  inveniuntur  in  aliquibus  regibus, 
sicut  in  regibus  Franciae  et  Hispaniae  etc." 

w.  23 


354  THE  PROBLEM   OF  THE   EMPIRE  [CH. 

supremacy  over  all  other  Christians  does  not  hold  good. 
For  the  French  crown  goes  by  succession,  not  election, 
and  the  French  king  is  neither  confirmed  nor  crowned 
by  the  Pope.  "Aliquae  causae  sunt  in  imperatore 
quare  subditus  sit  papae  in  temporalibus,  quae  non 
inveniuntur  in  aliquibus  regibus,  sicut  in  regibus 
Franciae  et  Hispaniae,  et  fuit  etiam  aliquando  in 
rege  Angliae1."  In  the  same  way  our  author,  who 
denies  that  Childeric  was  deposed  by  the  Pope, 
but  rather  "per  barones2,"  elsewhere  agrees  that 

1  "Videlicet,"  he  goes  on,  "usque  ad  tempus  regis  Joannis,  qui 
dicebatur  Sine  Terra,  sicut  apparet  per  inspectionem  Chronicarum, 
unde  etiam  ilia  decretalis,  Extra.   Qui  filii   sunt  legit.      Causam, 
quae  facta  fuit  ante  tempus  illius  Joannis  regis  Angliae,  sicut  notat 
Hostiensis  in  suo  apparatu  super  eandem  decretalem."     The  decretal 
(Decretal,  iv.  17.  7)  is  of  Alexander  III  (1159-81).     The  Pope  dis- 
tinguishes in  a  case,  committed  by  him  to  the  bishops  of  London 
and  Worcester,  between  the  question  which  belongs  to  the  king's 
court  and   the  question  which   the   bishops   are    to   decide — "Nos 
attendentes,  quod  ad  regem  pertinet,  non  ad  ecclesiam  de  talibus 
possessionibus  judicare,  ne  videamur  juri  et  dignitati  carissimi  in 
Christo  filio  nostri  Henrici  regis,  Anglorum  principis,  detrahere,  qui, 
sicut  accepimus,  motus  est  et  turbatus,  quod  de  possessionibus  scrip- 
simus,  quum  ipsarum  judicium  ad  se  asserit  pertinere,  volumus  et 
...mandamus,  quatenus  regi  possessionum  judicium  relinquentes,  de 
causa  principali,  videlicet  utrum  mater  praedicti  R.  de  legitimo  sit 
matrimonio  nata,  plenius  cognoscatis  etc."     The  decretal  was  con- 
tinually appealed  to  in  order  to  prove  that  the  Pope  had  no  jurisdiction 
"in  temporalibus"  in  England,  as  the  more  famous  decretal  Per 
Venerabilem  (Decretal,  iv.   17.  13)    to  prove   the   same   for   France. 
But  it  was  generally  allowed  that  since  the  time  of  King  John  the 
Pope  was,  even  "in  temporalibus,"  superior  to  the  king  of  England. 
Of.  Quaest.  in  UtramqiM  Partem,  p.  98  (where  the  decretal  is  wrongly 
referred  to  as  "Cap.  Tantum  enim"  instead  of  "Causam"):    "Si 
hoc  dicitur  de  rege  Angliae,  qui  Romanae  ecclesiae  feudalis  est  et 
censualis,  multo  magis  de  rege  Franciae  verum  erit,  qui  in  nullo 
praedictorum  penitus  est  subjectus." 

2  Vide  pp.  663  and  667.     This  explanation  of  the  deposition  of 
Childeric,  as  having  been  properly  "per  barones,"  not  "per  papam," 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  355 

Frederick  II  was  deposed  by  Innocent  IV.  "Dico 
quod  verum  est,  et  de  illo  imperatore  concede  quod 
papa  est  dominus  temporalis,  quoniam  iile  imperator 
fit  per  electionem  et  a  papa  confirmationem  recipit  et 
coronam;  sed  nihil  horum  est  in  rege  Franciae1." 

So  far  these  French  authors  have  denied  the  sub- 
jection of  France  to  a  temporal  superior,  whether  Pope 
or  Emperor,  either  by  appealing  to  history,  or  by 
taking  their  stand  on  the  Aristotelian  Regnum,  as  the 
highest  and  most  perfect  community,  or,  lastly,  by 
maintaining  that  there  is  no  analogy  between  the 
Empire  and  France,  so  that,  granting  the  dependence 
of  the  Empire  on  the  Papacy,  the  dependence  of  France 
does  not  follow.  The  appeal  to  history  was  safe  enough. 
All  sides  in  the  Middle  Ages  appealed  to  history — 
and  the  appeal,  except  in  rare  cases,  was  merely  the 

the  Pope  having  done  no  more  than  consent  to  the  deposition,  is 
general  in  the  anti-papalist  writers.  Cf.  John  of  Paris,  chap.  xv. 
p.  129,  though  he  also  argues  that,  even  if  the  Pope  did  depose 
Childeric,  no  argument  could  be  drawn  from  such  isolated  facts. 
Cf.  also  Quaest.  in  Utramque  Partem,  p.  106.  Eadulf  de  Colonna, 
De  Translatione  Imperil,  chap.  iv.  p.  91,  has  an  interesting  discus- 
sion of  the  question.  He  is  a  Papalist,  but  he  gives  both  versions. 
He  does  not  actually  declare  for  one  or  the  other — but  concludes : 
" Qualitercumque  dicatur...salva  semper  in  omnibus  veritate,  credo 
authoritatem  papae  in  talibus  omnibus  negotiis  praesupponi,  ex  eo 
quod  omnis  potestas  ex  eo  in  hoc  dependet  etc."  In  Marsiglio  of 
Padua's  version  of  Radulf's  treatise  (in  the  same  volume  of  Goldast, 
Monarchia)  the  preference  is  of  course  given  to  the  version,  which 
would  explain  the  Pope's  supposed  action  as  merely  consent  to  the 
deposition,  which  was  actually  carried  out  by  the  Franks  themselves 
— "nam  talis  depositio  regis  et  alterius  institutio  propter  rationabilem 
causam  non  ad  episcopum  tantummodo  neque  ad  clericum  aliquem  aut 
clericorum  collegium  pertinet,  sed  ad  universitatem  civium  inhabitan- 
tium  regionem,  vel  nobilium  vel  ipsorum  valentiorem  multitudinem." 
Vide  chap.  vi.  p.  150. 
1  Vide  p.  678. 

23—2 


356  THE   PROBLEM   OF   THE    EMPIRE  [CH 

arbitrary  selection  of  suitable  facts  and  legends,  oftei 
their  obvious  perversion.  But  the  two  other  lines  o 
argument  were  not  altogether  satisfactory.  They  migh 
say  that  Aristotle  knew  of  no  Empire,  or  they  might  han< 
over  the  Empire  to  the  Papacy — the  truth  is  that  the^ 
themselves  could  not  altogether  do  without  the  Empire 
The  struggle  between  Boniface  and  France  was  th< 
first  great  struggle  between  the  Papacy  and  kingdoms 
and  it  followed  the  previous  struggles  between  th< 
Papacy  and  the  Empire.  Now  neither  side  openec 
this  new  struggle  with  a  completely  new  set  of  argu 
ments.  It  is  true  that,  since  the  last  struggle  betweei 
the  Popes  and  the  Hohenstaufen,  the  new  politica 
theories,  the  basis  of  which  was  Aristotle's  Politics 
had  entered  medieval  thought — and  we  have  seen  th< 
importance  of  this  for  these  Frenchmen.  None  the  lesi 
the  old  struggles  provided  both  parties  in  the  nev 
struggle  with  a  whole  armoury  of  arguments,  eithei 
ready  to  hand,  or  to  be  adapted  to  the  new  politica 
ideas.  But,  then,  the  old  arguments,  so  far  as  they  wen 
favourable  to  the  temporal  power,  were  in  the  mair 
arguments  for  the  Emperor;  therefore,  if  these  French 
authors  were  going  to  adopt  them,  wholly  or  in  part 
this  distinction  between  the  Empire  and  other  king- 
doms could  hardly  be  maintained.  If  the  Papalisi 
arguments  against  the  Empire  were  conceded,  but  helc 
not  applicable  to  France,  why  should  Imperialist  argu- 
ments be  held  valid,  when  favourable  to  France? 

We  have  seen  Boniface  maintain  that  he  did  nol 
deny  the  existence  of  two  powers  ordained  by  God,  and 
we  have  said  that  he  was  begging  the  question.  Oui 
authors  were,  of  course,  quite  ready  to  maintain  that  the 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  357 

temporal  power  was  "  a  Deo1/'  but  the  struggle  was  not 
waged  over  that  question.  It  might  be  denied  occa- 
sionally in  the  course  of  argument,  but  in  general  it 
was  a  postulate  accepted  by  both  sides.  The  real 
question  at  issue  was  whether  the  temporal  power  was 
independent,  that  is  to  say,  whether  the  two  powers 
were  "  distinct  and  separate."  "  Quaestio  est,"  begins 
the  Quaestio  in  Utramque  Partem,  "  utrum  pontificalis 
et  imperialis,  sive  regalis,  sint  duae  potestates  dis- 
tinctae  ad  invicem.  Et  hoc  est  quaerere,  utrum 
summus  pontifex  plenam  jurisdictionem  et  ordinariam 
potestatem  habet  tarn  in  temporalibus,  quam  in  spiritua- 
libus,  ita  quod  omnes  principes  temporales  subsint  ei 
quantum  ad  temporalia2."  Needless  to  say,  the  answer 
of  these  Frenchmen  is  that  the  two  powers  are  distinct 
and  separate,  that  the  Pope  has  not  "plenam  juris- 
dictionem et  ordinariam  potestatem,"  alike  in  the 
temporal  and  spiritual  spheres3.  Now  we  have  seen, 
in  an  earlier  part  of  this  essay,  that  the  doctrine  of  the 

1  Vide  e.g.  John  of  Paris,  chap.  ix.  pp.  117-118:  "Respondetur 
secundum  illud  quod  dicitur  in  Glossa  ubi  dicitur  quod  Christus  quae- 
dam  fecit  ut  imperator,  quaedam  vero  alia  ut  sacerdos :  non  quia  una 
eadem  persona  ilia  duo  exerceat  vel  gerere  debeat :  sed  hoc  ideo  fecit 
ut  ostenderet  quod  utraque  potestas  ab  eo  processit,  ut  scilicet  Deus 
erat.     Haec  enim  duo,  imperium  et  sacerdotium,  ab  uno  sunt."  , 

2  p.  106. 

3  Vide  e.g.  Quaest.  de  Pot.  Papae,  p.  681:  "Nam  et  jurisdictio 
spiritualis,  quam  habet  papa,  et  jurisdictio  temporalis,  quam  habet 
rex  in  regno  suo,  omnino  distinctae  sunt,  et  disjunctae,  ita  quod,  sicut 
rex  non  habet  se  intromittere  de  jurisdictione  spiritual!,  quae  est  penes 
papam,  ita  nee  papa  habet  se  intromittere  de  jurisdictione  temporali, 
quae  residet  penes  regem.     Unde  non  est  inter  istas  duas  jurisdic- 
tiones  mutua  dependentia,  nisi  quantum   ad   mutuam  defensionem, 
quam  sibi  mutuo  tenentur  exhibere,  cum  necesse  fuerit,  prout  ad  unam- 
quamque  pertinet,   ut  bene  valeat  regi  respublica,  tarn  spiritualiter 
quam  corporaliter. " 


358  THE    PROBLEM   OF   THE    EMPIRE  [CH. 

distinction  and  separation  of  the  two  powers  became, 
since  the  Investiture  struggle,  essentially  the  standpoint 
of  the  Imperialists,  as  it  had  been,  before  the  Investiture 
struggle,  of  the  Papalists.  It  was  a  defensive  doctrine, 
and  it  was  the  Imperialists  who,  since  the  Investiture 
struggle,  were  on  the  defensive.  So  were  these  French- 
men. Hence  they  had  to  fall  in  line  with  the  defensive 
standpoint  of  the  Imperialists  in  former  struggles ;  they 
could  afford  neither  to  ignore  the  Empire  nor  to  hand 
it  over  to  the  Papacy.  They  needed  the  old  arguments 
for  the  Emperor:  their  cause  and  the  Emperor's  was 
one — the  cause  of  all  temporal  powers.  Long  ago  the 
Emperor  Frederick  II  had  warned  the  kings  of  Europe 
that  they  must  realise  this1.  That  these  Frenchmen  in 
some  degree,  at  any  rate,  realised  it,  in  spite  of  the 
attitude  which  as  yet  we  have  seen  them  adopting 
towards  the  Empire,  is  sufficiently  shown  by  the 
opening  words  of  the  Quaestio  in  Utramque  Partem— 
the  question  to  be  decided  is  whether  the  Imperial  or 
Royal  power  be  distinct  from  the  Papal. 

And  so,  in  fact,  we  find  John  of  Paris  arguing  quite 
as  often  for  the  Emperor  as  for  the  king  of  France2. 
We  saw  above  that  Henry  of  Cremona — who  did  not 
deny  that  the  Empire  was  mediately  from  God — 
maintained,  in  discussing  the  Donation  of  Constantine, 
that  "si  imperatores  aliquod  jus  habebant,  propter 
peccata  quae  commiserant  occidentes  fideles  in  Christo, 
maxime  summos  pontifices,  divinitus  illo  jure  privati 

1  Vide  Gierke,  Political   Theories  of  the  Middle  Ages,  note  35, 
p.  118. 

2  Chaps,  xi.-xx.  especially,  where  he  is  stating  and  refuting  the 
Papalist  arguments,  illustrate  this. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  359 

fuerunt."  John  of  Paris  considers  this  amongst  the 
other  arguments  of  Henry  of  Cremona,  which  he  re- 
futes. Now  John  of  Paris  himself,  as  we  have  also 
seen,  maintains  that  the  world  was  never  less  in  peace 
than  under  the  Roman  Empire — never  more  crimes 
and  dissensions'.  Hence,  in  answering  Henry  of 
Cremona,  he  cannot  altogether  deny  that  the  Emperors 
were  sinners.  But  he  denies  that  they  all  were;  he 
denies  that,  because  they  were  sinners,  they  could  there- 
fore "de  jure  divino"  be  deprived  of  their  Empire,  for, 
on  Augustine's  authority,  "  regna  et  imperia  vult  Deus 
esse  communia  bonis  et  malis " ;  he  denies  that  the 
Pope  can  lay  claim  to  the  Empire,  because  of  the  sins 
of  its  Emperors;  and  finally  he  denies  that  the  Empire 
is  in  any  sense  a  delegation  from  the  Pope — the 
Emperors  possess  it,  not  by  a  "  privilege "  granted 
"  a  clericis,"  of  which  he  has  never  heard,  "  sed  de  jure 
eis  debetur  imperium  populo  seu  exercitu  faciente...et 
Deo  inspirante,  quia  a  Deo  est2."  This  is  but  one 

1  Vide  chap.  xxn.  p.  141:   "Tempore  imperatorum  nunquam  fuit 
mundus  in  tanta  pace,  quanta  fuit  postea  et  ante :  sed  f rater  fratrem 
et  mater  filium  occidebat  et  converse,  et  cetera  horribilia  scelera  per 
mundum  currebant  et  dissensiones  permaximae  etc." 

2  Vide  chap.  xx.  p.  136:  "Quod  autem  dicitur  de  peccato  impera- 
torum, quod  propter  peccata  eorum  translatum   est  jus  imperii  ad 
papam,  respondeo,  hoc  totum  ridiculosum  est.    Primo  quia,  ut  ostendit 
Augustinus  4  De  Civitate,  regna  et  imperia  vult  Deus  esse  communia 
bonis  et  malis,  felicitatem  non  nisi  bonis,  et  ita  non  est  de  jure  divino, 
quod  imperatores  propter  peccata  sua  jure  imperii  priventur.     Secundo 
quia  non  omnes  imperatores  praedicta  flagitia  commiserunt,  nee  eorum 
peccata  aliis  obf  uisse  debuerunt :  et  praecipue  quia  in  imperio  non  succe- 
dunt  haeredes,  sed  ab  exercitu  vel  populo  rite  eliguntur.    Tertio  etiam 
quia  aliqui  papae  inventi  sunt  flagitiosi  vel  haeretici  et  juste  depositi, 
nee  tamen  malitia  eorum  obfuit  aliis   successoribus  eorum  vere   et 
debite  electis.     Quarto,  quia  dato  quod  imperator  culpa  sua  privetur 


360  THE   PROBLEM   OF   THE    EMPIRE  [CH. 

example  of  the  way  in  which  these  Frenchmen  were 
forced  to  make  the  Emperor's  cause  their  own. 

We  saw  above  that  the  author  of  the  Quaestio 
de  Potestate  Papae  was  quite  willing  to  concede  the 
dependence  of  the  Empire  on  the  Papacy,  maintaining 
that  therefrom  no  argument  for  the  dependence  of 
France  could  be  deduced.  "Aliquae  causae  sunt  in 
imperatore,  quare  subditus  sit  papae,  quae  non  in- 
veniuntur  in  aliquibus  regibus."  Yet  elsewhere  we 
find  him  putting  the  Emperor  and  king  on  a  level, 
as  both  alike  independent,  as  both  the  "  fundamentum 
reipublicae."  The  Pope,  he  says,  may  be  the  head  of 
the  "corpus  ecclesiae,"  but  the  temporal  power  is  the 
heart.  The  heart,  on  S.  Isidore's  authority,  is  "  totius 
corporis  fundamentum."  Aristotle  says  that  the  heart 
is  the  "  principium  "  of  the  veins,  which  carry  blood, 
"sine  quo  non  est  vita,"  to  the  members,  and  further 
that  "in  generatione  corporis  animalis"  the  heart  is 
created  first,  even  before  the  head.  And  therefore  the 
"  dominus  temporalis,  sive  rex  in  regno,  sive  imperator 
in  imperio,  recte  dicitur  fundamentum  propter  solidi- 
tatem  et  firmitatem,  quae  in  ipso  debet  esse,  sine  qua 
respublica  nullomodo  potest  esse  stabilis,  sicut  nee 
aedificium  sine  fundamento1." 

jure  suo,  tamen  nihil  juris  ex  culpa  ejus  papae  in  imperio  accrescit... 
quia  dominatio  sacerdotibus  interdicta  est.  Quinto  quia  falsum  est 
quod  in  fine  argument!  insinuatur,  sc.  quod  imperatoribus  debeatur  ex 
privilegio.  Hoc  enim  privilegium  imperatoribus  datum  a  clericis 
nusquam  audivimus,  sed  de  jure  eis  debebatur  imperium  populo  seu 
exercitu  faciente...et  Deo  inspirante,  quia  a  Deo  est...." 

1  Vide  p.  670:  "  Spiritualiter  vigere  debet  discretio  et  sapientia, 
qua  Christi  fideles,  qui  sunt  membra  ecclesiae,  dirigantur  ad  opera 
salutis.  Unde  ad  ipsum  (i.e.  the  Pope),  sicut  ad  caput,  spectat  om- 
nibus fidelibus  dare  sensum  discretionis.... Spectat  etiam  ad  ipsum  dare 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  361 

The  conception  of  Christendom  as  governed  by 
"two  powers"  went  back  to  the  days  of  the  old 
Christian  Empire  and  was,  therefore,  in  its  origin,  a 
theory  of  only  two  powers.  The  theory  postulated  the 
unity  of  Christendom;  within  that  unity  were  two 
spheres,  the  spiritual  and  temporal,  each  with  its 
supreme  governing  power.  But  we  have  seen  that 
these  Frenchmen,  while  maintaining  the  necessity  of 
unity  in  the  spiritual  sphere,  expressly  denied  a  similar 
necessity  in  the  temporal  sphere.  For  them  Christendom 
was  spiritually  one,  with  the  Pope  at  its  head;  but, 
temporally,  Christendom  was  divided  between  more 
than  one  power,  each  of  which  was  supreme  in  its  own 
Regnum  or  Imperium. 

Of  course  the  "  regalis  potestas  "  of  Pope  Gelasius 
had  long  since  been  applied  to  others  than  Emperors — 
never  at  any  moment  in  the  Middle  Ages  was  the  tem- 
poral unity  of  Christendom  complete.  The  fact  that 
Gelasius,  though  writing  to  the  Emperor,  had  written 
"  regalis,"  not  "  imperialis,"  made  easy  its  applicability 
to  more  than  one  temporal  power.  None  the  less  the 


fidelibus  motum  bonae  operationis,  per  virtuosam  operationem  et  bo- 
nam  vitam,  seipsum  praebendo  bonum  exemplum  fidelibus.... Nervi  au- 
tem,  ab  ipso  capite  derivati,  sunt  diversi  gradus  et  ordines  ecclesiastic!, 
quibus,  secundum  eorum  diversa  et  distincta  officia,  membra  ecclesiae 
suo  capiti,  scilicet  Christo,  et  sibi  invicem,  quasi  quibusdam  con- 
nexivis  compaginibus,  colligantur.  Unde  in  unitate  fidei  faciunt  unum 
corpus.  Cordis  autem  proprietas  adaptatur  rationabiliter  illi,  qui 
jurisdictionem  temporalem  exercet  et  est  dominus  temporalis.  Dicit 
enim  Isidorus  quod  cor  est  totius  corporis  fundamentum.  Et  Arist.  in 
lib.  12  De  Animalibus  dicit,  quod  in  corde  est  principium  venarum, 
deferentium  ad  membra  sanguinem,  sine  quo  non  est  vita.  Item  dicit 
lib.  16  quod  in  generatione  corporis  animalis  primo  creatur  cor,  etiam 
antequam  caput.  Dominus  autem  temporalis  etc." 


362  THE    PROBLEM    OF   THE   EMPIRE  [CH. 

conception  of  the  two  powers  was  one  that  necessarily 
betrayed  its  origin.  In  the  comparison,  used  here  by 
the  author  of  the  Qaaestio  de  Potestate  Papae,  of  the 
"corpus  ecclesiae  "  or  the  "respublica"  with  the  human 
body  and  its  members,  or  in  the  time-honoured  simile 
of  the  two  luminaries,  we  see  at  once  that  the  idea 
of  the  two  powers  was  one  that  was  most  applicable 
to  conditions  both  of  spiritual  and  of  temporal  unity. 
If  the  Pope  was  the  one  head  of  the  "  corpus  ecclesiae," 
should  not  its  one  heart  have  been  the  Emperor,  not 
the  king  or  Emperor  ?  If  the  sun  stood  always  and  only 
for  the  Pope,  should  not  the  moon  have  stood  always 
and  only  for  "  imperator,"  not  for  "  imperator  vel  rex ' "  ? 

Then  we  must  remember  that  the  idea  of  a  universal 
Empire  was  far  from  dead.  In  Engelbert  we  saw  it 
enter  the  new  political  theories,  which  were  based  on 
Aristotle.  The  lawyers  were  still  discussing  whether 
the  Emperor  be  "  dominus  mundi " ;  many  of  the 
civilians  at  least  were  still  deciding  that  de  jure  he 
is.  Certainly  the  Gloss  had  said  that  he  is.  Yet  for 
these  authors  the  Gloss  and  the  Civil  Law  were  as 
prime  authorities  as  Aristotle.  In  appealing  to  the 
Gloss  they  were  appealing  to  an  authority,  to  whom 
the  "  State "  meant  the  "  Imperium  Romanum "  as 
essentially  as  it  meant  "  Regnum  "  for  the  Aristotelian. 
In  appealing  to  Civil  Law  they  were  appealing  to 
a  law  claiming  a  universal  validity :  and  it  was  still 
by  no  means  certain  that  the  Civil  Law  was  not  merely 
the  Law  of  the  Roman  Emperor. 

The  Disputatio  inter  Militem  et  Clericum  can  well 
illustrate  how  these  French  authors  have  need  of,  and 
1  Vide  John  of  Paris,  chap.  xn.  p.  121. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  363 

yet  must  fear,  both  the  Empire  and  Roman  Law.  The 
knight  has  argued1 — "Sicut  ego  super  certos  agros 
habeo  certum  censurn,  sic  imperator  super  orbem 
terrarum  pro  defensione  reipublicae,  cum  opportunum 
fuerit,  pro  arbitrio  voluntatis  potest  levare  tributum." 
And  the  clergy  are  not  exempt.  The  clerk  asks  if— 
"  per  reges  tollendae  sunt  gratiae  nobis  per  leges  con- 
cessae  et  per  beatorum  principum  privilegia  sanctae 
ecclesiae  concessa."  The  knight  answers  that  all 
privileges  granted  to  them  must  be  understood  as 
liable  to  be  revoked  or  altered  "  secundum  exigentiam 
temporis,"  if  found  to  be  harmful,  or  "  pro  ardua  necessi- 
tate vel  utilitate  reipublicae."  The  clerk  then  remarks 
that  the  privileges,  granted  to  the  Church,  were  granted 
by  Emperors,  not  by  kings — "et  ideo  per  bonos  im- 
peratores,  0  miles,  mine  erit  legum  gubernacula 
moderari."  The  knight  cannot  conceal  his  anger. 
"  Hoc  responsum  est  blasphemiae,"  he  answers.  It 
argues  either  ignorance  of  history  or  malice.  History 
shows  that  France  "  dignissima  conditione  imperii 
portio  est,  pari  divisione  ab  eo  discreta  et  aequali 
dignitate  et  auctoritate  quingentis  annis  circiter  in- 
signita;  quidquid  ergo  privilegii  et  dignitatis  retinet 
imperii  nomen  in  parte  una,  hoc  regnum  Franciae  in 
alia."  Just  as  the  Emperor  is  supreme  over  the 
Empire,  so,  by  this  "fraternal  division,"  the  king  of 
France  is  supreme  over  the  kingdom2.  As  the 

1  Vide  p.  17  (in  Goldast,  Monarchia,  vol.  n.). 

2  ' '  Cum  enim  f raterna  divisione   Francorum   regnum   a   reliqua 
parte  discessit  imperii;   quidquid  in  parte  decedente,   et  penitus  ab 
imperio  existente,  Imperium  ipsum   quondam   obtinuit,   aut  ibidem 
jure  altitudinis  aut  potestatis  exercuit,  hoc  principi  seu  Francorum 
regi  in  eadem  plenitudine  cessit.      Et  ideo  sicut  omnia,  quae  infra 


364  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

Emperor  is  above  all  things  "infra  terminos  imperii," 
so  is  the  king  in  his  kingdom.  And  as  the  Emperor 
must  give  laws  to  his  Empire,  so  the  king  of  France 
can,  within  his  own  kingdom,  accept  or  revoke  the 
Emperor's  laws,  as  he  wills,  or  promulgate  new  ones1. 
And  if  the  king  cannot,  who  can — "  quia  ultra  eum  non 
est  superior "  ?  Let  the  clerk  check  his  tongue  and 
recognise  that  the  king  is  supreme  over  all  laws, 
customs  and  privileges  emanating  from  his  royal  power, 
and  that  he  can  add  to  or  detract  from  them,  as  seems 
good  to  him,  according  to  equity  and  reason  or  the 
advice  of  his  counsellors. 

The  task  before  the  French  publicists  was  thus  ex- 
ceedingly difficult.  Turning  to  John  of  Paris  again,  it 
need  not  now  surprise  us  if  we  find  him,  in  spite  of  the 
fact  that  he  holds  it  better  "  plures  pluribus  regnis  domi- 
nari  quam  unum  toti  mundo2,"  here  and  there  recognising 
the  existence  of  a  universal  Empire  and  Emperor. 

Thus,  on  one  occasion,  he  discusses  a  much-used 
Papalist  argument,  that  since  "in  artibus  ordinatis" 
the  art,  which  leads  to  the  principal  and  ultimate  end, 
"  commands "  those  arts  which  lead  but  to  secondary 
ends,  so  the  spiritual  power  should  command  the  secular, 
since  the  end  at  which  the  secular  power  aims  is  only 
to  direct  men  to  the  good  life  that  is  attainable  "  virtu te 
naturae,"  while  the  end  at  which  the  spiritual  power 

terminos  imperii  sunt,  subjecta  esse  noscuntur  imperio,  sic  quae  infra 
terminos  regni,  regno." 

1  "Et  sicut  imperator  supra  totum  imperium  suum  habet  leges 
condere,  addere  eis,  aut  demere,  sic  et  rex  Franciae,  aut  omnino  leges 
imperatoris  repellere,  aut  quamlibet  placuerit  permutare,  aut  illis  a 
toto  regno  suo  proscriptis  et  abolitis,  novas  si  placuerit  promulgare." 

2  Vide  chap.  xxn.  p.  141. 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  365 

aims  is  supernatural,  namely  eternal  life1.  "Multi- 
pliciter  deficit  argumentum,"  says  John  of  Paris.  We 
need  only  notice  the  second  of  his  arguments2.  The 
"  superior  art "  does  not  always  command  the  inferior 
"  per  modum  necessitatis,  ut  instituendo  eum,"  but 
"per  modum  dirigentis,"  just  as  a  physician  directs 
the  druggist  and  judges  of  his  work,  but  does  not 
appoint  him  or  depose  him — that  is  the  duty  of  the 
superior,  "apud  quern  est  totus  ordo  civitatis,  ut  rex 
vel  dominus  civitatis."  And  so,  he  adds,  in  the  point 
in  question,  "totus  mundus  est  quasi  una  civitas,  in 
qua  Deus  est  suprema  potestas,  quae  papam  et  impera- 
torem  instituit." 

Here  we  see  the  king  is  dominus  of  a  Civitas,  while 
the  Emperor  is  one  of  the  supreme  powers  in  the  one 
universal  Civitas.  Now  John  of  Paris  has,  of  course,  no 
thought  of  suggesting  that  the  king  is  dependent  on 
the  Emperor — he  merely  wishes  to  show  that  it  is  the 
Pope's  duty  to  inform  the  Emperor,  as  the  physician 
imforms  the  druggist,  while  it  is  God  alone  who  sets 
up  or  deposes  the  Emperor.  But  it  is  remarkable  that 
John  of  Paris  is  here  admitting  that  the  world  is  "quasi 

1  Vide  chap.  xn.  p.  122. 

2  Chap.  xvni.  p.  132:  "Quod  vero  dicitur  23  de  ordine  finium, 
respondeo:    multipliciter  deficit  argumentum.      Primo....Item  plus 
deficit,  quia  ars  ilia  superior  non  semper  imperat  necessario  inferiori, 
movendo  per  modum  necessitatis,  et  instituendo  earn,  sed  solum  ei 
imperat  per  modum  dirigentis,   et  sicut  medicus  pigmentarium  in- 
format  et  judicat  an  bene  conficiat  pigmenta  et  debita,  sed  ipsum  non 
instituit,  nee  destituit :  sed  est  aliquis  superior  utrobique  apud  quern 
est  totus  ordo  civitatis,  ut  rex  vel  dominus  civitatis :  et  iste,  si  pigmen- 
tarius  non  conficiat  pigmenta  prout  medico  competit,  habet  ipsum 
destituere  sicut  et  constituere.    Et  ita  est  in  proposito.    Totus  mundus 
est  etc." 


366  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

una  civitas,"  with  its  two  supreme  "  hierarchies,"  while 
before  he  has  been  at  pains  to  deny  it.  It  illustrates 
the  great  difficulty,  which  faced  these  Frenchmen,  both 
of  avoiding  a  universal  conception  of  the  Empire,  when 
they  united  the  cause  of  the  Empire  to  their  own,  and 
of  maintaining  the  unity  of  Christendom  or  the  world, 
without  temporal  unity  under  one  universal  Empire. 
And,  elsewhere,  we  actually  find  John  of  Paris  confessing 
that  "  papa  et  imperator,  universalem  et  ubique  habent 
jurisdictionem,  sed  iste  spiritualem,  ille  temporalem1." 
He  is  considering  the  mutual  duties  of  the  Pope  and 
Emperor  to  depose  each  other,  in  cases  of  incorrigible 
heresy  and  the  like,  and  it  is  very  significant  to  find 
him  maintaining  that  it  is  the  duty  of  the  Emperor 
to  depose,  or  rather  to  procure  the  deposition  of,  an 
heretical  Pope.  The  Conciliar  movement  at  the  end 
of  the  century  was  to  show  how  rooted  in  men's  minds 
was  the  conception  of  the  Emperor,  as  the  temporal 
head  of  western  Christendom,  and  how  inevitably  the 
union  of  western  Christendom  in  common  action  brought 
that  conception  into  practical  importance. 

Even  more  significant  perhaps  is  the  reply  of  John 
of  Paris  to  another  Papalist  argument.  He  states  the 
argument  that,  as  there  is  but  one  Church,  one  Christian 
people,  one  "  corpus  mysticum,"  so  there  should  be  one 
head  alike  "in  spiritualibus "  and  "in  temporalibus," 

1  Vide  the  whole  of  chap.  xiv.  The  Pope  cannot  depose  the 
Emperor  or  kings  directly,  but  only  indirectly  by  excommunicating 
those  who  obey  them;  so  the  Emperor,  "si  esset"  (there  is  no 
mention  of  kings  in  regard  to  the  deposition  of  the  Pope)  can  only 
depose  the  Pope  indirectly — "posset  sub  hypotheca  rerum  vel  poena 
corporum  inhibere  omnibus  et  singulis,  ut  nullus  ei  obediret  vel 
serviret." 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  367 

on  whom  all  the  other  "  members  "  should  depend1.  In 
Engelbert  we  have  seen  this  argument  brought  forward 
in  favour  of  the  Empire.  John  of  Paris  answers  that 
it  is  true  that  there  is  but  one  Church,  one  Christian 
people,  one  "corpus  mysticum,"  but  the  sole  head  is  not 
Peter  or  Linus,  but  "  proprie  et  maxime  "  Christ.  The 
Pope  may  be  called  "  head,"  in  so  far  as  he  is  "  princi- 
palis  inter  ministros,"  just  as  the  Roman  Church  is  the 
head  of  all  Churches.  But  he  is  not  head  "  in  tempora- 
libus,"  neither  as  regards  their  government  nor  disposi- 
tion— "  sed  quilibet  rex  est  in  hoc  caput  regni  sui :  et 
imperator  monarcha,  si  fuerit,  est  caput  mundi2." 

The  "  si  fuerit "  here,  and  the  "  si  esset "  above,  show 
that  John  of  Paris  fully  realised  the  danger  of  admitting 
the  Emperor  to  be  "  caput  mundi,"  or  to  have  "  ubique 

1  Chap.  xii.  p.  122. 

2  Chap.  xix.  p.   134:    "Quod  autem  dicitur  29  de  vero  capite, 
dici  potest,  quod  una  est  ecelesia,  unus  populus  Christianus,  unum 
corpus  mysticum :  non  quidem  in  Petro  vel  Lino,  sed  in  Christo,  qui 
solus  proprie  et  maxime  est  caput  ecclesiae,  a  quo  distributa  est 
utraque  potestas  dicta,  quoad  di versos  gradus,  secundum  Psalm... et 
Ephes.  2...ubi  dicit  Ambrosius  quod  'Christus  est  caput  ecclesiae.' 
Potest  nihilominus  summus  pontifex,  quantum  ad  exteriorem  mini- 
strorum  exhibitionem,  dici  caput  ecclesiae,  quantum  ipse  est  principalis 
inter  ministros,  a  quo  ut  a  principali  Christi  vicario  in  spiritualibus 
totus  ordo  ministrorum  dependet  ut  ab  hierarcha  et  architecto ;  sicut 
Eomana  ecelesia  indubitanter  est  caput  omnium  ecclesiarum.     Non 
est  autem  caput  quantum  ad  regimen  in  temporalibus  seu  disposi- 
tionem  temporalium,  sed  quilibet  rex  est  in  hoc  caput  regni  sui,  et 
imperator  monarcha,  si  fuerit,  est  caput  mundi."     Cf.   Quaestio  in 
Utramque  Partem,  p.  103:   "Sed  istud  caput  dicimus  esse  Christum, 
qui   solus   est   proprie   caput  ecclesiae,   a   quo   derivata  est  utraque 
potestas.... Potest  nihilominus  papa  dici  caput  ecclesiae,  in  quantum 
est    principalis    inter    ministros    ecclesiae.... Sicut    etiam    Romana 
ecelesia  dicitur  caput  omnium  ecclesiarum,  non  est  autem   caput 
quantum  ad  regimen  temporalium,  sed  quilibet  rex  est  caput  regni,  et 
imperator  imperii." 


368         THE  PROBLEM  OF  THE  EMPIRE        [CH. 

et  universalem  temporalem  jurisdictionem."  When 
John  of  Paris  wrote,  there  was  strictly  no  Imperator, 
but  only  a  Rex  Romanorum ;  for  neither  Rudolf  nor 
Adolf  nor  Albert  ever  received  Imperial  coronation. 
Dante  himself  looked  on  Frederick  II  as  the  last 
Emperor  before  Henry  VII.  Dante  had  his  own 
reasons  for  this  opinion,  and  they  were  not  such  as 
could  have  influenced  John  of  Paris.  The  important 
point  is  that  John  of  Paris  has  recognised  in  the 
Emperor  a  universal  power,  and  that  such  recognition 
is  in  violent  contrast  to  the  main  theme  of  the  treatise— 
the  "  si  fuerit "  merely  shows  that  John  of  Paris  is  well 
aware  of  this. 

So  long,  in  fact,  as  Christendom  was  considered  by 
the  political  thinker  as  one  body,  arid  the  necessity  for 
one  spiritual  head  was  conceded,  it  was  impossible  to 
carry  out  a  consistent  theory  of  the  non -necessity  of 
temporal  unity.  The  theory  of  the  State  as  a  secular 
and  non-universal  institution  was  never  achieved  in  the 
Middle  Ages.  The  Middle  Ages  laid  the  foundations 
of  the  theory,  but  the  theory  was  not  achieved  until, 
as  a  result  of  the  Reformation,  the  spiritual  unity  of 
Christendom  was  no  longer  an  axiom  of  political 
thought. 

There  was,  however,  a  solution  of  many,  if  not  all, 
of  the  difficulties  with  which  these  writers  had  to  cope. 
That  solution  we  have  already  considered  in  Bartolus 
himself.  Bartolus,  we  saw,  never  gave  up  the  de  jure 
universal  lordship  of  the  Emperor,  but  he  was  willing 
to  recognise  de  facto  independence,  wherever  he  found 
,it,  and  to  consider  such  de  facto  independent  powers 
as  Empires  in  themselves,  as  having  the  same  power 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  369 

within  their  limited  boundaries,  as  the  Emperor  had 
de  jure  in  the  world.  Bartolus  never  applied  this 
solution  to  the  Regnum.  But  the  phrase  which  became 
current  by  the  middle  of  the  fourteenth  century — "  Rex 
in  regno  suo  est  Imperator  regni  sui  "-—is  nothing  more 
than  the  solution,  which  he  applied  only  to  the  Civitas, 
put  in  a  short  and  epigrammatic  form,  and  applied  to 
the  Regnum.  The  phrase,  as  applied  to  the  king  of 
France,  would  still  leave  open  the  question  of  the  de 
jure  universality  of  the  Empire,  but  it  would  mean  that 
all  arguments  adduced  for  the  Emperor  would  apply 
"ipso  facto"  to  the  king  of  France,  within  his  own 
kingdom,  and  that,  in  appealing  to  Roman  Law1,  the 
appeal  would  not  be  to  the  law  of  a  foreign  Emperor, 
but,  within  the  boundaries  of  France,  to  its  own  and 
native  Emperor. 

The  solution  and  this  phrase  itself  are  not  to  be 
found  in  the  literature,  with  which  we  have  been 
concerned,  with  the  exception  of  the  Quaestio  in 
Utramque  Partem.  The  author  of  this  treatise  has 
set  out  to  prove  that  the  two  powers  are  distinct, 
and  that  the  Pope  has  not  the  "dominium  omnium 
temporalium."  This  he  does  by  arguments  of  four 
kinds — physical  (i.e.  from  Aristotle),  theological,  from 
the  Canon  Law,  and  from  the  Civil  Law2 — in  other 
words,  from  all  three  of  the  fundamental  materials,  upon 
which  medieval  political  theory  was  built.  When  he 
comes  to  the  Civil  Law,  he  quotes  from  the  Novels 

1  This  latter  point  is  clearly  brought  out  by  Chenon,  "Le  Droit 
Remain  a  la  Curia  Regis  de  Philippe- Auguste  a  Philippe-le-Bel "  (in 
Melanges  Fitting,  vol.  i.). 

2  p.  96. 

24 


370  THE    PROBLEM   OF   THE    EMPIRE  [CH 

and  from  the  Gloss  to  prove  the  independence  of  the  two 
powers,  each  in  its  own  and  proper  sphere1.  "Si  dicas,' 
he  continues,  "  quod  rationes  et  auctoritates  praemissae 
videntur  facere  magis  pro  imperatore  quam  pro  rege 
Franciae;  et  si  quaeras  quare  sint  hie  inductae;  re- 
spondeo,  ad  probandum  jurisdictiones  esse  distinctas, 
quarum  una  est  penes  papam  et  judices  ecciesiasticos 
et  alia  penes  imperatorem  et  reges.  Omnia  enim 
quae  pro  imperatore  faciunt,  valent  nihilominus  pro 
rege  Franciae,  qui  imperator  est  in  regno  suo."  He 
then  proceeds  to  give  further  reasons  to  prove  that 
the  king  of  France  is  not  subject  to  the  Pope  "in  tempo- 
ralibus,"  as  well  as  to  show  that  the  king  of  France  is 
"par  imperatori  quantum  ad  libertatem  suae  juris- 
dictionis2." 

So  far  we  have  treated  this  work  as  unquestionably 
belonging  to  the  period  of  the  struggle  between  Philip 
and  Boniface.  That  the  evidence  as  a  whole  inclines 
decidedly  to  that  conclusion  is  certain.  It  was  pub- 
lished by  Goldast  as  the  work  of  Egidius  Romanus. 
Nothing  could  be  more  improbable,  since  Egidius,  in 
all  his  known  works,  is  the  most  absolute  of  Papalists. 

1  p.  98.     From  the   Novels  he  quotes  the  passage   in  Nov.  vi. 
Praefat.  (Quomodo  oporteat  episcopus).     The  glosses  which  he  quotes 
are  on  the  words  "maxima"  and  "conferens." 

2  The  following  in  particular  is  noteworthy.     Having  referred  to 
the  Decretal  Per  Venerabilem,  where  the  Pope,  he  holds,  said  expressly 
that  the  king  of  France  recognises  no  superior  "in  temporalibus,"  he 
adds — "Si  dicas,  prout  dicit  Glossa,  verum  est  de  facto,  sed  non  de 
jure,  quia  de  jure  debet  recognoscere  imperatorem,  ut  patet....Ee- 
spondeo:    illud    factum  versum  esse   in   consuetudinem,   quae    dat 
jurisdictionem....Quia  ista  etiam  consuetude  est  approbata  et  hactenus 
observata  pacifice;  nee  a  papa  nee  ab  imperatore  impugnata,  imo 
juramentis  et  pactionibus  foederata,  et  ex  longissimis  temporibus  jam 
praescripta." 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  371 

Riezler1  pointed  out  that  the  treatise  is  the  Latin 
original  of  the  French  treatise  by  Raoul  de  Prelles, 
which  Goldast  printed  in  the  same  collection — his 
Monarchia  S.  Romani  Imperil2.  Raoul's  work  pro- 
fesses to  be  a  translation,  and  Riezler  suggested  that  he 
might  be  translating  a  work  written  by  himself.  At  any 
rate,  while  admitting  that  the  question  remained  open, 
he  inclined  to  date  this  treatise  between  the  years 
1364-80.  Against  this  suggestion,  however,  are  very 
weighty  objections.  It  has  been  pointed  out  that  the 
author  speaks  of  the  canonisation  of  S.  Lewis  as  taking 
place  "diebus  nostris3":  S.  Lewis  was  canonised  in  1297. 
Again,  he  speaks  of  the  Sext  as  newly  published  and 
not  yet  approved  by  the  king  of  France4 :  the  Sext 
was  published  in  1298.  Consequently  a  modern  au- 
thority, Professor  Scholz5,  who  produces  further  evidence, 
is  inclined  to  date  the  treatise  in  the  beginning  of 
the  year  1302,  and  to  see  in  it  the  model  of  the.  in  his 
opinion,  later  treatises — the  De  Potestate  Regali  et  Sacer- 
dotali  of  John  of  Paris,  and  the  Quaestio  de  Potestate 
Papae.  One  must  disagree  with  great  diffidence ;  but 
we  are  bound  to  do  so,  when  Prof.  Scholz  says  that  the 
contents  of  the  treatise  do  not  contradict  his  hypothesis. 
For  it  is  just  the  very  presence  of  this  phrase,  which 
seems  to  argue  as  decisively  against  the  earlier,  as  the 
arguments  brought  forward  by  Dr  Scholz  do  against 
the  later,  date.  For  if  we  turn  to  the  later  date,  we 

1  Die  literarischen  Widersacher  der  Pdpste  zur  Zeit  Ludwig  des 
Balers,  pp.  139-41. 

2  Vol.  i.  pp.  39-57. 

3  p.  102.  4  p-  106. 

5  His  work  to  which  we   have   referred  more   than  once— Die 
Publizistik  zur  Zeit  Philipps  des  Schonen,  etc. 

24—2 


372  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

find  that  the  phrase,  and  the  solution  of  so  many 
difficulties  which  the  phrase  carries  with  it,  is  as  con- 
spicuously present,  as  it  is  absent  at  the  earlier  date1. 
If  the  treatise  is  really  the  model  of  the  treatise  of  John 
of  Paris  and  of  the  Quaestio  de  Potestate  Papae,  how  is 
it  that  neither  of  these  have  borrowed  the  phrase  along 
with  their  other  borrowings  ?  That  question  must 
surely  be  answered,  before  we  can  assign  the  earlier  date 
to  the  work,  granting,  as  we  do,  that  otherwise  the 
evidence  is  decisively  for  it. 

We  are  here  only  incidentally  concerned  with  the 
date  of  this  treatise.  But  the  phrase,  which  has  led 
us  to  doubt  the  early  date  given  to  the  treatise  by 
Dr  Scholz,  has  concerned  us  so  closely  during  a  great 
part  of  this  essay,  that  it  will  be  a  proper  conclusion 
to  this  chapter,  if  we  attempt  some  inquiry  into  its 
history. 

Bartolus  himself,  we  have  seen,  is  not  concerned 
with  the  Regna,  but  strictly  comparable  with  his 
"  Civitas  sibi  princeps "  is  the  phraseology  of  some 
older  lawyers.  In  his  master,  Cino  da  Pistoia,  we  find 
it  said  that  any  lord  (dominus)  "qui  non  recognoscit 

1  The  "  Somnium  Viridarii,"  which  is  generally  considered  to  be  by 
Philip  de  Mezieres,  though  it  used  to  be  ascribed  to  Raoul  de  Prelles 
himself,  excellently  illustrates  this.  Vide  Part  n.  chap.  CLX.  p.  173 
(in  Goldast,  Monarchia):  "Imperator  fuit  judex  ordinarius  sancti 
Petri:  ergo  est  judex  ordinarius  papae,  qui  est  Christi  vicarius...Nam 
ad  Caesarem  tanquam  ad  suum  superiorem  appellavit:  ergo  beatus 
Petrus  fuit  subjectus  eidem :  per  consequens  et  papa  eadem  ratione  et 
regi  Franciae,  qui  est  imperator  in  regno  suo,  nee  superiorem 
recognoscit  in  terris."  Compare  this  with  John  of  Paris,  chap.  xix. 
and  we  see  the  immense  importance  of  this  phrase.  Cf.  also  chap, 
ccxcm.  p.  189  and  Part  I.  chap,  xxxvi.  p.  70  of  the  "Somnium 
Viridarii,"  which  should  be  compared  with  the  similar  passage  in 
the  Disputatio  inter  Militem  et  Clericum. 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  373 

superiorem  est  princeps  in  terra  sua  de  facto1."  Simi- 
larly, Andreas  de  Isernia,  a  writer  on  feudal  law  of  a  yet 
earlier  generation,  mentions  the  "princeps  et  rex  in 
regno  suo  qui  habet  tantam  vel  majorem  potestatem, 
quantam  imperator  in  imperio2 " ;  and  Durandus  says 
that  the  king  of  France  "princeps  est  in  regno  suo, 
utpote  qui  in  illo  in  temporalibus  superiorem  non 
recognoscat 3." 

The  lawyers  to  whom,  in  this  connexion,  we  would 
most  naturally  turn,  are  the  French  civilians  of  the 
thirteenth  and  fourteenth  centuries,  those  "Ultra- 
montani,"  whose  influence  both  on  the  thought  and 
method  of  the  Italian  schools  is  known  to  have  been  very 
great.  Unfortunately  their  works  are  very  difficult  of 
access.  A  great  part,  even  the  greater  part,  has  never 
been  printed;  in  some  cases, even  where  printed,  the  books 
are  of  the  utmost  rarity.  We  should  naturally  expect 
the  French  lawyers  to  be  closely  concerned  with  the 
relations  of  the  king  of  France  with  the  Empire;  if 
we  could  believe  a  sixteenth  century  Orleans  pro- 
fessor, Johannes  Igneus,  it  was  they  who  consistently 

1  Vide  Comment,  on  Codex  (C.  v.  17.  26),  p.  317,  and  (C.  iv.  6.  3), 
p.  186. 

2  Vide  Super  usibus  feudorum  (De  vasal,  decrepit,  aetat.,  §Quidain 
vasal.)  p.  41,  §  3.     Andreas  lived,  according  to  Savigny,  circ.  1220- 
1316. 

3  Vide  Speculum  Juris,  Lib.  iv.  Partic.  3,  De  Feudis,  §  Quoniam  super 
hommagiis.     Durandus  lived,  according  to  Savigny,  1237-96.     It  may 
be  here  worth  while  to  refer  to  some  words  of  Innocent  IV.,  since 
later  writers,  when  discussing  the  relations  of  the  kings,  and  especially 
of  the  king  of  France,  with  the  Empire,  repeatedly  appeal  to  them. 
Having  maintained  that  none  but  the  Pope  and  Emperor  can  create 
"tabelliones,"  Innocent   adds — Comment,  on  Decretals  (n.  22.    15), 
p.  280 — "Credimus  tamen  quod  alii  reges  qui  habent  supremam  et 
merum  imperium  possent  idem  statuere  de  tabellionibus,  si  vellent." 


374  THE   PROBLEM  OF  THE   EMPIRE  [CH. 

maintained  their  king  to  be  de  jure  independent,  in 
opposition  to  the  Italian  "  Citramontane "  lawyers, 
who  would  allow  him  at  most  but  a  grudging  de  facto 
independence.  But  slight  as  our  available  sources  are, 
they  are  sufficient  to  throw  considerable  doubt,  to  say 
the  least,  on  the  thesis  of  Johannes  Igneus.  In  his 
disputation,  An  Rex  Franciae  recognoscat  Impera- 
torem1,  which  gained  great  celebrity,  he  maintains 
that  the  king  of  France  has  de  jure  no  temporal 
superior,  and  that  the  French  do  not  use  the  "  leges 
imperiales  "-— "  ut  eas  pro  legibus  habeant."  On  both 
of  these  points  he  insists  that  he  is  upholding  the  views 
of  the  Ultramontani,  and  above  all  of  Petrus  de  Bella 
Pertica,  against  the  views  of  the  Citramontani,  and 
especially  of  Bartolus  and  his  followers2.  He  gives  us 
several  references  to  the  commentaries  of  Jacobus  de 
Ravanis,  Petrus  de  Bella  Pertica  and  Johannes  Faber, 
in  which  he  finds  that  they  have  maintained,  in  oppo- 
sition to  the  Glosses  to  the  Civil  and  Canon  Laws  and 

1  In    Commentaria  Joannis  Ignei...doctoris   Aureliani  in  aliquot 
Constitutiones  Principum,  etc.,  pp.  61-79  verso. 

2  Vide  p.  62:  "Cum  me  legente  lecturam  ordinariam  vespertinam 
in  famoso  studio  Aurelianensi  plerumque   occurrerit  annotatio   ilia 
scribentium  legistarum   et  canonistarum,  imperatorem  universalem 
orbis  dominum   esse;    quae  nunquam  visa  est  mihi  vera  in  jure, 
praesertim  in  rege  Franciae:    curavi...multis  additis  conclusionibus 
de  mente  Petri  de  bellapertica  doctoris  Aurelianensis  duas  ex  dictis 
suis  in  medium  deducere  et  disputare,  et  pro  viribus  sustinere,  quae 
omnino  contradicunt  dictis  Bar.  et  omnium  suorum  sequacium  idem 
tenentium  cum  eo  quantum  est  respectu  Christianissimi  et  invictissimi 
regis  Franciae  tenoris  hujusmodi: 

Bex  Franciae  neminem  in  temporalibus  de  jure  habet  superiorem 
pro  Petro  contra  Bartolum  et  sequaces. 

Galli  legibus  imperialibus  non  utuntur,  ut  eas  pro  legibus  habeant, 
pro  Pet.  contra  Bernardum,  Bartolum  et  sequaces." 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  375 

the  "  doctores  citramontani,"  that  the  king  of  France 
does  not  recognise  the  Emperor  de  jure1. 

In  the  case  of  Jacobus  de  Ravanis,  it  is  not  possible 
to  verify  these  references ;  in  the  case  of  Petrus  de  Bella 
Pertica  we  can  do  so  for  the  law  "Cunctos  Populos," 
in  the  first  title  of  the  Code.  Now  so  far  is  Petrus 
from  maintaining  the  king  of  France's  de  jure  inde- 
pendence of  the  Empire  that,  on  the  contrary,  he 
can  clearly  conceive  of  no  other  than  de  facto  inde- 
pendence2. And — what  is  still  more  perplexing — in 
another  place  Johannes  Igneus  expressly  reprobates 
the  view  of  Cino  da  Pistoia3,  noticed  earlier  in  this 

1  Vide  p.  63  §  8:  "Reperio  quod  nostri  doctores  Aurelianenses  et 
Ultramontani  ubique   contra  sententiam   glossarum   juris   civilis   et 
canonici  et  doctores  citramontanos  tenuerunt  quod  rex  Franciae  non 
recognoscat  imperatorem  de  jure:    tenuerunt  et  presertim  Jac.  de 
Raven.  Petr.  et  Joan.  Fab.  in  d.  1.  1.  C.  de  summa  trin.  et  fide  cath. 
(C.  i.  1.  1),  per  eosdem  in  §  1  Instit.  de  patria  potest.  (Inst.  i.  9),  per 
eosdem  in  prooe.  Digestorum." 

2  Vide  Repetitions  in  aliquot. ..Cod.  Leges  (C.  i.  1.  I),  p.  8:  "Ad 
legem  istam  opponitur  duobus  mediis.    Lex  ista  dicit,  Cunctos  populos 
quos   nostrae   clementiae   etc.      Supponit  ergo  quod   imperator  non 
regit  totum  populum:  contra,  imperator  mundi  totius  dominus  est: 
ergo    omnes    populi    reguntur    imperio...Praeterea    lex    dicit,   quod 
imperium  de  coelo  processit,  unde  duo  obtinent  locum  Dei  in  terris, 
imperator   et   papa.      Papa   locum    Dei    obtinet   in   spiritualibus   et 
imperator  in  temporalibus  etc.     Deus  est  Dominus  omnium,  ergo  sub 
imperio  regi  habent...Respondeo  altero  de  duobus  modis,  uno  modo 
sic  ut  legamus  illam  dictionem  'quos,'  non  restrictive,  sed  implicative, 
cunctos  populos  quos,  scilicet  cunctos  populos  :  sic  lex  ipsa  concordabit, 
quod  mundi  dominus  est.     Vel  si  velis,  non  legas  implicative,  sed 
restrictive,  quos  clementiae  nostrae  regit  imperium,  et  tune  dicetis  sic 
bene,  verum   est  quod  imperator  de  jure  cunctorum  est  dominus... 
tamen  de  facto  multi  sunt  populi,  qui  imperatorem  non  recognoscunt 
dominum,  et  ideo  propter  illos  dixit,  quos  nostrae  clementiae  regit 
imperium,  de  facto."     (Petrus  died  in  1308,  according  to  Savigny.) 

3  Vide   Johannes   Igneus,    op.   cit.   p.    62  verso,   5:    "0   insulse 
dictum,  cum  reverentia  tanti  viri  dixerim,  qui  choleram  taxare  non 


376  THE    PKOBLEM   OF   THE    EMPIRE  [CH. 

essay1,  that  those  who  do  not  obey  the  Emperor  are 
too  "  vile "  to  receive  his  laws,  whereas  we  have  seen 
that  Cino  has  taken  this  view,  and  almost  his  wording 
of  it,  from  Petrus  himself  in  this  very  commentary 
on  the  law  "Cunctos  Populos." 

We  cannot,  as  we  have  said,  verify  the  references  to 
Jacobus  de  Ravanis2,  the  founder  of  the  Ultramontane 
school.  His  works  have  never  been  printed.  But, 
fortunately,  among  the  fragments  which  have  appeared 
in  a  modern  monograph3  upon  him,  there  is  a  passage4 
which  may  incline  us  to  doubt  whether  Jacobus,  any 
more  than  Petrus,  held  the  views  ascribed  to  him  by 
Johannes  Igneus.  He  asks  whether,  supposing  a  "comes 
in  regno  Franciae  "  rises  against  the  king  and  summons 
his  "  fideles  "  to  his  aid,  they  are  bound  to  obey.  No, 
he  answers,  because  their  oath  does  not  extend  to  what 
is  unlawful :  he  then  proceeds  to  show  that  he  who 
rises  against  his  superior  is  acting  unlawfully.  "  Com- 
mittit  ille  qui  se  elevat  contra  superiorem  ut  D.  de 

cond.  ind.  1.  Si  procurator,  §  Celsus5 Et  quod  com- 

mittant  in  lege  Julia  majestatis,  probatur  quod  rex 
princeps  est  quia  non  recognoscit  superiorem.  Dico 
hoc  est  in  principem,  non  sicut  ipsi  dicunt  quod  rex 
princeps  est,  sed  quia  commit  tat ur  in  magistraturn 
principis...quia  Francia  et  Yspania  semel  fuerunt  sub 

potuit."  Johannes  Igneus,  it  may  be  noted,  treats  his  Italian  oppo- 
nents with  great  respect— "  Quid  dicendum  post  tantos  viros  qui  nihil 
in  jure  ignoraverunt ?  "  (Ibid.  §  6.) 

1  Vide  above,  pp.  41-3. 

2  He  lived  circ.  1210-96,  according  to  Savigny. 

3  Tourtoulon,  Les  (Euvres  de  Jacques  de  Eevigny. 

4  Pp.  48-9. 

5  D.  xn.  6.  6. 


Ill]  THE   PROBLEM   OF   THE   EMPIRE  377 

imperio,  C.  de  off.  pre  Aff.  1.  2 l  circa  primum  (sic)  et 

imo  sepe  erant  ut  alias  probavi " 

Then  as  to  Johannes  Faber2.  We  can,  in  his  case, 
verify  two  of  the  references  of  Johannes  Igneus.  In 
his  commentary  on  Inst.  I.  9,  §  2 3  Faber  merely  refers 
us,  for  the  question  whether  the  "  Francigenae "  are 
subject  to  the  Empire,  to  his  commentary  on  the  law 
"  Cunctos  Populos  "  in  the  Code.  His  commentary  on 
this  law  contains  a  detailed  discussion,  which  may  be 
said,  on  the  whole,  to  substantiate,  though  not  unhesi- 
tatingly, the  contention  of  Johannes  Igneus.  Having, 
according  to  the  dialectical  manner,  stated  arguments 
in  favour  of  the  de  jure  universality  of  the  Empire,  and 
opposed  these  arguments  with  other  arguments  against 
it,  Johannes  Faber  concludes 4 :  "  restat  ergo  non  sub- 
esse  vel  de  jure  vel  de  facto."  Yet  he  must  confess 
that  once  the  Emperor  was  "fundatus  de  jure  communi 
in  omni  orbe."  Only  no  longer — "  nee  crederem  impe- 
ratorem  fundatum  esse  de  jure  communi  extra  metas 

1  C.  i.  27.  2. 

2  He  lived  in  the  first  half  of  the  fourteenth  century. 

3  Not  §  1,  as  is  said  in  Johannes  Igneus'  treatise. 

4  Vide  his  Breviarium   Super   Codice  (C.  i.  1.  1):    "Restat  ergo 
non  subesse  vel  de  jure  vel  de  facto.     Et  quidquid  sit,  apparet  in  illis 
qui  resistunt  de  facto  magnanimitas,  in  imperatoribus  impotentia  vel 
pusillanimitas,  qui  tantis  temporibus  ad  subjectionem  eos  reducere 
non  valuerunt,  nee  jus  suum  recuperare.     Fateor  tamen  quod  impera- 
tor  fundatus  erat  olim  de  jure  communi  in  omni  orbe.     Hodie  vero 
cum  divisum  sit  imperium  dei  permissione...et  alii  reges  et  principes 
per  populos  constituti,  ad  quos  pertinet  constitutio  per  predicta,  et 
per  consequens  destitutio...nec  crederem  imperatorem  fundatum  esse 
de  jure  communi  extra  metas  suas  infra  quas  ei  obeditur,  quamvis 
Hostiensis   contra... qui  dicit  quod   imperator   est   fundatus  de  jure 
communi   et   nullus  rex  alius  vel  baro,  ymmo   nee   persona  aliqua 
ecclesiastica,  nisi  papa  vel  episcopus,  ut   ibi  plene   notat.     Sed  tu 
potes  etc." 


378  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

suas  quas  ei  obeditur,"  though  Hostiensis  holds  the 
contrary.  "Tu  potes  dicere,"  he  finally  determines, 
"quod  quilibet  qui  habet  territorium  limitatum  ab 
antiquo  sit  fundatus  de  jure  communi  infra  metas 
ejusdem,  ad  exercendum  in  qualibet  parte  jus  quod 
in  toto  universal!  exercet." 

Thus,  with  the  possible  exception  of  Johannes  Faber, 
the  difference  between  the  hesitation  of  these  Ultra- 
montane civilians1  and  the  decided  attitude  of  the 
French  publicists,  whom  we  have  already  examined,  is 
very  striking.  John  of  Paris  never  doubted  for  a  moment 
that  the  king  of  France  is  de  jure  independent  of  the 
Empire ;  he  only  found  himself  in  difficulties  when  he 
was  compelled  to  adopt  the  Emperor  as  his  ally.  Doubt- 
less these  French  publicists  were  well  versed  in  law,  but 
they  were  much  beside  lawyers.  And  so  soon  as  they 
left  Aristotle  for  the  Law  Books,  there  was  danger  of  an 
adversary  retorting  on  them  that  the  Law  Books  were 
the  law  of  an  Emperor,  not  of  a  king.  It  is  then 
that  the  importance  of  this  phrase,  with  which  we  are 

1  Johannes  Igneus  did  not  mention  Guillelmus  de  Cunio,  along 
with  the  other  Ultramontani,  in  the  passage  quoted  above,  though  his. 
influence  was  considerable.  His  works  are  very  inaccessible.  His 
Commentary  on  the  Codex  was  printed  at  Lyons  in  1513,  but  is  of  the 
utmost  rarity —probably  no  copy  exists  in  any  public  library  in 
England:  at  least,  I  have  not  succeeded  in  finding  one.  Brandi,  in 
his  Notizie  intorno  a  Guillelmus  de  Cunio,  has  printed  a  few  fragments, 
among  them  a  little  ' '  Tractatus  de  diversis  officiis  digesti  veteris ' ' 
(pp.  124-30).  The  following  passage  is  for  us  important — vide  p.  126 : 
"In  regno  Francie  potest  sic  equiparari  propositus  parisiensis  (i.e.  to 
the  Prefectus  Urbis),  quia  sicut  erat  in  Roma  princeps,  ita  rex  Francie 
in  Francia.  Et  idem  in  aliis  regibus  qui  de  facto  non  recognoscunt 
superiorem."  We  note  that  he  evidently  conceives  this  independence 
as  merely  de  facto.  Earlier  in  the  treatise  he  has  said  that  "hodie" 
kings  can  be  compared  with  the  Prefecti  Pretorio  (p.  125). 


Ill]  THE    PROBLEM   OF   THE    EMPIRE  379 

concerned,  becomes  evident.  It  was  this  phrase  alone 
which  could  sever  the  connexion  between  the  Empire 
and  Imperial  Law,  and  which  could  make  arguments 
adduced  for  an  Emperor  applicable  to  other  secular 
powers.  At  the  same  time  it  conveniently  shelved  the 
problem  of  de  facto  or  de  jure  independence;  grant 
that  the  Rex  is  "Imperator  regni  sui,"  and  the  question 
whether  he  be  so  de  facto  or  de  jure  might  be  interest- 
ing, and  even  vital,  to  national  pride,  but  was  not  of 
practical  consequence.  It  was  thus  the  lawyer's  solution. 
It  was  the  lawyer's  final  step  in  finding  a  solution  of 
what  Maitland  called  "the  incongruously  simple"  theory 
of  the  Glossators,  who,  imposing  a  strict  interpretation 
of  their  texts  on  the  facts  of  the  Middle  Ages,  had 
attempted  to  refuse  sovereign  independence  to  any  but 
the  one  universal  State,  the  Roman  Empire.  The 
Aristotelian  had  no  need  of  such  a  solution,  because 
he  started  from  the  Civitas  as  the  State.  The  Aristo- 
telian might  work  upwards  on  a  series  of  more  and 
more  perfect  and  self-sufficient  communities;  but  he 
started  from  the  Civitas,  as  the  perfect  community,  and 
was  under  no  urgent  necessity  to  go  further.  The 
lawyer,  who  started  from  the  Imperium,  was  compelled 
to  work  downwards  and  to  make  room  in  his  theories 
for  more  than  one  universal  sovereign  State.  In 
making  the  Regnum  or  Civitas  an  Empire  within  its 
own  boundaries,  an  Empire  in  miniature,  the  lawyer 
not  only  made  possible  the  "  Reception,"  but,  in  general, 
made  possible  the  modern  State.  The  part  played  by 
Roman  Law  at  the  Renaissance  needs  no  explanation ; 
and  that  part  was  only  possible  when  it  became  quite 
certain  that  "  the  Prince,"  in  appealing  to  and  making 


380  THE    PROBLEM   OF   THE   EMPIRE  [CH. 

use  of  Roman  Law,  was  not  coming  into  contact  with 
the  law  of  the  one  universal  Empire. 

We  see  the  lawyers  gradually  feeling  their  way 
towards  the  solution  which  this  phrase  implies;  gradually 
the  solution  attains  expressive  form.  In  its  final  form— 
"  Rex  in  regno  suo  est  Imperator  regni  sui " — we  have 
nothing  more  than  the  idea  expressed  in  the  "Ci vitas  sibi 
princeps "  of  Bartolus,  or  the  "  Dominus  princeps  terrae 
suae  "  of  Cino,  put  into  the  neat,  epigrammatic  form  of 
an  axiom.  But  in  the  history  of  thought  the  small 
step,  which  converts  an  idea  from  the  stage  of  variable 
terminology  into  that  of  a  quotation,  is  always  of 
decisive  importance  and  often  the  work  of  generations. 
This  essay  will  venture  on  no  dogmatic  statement  as  to 
who  it  was  that  took  this  step.  But,  if  we  leave  aside 
the  Quaestio  in  Utramque  Partem  and  the  question  of  its 
date,  we  may  perhaps  suggest  that  the  praise  is  due  to 
Oldradus,  one  of  the  masters  of  Bartolus,  rather  than  to 
his  pupil,  Baldus,  who  has  sometimes  been  considered 
the  author  of  the  phrase1.  The  wording  of  the  phrase 
as-  we  find  it  in  Oldradus2 — "  Quilibet  rex  de  facto 
tenet  locum  Imperatoris  in  regno  suo" — is  almost 
identical  with  the  phrase,  as  we  find  it  in  Baldus — 
"  Rex  in  regno  suo  est  Imperator  regni  sui."  Albericus 
de  Rosate3,  a  contemporary  of  Bartolus,  quotes  the 

1  By  Chenon,  "Le  Droit  Eomain  a  la  Curia  Kegis  de  Philippe- 
Auguste  a  Philippe-le-Bel."     Gierke,  Deutsche  Genossenschaftsrecht, 
vol.  m.  p.  639,  refers  to  no  lawyer  of  earlier  date  than  Baldus. 

2  Vide  Quaest.  ccxxx.  (De  Donat.  et  Testament.) :  "Nisi  forte  quis 
non  improbabiliter  diceret  hoc  locum  habere  in  donationibus  com- 
munibus,  secus  autem  in  regalibus,  quia  cum  quilibet  rex  de  facto 
teneat  locum  imperatoris  in  regno  suo,  tales  donationes  legibus  non 
subjiciuntur..." 

3  Vide   Comment,   on   Codex,  Part    i.  (C.   i.  2.  19),    p.  19,  §  3: 


Ill]  THE    PROBLEM   OF   THE   EMPIRE  381 

phrase  on  the  authority  of,  and  in  the  form  given  to  it  by, 
Oldradus.  Bodin1,  we  may  remember,  called  Oldradus 
"  the  first  of  his  age  "  to  maintain  the  de  jure,  as  well 
as  the  de  facto,  independence  of  the  king  of  France. 
The  evidence  is  suggestive,  but  incomplete.  This 
we  may  say :  whoever  it  was,  Oldradus  or  some  other 
lawyer,  who  took  the  step,  he  did  a  work  of  the  highest 
importance  in  the  history  of  political  thought  and  one 
deserving  the  highest  praise — teneat  secum  servetque 
sepulchro. 

And  high  praise,  in  this  connexion,  is  also  due  to 
Bartolus.  Certainly,  Bartolus  did  not  himself  invent 
this  solution,  did  not  put  it  into  its  final,  axiomatic 
form.  But  we  are  almost  as  certainly  justified  in  saying 
that  he  was  the  first  lawyer  to  adopt  it  fearlessly,  con- 
sistently and  generally.  A  man  like  Bartolus  was 
admirably  placed  to  solve  the  problems  which  the 
Empire  presented  for  solution.  He  was,  it  is  true,  an 
Italian  and  not  without  some  feeling  of  patriotism;  it 
appears  when  he  laments  Italy  "  tota  plena  tyrannis," 
or  discusses  how  it  is  that  the  Roman  Emperor  is  in 
Germany,  beyond  the  Alps.  But  these  were  exceptional 
moments,  and  in  general,  when  commenting  on  his 

"  Quaere,  utrum  donatio  regis  non  recognoscentis  superiorem  insinua- 
tione  indigeat:  dom.  Oldradus  dicit  quod  non,  quia  secundum  eum 
hodie  de  facto  quilibet  rex  in  regno  suo  tenet  locum  imperatoris : 
sed  imperiales  donationes  ceteris  non  sunt  equales  quo  ad  insinua- 
tionem  vel  alia. ..Quod  an  sit  verum,"  he  adds,  "dubito  nisi  propter 
auctoritatem  dicentis." 

1  Vide  Bodin,  De  la  Republique,  Book  i.  p.  139 :  "...Mais  il  y  a  un 
docteur  Espagnol,  qui  dit  que  le  Eoy  de  France  ne  recognoist  ny 
de  fait,  ny  de  droit  prince  du  monde :  comme  aussi  fait  Oldrad,  le 
premier  de  son  aage."  Bodin  refers  to  Oldradus'  very  interesting 
Quaestio  LXIX. 


382  THE   PROBLEM   OF   THE   EMPIRE  [CH. 

Roman  Law,  he  was  a  citizen  of  the  universal  Roman 
Empire  rather  than  an  Italian  patriot. 

The  life  of  such  a  man,  wandering  from  independent 
city  to  city,  until  he  found  citizenship  and  a  permanent 
abode  at  Perugia,  was  far  more  likely  to  bring  vividly 
before  his  eyes  the  need  of  a  "  superioris  copia "  than 
to  stimulate  his  patriotism  for  a  hopelessly  divided 
Italy.  That  the  Emperor  was  de  jure  superior  Bartolus 
never  doubted.  Only,  with  his  unerring  sense  of  prac- 
tical needs,  he  recognised  at  once  that,  since  the 
Emperor's  de  facto  power  could  not  make  effective  his 
de  jure  superiority,  such  de  jure  superiority  was  useless. 
Bartolus  began  by  seeing  a  single  universal  Empire ; 
he  ended  by  recognising  a  miniature  Empire  in  every 
de  facto  independent  power. 

Bartolus  was  able  to  do  this,  because  the  motive 
which  prompted  all  his  political  thought  was  utility — 
the  desire  to  accommodate  law  to  facts.  We  have 
attempted  to  show  in  this  chapter  that  the  problems 
before  Bartolus  faced  the  political  thinker  and  publicist 
no  less  than  the  lawyer,  and  that  the  solutions  of  this 
problem  offered  by  the  former  were  largely  influenced  by 
a  number  of  considerations — in  particular  by  patriotic 
sentiment  and  by  the  material  or  materials,  with  which 
each  writer  worked.  It  would  be  a  great  mistake  to  think 
that  in  the  Middle  Ages  there  was  a  simple  antagonism 
between  the  universal  Roman  Empire  and  national 
particularism.  Each  nation,  as  it  grew  more  and  more 
distinct,  viewed  the  Empire  in  the  light  of  its  particular 
history,  and  championed  it  or  opposed  it  according 
to  circumstances — "  appropriated  "  it  or  "  opposed  "  it, 
as  Dante  said  of  the  Ghibellines  and  Guelphs.  Many 


Ill]  THE    PROBLEM   OF   THE    EMPIRE  383 

of  the  lawyers  also  were  swayed  by  patriotic  motives, 
but  Bartolus,  at  any  rate,  was  swayed  far  more  by  the 
sense  of  political  needs.  His  Empire  was  the  Empir£ 
which  the  Glossators  had  derived  from  the  Roman  Law 
Books ;  and  while  most  of  the  politicians  and  publicists 
whom  we  have  examined,  ended  either  in  throwing  over 
the  Empire  altogether  or  in  setting  it  up  again  in 
its  universality,  to  the  interest  of  this  or  that  nation, 
Bartolus  was  able  to  leave  his  de  jure  Empire  intact, 
and  at  the  same  time,  step  by  step,  to  build  up  political 
powers, themselves  within  their  particular  limits  invested 
de  facto  with  all  the  peculiar  marks  and  privileges  of 
the  one  universal  Empire.  The  modern  State,  let  us 
remember,  is  not  only  the  self-sufficing  vroX^?,  it  is  also 
"  Imperial " — and  it  was  the  lawyers,  not  the  political 
philosophers,  who  transformed  the  universal  Empire 
into  a  system  of  "Imperial"  States.  Among  the 
lawyers,  no  one,  in  this  regard,  played  a  more  promi- 
nent part  than  Bartolus. 


CHAPTER   IV 


CONCLUSION 

THE  two  distinguished  scholars,  who  alone  have 
examined  the  political  thought  of  Bartolus  in  any  detail, 
have  arrived  at  very  different  judgments  as  to  its  value. 
To  Dr  Figgis1,  Bartolus  "is  one  of  those  minds  which 
help  to  carry  over  to  one  age  the  thoughts  of  another  and 
transmit  by  transmuting  them  the  intellectual  heritage 
of  their  day."  To  Dr  Chiapelli2  he  is  one  who,  though 
the  contemporary  of  Petrarch,  never  freed  himself  from 
the  company  of  medieval  thinkers,  one  who  consistently 
adopted  the  political  conceptions  of  the  Middle  Ages, 

1  Vide  Bartolus  and  the  development  of  European  Political  Ideas, 
pp.  166-8. 

2  Vide  "Le  Idee  Politiche  del  Bartolo"  (in  Archivio  Giuridico, 
vol.  xxvn.  1881),  pp.  433-9.     Vide  pp.  433-4:  "II  Bartolo,  quantun- 
que  vivesse  nell'  eta  del  Petrarca  e  del  Boccaccio,  all'  albeggiare  cioe 
del  Einascimento,  allorche  molte  nuove  vie  si  aprivano  al  pensiero 
umano,  e  benche  aggiungesse  alia  vecchia  cultura  alcuni  elementi 
della  nuova,  poiche  le  sue  opere  ci  rivelano  un  conoscitore  dell'  Ebra- 
ico  e  della  Geometria,  pur  non  ostante  non  si  staccd  della  schiera 
dei  pensatori  della  eta  di  mezzo.    Continuava  a  far  proprio  il  concetto 
politico  del  medioevo,  e  seguiva  constantemente  come  i  suoi  predeces- 
sori  i  due  grandi  luminari  di  ogni  sapere  di  quella  epoca,  la  Bibbia,  il 
fondamento  di  ogni  verita,  ed  Aristotele,  il  gran  maestro  delle  scuole." 


iv]  CONCLUSION  385 

and,  like  his  predecessors,  followed  unfalteringly  the 
two  great  luminaries  of  all  medieval  knowledge,  the 
Bible  and  Aristotle.  Dr  Chiapelli's  name  is  one  that 
carries  great  weight  in  the  study  of  the  medieval 
history  of  Roman  Law ;  yet,  salva  reverentia,  this  essay 
must  venture  to  disagree  fundamentally  with  his  judg- 
ment on  the  political  thought  of  Bartolus.  Even  more 
fundamentally  must  we  disagree  with  Dr  Chiapelli's 
statement  of  the  position  which  Bartolus  occupies  in 
the  history  of  political  thought. 

What  is  the  evidence  for  his  supposed  dependence 
upon  Aristotle1?  The  scholastic  form  of  his  com- 
mentaries proves  nothing;  moreover,  Savigny  pointed 
out  long  ago  that  Bartolus  was  by  no  means  the  first 
lawyer,  whose  work  bore  this  characteristic2.  How- 
ever, all  that  here  concerns  us  is  his  dependence  on 
Aristotle  in  the  sphere  of  Politics.  Let  us  turn  back, 
therefore,  to  the  two3  occasions,  on  which  we  have  found 
Aristotle  mentioned  by  him. 

1  As  regards  his  dependence  upon  the  Bible,  few  words  are 
necessary.  Of  course  the  Bible  was  authoritative  for  Bartolus — it 
represented  the  Divine  Law  of  Kevelation.  But  it  was  equally  au- 
thoritative for  every  other  medieval  thinker,  for  Marsiglio  and  Occam, 
for  S.  Bernard  and  Aquinas — just  as  it  was,  we  may  add,  for  Luther, 
Calvin,  Hooker  and  Johannes  Althusius. 

3  Vide  Savigny,  vol.  vi.  Chap.  53,  p.  155:  "So  wird  ihm  nicht 
selten  die  erste  Einfuhrung  der  Scholastik  in  unsere  Exegese  zuge- 
schrieben :  ganz  mit  unrecht,  wie  schon  oben  gezeigt  word  en  ist. 
Allerdings  findet  sich  bei  ihm,  wie  bei  mehreren  Vorgangern  und 
Zeitgenossen,  eine  sichtbare  Neigung  zur  Dialectik;  allein  nicht  bei 
ihm  zuerst,  oder  mit  besonderer  Uebertreibung  und  Verkehrheit.  Im 
Gegentheil  weiss  er  diese  Methode,  die  bei  den  Meisten  nur  als 
geistloser  und  unfruchtbarer  Schulzwang  erscheint,  mit  Verstand 
anzuwenden." 

3  I  can  remember  no  other  occasions  but  these,  on  which  Bartolus 
mentions  Aristotle. 

w.  25 


386  CONCLUSION  [CH. 

On  the  first  of  these1,  he  mentioned  the  works  of 
Aristotle,  along  with  those  of  Hippocrates,  as  an  ex- 
ample of  "scripturae,  quae  tamquam  authenticae  in 
studiis  servantur,"  and  are  therefore  authoritative.  Now, 
of  course,  there  is  no  doubt  that  had  Bartolus  been 
asked  whether  Aristotle  was  authoritative,  he  would 
have  answered,  yes.  But  that  he  himself  was  a  pro- 
found student  of  Aristotle,  or  that  he  was  profoundly 
influenced  by  Aristotle's  political  thought,  is  quite  a 
different  matter.  Aristotle  is  generally  authoritative, 
because  in  the  particular  Studium,  over  which  he  pre- 
sides, he  is  considered  as  such;  but  he  himself  no 
more  presides  over  the  lawyer's  Studium  than  does 
Hippocrates.  Hippocrates  is  equally  authoritative  in 
his  particular  Studium,  but  no  one  will  suggest  that 
therefore  Bartolus  himself  was  either  a  profound  student 
of  Hippocrates  or  profoundly  influenced  by  him. 

That  Bartolus  considered  Aristotle  as  generally 
authoritative,  but  not  in  any  sense  a  particular 
authority  in  the  lawyer's  Studium,  comes  out  clearly 
in  his  Tract,  de  Regimwe  Civitatis.  We  need  add 
little  to  what  we  have  said  above2.  Bartolus,  in 
mentioning  Aristotle,  was  evidently  mentioning  an 
authority  by  no  means  familiar  to  his  legal  readers : 
Aristotle's  words  would  mean  little  to  them — "juristis 
quibus  loquor  non  saperent."  Moreover,  when  Bartolus 
tells  us  that  Egidius  Romanus  investigates  the  best 
form  of  polity  "clarius"  than  Aristotle,  we  might  be 

1  Vide  above,  p.  8. 

2  Vide  above,  pp.  174  and  ff.      The  continual  antithesis  between 
"Aristotles"    and    "nos"   in   this  treatise    should   be  particularly 
noted.     Vide  a  particularly  good  example,  above,  p.  179,  n.  1. 


IV]  CONCLUSION  387 

inclined  to  suspect  that  he  has  not  got  his  know- 
ledge of  Aristotle  at  first  hand,  but  rather  from 
Egidius  himself.  Be  that,  however,  as  it  may,  the 
authority  to  which  Bartolus  primarily  turns,  here  as 
elsewhere,  is  not  Aristotle,  but  "leges  nostrae."  The 
history  of  Rome,  with  references  to  the  Law  Books,  is 
made  to  illustrate  the  comparative  value  of  the  different 
forms  of  polity.  His  references  to  Aristotle  or  Egidius 
merely  show  the  breadth  of  his  learning,  which  we 
are  very  far  from  wishing  to  deny,  but  they  in  no 
way  prove  the  dependence  of  his  political  thought  on 
Aristotle  or  his  medieval  exponents. 

The  foundations  of  the  political  thought  of  Bartolus 
were  the  political  conceptions  which  the  Bolognese 
Glossators,  a  century  at  least  before  Aquinas  and  the 
revived  influence  of  Aristotle's  Politics,  had  derived 
from  the  texts  of  the  Law  Books  literally  interpreted. 
Where  Bartolus  went  beyond  the  Glossators,  he  did  so, 
not  because  he  was  influenced  by  the  new  Aristotelian 
political  theories,  but  because  his  object,  unlike  that  of 
the  Glossators,  was  to  evolve  from  his  texts  a  law  rather 
practically  acceptable  than  scientifically  correct.  "Fuit 
vir  multum  adhaerens  practicae1."  Bartolus  started 
from  the  political  conceptions  of  the  Glossators ;  he 
might  develop  them  upon  lines  which  the  Glossators 
themselves  had  already,  though  hesitatingly,  pointed 
out,  or  he  might  give  them  an  entirely  new  direction 
—but,  in  either  case,  it  was  from  them  that  he  started. 
It  is,  then,  to  the  Glossators  and  their  texts,  not  to 
Aristotle,  that  we  have  to  go  back  in  tracing  the 
filiation  of  his  political  thought. 

1  Vide  Savigny,  vol.  vi.  Chap.  53,  p.  139,  Zeugniss  4. 

25—2 


388  CONCLUSION  [CH. 

If  there  is  a  "  dualism1 "  in  the  thought  of  Bartolus, 
it  is  to  be  accounted  for,  not  by  the  fusion  of  two  prin- 
ciples of  thought — one  medieval  and  the  other  antique- 
but  to  the  distinction  between  right  and  fact,  which 
dominated  all  his  thought.  De  jure  Bartolus  never 
gave  up  the  old  political  ideas  of  the  Glossators; 
de  jure  the  Emperor  was  still  lord  of  the  world,  the 
Empire  still  the  one  universal  State.  It  is  easy  for  us, 
on  this  side  of  the  Renaissance  and  Reformation2, 
to  see  that  Bartolus  was  wrong  and  that  the  day  of 
the  Empire  was  over.  Bartolus  lived  in  the  first  half 
of  the  fourteenth  century :  Frederick  II  had  not  been 
dead  a  century;  Sigismund  was  yet  to  come,  "and 
Charles  V.  No  one  can  say  what  Charles  V  might 
have  made  of  the  Empire — and  we  know  how  ardently 
he  desired  the  Imperial  crown — if  his  hands  had  not 
been  tied  during  the  whole  of  his  reign  by  the  religious 
troubles  in  Germany.  But  the  important  point  is  that 
the  retention,  de  jure,  of  the  Empire  in  the  full  extent 
of  its  pristine  power  and  claims,  in  no  way  prevented 
Bartolus  from  developing  theories  to  fit  a  world  in 
which  fact  and  right  no  longer  coincided.  The  political 
thought  of  Bartolus  had  two  sides — on  the  one  a  theory 
of  a  single  World-state,  the  Imperium  Romanum ;  on 
the  reverse  a  theory  of  a  world  of  States.  There  was 
no  real  confusion.  Bartolus  did  not  pass  from  one  to 

1  Vide  Chiapelli,  op.  cit.  pp.  434-5. 

2  It  is  interesting  to  note  how  Christian  Europe,  even  after  the 
Reformation,  owing  to  the  territorial  position  of  the  Hapsburg  Em- 
pire, finds  in  the  Emperor  its  leader  against  the  Turk.     Thus  a  very 
Protestant  Englishman,  Sir  Edwin  Sandys,  can  talk  at  the  end  of 
the  sixteenth  century  of  "our  Christian  Emperor."     Vide  his  very 
interesting  Europae  Speculum  ("Of  Germany,"  p.  196). 


iv  CONCLUSION  389 

the  other  without  giving  due  warning.  We  have  only 
to  remember  that  the  legend  on  one  side  was  "de  jure," 
and  on  the  other  "de  facto,"  in  order  to  see  that  his  politi- 
cal thought  was  really  consistent.  It  is  true,  there  was 
one  exception.  But  Dr  Chiapelli,  we  would  suggest,  has 
made  far  too  much  of  the  theories  of  Bartolus  on  the 
relations  between  the  temporal  and  spiritual  powers1. 
We  must  take  account  of  them,  if  we  wish  to  estimate 
his  honesty;  if  we  mean  to  judge  his  place  in  the 
history  of  thought,  they  need  not  detain  us.  They  are 
not  really  an  integral  part  of  his  thought — almost,  in 
so  many  words,  he  has  told  us  that  he  was  not  saying 
what  he  meant.  How  little  stress  his  contemporaries 
laid  on  his  supposed  Papalism  may  be  gauged  by  the 
charge  which  his  great  pupil  Baldus,  a  real  Papalist, 
made  against  him — "  semper  tenebat  opiniones  multum 
placentes  laicis:  et  hoc  facit  opinionibus  suis  multum 
honorem2." 

Moreover,  if  we  are  to  judge  Bartolus  at  his 
correct  value,  we  must  not  think  of  him  in  isolation. 
Indeed,  this  is  true,  up  to  a  point,  of  every  thinker. 
How  often  can  we  point  to  any  single  thinker,  as  the 
actual  author  of  any  single  idea  or  theory?  "Ideas," 
as  Lord  Acton  said3,  "have  a  radiation  and  develop- 
ment of  their  own,  in  which  men  play  the  part  of 
godfathers  and  godmothers  more  than  that  of  legitimate 
parents."  This  is  especially  true  of  a  thinker  like 
Bartolus.  We  must  consider  him  as  one  of  the  long 
series  of  medieval  civilians  and  canonists.  He  was 

1  Chiapelli,  op.  cit.  pp.  435-6. 

2  Quoted  by  Savigny,  vol.  vi.  chap.  53,  p.  149,  note  c. 

3  Vide  Letters  to  Mary,  daughter  of  Et.  Hon.  W.  E.  Gladstone, 
pp.  6-7. 


390  CONCLUSION  [CH. 

perhaps  the  greatest,  he  was  certainly  the  most  famous 
of  them,  and  it  is  as  such  that  we  must  judge  him, 

The  work  of  the  medieval  lawyers  was,  not  so  much 
to  elaborate  ready-made  political  theories,  as  to  forge 
-x  and  sharpen  many  of  the  tools,  with  which  the  political 
philosophy  of  the  modern  world  was  to  work1.    Dr  Gierke 
,  has  shown   how  the  elaboration  by  the  civilians  and 
^canonists  of  their  doctrine  of  the  corporation  has  re- 
acted on  political  thought.     Thus  the  very  democratic 
theories  of  Bartolus  on  the  internal  government  of  the 
Civitas  take  on  a  new  and  far  more  significant  meaning, 
when  we  remember  that  the  theories,  which  he  has  ela- 
borated for  the  "universitas  civitatis,"  may  be  adapted  to 
serve  world-wide  "  universitates,"  the  Imperium  or  the 
Ecclesia,  in  the  likeness,  and  on  the  foundations,  of  which 
political  philosophy  was  to  establish  the  modern  State. 
Whether  Bartolus  was  a  profound  or  an  original 
thinker2  we  need  not  ask ;  that  he  is  an  important  one 
in  the  history  of  political  thought  is  the  main  point. 
s    It  is  not  merely  useful,  it  is  essential,  to  study  Bartolus, 
;  as  illustrating  the  tendencies  of  the  medieval  jurists: 
•    it  is  essential  to  the  full  understanding  alike  of  medieval 
V  and  of  modern  thought. 

Bartolus,  Dr  Chiapelli  says,  had  never  freed  himself 

1  Vide  Maitland,  Introd.  to  Gierke,  Pol.  Theories  of  the  Middle 
Age,  p.  viii. 

2  Vide  Chiapelli,  op.  cit.,  pp.  438-9:    "...Non  crediamo,  che  si 
possa   considerare   come   un   profondo   ed   originale   pensatore   nella 
politica.     Le  sue  dottrine  in  questo  proposito  non  hanno  moltissima 
importanza  scientificamente ;    soltanto  meritano  un  esame  accurate 
per  conoscere  profondamente  le  tendenze  delle  scuole  giuridiche,  e 
dei  grandi  giureconsulti  del  secolo  XIV,  e  la  influenza  che  poterono 
esercitare  sulla  societa,  tanto  piu  che  il  Bartolo  fu  il  primo  legista 
che  scrisse  dei  veri  e  proprii  trattati  politici." 


IV]  CONCLUSION  391 

from  the  company  of  medieval  thinkers.  Rightly  or 
wrongly,  we  have  attempted  in  this  essay  to  give  the 
term  "  medieval "  a  purely  chronological  meaning. 
"  Medieval  political  thought "  has  meant  all  such 
political  thought  as  was  produced  in  the  odd  thousand 
years  known  as  the  Middle  Ages.  The  political  theories 
of  Gregory  VII,  or  of  Aquinas,  or,  of  Bartolus,  or  of 
Petrarch  have  for  us  been  all  equally  "medieval." 

The  truth  is  that,  though  in  certain  regards  the 
Middle  Ages  are  a  single  period,  within  that  period 
there  are  divisions,  which  cannot  be  disregarded.  Not 
only  in  the  Middle  Ages,  as  indeed  in  all  other  ages, 
were  actual  political  conditions  continually  changing 
the  matter  and  direction  of  political  thought,  but, 
further,  both  the  matter  and  the  manner  of  political 
thought  were  being  continually  changed  by  an  influx  of 
new  material  for  thought.  In  the  early  Middle  Ages,  i 
the  so-called  Dark  Ages,  the  one  material  was  theology 
— the  dominating  influence  was  that  of  S.  Augustine. 
But  from  the  end  of  the  eleventh  century  to  the  close 
of  the  thirteenth  century,  the  history  of  political 
thought  is  marked  first  by  the  Bolognese  revival  of 
Roman  Law,  and  secondly  by  the  reintroduction  of 
Aristotle's  Politics  into  western  Europe;  it  has  been 
one  of  the  main  theses  of  this  essay  that,  in  the  later 
Middle  Ages,  we  have  to  distinguish  those  political  con- 
ceptions and  theories  which  are  based  on  Justinian's 
Law  Books  from  those  which  are  based  on  Aristotle's 
Politics.  To  understand  the  modern  State  it  is  not 
enough  to  go  back  to  Aristotle's  TroXt?;  we  have  to 
go  back  to  the  theologians  "  Ci vitas  Dei"  and  to 
the  lawyer's  "  Ci  vitas  sibi  princeps."  The  English 


392  CONCLUSION  [CH. 

crown,  it  is  well  to  remember,  was  "  Imperial "  long 
before  we  had  a  colonial  Empire ;  the  idea  of  the  State 
as  containing  many  churches  and  religions  is  so  new,  as 
to  be  still  unacceptable  to  many.  To  understand  the 
modern  State  the  Middle  Ages  must  surely  receive  as 
ample  and  detailed  a  study,  as  the  ancient  world  or  the 
modern  world  itself.  And  to  understand  how  the 
modern  State  has  become  "  Imperial,"  and  what  that 
signifies,  we  must  go  back  to  the  medieval  civilian  and 
his  "  Civitas  "  or  (<  Rex  sibi  princeps." 

The  Renaissance  brought  with  it  new  ideals  and 
new  methods,  and  it  is  because  we  are  still  under  their 
fast  fading,  but  still  living,  influence,  that  it  is  by  no 
means  easy  for  us  to  do  justice  to  a  man  like  Bartolus. 
We  too,  like  Laurentius  Valla,  must  feel  a  little  con- 
tempt for  any  man  who  wrote  such  very  bad  Latin. 
The  ideal  of  our  education  is  still,  to  a  great  extent, 
Colet's  "  good  literature,  both  Latin  and  Greek  " — 

Choice  Latin,  picked  phrase,  Tully's  every  word — 
and  it  would  be  pedantic  to  pretend  that  our  attitude 
is  altogether  wrong.  The  style  and  method  of  Bartolus 
are,  it  may  be  owned,  to  a  great  extent  barbarous; 
only,  barbarous  or  not,  he  is  important  and  is  influ- 
encing our  thought  and  our  lives  at  this  moment. 
Bartolus,  it  is  true,  ceased  at  the  Renaissance  to  be 
the  unquestioned  "princeps  jurisconsultorum";  for  the 
people,  who  cared  for  letters,  he  was  merely  one  of 
those  "  old  mastiffs  who  never  understood  the  least 
law  of  the  Pandects1."  But  there  were  many,  then 
as  now,  who  cared  little  for  letters.  Bartolus  did  not 
lose  his  hold  on  the  courts.  The  Roman  Law  which 
1  Vide  Eabelais,  n.  10,  p.  220  (Urquart's  transl.). 


iv]  CONCLUSION  393 

Germany  "  received,"  was  the  law  which  Bartolus  and 
his  followers,  the  Bartolists,  had  evolved.  Moreover, 
among  those  who  cared  for  letters,  there  were  some  who 
thought  differently  from  Cujas  and  Rabelais.  Both 
Albericus  Gentilis  and  Bodin  were  Bartolists.  Alberi- 
cus  wrote  a  special  work  to  defend  the  Bartolists 
against  the  "Novitii1."  Bodin,  in  attacking  Cujas, 
tells  us  that  he  too,  when  he  only  taught,  despised 
the  Bartolist  tradition,  but  that  he  learned  to  think 
differently  after  the  experience  of  practical  work: — 
"Fuit  enim  tempus  illud,  cum  Populi  Romani  jura 
publice  apud  Tolosates  docerem,  ac  valde  sapiens  mihi 
ipsi  viderer  in  adolescentium  corona:  illos  autem  juris 
scientiae  principes,  Bartolum  inquam,  Baldum...nihil 
aut  parum  admodum  sapere  arbitrarer:  postea  vero 
quam  in  foro  jurisprudentiae  sacrae  initiatus,  ac  diurno 
rerum  agendarum  usu  confirmatus  sum,  tandem  ali- 
quando  intellexi  non  in  scholastico  pulvere,  sed  in  acie 
forensi,  non  in  syllabarum  momentis,  sed  in  aequitatis 
ac  justitiae  ponderibus  veram  ac  solidam  juris  sapien- 
tiam  positam  esse2." 

1  Vide  his  De  Juris  Interpretibus  Dialogi  Sex.  Throughout  he 
recognises  that  the  chief  ground  of  attack  against  the  Bartolists  is 
humanistic:  he  allows  the  superiority  of  the  Novitii  as  humanists. 
Vide  Dialogus  n.  p.  23:  "Vix  tamen  est,  ut  in  hoc  interpretations 
genere,  quod  analogicum  dicunt,  novitii  Bartolum  lacessant,  sed  in 
etymologico:  bonarum  litterarum  rudem  clamant."  Again  on  p.  24 
verso :  ' '  Modo  etiam  dicebamus,  in  etymologica  interpretatione  novitios 
interpretes  valere  plurimum,  in  analogica,  quae  propria  nostra  est, 
minimum." 

3  Vide  the  Introductory  Latin  letter  to  the  De  La  Republique.  It 
is  interesting  to  note,  at  the  same  time,  how  Bodin  turns  the  tables 
on  Cujas.  Cujas  is  accused  of  preferring  Apuleius  to  Cicero— 
Apuleius  "qui  primus  foeda  barbaric  Latini  sermonis  puritatem... 
conspurcavit." 


394  CONCLUSION  [CH.  IV 

The  fact  that  these  two  thinkers,  whose  influence 
will  not  easily  be  overrated,  are  here,  in  the  early  years 
of  the  history  of  modern  thought,  definitely  inscribing" 
themselves  as  "  Bartolists,"  is  of  immense  significance. 

But  the  influence  of  Bartolus  has  not  been  restricted 
to  those  who  consciously  accepted  him.  Bartolus  is- 
important,  not  because  of  the  direct  influence1  which 
he  has  exerted  over  this  or  that  thinker,  but  because 
the  doctrines  which  he,  and  the  medieval  lawyers  in 
general,  had  evolved  in  expounding  their  law,  passed 
into  general  currency  through  the  works  of  political 
thinkers  proper.  Our  world  is  little  like  the  world  of 
the  medieval  civilian ;  but  he  has  played  no  small  part 
in  forming  it. 

J  With  the  exception  perhaps  of  the  Tract,  de  Tyrannia,  on  which 
vide  Figgis,  Bartolus  and  the  Development  of  European  Political  Ideas, 
pp.  162-3.  Salvimeni,  in  his  La  Teoria  di  Bartolo  da  Sasxoferrato 
sulle  Costituzioni  Politiche,  points  out  that  Bartolus  in  his  Tract,  de 
Reg.  Civ.  forestalls  Montesquieu's  theory  of  the  relative  value  of  the 
different  forms  of  polity.  He  will  not  decide,  however,  whether  there 
is  any  direct  connexion.  It  certainly  seems  improbable.  As  a  matter 
of  fact,  Bartolus  is  not  the  only  thinker  before  Montesquieu  to  main- 
tain this  theory.  Dr  Figgis  mentions  Savonarola  (op.  cit.  p.  161)  - 
Vide  also  John  of  Paris  (above,  p.  351),  and  Gierke,  Johannes  Althusius* 
p.  61,  note  21. 


APPENDIX  A 

I  have  attempted  to  collect  here  one  or  two  points 
in  the  life  of  Bartolus,  wherein  Savigny  needs  either 
correction  or  amplification. 

(1)  According  to  Savigny,  following  Pellini  and 
Vermiglioli,  the  family  of  Bartolus  had  originally  been 
called  Severi,  the  name  being  altered  to  Alfani,  in 
honour  of  a  nephew  of  Bartolus,  one  Alfanus,  a  man,  it 
appears,  of  some  importance.  Rossi1,  however  (vol.  vi. 
p.  239),  shows  that  the  family  name  was  originally 
Bentivogli — "  il  merito  di  questa  scoperta,"  he  says, 
"devesi  ad  Antonio  Brandimarte  minor  conventuale, 
che  nel  1827  scrisse  al  gonfaloniere  di  Sassoferrato 
di  aver  trovato  nell'  archivio  notarile  di  detta  terra  fra 
i  rogiti  di  Buzio  Bondimandi,  sot  to  il  giorno  5  febbraio 
1335  che  'N.N.  fuerunt  confessi  recepisse  in  societatem 
a  Cicco  Bonacursii  Bentevoli  de  Saxoferrato  tres  vac- 
cas/  "&c."  Bernabei2  says  that  this  had  already  been 
noted  by  Sansovino.  It  was  the  mother  of  Bartolus,  he 
maintains,  who  belonged  to  the  Severi,  and  whose  family 
changed  their  name  to  Alfani  in  the  fifteenth  century. 
Bartolus'  will,  in  Rossi  (vi.  p.  49,  No.  100),  gives  us  a 
great  deal  of  information  about  his  family.  Vide  also 
Rossi  VI.  pp.  240-9  for  some  interesting  particulars 

1  Vide  p.  1,  note  1  above. 

2  Bartolo  da  Sassoferrato  e  la  Scienza  delle  Legyi,  p.  17. 


396  APPENDIX   A 

as  to  his  houses  and  on  the  fate  of  his  tomb  in 
Perugia. 

(2)  The  most  disputable  period  in  the  life  of  Bartolus 
is  between  the  date  of  his  doctorate  (Nov.  1334  according 
to  the  diploma,  first  printed  by  Lancellotti,  Vita  Bartoli) 
and  the  date  of  his  first  Professorship,  at  Pisa,  which 
Savigny  shows  to  have  begun  in.  1339.  We  know,  to 
begin  with,  that  Bartolus  was  Assessor  both  at  Todi  and 
Pisa1,  before  he  began  to  teach  at  Pisa;  while  he  is  fur- 
ther reported  to  have  been  Assessor  at  Cagli  and  to  have 
taught  at  Padua  and  Bologna.  Finally,  the  "  magnum 
tempus,"  which  Bartolus  records  that  he  spent  near 
Bologna  at  S.  Victor — probably,  as  Savigny  says,  in  a 
religious  house — "ad  studendum  et  revidendum  libros 
per  meipsum,"  must  also  fall  within  this  period. 

Fable  has  explained  this  retreat  as  a  forced  retire- 
ment in  consequence,  either  of  an  unjust  sentence  of 
death,  or  the  over-torture  of  a  young  man,  for  which 
Bartolus,  as  Assessor,  was  responsible.  Savigny,  and 
most  modern  writers,  reject  this,  and  rightly  so  far 
as  concerns  the  period  of  seclusion,  which  we  have 
no  evidence  to  think  anything  but  voluntary.  But 
that  Bartolus  had  been  guilty  of  over-severity  in  tor- 
ture is  but  too  true,  and  rests  on  the  unimpeachable 
evidence  of  the  following  passage  from  his  Comment, 
on  the  Dig.  Nov.  Part  II.2 — "Sed  quid  si  judex  torsit 
aliquem  tantum  quod  mortuus  est  ?...Videtur  dicendum 
judicem  teneri.  Breviter  dico  sic.  Si  judex  excessit 
modum  consuetum  et  modum  qui  debebat  adhiberi 
secundum  qualitatem  personae  torsae,  tenetur,  alias 
secus.  Hoc  incidit  mihi,  quia  dum  viderem  juvenem 

1  Vide  above,  chap,  i.,  p.  3.  2  (D.  XLVIII.  18.  7)  p.  536. 


APPENDIX   A  397 

robustum,  torsi  ilium,  et  statim  fere  mortuus  est,  et 
ideo  inspiciendum  est  an  possit  judici  imputari  culpa  et 
similia."  This  passage  is  clearly  the  origin  of  the 
whole  story ;  and  so  far  as  it  goes,  it  cannot  be  denied. 
But  it  gives  us  no  warrant  for  connecting  the  period  of 
solitude  with  this  incident,  nor  does  Bartolus  tell  us 
whether  it  had  any  consequences  as  regards  himself 
— whether  it  ended  his  Assessorship,  or  whether  it 
happened  at  Pisa  or  at  Todi1. 

We  cannot  fix  the  dates  of  the  period  of  retreat  or 
of  the  Assessorships  at  Pisa  and  Todi  exactly,  but  we 
may  confidently  place  all  these  events  within  the  period 
Nov.  1334-39.  Further,  they  are  the  only  events 
of  which  we  can  be  certain  within  those  dates. 

The  Assessorship  at  Cagli  is  reported  by  Mazzu- 
chelli  (Scrittori  d' Italia,  s.v.  Bartolo,  p.  461,  note  10)  on 
the  strength  of  a  document,  according  to  which  Bartolus. 
it  seems,  is  named  as  Assessor  there  in  1340.  This 
date  seems  almost  impossible,  if  Bartolus  began  to  teach 
in  1339  at  Pisa ;  but,  on  the  other  hand,  an  Assessor- 
ship  at  Cagli  is  not  impossible  in  itself;  and  one  very 
interesting  passage  in  his  works  points  to  his  having 
had  some  first-hand  knowledge  of  the  place2. 

1  It  is  worth  noting  that  in  his  Comment,  on  Dig.  Nov.  Part  n. 
(D.  XLvm.  18.  15),  p.  542,  Bartolus  supports  the  Gloss,  in  opposition  to 
Azo,  in  maintaining  that  "liberi  homines  viles,  ut  artifices  facientes 
viles  artes,  obscuri  et  ignoti  forsan,"  can  give  evidence  without  tor- 
ture, and  in  his  Comment,  on  D.  XLVIII.  8.  1,  he  says  that  "potestates 
et  rectores  terrarum,  qui  cogunt  testes  per  tormenta,  ut  dicant  falsum," 
are  amenable  to  this  Lex  Cornelia  (p.  490). 

2  Comment,    on  Dig.    Nov.    Part  i.    (D.   XLIII.    10.    1),   p.   434: 
"Quandoque  est  deterius  viam  esse  multum  amplam.     Ita   vides 
hie. ..In  quo  autem  ista  deterioratio  fit,  si  est  magis  ampla,  cogi- 
tabitis:   tamen  dico  vobis  quod  ego  vidi  in  quadam  civitate:   cum 


398  APPENDIX    A 

The  Professorship  at  Padua  has  no  evidence  what- 
ever to  support  it,  and  seems  to  rest  on  a  single 
statement  of  Caccialupus,  a  fifteenth-century  writer. 
I  have  found  no  evidence  in  Bartolus  to  corroborate  it 
in  any  degree. 

The  Professorship  at  Bologna  was  accepted  by 
Savigny,  though  he  acknowledged  the  difficulties  in 
the  way  of  doing  so.  Bartolus  is  supposed  to  have 
succeeded  his  master,  Raynerius  Forlivensis,  at 
Bologna,  and  to  have  been  bitterly  attacked  by 
Raynerius  for  controverting  his  opinions1.  Now, 
Bartolus  was  the  colleague  of  Raynerius  at  Pisa,  and 
there,  we  know,  was  on  good  terms  with  him2;  and  it 
has,  in  fact,  been  shown  conclusively  by  Lattes,  Un 
Punto  Controverso  nella  Biographia  di  Bartolo*,  that 

ibi  essent  multae  viae  amplae,  posita  fuit  necessitas  hominibus  cir- 
cumhabitantibus  occupandi  et  restringendi  eas.  Eatio,  quia  quando 
tumultus  erat  in  civitate  propter  viarum  latitudinem,  ci vitas  reddebatur 
debilior  ad  defendendum,  et  hoc  fuit  in  civitate  Calii."  Cagli  is 
mentioned  again  in  Comment,  on  Dig»  Nov.  Part  n.  (D.  L.  1.  27, 
§  Celsus),  p.  653,  §4. .."In  civitate  Calii,  quae  fuit  destructa  in  uno 
loco  et  reposita  in  alio  ejusdem  territorii." 

1  Lancellotti,  Vita  Bartoli,  pp.  73  and  ff.,  we  may  perhaps  note 
here,  has  exposed  the  fable  of  the  supposed  quarrel  between  Bartolus 
and  Baldus.  Kenan,  Averroes  et  VAverrolsme,  p.  33,  compares  it 
with  the  fable  of  the  quarrel  between  Avicenna  and  Averroes. 

3  Vide  Comment,  on  Dig.  Nov.  Part  n.  (D.  XLV.  1.  73,  §  Stichii), 
p.  84:  "Et  hoc  tenent  omnes  doctores  excepto  do.  Kay.  et  magno 
tempore  tenuit  istam;  postea  mutavit  opinionem...Postquam  dixi  sibi 
istud,  cum  semel  Pisis  legeremus;  ipse  respondit...Sed  dum  legebam 
Pisis,  sequendo  Cassium,  qui  sententiam  magistri  sui  bene  excusat, 
dixi  eum  bene  dicere." 

3  Turin  1898.  We  may  quote  the  conclusion  of  his  pamphlet 
(p.  12):  "Da  questi  fatti.si  pud  concludere  che  le  parole  ingiuriose  e 
le  critiche  acerbe  contenute  negli  ultimi  paragran  della  repetitio  di 
Ranieri  sulla  1.  Omnes  Populi  non  si  riferiscono  a  Bartolo,  sebbene 
la  maggior  parte  di  quello  scritto  sia  rivolta  contro  di  lui:  Ranieri 


APPENDIX   A  399 

the  "  Repetitio  "  on  the  law  "  Caesar,"  the  doctrines  of 
which  Raynerius  attacks  with  especial  bitterness,  was 
not  composed  by  Bartolus  at  all,  but  is  to  be  ascribed 
to  Signorolus  de  Homodeis,  a  Milanese  contemporary, 
also  a  pupil  of  Raynerius;  and  that  it  was  he,  not 
Bartolus,  who  succeeded  Raynerius  at  Bologna.  There 
can  be  little  doubt  that  Lattes  is  correct — neither 
Bartolus  nor  Baldus  mention  this  Professorship,  nor 
have  I  found  any  incidental  references  to  it1. 

(3)  In  the  printed  editions  of  Bartolus  the  "  Repe- 
titio "  on  the  law,  D.  xxxi.  1.  66,  §  Duorum  (Comment, 
on  Infort.,  Part  II.),  is  subscribed  as  follows: — "Hie 
§  fuit  repetitus  per  me  Bartolum  de  Saxoferrato  mini- 
mum inter  legum  doctores  nunc  infortiatum  legentem 
in  alma  civitate  Pisarum  sub  anno  Domini  1351  de 
mense  Junii."  If  this  subscription  were  correct,  it 
would  mean  that  Bartolus  returned  to  Pisa  some  time 
before  1351 — and  such  an  hypothesis  has  been  adopted2. 
Bub  Savigny  rightly  saw  that  this  was  unlikely,  and 
noted  that  either  the  date  or  the  name  of  the  town 
must  be  wrong — which,  he  did  not  decide.  The  evi- 
dence of  such  MSS.,  as  I  have  been  able  to  see,  points 

prese  di  mira  Signorolo  Omodei,  vero  autore  della  repetitio  sulla  1. 
Caesar,  e  che  veramente  successe  al  maestro  nello  studio  di  Bologna, 
cosicche  anche  1'  unico  argomento,  che  poteva  tuttavia  addursi  intorno 
all'  insegnamento  di  Bartolo  in  quell'  universita,  apparisce  al  tutto 
infondato."  The  doctrines  of  Bartolus  which  Kaynerius  attacks — 
but  without  bitterness— are  in  his  Kepetitio  on  the  law  "Omnes 
Populi"  (D.  i.  1.  9). 

1  In  Comment,  on  Infort.  Part  i.  (D.  xxvu.  9.  3,  §  Si  pupillus), 
p.  248,  Bartolus  says:   "Et  induxi  istum  §  in  prima  vice  quando 
redii  de  Bononia,  in  argumentum  ad  quaestionem...,"  but  this  can 
refer,  of  course,  to  his  return  after  taking  his  doctor's  degree. 

2  By  Bernabei,  e.g.  op.  cit.  p.  32. 


400  APPENDIX   A 

undoubtedly  to  the  conclusion  that  the  date  is  wrong, 
and  that  it  ought  to  be  1341.  All  the  MSS.  agree 
in  having  Pisa  as  the  name  of  the  place ;  in  a  MS.  of 
the  British  Museum  (Add.  34,748),  the  "  Repetitio  "  is 
subscribed  as  follows — "Repetitio  predicta  facta  fuit  per 
me  Bartollum  de  sasso  ferrato  minimum  inter  legum 
doctores  nunc  infortiatum  legentem  in  alma  civitate 
pisarum  sub  anno  domini  mcccxlj  de  mense  Junii" 
(fol.  139  verso).  This  MS.,  it  may  be  added,  is  exceed- 
ingly good  authority,  since  it  was  completed  in  1378, 
that  is  to  say,  scarcely  more  than  twenty  years  after 
the  death  of  Bartolus ;  but  its  evidence  is  balanced  by 
that  of  another  fourteenth-century  MS.,  at  Peterhouse, 
Cambridge,  where  the  subscription  runs: — "  Hie  §  fuit 
repetitus  per  me  Bar.  de  saxofer.  minimum  inter  legum 
doctores  nunc  infortiaturn  legentem  in  alma  civitate 
pisarum  sub  anno  mcccli  de  mense  Junii"  (fol.  28  of 
Part  II.  The  MS.  is  no.  36  in  Dr  James'  Catalogue). 
It  is,  however,  far  more  probable  that  an  "  x "  has 
slipped  out  than  in — and  this  is  borne  out  by  the 
evidence  of  a  fifteenth-century  MS.  at  Pembroke 
College,  Cambridge  (No.  138  of  Dr  James'  Catalogue). 
Here  the  subscription  runs — "Hie  §  fuit  repetitus  per 
me  Bartholum  de  Saxo  ferrato  minimum  inter  doc- 
tores nunc  infortiatum  legentem  in  civitate  pisarum 
sub  anno  Mccc  et  hoc  de  mense  Junii "  (fol.  72 
verso).  Now  it  is  clear  that  the  date  Mccc  is  wrong 
and  that  "  et  hoc "  has  no  meaning  whatever1 ;  and 

1  Similarly  in  a  fifteenth-century  MS.  at  Venice  (Bibl.  Naz.  Cod. 
com.  Bess.),  fol.  66,  we  read:  "Hie  §  fuit  repetitus  per  me  Bar.  de 
saxoferrato  minimum  inter  legum  doctores  nunc  inforciatum  legentem 
in  alma  civitate  pisarum  sub  anno  M°  hoc  de  mense  Junii."  In 
a  Florence  MS.  (Bibl.  Naz.  MSS.  -Magi.  xxix.  25),  fol.  173,  the 


APPENDIX   A  401 

Mr  Minns,  librarian  of  Pembroke,  who  kindly  showed 
me  the  MS.,  suggested  to  me  that  the  "  et  hoc "  was 
nothing  more  than  a  misreading  by  the  copyist  of  "xlj." 
We  may  therefore  say  that  the  date  of  the  "  Repetitio  " 
should  probably  be,  as  in  the  British  Museum  MS., 
1341,  and  that  Bartolus  did  not  go  as  Professor  a 
second  time  to  Pisa,  the  only  evidence  for  the  second 
Professorship  being  the  subscription  to  this  "Repetitio," 
as  printed. 

(4)  Savigny's  list  (in  op.  cit.  vol.  VI.,  Anhang  in.)  of 
the  dates  of  the  Professorships  held  by  Bartolus  may 
be  supplemented  as  follows: — . 

1341 — The  subscription  of  the  "Repetitio"  on 
D.  xxxi.  1.  66,  §  Duorum,  which  we  have  just  been 
considering. 

1342 — "  Deo  Gratias,  repetitus  fait  praesens  §  per 
me  Barto.  de  Saxoferrato  in  civitate  felici  Pisarum 
1342  die  15  mensis  Novembris"  ("Repetitio"  on  D. 
XLV.  1.  4,  §  Cato,  p.  23). 

1343 — '•'  Repetita  fuit  per  me  Bart,  minimum  juris 
doctorem  in  felici  civitate  Perusii  a.  d.  1343  die  29  Mar. 
quae  mea  dicta  cujuslibet  melius  sententientis  correc- 
tioni  submitto  "  ("  Repetitio  "  on  D.  xvi.  3.  32,  p.  326). 

1344 — As  regards  the  "  Repetitiones "  mentioned 
by  Savigny  under  this  date,  on  the  authority  of  Bini 
and  Merkel,  vide  Rossi,  vol.  v.  p.  306,  who  says — "e 
il  mio  debito  notare  che  nessuno  dei  molti  scritti  di 
Bartolo  raccolti  nei  codici  della  Communale  di  Perugia 
...reca  la  data  del  1344." 

1345 — "Repetita  per  me  Bar.  de  Saxoferrato... in 

' '  Kepetitio  "  is  signed — ' '  Eepetitus  per  me  Bartolum  de  Saxoferrato '  '- 
but  undated. 

w.  26 


404  APPENDIX   B 

Vide  Comment,  on  Infort.  Part  II.  (D.  xxxvui.  11.  6) 
p.  539 :  "  Item  habes  quod  per  sola  sponsalia  contra- 
hitur  affinitas...et  ibi  quod  nuptiae  debent  esse  nuptiae 
licitae. .  .ut  excludant  conjunctiones  illicitas  et  nefarias. . . 
Et  hoc  de  jure  civili.  De  jure  canonico  est  totum 
contrarium...Et  pro  hoc  fuit  quaestio.  Hie  est  statu- 
tum  quod  non  potest  aliquis  esse  potestas  vel  capita- 
neus,  qui  esset  affinis  alicujus  nobilis:  modo  fuit  electus 
quidam  dominus  de  Guido  Faventia  potestas  hujus 
civitatis,  qui  contraxit  .sponsalia  cum  quadam  nobili. 
Quaerebatur  an  esset  affinis.  Dominus  Recuperatus, 
quia  ego  non  eram  hie,  dixit  quod  de  jure  suo,  affinitas 
non  contrahebatur  nisi  per  copulam  carnalem:  tamen 
bene  dixit  de  jure  suo,  quia  potuit  dicere  quidquid 
voluit  de  jure  suo,  etc."  Bartolus  mentions  this 
Recuperatus  or  Recuperus  on  at  least  two  other  oc- 
casions :  once  as  having  given  a  "  consilium  "  "  bene  " — 
"  et  ita  sensimus  nos  omnes,"  vide  Comment,  on  Codex, 
Part  n.  (C.  VI.  25.  2)  p.  55— and  on  the  other  occasion 
as  having  given  a  "consilium"  along  with  Bartolus 
himself1  and  Franciscus  de  Tigrinis,  vide  Comment,  on 
Infort.  Part  IT.  (D.  xxxi.  1.  89,  §  Imperator)  p.  139,  §  11. 
This  seems  to  show  that  Recuperatus  was  a  colleague 
of  Bartolus.  He  must  have  been  considerably  older 
than  Bartolus,  since  he  was  also  a  colleague  of  Cino ; 
two  "consilia"  printed  by  Rossi — vide  vol.  v.  p.  312 
and  documents  no.  56  (pp.  121-2)  and  57  (pp.  123-4)— 
are  signed  by  Cino,  Recuperatus  and  another.  Bini, 

1  Among  the  additional  Consilia,  first  printed,  as  far  as  I  know,  in 
the  Venice  ed.  of  Bartolus  (1596),  occurs  one  (no.  xxi.  p.  188  verso) 
subscribed  both  by  a  "Recuperius  de  Sancto  Miniato"  and  by 
Bartolus. 


APPENDIX  B  405 

Memorie  Istoriche  della  Perugina  Universita,  Vol.  i. 
Part  I.  p.  181,  mentions  him  as  becoming  Professor  of 
Canon  Law  in  1322,  and  as  going  in  the  same  capacity 
to  Florence  in  1334.  Bartolus  came  to  Perugia  in  1343. 
There  is  no  difficulty  as  regards  the  first  reference 
above,  since  Bartolus'  words  "  non  eram  hie  "  would  well 
accord  with  these  dates,  but  the  other  two  references 
look  as  if  Recuperatus  and  Bartolus  were  colleagues. 
Perhaps  Recuperatus  had  returned  to  Perugia. 


APPENDIX   C 

The  following  passage  from  the  Comment,  on  the 
Digest  of  Bartolus  will  illustrate  the  relations  of  Juris- 
dictio  and  Imperium.  "Quaero,"  says  Bartolus1,  "utrum 
imperium  merum  et  mixtum  comprehendantur  sub  hoc 
genere,  quod  est  jurisdictio?  Quidam  dicunt  quod  non 
per  hanc  legem  (D.  n.  1.  3).  Ponuntur  enim  hie  ut 
species  separatae,  jurisdictio  ab  imperio.  Glossa  tenet 
contrarium  et  bene...Est  ergo  jurisdictio  genus.  Item 
quaero,  quot  species  contineat  sub  se  jurisdictio,  prout 
est  genus.  Resporidit  glossa,  quatuor — merum  et 
mixtum  imperium,  coercitationem  modicam  et  simpli- 
cem  jurisdictionem,  et  sub  his  omnes  comprehenduntur. 
Et  hoc  modo  dividit  Jac.  de  Arena ;  et  Gul.  de  Cunio 
ponit  coercitationem  modicam  sub  mero  imperio,  et 
sic  ponit  tres  species  tantum.  Certe  ista  non  videntur 
vera:  nam  merum  et  mixtum  imperium  non  sunt  species 

1  Comment,  on  Dig.  Vet.  Part  i.  (D.  n.  1.  3),  p.  164,  §  4.     Cf. 
Tract,  de  Jurisdictione,  §§34-5,  p.  396. 


406  APPENDIX   C 

jurisdictionis  immediate.  Non  enim  jurisdictio  divi- 
ditur  in  merum  et  mixtum  imperium,  sed  imperium 
simpliciter  sumptum  dividitur  in  merum  et  mixtum. 
Die  ergo,  secundum  Petrum,  quod  jurisdictio  in  genere 
sumpta  dividitur  in  duas  species,  scilicet  in  imperium 
simpliciter  sumptum  et  in  speciem  quae  est  juris- 
dictio...Item  imperium  subdividitur  in  merum  et 
mixtum."  But  perhaps  the  clearest  way  to  illustrate 
this  will  be  by  a  diagram :  it  will  have  the  additional 
advantage  of  showing,  by  its  subdivisions,  the  exact 
contents  of  Merum  et  Mixtum  Imperium.  Instead, 
therefore,  of  reproducing  the  long  discussion  by  Bartolus 
on  these  points,  we  shall  condense  the  whole  into  one 
diagram,  referring  generally  to  his  Commentary  on 
D.  II.  1.  31.  His  definitions  and  distinctions,  based 
upon  those  of  Petrus  de  Bella  Pertica,  became  the 
generally  accepted  treatment  of  the  matter ;  though  in 
certain  details  corrections  were  made  by  Jason  Maynus, 
one  of  the  most  famous  of  the  later  Bartolists. 

1  Pp.  163-6.  In  most  editions,  at  the  beginning  of  this  second 
book  of  the  Digest,  there  is  a  useful  abstract,  entitled  "Divisiones  et 
Declarationes  Jurisdictionum,"  compiled  from  Bartolus'  commentary 
and  the  corrections  of  Jason.  Some  editions  also  give  an  "Arbor" 
or  diagram,  which,  however,  is  merely  a  skeleton  with  no  details. 
The  following  diagram  I  have  based  in  part  upon  the  abstract ;  but  as 
that  frequently  does  not  reproduce  the  exact  words  of  Bartolus,  I 
have  throughout  quoted  direct  from  his  commentary,  and  referred  to 
the  pages  and  paragraphs,  from  which  the  quotations  are  taken. 


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INDEX 


Accursius,  Gloss  of,  vide  Gloss 

Adolf  (king  of  the  Komans),  307 

Agnes  (Empress),  59 

Albericus  (de  Eosate),  21,  33, 106, 
107,  380-1 

Albert  (king  of  the  Komans),  305, 
307,  332-5,  340 

Alexander  (of  Eoes),  228  n.  2,  230 

Alphonse  (of  Castille),  219 

Andreas  (de  Isernia),  373 

Anonymous  treatise  on  Bull 
Clericis  Laicos,  317  n.  1,  335- 
6,  343;  its  author,  336  n.  1 

Antichrist,  legend  of,  in  medieval 
thought,  67,  231,  239,  246,  257, 
299,  300,  325 

Apologists,  early  Christian,  and 
Empire,  54 

Aquinas  (S.  Thomas)  and  Ari- 
stotle, 112,  266;  Bartolus  a 
student  of,  17 ;  otherwise  men- 
tioned, 112,  266-75,  293,  325, 
327 ;  the  continuator  of  his  De 
Reg.  Prin.t  vide  Ptolemy  (of 
Lucca) 

Aristotle,  and  Aquinas,  112,  266; 
and  Bartolus,  8-9,  174-6,  385- 
7;  otherwise  mentioned,  112- 
3,  174-6,  266  and  ff.,  350-1, 
355-6,  385-7,  362,  391 

Arnold  (of  Brescia),  39,  116 

Assisi,  10,  126  n.  3 

Augustine  (Saint),  56,  62,  64-7, 
102,  280  and  ff.,  352,  359,  391 

Augustinus(Triumphus),106n.  1, 
317  n.  1,  328 

Authority,  8-9 


Baldus,  2,  380,  389,  398  n.  1 
Bartolus — Biographical :  Asses- 
sor, 3,  396,  397 ;  birth,  1,  4  n.  1 ; 
at  Bologna,  398-9 ;  and  Baldus, 
398  n.  1 ;  at  Cagli,  397 ;  and 
Charles  IV,  3-4,  24,  25  n.  2, 
28,  31, 177, 197 ;  consults  Pisan 
MS.  of  Digest,  7;  death,  4; 
doctor,  2 ;  early  life,  1-2 ; 
family-name,  395;  not  a  found- 
ling, 1  n.  2;  his  teachers,  2, 
17 ;  at  Padua,  398 ;  at  Perugia, 
2,  3,  10,  382,  401-2,  405;  at 
Pisa,  3,  396-7,  399-401;  and 
Eaynerius  Forlivensis,  398-9 ; 
his  colleague  Eecuperatus,  404- 
5;  retires  into  solitude,  3,  396; 
his  severity  as  judge,  396-7; 
his  colleague  Franciscus  de 
Tigrinis,  7,  10  n.  1,  404;  at 
Todi,  3,  115,  191,  397 

Theories  and  Opinions :  Aris- 
tocracy, 176,  178;  Authority, 
8-9 ;  Banniti,  200 ;  Castra, 
125-7;  Civitas,  and  bishopric, 
125-6;  Civitas,  a  corporation, 
123-4,  153,  160-1,  189,  195; 
Civitas,  what  constitutes  a, 
125-6;  Civitas,  the  Emperor 
de  jure  superior  of  every,  122- 
3, 138, 195-7;  Civitas,  external 
relations  of,  195-207;  Civitas, 
its  own  Fiscus,  119-22;  Civitas, 
internal  government  of,  174- 
95 ;  Civitas,  can  exercise  Me- 
rum  et  Mixtum  Imperium  by 
concession,  135-8,  by  prescrip- 


INDEX 


409 


tion,  138-42,  by  usurpation, 
136,  144;  Civitas,  its  right  to 
legislate,  144-54,  160-1;  Civi- 
tas, "sibi  princeps,"  154-60, 
188-9,  197-8,  368-9,  370; 
Civitas  and  Provincia,  142-4; 
Civitas,  a  Kespublica,  116-8, 
119, 120;  Civitas,  a  State,  108- 
9,  154,  160;  Civitas  and  war, 
198-9;  Canonist,  the  perfect, 
must  be  a  civilian,  14;  Canon 
Law,  vide  under  Law;  Civil 
Law,  vide  under  Law ;  Civilian, 
vide  under  Lawyer ;  Civilis 
Sapientia,  vide  under  Law, 
Civil  ;  Collisio  Statutorum, 
148;  Corpus  Juris,  in  part  a 
Pagan  work,  47-52;  Customs, 
vide  under  Statutes ;  Decu- 
riones,  182-8  ;  Democracy, 
177-8,  180-9;  Digest,  the,  a 
Pagan  work,  47-52;  Donation 
of  Constantine,  26,  89,  94-8, 
99-100;  Election,  more  divine 
than  succession,  24,  34-5 ; 
Electors,  the  German  princes, 
to  the  Empire,  29,  30,  36; 
Emperor,  the  Koman,  alone 
can  make  general  laws,  36-40, 
197  ;  Emperor,  bound  by  a 
compact,  46;  Emperor,  bound 
"de  voluntate"  by  his  own 
laws,  45-6;  Emperor  at  Con- 
stantinople, 28;  Emperor,  to 
dispute  his  power  sacrilege, 
perhaps  heresy,  24-5 ;  Emperor 
a  German,  28-30 ;  Emperor 
and  his  laws  subject  to  higher 
laws,  45-7;  Emperor,  cannot 
permit  usury,  47 ;  Emperor, 
his  place  taken  by  Law,  198, 
207;  Emperor,  his  power  de 
jure,  though  not  de  facto,  uni- 
versal, 21-5,  45,  122,  195-8, 
201,  204,  207;  Emperor,  needs 
Papal  approbation,  33-4;  Em- 
peror, recognised  by  Christ,  27'; 
Emperor,  must  respect  pro- 
perty, 46-7;  Emperor,  rights 
of,  before  coronation,  30-4 ; 
Emperor,  de  jure  superior  of 


all  Civitates,  122-3, 138, 195-7 ; 
Empire  (Roman),  clergy  a  part 
of,  26;  Empire,  a  delegation 
from  the  People,  34-6;  Empire 
"a  Deo,"  24,  35;  Empire, 
elective,  24,  34-5;  Empire, 
England  a  part  of,  26;  Em- 
pire, its  extent,  25-8;  Empire, 
France  a  part  of,  26;  Empire, 
necessity  of,  apart  from  Em- 
peror, 197-8 ;  Empire  and 
Papacy,  coordinate  jurisdic- 
tions of,  72-4;  Empire  and 
Papacy,  coordinate  territories 
of,  75-80,  99-100,  104;  Em- 
pire and  Papacy,  insincerity  of 
Bartolus,  in  discussing  rela- 
tions of,  98,  100,  211,  322, 
389 ;  Empire,  inferiority  of, 
to  Papacy  admitted,  86-100; 
Empire  and  Regna,  24,  26, 
107-12;  Empire,  territory  of, 
75-80,  99-100;  Empire,  trans- 
lation of,  to  Germans,  28-30; 
Empire,  de  jure  universal,  21- 
8,  195-8,  201-7;  Empire  a 
Universitas,  24,  45,  196-8 ; 
Factions,  189-95 ;  Fiscus,  119- 
22 ;  Ghibellines,  vide  Guelphs ; 
Gloss,  authority  of,  5-6,  9 ; 
Government,  best  form  of,  19, 
174-80 ;  Government  of  Civitas, 
dependent  on  people,  181-8 ; 
Government,  relative  value  of 
different  forms  of,  178,  180, 
394  n.  1 ;  Guelphs  and  Ghibel- 
lines, 189-95  ;  Jurisconsulti, 
authority  of,  9  n.  1 ;  Juris- 
consulti, Pagans,  47-52;  Jus 
Civile,  Jus  Commune,  Jus  Ca- 
nonicum,  Jus  Divinum,  Jus 
Gentium,  Jus  Naturale,  vide 
under  Law ;  Kings,  Bartolus 
little  concerned  with,  107-8; 
Kings,  origin  of  their  authority, 
24,  110;  Kings,  a  part  of  the 
Roman  Empire,  24,  26,  110- 
11;  Kings,  their  power,  110- 
12 ;  Law,  divine  nature  of,  12- 
13,  43;  Law,  Canon,  15-16, 
80-5,  402-5;  Law,  Civil,  12- 


410 


INDEX 


19;  Law,  Civil,  and  Canon 
Law,  15-16,  80-3,  402-5 ;  Law, 
Civil,  and  Divine  Law,  45,  52- 
3;  Law,  Civil,  and  the  Em- 
peror, 41,  44,  198,  207;  Law, 
Civil,  the  Common  Law  of  the 
Empire,  40-4,  198,  201-3  ; 
Law,  Civil,  and  Law  of  Na- 
tions, 45,  53;  Law,  Civil,  and 
Natural  Law,  45,  53;  Law, 
Civil,  and  Statutes,  150-2; 
Law,  Civil,  its  universal  va- 
lidity, 40-4 ;  Lawyer,  the  Civil, 
15-16;  Lawyer,  the  task  of  the 
Civil,  19-20 ;  Merum  et  Mixtum 
Imperium,  distinguishing  mark 
between  Ci vitas  and  Eegnum, 
26;  Merum  et  Mixtum  Impe- 
rium, Civitas  can  exercise  by 
concession,  135-8,  by  prescrip- 
tion, 138-42,  by  usurpation, 
136,  144;  Merum  et  Mixtum 
Imperium  and  Jurisdictio,  134- 
5,  405-7;  Merum  et  Mixtum 
Imperium,  privilege  of  kings 
and  Majores  Judices,  123,  126, 
142 ;  Merum  et  Mixtum  Impe- 
rium and  Regalia,  134;  Meta- 
physics, 12,  13;  Monarchy.  176, 
178-9 ;  Papacy  and  Empire, 
vide  under  Empire;  Papacy, 
its  right  of  depriving  the  Em- 
peror, 36;  Papacy,  submissive 
attitude  of  Bartolus  towards, 
34,  86-7,  98,  389;  Papacy, 
territory  of,  75-80,  99-100; 
Papacy,  a  universal  power,  79- 
80,  99;  Parvi  Populi,  125-7, 
179 ;  People,  the,  sovereign 
in  independent  Civitas,  177-9, 
181-9,  205;  Populi  Extranei, 
28,  198-9;  Populus  Romanus 
(in  wide  sense),  its  extent,  25- 
8;  Populus  Romanus,  its  re- 
lations with  Populi  Extranei, 
198-9;  Populus  Romanus  (in 
a  narrow  sense),  35;  Populus 
Romanus  and  the  Emperor, 
36-40;  Populus  Romanus,  its 
right  to  legislate,  36-40;  Re- 
galia, 134;  Reprisals,  203-7; 


Rome,  "communis  patria,"  29- 
40 ;  Senate,  corresponds  to  Col- 
lege of  Cardinals,  74;  Senate, 
right  to  legislate,  36-40;  Sta- 
tutes and  Customs,  144-54 ; 
Statutes  and  Customs,  and 
Civil  Law,  150-2 ;  Statutes 
and  Customs  and  higher  laws, 
148;  Theology,  12,  13,  14,  17, 
18,  19;  Text,  6-7;  Tyranny, 
162-73,  179-80;  Universitas, 
the  Empire  a,  24,  45,  196-8; 
Universitas,  ,the  Civitas  a,  123- 
4,  153,  160-1,  189,  195,  390; 
Villae,  7,  125;  World,  the 
Emperor  lord  of,  21-5;  World, 
division  of  de  jure  gentium,  HO 
Otherwise  mentioned :  and 
Aquinas,  17 ;  and  Aristotle, 
8-9,  175,  385-7;  authenticity 
of  his  treatise  De  Differentia, 
etc.,  16  n.  2;  authenticity  of 
his  comment,  on  Law  Caesar, 
399;  and  Dante,  17,  89,  90-1; 
his  sense  of  history,  49-52 ;  his 
independence,  7 ;  his  influence, 
392-4;  a  lawyer,  not  political 
philosopher,  4,  19-20,  387; 
judgment  of  Dr  Chiapelli  on, 
384-5,  388,  389,  390-1;  judg- 
ment of  Dr  Figgis  on,  384 ;  his 
patriotism,  30,  381;  a  Post- 
glossator,  4,  387  ;  practical 
character  of  his  work,  9-11, 
144,  162,  189-90,  193,  204, 
382-3 ;  has  no  political  system, 
20,  208 ;  and  Ptolemy  of  Lucca, 
88,  320-2;  his  style.  392;  wide 
range  of  his  knowledge,  17-18 

Bodin,  20  n.  1,  25  n.  2,  381, 
393-4 

Bologna,  Bartolus  at,  398-9;  re- 
vival of  Roman  Law  at,  4,  35, 
51,  70,  101-5,  131 

Boniface  VIII,  67,  315,  327,  332- 
7,  356 

Bonizo  (of  Sutri),  69  n.  1,  215 

Bulgarus,  23 

Buttrigarius  (Jacobus),  2,  38  n.  1, 
46 

Byzantinism,  55 


INDEX 


411 


Cagli,  397 

Canon  Law,  vide  under  Law 
Cardinals,  college  of,  74,  215 
Charlemagne,  nationality  of,  215- 
6,  238,  241,  255,  256,  342;  pro- 
phecies connected  with,  244-5; 
otherwise  mentioned,  57,   58, 
59,  61 

Charles  (of  Anjou)  and  the  Em- 
pire, 215-6,  245-6, 341-2;  and 
the  Papacy,  213-9;  senator  of 
Home,  213,  216 ;  king  of  Sicily, 
213,  218 

Charles  IV  (Emperor)  and  Bar- 
tolus, 3-4,  24,  25  n.  2,  28,  31, 
177,  197;   and  Italy,  28,  309, 
311 ;   praises  democracy,  177 
Charles  V  (Emperor),  388 
Chiapelli  (Dr),  his  judgment  on 
Bartolus,  384-5,  388,  389,  390- 
1 

Childeric,  deposition  of,  354 
Christendom,  western,  contermi- 
nous with  Populus  Komanus, 
28,  45;  unity  of,  27,  196-203, 
266,  368 

Christianity  and  the  Koman  Em- 
pire, 54-6 
Church    and    State,   vide   under 

State 

Cicero,  65,  297 

Cino  da  Pistoia  and  the  Canonists, 
16,  75;  and  the  Gloss,  5; 
master  of  Bartolus,  2;  and 
the  Ultramontani,  5 ;  otherwise 
mentioned,  32,  33,  40,  41-2, 
48,  308,  372 

Civilians,  vide  under  Lawyers 
Civil  Law,  vide  under  Law 
Civilis  Sapientia,  vide  under  Law 
Civitas,  Aristotelian  view  of,  112- 
3,  266-8,  274-5,  289-90,  350, 
379 ;  Civilian's  view  of,  113-4, 
116,  266-7,  379,  391 ;  Dei,  56, 
65-7,  391 ;  and  vide  under  Bar- 
tolus 

Clement  IV,  215,  216,  219 
Clement  V,  75,  76,  77,  93  n.  2 
Colonna  (Cardinal),  229-30 
Comitatus,  130-1 
Conciliar  Movement,  366 


Constance,  Peace  of,  133, 134, 137 

Constantine,  Donation  of,  vide 
under  Donation 

Corpus  Juris,  its  medieval  di- 
visions 12  n.  1 ;  in  part  a 
Pagan  work,  47-54 

Crassus  (Petrus),  69-70 

Cujas,  393 

Dante,  and  medieval  lawyers, 
21  n.  1;  otherwise  mentioned, 
2,  30,  91,  94,  303-9,  311,  312, 
368 ;  and  vide  under  Bartolus 

Disputatio  inter  Militem  et  Cleri- 
cum,  its  author,  342  n.  2; 
otherwise  mentioned,  362-4 

Donation  of  Constantine,  94, 315- 
23,  328-30,  343-50;  and  vide 
under  Bartolus 

Donatists,  66 

Dubois  (P.),  342 

Durandus  (G.),  32,  33,  373 

Egidius  (Eomanus),  112,  175, 
267,  273,  274,  387 

Electors  (to  the  Empire),  232, 
238,  320,  321,  341;  and  vide 
under  Bartolus 

Empire  (Eoman),  Aristotelian 
view  of,  113,  272-302,  350; 
Civilian's  view  of,  70-2, 101-7, 
113-4,  208-9,  267,  295-6,  362, 
378-81,  388-90,  391-2;  and 
England,  388  n.  2,  391  n.  2; 
and  France,  215-6,  341-70; 
and  Germany,  128-9,  220-5, 
231-4,  235-65,  312-4;  and  the 
Hohenstaufen,  35,  133-4,  209- 
10,  242,  263;  and  Italy,  128- 
30,  217,  220-5,  303-15;  neces- 
sity of,  226-7,  324-5;  and 
Papacy,  53-72,  101-7,  214  and 
ff . ;  a  ruling  power  within  the 
Church,  53-72,  101-7,  246-8, 
253,  263-5,  266,  296-302,  237, 
356-7;  projected  reform  of  by 
Clement  IV,  219,  by  Urban  IV, 
218,  by  Humbert  de  Komanis, 
220-4,  by  Nicholas  III,  221-2, 
224-5,  234-5 ;  and  vide  under 
Bartolus 


412 


INDEX 


Engelbert  (of  Admont),  his  trea- 
tise De  Ortu  et  Fine  Romani 
Imperil  analysed,  278-303  ; 
compared  with  Dante,  304 ; 
otherwise  mentioned,  106,  326, 
362 

England,  and  Empire,  388  n.  2, 
391-2;  opposition  to  Koman 
Law  in,  84;  a  part  of  Populus 
Eomanus,  26;  and  Papacy, 
331,  354  n.  1 

Faber  (J.),  374,  377-8 

Fazzio  (degli  Uberti),  312,  314-5 

Figgis  (Dr),  criticism  of  his  Res- 

publica  Christiana,  101-7  ;  his 

judgment  on  Bartolus,  384 
Florence,  daughter  of  Borne,  303 
France  and  Empire,  215-6,  341- 

70;  and  Papacy,  331-2,  340-1, 

343-50,  351-8 
Franks,  French,  215,   242,   342, 

344-6;  Germans,  235-42,  254-6 
Frederick  I,  132,  133,  191,  210, 

242-3 
Frederick    II,    134,   243-5,   260, 

307-8,  355,  358 
Frederick     (of     Meissen-Thurin- 

gen),  245 

Gelasius  II  (Pope),  55,  266,  296, 

361 

Gentilis  (Albericus),  201,  393-4 
Gerhard  (of  York),  68 
Germany,  the  Emperor  in,  28-30 ; 

and  Empire,  220-5,  231-4, 235- 

65,  312-4,  315 
Ghibellines,  vide  Guelphs 
Gloss,  4-5,  6,  117  n.  3,  210;  its 

opinions  mentioned,  23,  25,  49, 

97,  116,  362;  to  Decretals,  33; 

and  vide  under  Bartolus 
Glossators,   the,   4-5,    113,   146, 

208-9,  210,  379,  383,  387 
Gregory  I  (Pope),  163 
Gregory  V  (Pope),  320,  321 
Gregory  VII  (Pope),  57-64,  331, 

391 

Gregory  IX  (Pope),  329 
Gregory  X  (Pope),  214,  215,  216, 

226,  247,  341 


Grotius,  25-8,  201 

Guelphs  and  Ghibellines,  189-95, 

303-4 

Guido  (of  Perugia),  117 
Guillelmus   (de   Cunio),   38,  39, 

378  n.  1 

Henry  III  (Emperor),  57,  69 
Henry  IV  (Emperor),  50-61,  69 
Henry  VII,   76-8,    87,   89,  217, 

305-6,  308 
Henry  (of  Cremona),  317  n.   1, 

339,  358,  359 
Hincmar  (of  Kheims),  57 
Hippocrates,  8-9,  386 
Hohenstaufen,    and    Jordan    of 

Osnaburg,  242-4;  and  Notitia 

Saeculi,  259-63;  vide  also  under 

Empire 
Humbert  (de  Eomanis),  220-4 

Igneus  (J.),  373-4,  375,  377 

Imperialist  position  in  Investi- 
ture Struggle,  67-72 

Imperium,  vide  Empire 

Innocent  III  (Pope),  321,  331, 
338 

Innocent  IV  (Pope),  316,  355 

Interregnum,  214,  217,  234,  307, 
327 

Investiture  Struggle,  57-70,  127- 
30,  358 

Italy,  and  Empire,  217,  220-5, 
303-15 ;  communal  independ- 
ence in,  127-34 ;  northern,  after 
fall  of  Hohenstaufen,  212-3; 
southern,  after  fall  of  Hohen- 
staufen, 213-4 ;  and  Papacy, 
328-30 

Jacobus  (de  Ardizone),  32  n.  2 
Jacobus  (de  Arena),  32,  33 
Jacobus  (de  Belvisio),  2 
Jacobus  (de  Eavanis),  374,  375, 

376-7 

Jews,  28,  106 
Joachim  (of  Fiore),  257 
John  VIII  (Pope),  57 
John  (of  Bohemia),  173,  309 
John  (of  Paris),  343-7,  351-2, 

358-60,  364-8,  378,  394  n.  1 


INDEX 


413 


Jordan  of  Osnaburg,  reputed 
author  of  De  Praerogativa, 
227-31,  234-5;  Chapter  I  of 
the  treatise  analysed,  231-4 ; 
remaining  chapters  analysed, 
236-50 

Jurisdictio,  and  Merum  et  Mixtum 
Imperium,  127, 131,  135,  405-7 

Justinian,  45,  69,  71 

Kingship,  its  origin,  61-3 

Law,  Canon,  15-16,  83-5;  and 
vide  under  Bartolus 

Law,  Civil,  vide  under  Bartolus 

Law,  International,  148,  201, 
203 

Law,  Lombard,  84 

Law,  medieval  and  modern  views 
of,  compared,  42-3 

Law,  Roman,  hostility  to,  15-16, 
84,  369,  380;  and  medieval 
political  thought,  51-2,  70-2, 
101-7, 131, 208-9, 292, 295, 362, 
379-80,  389-90;  "reception" 
of,  44,  379,  393 ;  revival  of,  at 
Bologna,  4,  35,  51,  70,  101-5, 
131 

Lawyers,  work  of  the  medieval, 
390 

Leo  I  (Pope),  330 

Leo  IX  (Pope),  215 

Lewis  IX  (Saint),  348 

Lewis  (of  Bavaria),  86,  348 

Lex  Eegia,  35,  36 

Lucas  (de  Penna),  106  n.  1,  108 
n.  1 

Lupold  (of  Bebenburg),  312-4, 315 

Lyons,  first  council  of,  261 ; 
second  council  of,  220 

Martinus,  23 

Martinus  (Sulimanus),  38 

Marsiglio  (of  Padua),  21  n.  1,  72, 

354  n.  2 
Maternus  (Saint),  legend  of,  248- 

50 
Merum    et    Mixtum    Imperium, 

history  of  terms,  127-34;  and 

Jurisdictio,    127,   135,   405-7; 

and  vide  under  Bartolus 


Middle  Ages,  and  authority,  8; 

meaning  of  term,  391 
Montesquieu,  394  n.  1 

Nicholas  I  (Pope),  57 
Nicholas  III  (Pope),  329-30,  349 
Nicholas  (de  Neapoli),49,108n.  1 
Notitia   Saeculi,   analysed,   251- 
65;   its  author,  250  n.  1 

Occam  (William  of),  72,  94 
Oldradus  (de  Ponte),  2,  106  n.  1, 

380-1 
Optatus  (Saint),  54 

Padua,  398 
Panormitanus,  86 
Papacy,     Aristotelian    view     of, 
270-2;  belongs  to  Eomans  as 
"  seniores,"  233-4,  239,  253-4, 
264 ;  and  Empire,  vide  Empire ; 
and  England,  331,  354  n.   1; 
and  France,  331-2,  340-1,  343- 
50,  351-8 ;  and  northern  Italy, 
213-4;     and    southern    Italy, 
212-3;     and    Rome,    328-30, 
349;  Imperial  claims  of,  323-9; 
and  vide  under  Bartolus 
Papalist   position  in  Investiture 

Struggle,  57-67,  69  n.  1 
Paulus  (de  Leazaria),  93 
Pavo,  260-3;  its  date,  263  n.  1 
Peace,  66,  282,  305 
Perugia,  daughter  of  Rome,  303; 
independence  of,  78;  and  vide 
under  Bartolus 
Peter  (Friar),  1-2 
Petrarch,  2,  30,  305,  309-12,  391 
Petrus  (de  Bella  Pertica),  41,  374, 

375-6,  406 

Philip  III  (of  France),  341 
Philip  IV  (of  France),  315,  341-2 
Pisa,  vide  under  Bartolus 
Placentin,  37,  38,  39 
Plenitude  Potestatis,  330-1 
Postglossators,   5,  7,  208-9,  210 
Ptolemy  (of  Lucca) ,  reputed  con- 
tinuator   of  De  Eeg.  Prin.  of 
Aquinas,  269  n.  1;    otherwise 
mentioned,  275-8, 317-22 ;  and 
vide  under  Bartolus 


414 


INDEX 


Quaestio  de  Potestate  Papae,  347- 

8,  353-5,  360-1 
Quaestio    in    Utramque    Partem, 

348-50,  357,  358,  369-72,  380 

Eabelais,  18  n.  1,  393 
Eaynerius  (Forlivensis),  2,  398-9 
"Keception,"   the,  44,  379,  393 
Recuperatus,   colleague    of    Bar- 

tolus,  403-5 
Eegalia,  131-4 
Eense,  Diet  of,  34 
' '  Eex  in  regno  suo  est  Imperator 

regni  sui,"  109,  368-81,  392 
Eex  Eomanorum,  origin  of  title, 

30;   title  superseded,  34;  and 

vide  under  Bartolus 
Eichard  (of  Cornwall),  219 
Eienzi,  39,  116,  312 
Eobert  (of  Naples),  76-8,  312 
Eoman  Law,  vide  Law 
Eome,  and  the  Emperors,  306-7, 

311 ;  mother-city,  303 ;  and  the 

Popes,  328-30,  349 
Eoncaglia,  Diet  of,  132 
Eudolf  (of  Habsburg),  214,  217, 

221-2,    235,    246,     247,    248, 

307,  334 
Eudolf  (of  Swabia),  63 

Sacerdotium,  vide  Papacy 

Sandys  (Sir  E.),  388  n.  2 

Saracens,  28 

Savonarola,  394  n.  1 

Sicily,  212-3 

Sigismund  (Emperor),  388 

Signorolus  (de  Homodeis),    399 


Spoleto,  10,  126  n.  3 

State,  Aristotelian  view  of,  113, 
266  and  ff.,  350,  362,  368,  379; 
Civilian's  view  of,  70-2, 101-7, 
113-4,  208-9,  267,  295-6,  362, 
378-81,  388-90,  391-2;  and 
Church,  terms,  not  applicable 
to  early  Middle  Ages,  56;  and 
Church,  53-72,  101-7,  246-8, 
253,  263-5,  266,  296-302,  391 ; 
the  modern,  368,  379,  383,  391 

Statutes  and  Customs,  history  of, 
145-6;  and  vide  under  Bar- 
tolus 

Studium,  and  France,  239,  240, 
253-4 

Tartars,  28 

Text,  and  Glossators,  4-5;  and 
Postglossators,  5 ;  and  vide 
under  Bartolus 

Theologians,  hostility  of,  to  Eo- 
man Law,  15,  16 

Translatio  Imperii,  216,  234-5, 
245,  320-1,  344;  and  vide 
under  Bartolus 

Ultramontani,  5,  373-8 
Urban  IV  (Pope),  213,  218-9 

Valla  (Laurentius),  18  n.  1,  117 

n.  3,  392 
Venice,  1,  26,  41 

Worms,  Concordat  of,  129-30 
Zabarella  (Cardinal),  21  n.  1 


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